Lyko v Derkatch

[2018] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

LYKO v DERKATCH

[2018] SADC 90

Judgment of Her Honour Judge Schammer

30 August 2018

REAL PROPERTY - TORRENS TITLE - JOINT TENANCY AND TENANCY IN COMMON - SEVERANCE OF JOINT TENANCY

REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANTS IN COMMON - JOINT TENANCY - RIGHT OF OCCUPATION

REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT

EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - UNCONSCIONABLE CONDUCT

Ms Petrenko and Mr Tsiplakidis (now both deceased) purchased a property in Alberton (the property) as joint tenants in 1963. They have a daughter, the plaintiff.

In the early 1980s Mr Tsiplakidis voluntarily left the property to live elsewhere. Ms Petrenko continued to reside at the property.

On 3 July 2012 Ms Petrenko commenced these proceedings pursuant to the Domestic Partners Property Act 1996, seeking orders including an order that Mr Tsiplakidis transfer his interest in the property to her, or in the alternative, pay to her a sum as determined by the court.

On 4 March 2014 Mr Tsiplakidis executed a Memorandum of Transfer to effect the severance of the joint tenancy in the property. His solicitors and the Lands Titles Office made requests of Ms Petrenko, through her solicitors, to produce the duplicate Certificate of Title for the property to enable the Transfer to be registered. She did not do so.

There is a dispute as to whether Mr Tsiplakidis had capacity when he executed the Transfer and immediately thereafter.

Mr Tsiplakidis died on 19 December 2014 at a time when the Transfer remained unregistered. Ms Petrenko died in 2015. Her claim was dismissed by court order.

The defendant, as executor of the estate of Mr Tsiplakidis, seeks a declaration that the joint tenancy in the property was severed in March 2014, or at such other time, either by the unilateral action of Mr Tsiplakidis, or, in the alternative, by the mutual conduct of Ms Petrenko and Mr Tsiplakidis.

In the alternative, the defendant seeks a declaration that the plaintiff, as executor of the estate of Ms Petrenko, holds the property as to one half, or such other extent as the court may determine, on trust for the estate of Mr Tsiplakidis.

The defendant also seeks compensation from the plaintiff by way of occupation rent during a period when it is alleged Mr Tsiplakidis (and his estate) was denied the use and occupation of the property by Ms Petrenko and/or the plaintiff.

Held:

1.  Mr Tsiplakidis had capacity when he signed the Transfer on 4 March 2014.

2.  The instructions to lodge the Transfer for registration were likely given at the time of execution of the Transfer, despite the lodgement occurring on 11 March 2014.

3.  The steps taken by Mr Tsiplakidis to execute and lodge the Transfer and to request the production of the Certificate of Title by Ms Petrenko, both via his solicitors and the Lands Titles Office, did not effect a severance of the joint tenancy in the property.

4.  The joint tenancy in the property was not severed by the mutual conduct of Ms Petrenko and Mr Tsiplakidis.

5.  The circumstances are not such as to require equity to impose a constructive trust over half of the interest held in the property by the plaintiff, for the benefit of the estate of Mr Tsiplakidis.

6.  Ms Petrenko wrongfully excluded Mr Tsiplakidis from the property on or about 1 January 2011 when she denied his request to return to live at the property. The ouster continued until the date of Mr Tsiplakidis' death.

7.  The plaintiff is liable to pay to the defendant occupation rent for the period of the ouster, such sum not to exceed $31,707 and subject to reduction upon receipt of and consideration of further evidence pertaining to the holding costs for the property during the period of the ouster.

Domestic Partners Property Act 1996 (SA); Criminal Law Consolidation Act 1935 (SA) s 269H; Guardianship and Administration Act 1993 (SA) s 32; Real Property Act 1886 (SA) ss 67, 98, 220(3); Law of Property Act 1936 (SA) s 40(3); Real Property Act 1900 (NSW) ss 41, 97, 97(1), 101; Conveyancing Act 1919 (NSW), referred to.
Dalle-Molle v Manos (2004) 88 SASR 193; Corin v Patton (1990) 169 CLR 540; Pridham v Pridham [2010] SASC 204; Muschinski v Dodds (1985) 160 CLR 583; Biviano v Natoli (1998) 43 NSWLR 695; Beresford v Booth [1999] SASC 166; Hummelstadt v Hicks [2006] NSWSC 120; Marriott v Franklin (1993) 60 SASR 457, applied.
Murphy v Doman (2003) 58 NSWLR 51; Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398; Slaveski v State of Victoria & Ors [2009] VSC 596; Stone v Registrar of Titles [2012] WASC 21; Banks v Goodfellow (1870) LR 5 QB 549; Thomas v Nash (2010) 107 SASR 309; Bailey v Bailey (1924) 34 CLR 558; Williams v Hensman (1861) 1 John. & Hem. 546 70 ER 862; Anning v Anning (1907) 4 CLR 1049; Milroy v Lord (1862) 45 ER 1185; McNab v Earle [1981] 2 NSWLR 673; Freed v Taffel [1984] 2 NSWLR 322; McCoy v Caelli [2010] NSWSC 1233; Sprott v Harper [2000] QCA 391; Calabrese v Miuccio (No 2) (1985) 1 Qd R 17; Hycenko v Hrycenko and Hrycenko [2016] VSC 247; Burgess v Rawnsley [1975] 1 Ch 429; Abela v Public Trustee [1983] 1 NSWLR 308; In re Wilford's Estate; Taylor v Taylor ("Wilford's Estate") (1879) 11 Ch D 267; In the Estate of Heys [1914] P 192; Butt's Land Law Lawbook Co, 7th Ed; Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292; Burgess v Rawnsley [1975] 1 Ch 429; Saleeba v Wilke [2007] QSC 298; Scott v Scott [2009] NSWSC 567; Flynn v Flynn [1930] IR 337; Re Denny (1947) 177 LT 291; Crooke v De Vandes (1805) 11 Ves Jun 330; Greenfield v Greenfield (1979) 38 P & CR 570; Sackville and Neave Australian Property Law 9th Ed (2013); In the Marriage of Badcock (1979) FLC 90-723; In the Marriage of Pertsoulis (1980) FLC 90-832; Hepworth v Hepworth (1963) 110 CLR 309; Legione v Hateley (1983) 152 CLR 406; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Atwood v Maude (1868) LR 3 Ch App 374-375; Lyon v Tweddell (1881) 17 Ch D 529; Public Trustee (ACT) v Hall [2003] ACTCA 27; Thames Guaranty Ltd v Campbell and Ors [1985] QB 210; Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; Kennedy v De Trafford [1897] AC 180; Mitrovic v Koren [1971] VR 479; Motor Auctions Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 138 FLR 118, considered.

LYKO v DERKATCH
[2018] SADC 90

Introduction

1. At all material times, Valentina Petrenko (deceased) (Ms Petrenko) and Nicolas Tsiplakidis (deceased) (Mr Tsiplakidis) were registered as the joint owners of a property at 54 Melbourne Place, Alberton (the property) being a property jointly acquired by them in October 1963.

2. Ms Petrenko and Mr Tsiplakidis have a daughter, Lidia Lyko (the plaintiff).

3. The relationship between Ms Petrenko and Mr Tsiplakidis broke down many years ago and in the years prior to his death Mr Tsiplakidis was estranged from the plaintiff.

4. On 3 July 2012 Ms Petrenko issued this action against Mr Tsiplakidis seeking orders, inter alia, that Mr Tsiplakidis transfer his interest in the property to her.

5. On 4 March 2014 Mr Tsiplakidis signed a Transfer to effect the severance of the joint tenancy in the property (the Transfer). The Transfer was lodged at the Lands Titles Office (LTO) on 11 March 2014 but was never registered in the absence of Ms Petrenko (and/or the plaintiff) producing the Certificate of Title with respect to the property, despite being requested to do so by the LTO.

6. Mr Tsiplakidis died on 19 December 2014. On 23 October 2015 Mr Tsiplakidis’ great-nephew, Alexander Derkatch (the defendant) was granted Probate of the Will of Mr Tsiplakidis and is the Executor of Mr Tsiplakidis’ estate.

7. On 21 November 2015 the defendant filed a Counterclaim alleging, inter alia, that the joint tenancy with respect to the property was severed by the unilateral action of Mr Tsiplakidis and/or the mutual conduct of the parties. Further the defendant claimed that Mr Tsiplakidis (and/or the defendant) was wrongfully excluded from the property from mid-2009 to date.

8. Ms Petrenko died on 22 November 2015. On 4 November 2016 the plaintiff was appointed Executor of her estate.

9. The plaintiff’s action against the defendant was dismissed by order of this Court on 23 June 2016.

10. The Counterclaim remains unresolved.

11. By Fourth Counterclaim dated 23 November 2017 (the Fourth Counterclaim) the defendant seeks, inter alia:-

    1.A declaration that the joint tenancy in the property was severed in or about March 2014 or at such other time as the Court may determine;

    2.In the alternative, that the plaintiff holds the property as to one half, or such other extent as the Court may determine, on trust for the estate of Mr Tsiplakidis; and

    3.An order that the plaintiff compensate the defendant for the use and occupation of the property.

12. By the Third Defence to the Fourth Counterclaim dated 27 November 2017 (the Third Defence), the plaintiff denies that the defendant is entitled to the remedies as sought by him or to any relief at all.

    The Trial

13. The Trial proceeded before me over seven days commencing Monday 20 November 2017.

14. The defendant was dux lites.

15. The defendant gave evidence and called evidence from:

    1.     Mr Kym Jackson, solicitor.

    2.     Mr Ian Gant, Deputy Registrar of the LTO.

    3.     Dr Carole Fraser, psychiatrist.

    4.     Mr Jeremy Carter, valuer.

    5.     Mr Witold Gladys, solicitor.

16. The plaintiff gave evidence but called no other oral evidence.

17. Numerous documents were tendered by the parties, being the subject of a separate Exhibits List.

    Issues in Dispute

18. The issues in dispute and for my determination are:

    1.Did Mr Tsiplakidis have capacity when he signed the Transfer (and/or on 11 March 2014)?

    2.If so, did the steps taken by Mr Tsiplakidis in signing the Transfer, lodging it with the LTO and requesting the production of the Certificate of Title with respect to the property effect a severance of the joint tenancy in equity, despite the Transfer not being registered?

    3.Alternatively, was the joint tenancy in the property severed by the mutual conduct of the parties?

    4.If not, is it unconscionable for the plaintiff to have the benefit of survivorship such that equity should impose a constructive trust over half of the interest held in the property by the plaintiff, for the benefit of the estate of Mr Tsiplakidis?

    5.Was Mr Tsiplakidis (and/or the defendant) wrongfully excluded from the property and if so when and for what period?  If there was an ouster, what if any compensation should be paid by the plaintiff to the defendant?

    Assessment of the Witnesses

19. The personal circumstances which comprise the background to this dispute are such that both parties, but in particular the plaintiff, have a significant emotional investment in the outcome of the action.

20. The plaintiff had a very close and loving relationship with her mother. Understandably the plaintiff was emotional at times during the course of her evidence and feels very strongly as to what she believes to be the correct ‘moral’ outcome of this dispute.

21. During her evidence the plaintiff had a tendency to give unresponsive answers to questions and there were some internal inconsistencies in her evidence (together with some apparent inconsistencies in her evidence when compared with a prior out of court statement given by her to police in July 2012 and evidence given by her in June 2013) which caused me to doubt the reliability of aspects of her evidence.

22. I do not consider the plaintiff was deliberately lying to the court or deliberately being evasive in terms of her responses. Rather I find that the emotional toll of the dispute and the personal circumstances leading up to it has impacted on the plaintiff and aspects of her memory such that she is now mistaken and/or has forgotten, as to whether and/or when certain events occurred.

23. The defendant was a very poor witness. My impression was that he had deliberately tailored his evidence so as to present the defendant’s case in its most favourable light. His claimed inability to recall certain events was not persuasive. My perception was that he deliberately downplayed his personal involvement in Mr Tsiplakidis’ dealings insofar as those dealings related to Mr Tsiplakidis’ financial affairs.

24. As to the evidence of both the plaintiff and the defendant, insofar as there is evidence from others (or evidence by way of documents) to support a finding that may be inconsistent or in some way at odds with their oral evidence, I reject their evidence.

25. The evidence of Mr Gant and Mr Carter was uncontroversial and I accept each of them as reliable and credible witnesses.

26. Mr Gladys previously acted for Mr Tsiplakidis. He acknowledged that in light of a number of recent health issues he had very little (if any) personal recollection of events relating to Mr Tsiplakidis, such that his evidence was mostly confined to explaining relevant documentation and his various file notes.

27. Having regard to the acknowledged limitations on Mr Gladys’ memory, where there is no documentation to support Mr Gladys’ oral evidence, I reject that evidence, insofar as it relates to a claimed (independent) memory of specific events, due to my concerns as to its reliability. However I accept Mr Gladys’ evidence as it relates to observations as to his general practice, being a practice undertaken over several decades.

28. I accept Mr Gladys’ evidence as to the manner in which his file notes were created and the proximity in time of their creation to the events they describe. I am satisfied that Mr Gladys’ file notes contain an accurate and reliable record of the interactions he had with Mr Tsiplakidis and the defendant as recorded therein. I find that it is possible there are file notes which were created by Mr Gladys which for whatever reason were not properly retained on his file and are not before the court, meaning that it is possible there were interactions between Mr Gladys and Mr Tsiplakidis and/or the defendant of which there is no evidence before the court.

29. Mr Jackson gave evidence to explain extracts from the file previously maintained by him at Camatta Lempens with respect to Mr Tsiplakidis. In addition he expressed the opinion that when he dealt with Mr Tsiplakidis he had no cause to doubt Mr Tsiplakidis’ capacity to instruct him, being an opinion which was disputed, but not seriously challenged, upon cross-examination.

30. I have no reason to doubt the reliability or credibility of the evidence of Mr Jackson.

31. Mr Jackson gave evidence that he never spoke with Mr Tsiplakidis over the telephone but sent him letters.[1] Mr Jackson said he met with Mr Tsiplakidis at Mr Tsiplakidis’ house both on 18 December 2013 and 29 January 2014 and his practice was to come back to the office thereafter and dictate his notes for his secretary to type out.[2]

    [1]    T 69.30-32.

    [2]    T 59.37-60.1.

32. I find that the file notes created by Mr Jackson which were tendered as part of Exhibit D3 contain an accurate and reliable record of his interactions with Mr Tsiplakidis as described therein.

33. Having regard to Mr Jackson’s evidence that there was a third meeting with Mr Tsiplakidis shortly prior to 14 April 2014, of which there are no notes in evidence, I find that it is likely there are file notes which were created by Mr Jackson with respect to his dealings with Mr Tsiplakidis which for whatever reason were not properly retained on the Camatta Lempens’ file and are not before the court.

34. Dr Fraser was the only medical witness called to address the issue of Mr Tsiplakidis’ capacity. She was cross-examined at length as to the basis of her opinion which was that as at the date of the Transfer, Mr Tsiplakidis was likely to have capacity. Dr Fraser steadfastly maintained this opinion and gave detailed reasons as to why she did so. As Dr Fraser did not see Mr Tsiplakidis on the date he signed the Transfer, and only met him several weeks thereafter, in expressing her opinion she was necessarily reliant, to a certain extent, upon documentation produced at or prior to the transfer date, in formulating that opinion.

35. I will address Dr Fraser’s evidence in detail and my findings in that respect, hereunder.

    Background Information/Chronology

36. As at 4 March 2014 Mr Tsiplakidis (DOB: 25/7/1925) was 88 years old. He was born in China to Russian speaking parents and came to Australia in 1954.

37. Mr Tsiplakidis’ native language was Russian. The extent to which he could understand English – either in its written or oral form – is in dispute.

38. Ms Petrenko and Mr Tsiplakidis purchased the property on 16 September 1963 as joint tenants.[3]

    [3]    Exhibit D1 p 63.

39. Ms Petrenko and Mr Tsiplakidis never married but they had one daughter, the plaintiff (DOB: 11 April 1959). The plaintiff has always been very close to her mother but was estranged from her father for several years prior to his death.

40. In or about the early-1980s Mr Tsiplakidis bought a property at Purnong in his own name and in or about 1982 he moved to live at the Purnong home. ^[4] He maintained contact with Ms Petrenko and attended from time to time thereafter at the property, in all likelihood occasionally staying overnight at the property, but never returned to live there on a permanent basis.

    [4]    Defence (Exhibit D2 at p 3).

41. Ms Petrenko lived at the property from the time of its purchase until approximately late 2013 when she went to stay in an aged care facility. Thereafter the property was vacant for some time.

42. At paragraph 13B of the Fourth Counterclaim it is pleaded that in or about mid-2009 Ms Petrenko told Mr Tsiplakidis that he was no longer permitted to have access to the property. At paragraph 13C of the Fourth Counterclaim it is pleaded that on a date that is not known to the defendant between mid-2009 and 11 November 2011, the locks on the property were changed, thereby excluding Mr Tsiplakidis from the property without his consent.

43. These allegations are admitted at paragraph 23 of the Third Defence to the Fourth Counterclaim, wherein the plaintiff pleads, inter alia, that Mr Tsiplakidis was denied entry to the property by Ms Petrenko to preserve her safety and that of other family members and that Ms Petrenko was aware that Mr Tsiplakidis had a suitable residence of his own and adequate means.

44. Further, at paragraph 7 of an affidavit sworn by Ms Petrenko on 18 September 2012,[5] she attested that her relationship with Mr Tsiplakidis ended in about 2009 when she changed the locks on the ‘Matrimonial Home’.

    [5]    Exhibit D2 p 55 (NB compare with pleading at [5] of Statement of Claim (Exhibit D1 p 3), wherein Ms Petrenko pleaded that she ‘changed the lock on the matrimonial property’).

45. On 27 June 2011 Mr Tsiplakidis through his then Attorney, his niece, Vera Shapakidze (Ms Shapakidze), bought a property at Buller Terrace, Alberton (‘the Buller Terrace property’).[6] He purchased the property as a joint tenant with his daughter, Tania Gousev (the plaintiff’s half-sister).

    [6]    Exhibit D2 p 81.

46. On 14 July 2011 Mr Tsiplakidis, again through his then Attorney, Ms Shapakidze, sold the Purnong property.[7]

    [7]    Exhibit D2 p 77.

47. Although it is not entirely clear on the evidence, it is likely, and I find, that Mr Tsiplakidis lived at the Buller Terrace property from on or about its date of purchase until 21 July 2012.

48. On 31 October 2011, Dixon Gallasch, solicitors retained by Ms Petrenko, wrote to Mr Tsiplakidis.[8]

    [8]    Exhibit P2.

49. The letter referred to Ms Petrenko’s entitlement to make a claim against Mr Tsiplakidis under what was described as the ‘Domestic Partnership Act’ (in fact, the Domestic Partners Property Act 1996) and proposed a resolution of her intended claim on the basis that Mr Tsiplakidis kept the Buller Terrace property and Ms Petrenko became the sole owner of the property.

1. On 11 November 2011 a letter was sent to Dixon Gallasch in Mr Tsiplakidis’ name, apparently in response, containing a denial, inter alia, that Ms Petrenko had ‘any claim whatsoever regarding the joint ownership of the property’ and stated:[9]

   I am advised that according to the nature of the title in our joint names, if I should die before your client, she will automatically inherit all of our joint property. Meanwhile, I have no objection for Ms Petrenko to buy me out of my interest (half-share) in the property. Alternatively, I would consider for the joint property to be sold at market value and the proceeds equally divided.

   When we separated, more than 27 years ago, I had a verbal agreement with Ms Petrenko that I am happy for her to reside in our joint property, free of rent, provided that she pays all the council rates. I thought that was a very generous offer. She agreed and that is how it remained to this day. When, on occasions, I wanted to visit our jointly owned house, to collect some of my personal tools and other belongings, I was unable to enter the house as all the locks have been changed without prior consultation with me.

   [9]    Exhibit P3.

2. On 3 July 2012 Ms Petrenko issued proceedings in this Court against Mr Tsiplakidis seeking orders pursuant to the Domestic Partners Property Act 1996, inter alia, that Mr Tsiplakidis transfer his interest in the property to her, or in the alternative, pay to her a sum as determined by the court (‘the claim’).

3. The claim was served on Mr Tsiplakidis on 15 July 2012.

4. On 18 July 2012, Dixon Gallasch wrote to Mr Tsiplakidis wherein they stated that Ms Petrenko had instructed them that Mr Tsiplakidis had contacted her and had informed her that he was willing to resolve the claim on the basis that he transfer his interest in the property to her. The letter stated that Ms Petrenko had instructed them to accept his offer.[10]

   [10]   Exhibit P4.

5. Shortly thereafter a letter to Dixon Gallasch in response was drafted in the name of Mr Tsiplakidis.[11] In that letter, Mr Tsiplakidis put forward a proposal to resolve the claim on the basis that the property be sold at market value and the proceeds of sale be divided equally. The letter is unsigned and it is uncertain whether it was sent and/or received by Dixon Gallasch, noting the copy in evidence is not marked with a ‘date received’ stamp.

   [11]   Exhibit D2 p 6.

6. On 21 July 2012 Mr Tsiplakidis attended at the property armed with a rifle. He shot Ms Petrenko and was involved in an altercation with the plaintiff’s husband, Mr Lyko, as a result of which Mr Lyko was stabbed. I will refer to this as ‘the shooting incident’.

7. Mr Tsiplakidis was arrested and remanded in custody that same day.

8. On 9 August 2012 (in other words, while Mr Tsiplakidis was in custody on remand), Ms Shapakidze and her brother, Nicholas Derkatch (the defendant’s father and Mr Tsiplakidis’ nephew) attended upon solicitors, Tindall Gask Bentley (‘TGB’) seeking advice with respect to the property and the Buller Terrace property.

9. In a letter dated 15 August 2012 from TGB to Ms Shapakidze (cc’d to Mr N Derkatch) it is stated (with respect to the property):[12]

   … In the circumstances I confirm your instructions to sever the joint tenancy so as to create a tenancy in common which would see that, subject to any claims to the contrary, Nic’s 50% share in the property could be bequeathed pursuant to his Will.

   Accordingly I enclose a Memorandum of Transfer for your execution as Attorney …

   (My emphasis)

   [12]   Exhibit D1 p 10.

10. For the sake of completeness, having regard to later correspondence from TGB to Ms Shapakidze,[13] it is apparent the Memorandum of Transfer was signed at that time (presumably by Ms Shapakidze, still in her capacity as Attorney for Mr Tsiplakidis, although a copy of this document is not in evidence). TGB advised Ms Shapakidze they could no longer pursue the application to sever the joint tenancy in light of the fact that Ms Petrenko had commenced the claim against Mr Tsiplakidis.

    [13]   Exhibit D1 pp 12 and 14.

11. On 2 January 2013 Mr Tsiplakidis filed a Defence to the claim.[14]

    [14]   Exhibit D2 pp 1-5.

12. In the Defence it is stated the property was purchased by the couple as joint tenants and it is pleaded:[15]

    From 1982 plaintiff agreed to pay all rates, taxes etc when defendant moved to Purnong and an agreement was reached not to sell property and divide proceeds. Defendant honoured her request to continue living in the property because of her age and state of health.

    [15]   Defence pp 3-4.

13. In the final paragraph of the Defence it is pleaded:[16]

    Plaintiff’s claim to 100% ownership of 54 Melbourne Place will be challenged as defendant will justify his 50% share ownership of property. At all times he was willing to sell house and share proceeds. His respect and consideration for the age and health of plaintiff made him accept her having the property on the basis she pays all rates and taxes and whoever outlives the other will retain the property entirely. Because of the hostility and shameful portrayal of her character, the defendant will seek help from the court to sell property and divide proceeds or alternatively to consider an offer from the plaintiff should she choose to stay in the home.

    [16]   Defence p 5.

14. On 8 February 2013 Mr Tsiplakidis was released on home detention bail to reside at an address in Salisbury North, with conditions including that he not approach or communicate, either directly or indirectly, with Ms Petrenko, the plaintiff and/or Mr Lyko and a prohibition from travelling west of Main North Road and north of Anzac Highway.

15. On 15 March 2013 Mr Tsiplakidis’ bail agreement was varied to change the exclusion zone to the effect that he was still prohibited from attending anywhere near the property but was allowed to attend at the Queen Elizabeth Hospital (QEH) for medical treatment. On 19 April 2013 the bail agreement was varied to change his home detention address to an address in Erindale.

16. In June 2013 Mr Tsiplakidis stood trial in the Supreme Court, charged with the offences of attempted murder, aggravated threaten harm and aggravated assault cause harm arising from the shooting incident. He was acquitted by a jury of all charges on 7 June 2013. The next day Mr Tsiplakidis returned to live at the Buller Terrace property[17] and continued to live there until July 2014.[18]

    [17]   T 237.35-36.

    [18]   Exhibit P2 p 329 (NB Mr Tsiplakidis was an inpatient at QEH from 17/5/14 until he was discharged to a residential care facility on 25/7/14).

17. On 14 June 2013 an interim intervention order was made by Magistrate Alexandrides wherein the plaintiff was named as the protected person and Mr Tsiplakidis was named as the defendant. The terms of that interim order prohibited Mr Tsiplakidis, inter alia, from being within 500 metres of the plaintiff and from entering or remaining in the vicinity of the plaintiff’s place of residence, place of employment or any other place at which she was staying or working. The interim order was served on Mr Tsiplakidis on 17 June 2013.[19] On 14 August 2013 the terms of the interim order were confirmed by order of Magistrate Grasso.

    [19]   Exhibit P5.

18. Mr Tsiplakidis first met with Mr Gladys, solicitor on 1 July 2013. At that time Mr Tsiplakidis gave instructions to Mr Gladys with respect to drafting a will.[20] Mr Gladys is Polish and on his estimate, which I accept, can understand approximately 75 per cent of what is said in Russian. There was no Russian interpreter present at this first meeting.

    [20]   Exhibit D1 pp 15-22.

19. The notes of that meeting include a statement attributed to Mr Tsiplakidis namely ‘I want to sever joint tenancy’.[21] Although not expressly stated, it is apparent from what transpired thereafter that this is a reference to the joint tenancy in the Buller Terrace property.

    [21]   Exhibit D1 pp 19-20.

20. The notes of that attendance also relevantly include the following comment:[22]

    W.G. advise Nicolas

    To get medical certificate

    Re certificate re capacity

    [22]   Exhibit D1 pp 17-18.

21. On 2 July 2013 Mr Gladys saw Mr Tsiplakidis for approximately one hour, for part of that time in the presence of the defendant, who appears to have acted as an interpreter. The primary purpose of that interview was to obtain further instructions as to Mr Tsiplakidis’ will and to facilitate the execution of a transfer to sever the joint tenancy with respect to the Buller Terrace property.

22. Mr Gladys’ notes of that interview record the following (with respect to the execution of that transfer):[23]

    … The greatest difficulty was in relation to the severance of the joint tenancy. He stated several times that he did not want his daughter Tania to have anything to do of (sic) the house. He had some difficulty with the concept of joint tenancy and tenants in common, constantly stating that the house is his. He paid all the monies and I believe that he came to understand that if we severe (sic) the joint tenancy he will be able to leave his half of the house in his will and that would be the basis for the bequest to his friend Alexandra and the balance to his grand-nephew Alex Derkatch. He signed the Memorandum of Transfer and I duly witnessed it.

    I did explain to him the other day about the procedure for getting the title. I do not know that he absorbed too much of that aspect of it and he was not all that interested in the technicalities of doing so. But I am of the firm view that firstly he has full capacity and furthermore I was advised that very recently he has had a medical examination for the purposes of his driving and the doctor cleared him to drive and it would be subject to a practical test.

    I did advise both of them to get a medical certificate or report as to his capacity. I also because of my understanding of the Russian and some of the words I used in Polish that he fully understood the documentation. In fact his English was very good. I had lengthy discussions with him in English …

    [23]   Exhibit D1 pp 23-24.

23. It is possible that at that attendance Mr Tsiplakidis executed an Enduring Power of Attorney and Enduring Power of Guardianship appointing the defendant in each instance, although there is no copy of any such document in evidence.

24. By reference to the file notes tendered from Mr Gladys’ file, many of Mr Gladys’ dealings thereafter were with the defendant, rather than Mr Tsiplakidis.[24]

    [24]   For example see Exhibit D1 pp 27-32.

25. However, on both 16 and 17 October 2013 Mr Gladys spoke at some length with Mr Tsiplakidis, in the absence of the defendant or any interpreter, with respect to the transfer pertaining to the Buller Terrace property.

26. On 17 October 2013 Mr Tsiplakidis signed an affidavit,[25] drafted by Mr Jackson on the basis of information provided to him by Mr Gladys,[26] in support of an application to extend the time by which a caveat was to remain on the title with respect to the Buller Terrace property.

    [25]   Exhibit D2 pp 33-34.

    [26]   T 65.5-8.

27. Mr Gladys’ file note of this attendance records:[27]

    … It is a little bit more difficult with him to explain the position regards to the severance of the joint tenancy. He definitely understands the situation in regards to joint tenancy. He has a property at 54 Melbourne Place, Alberton, which he tells me and I have checked by obtaining a copy of the title, that he holds that jointly with another lady. The title to that property is held by that lady’s daughter, which is his daughter and that it is held as joint tenants and that that property will pass to the woman if he should die and that it will pass to him if she should die. These were his words. …

    During my discussions with Mr Tsiplakidis I reiterated my view that it would be greatly desirable to have a Russian speaking person present as Alex was doing before. …

    [27]   Exhibit D1 p 39-40.

28. Mr Gladys’ observations at this attendance are consistent with what was set forth in a letter dated 11 November 2011 apparently sent by Mr Tsiplakidis to Ms Petrenko’s solicitors Dixon Gallasch, namely that Mr Tsiplakidis and Ms Petrenko held the property as joint tenants and ‘if I should die before your client, she will automatically inherit all of our joint property’.[28] Whether this letter was in fact authored by Mr Tsiplakidis (or for example, Ms Shapakidze) is uncertain. While it is written in the first person and seemingly by Mr Tsiplakidis, it is of note that at that time Ms Shapakidze was very much involved in Mr Tsiplakidis’ affairs and (likely) still held his Power of Attorney.

    [28]   Exhibit P3.

29. During the attendance on 17 October 2013 Mr Tsiplakidis also requested Mr Gladys revoke the will made in the defendant’s favour as they had had a falling out. It seems likely that shortly thereafter the earlier Enduring Power of Attorney and Power of Guardianship naming the defendant in each instance were also revoked, although there is an absence of evidence on this issue.

30. On 21 October 2013 Mr Gladys again saw Mr Tsiplakidis in the absence of the defendant and/or an interpreter.

31. Mr Gladys’ file note of that attendance states:[29]

    … I again went over the scenario as to leaving things as they are in the sense of getting the joint tenancy severed and then leaving Tania to be the co-owner of a moiety which means that he can leave his half to whoever he wants to because I explained the process of getting it back whilst I anticipate it there is no guarantees and it will be a lengthy and relatively expensive process. This is the subject that I want explained to him in Russian so that he fully understands. …

    [29]   Exhibit D1 p 44.

32. Mr Gladys met with Mr Tsiplakidis in the presence of a Russian interpreter, Ms Frishling on 29 October 2013, at which time they discussed, amongst other matters, severing the joint tenancy with respect to the Buller Terrace property and the claim. Mr Tsiplakidis informed Mr Gladys that the claim was a ‘property settlement matter’ relating to the property and that there was a ‘proposal’ that Ms Petrenko buy him out or the property be sold and the money divided up.

33. On 4 December 2013 an interim intervention order was made by Magistrate Grasso wherein Ms Petrenko was named as the protected person and Mr Tsiplakidis was named as the defendant. The terms of that interim order prohibited Mr Tsiplakidis, inter alia, from being within 500 metres of Ms Petrenko and from entering or remaining in the vicinity of her place of residence, place of employment or any other place at which she was staying or working. The interim order expressly prohibited Mr Tsiplakidis from entering or being in the vicinity of the property. The interim order was served on Mr Tsiplakidis on 6 December 2013.[30]

    [30]   Exhibit P6.

34. On 11 December 2013 the terms of this interim order were varied and confirmed by order of Magistrate Fisher. The order as confirmed included those same prohibitions.

35. On 18 December 2013 Mr Tsiplakidis attended upon Mr Jackson in the presence of a Russian interpreter to provide instructions to draft a Statement of Claim with respect to proceedings pertaining to the Buller Terrace property (the Gousev action).[31] At that time Mr Jackson recorded that Mr Tsiplakidis was able to read English.[32]

    [31]   See T 78.13; Exhibit D2 pp 35-43.

    [32]   Exhibit D2 p 35.

36. Mr Jackson’s notes of this attendance also include the following:[33]

    Bought house because defacto changed locks.

    He had to move back to ADL but she locked him out.

    But bought this place v.quick.

    [33]   Exhibit D2 p 41.

37. On 19 December 2013, in accordance with an undertaking given by him to Master Rice of this Court on 16 December 2013, Mr Jackson wrote to Master Rice stating that he had satisfied himself that Mr Tsiplakidis was capable of giving him instructions.[34]

    [34]   T 69.8-10; T 88.7-12.

38. On 29 January 2014 Mr Jackson met with Mr Tsiplakidis and the defendant for the purpose of reviewing the draft Statement of Claim in the Gousev action. The defendant acted as an interpreter at times during that meeting.[35]

    [35]   Exhibit D2 pp 44-51.

39. On 13 February 2014 Mr Gladys saw Mr Tsiplakidis after receiving a call from the defendant requesting he do so, at which time Mr Tsiplakidis instructed Mr Gladys that he wanted to reappoint the defendant as his power of attorney and guardian and reinstate the defendant as a beneficiary under his will. Mr Tsiplakidis filled in the relevant forms at that time.[36] Mr Gladys said that the defendant was present during the course of this attendance, which recollection is consistent with the circumstances of this meeting.[37]

    [36]   Enduring Power of Attorney (Exhibit D1 pp 68-70).

    [37]   T 213.28.

40. On 13 February 2014 Mr Tsiplakidis executed an Enduring Power of Attorney appointing the defendant to be his Attorney.[38] The defendant gave evidence that he could recall the circumstances leading up to his appointment as Attorney – it being a re-appointment following their earlier falling out in October 2013, but he could not recall executing the document.[39]

    [38]   Exhibit D1 pp 68-70.

    [39]   T 288.8-28.

41. Seemingly contrary to what is recorded in Mr Gladys’ file note,[40] the defendant gave evidence that he was not asked by Mr Tsiplakidis to make the arrangements for him to see Mr Gladys for the purposes of executing that document.[41] In cross-examination the defendant said he had no memory of contacting Mr Gladys and asking him to prepare a Power of Attorney in his favour.[42]

    [40]   Exhibit D1 p 47.

    [41]   T 288.34.

    [42]   T 310.12-19.

42. On 4 March 2014 Mr Tsiplakidis executed the Transfer in the presence of Mr Gladys.[43] Mr Gladys’ file note dated 4 March 2014 records:[44]

    … I subsequently spoke again to Alex, Mr Tsiplakidis’ grand-nephew and arranged for a time to sign the Transfer.

    [43]   Exhibit D1 pp 72-73.

    [44]   Exhibit D1 p 48.

43. By letter dated 4 March 2014, Mr Gladys wrote to Ms Petrenko via her solicitors, Dixon Gallasch, wherein he outlined that he had been instructed to act for Mr Tsiplakidis with respect to the claim and had instructions to sever the joint tenancy with respect to the property. He requested production of the Certificate of Title.[45]

    [45]   Exhibit D1 p 49.

44. There are no file notes in evidence of any attendances by Mr Gladys upon either Mr Tsiplakidis or the defendant between 13 February 2014 and 4 March 2014 outlining in what circumstances, how and/or by whom Mr Gladys was instructed to prepare the Transfer.

45. On 11 March 2014 Mr Gladys lodged the Transfer at the LTO, after waiting a week to give Ms Petrenko an opportunity to produce the Certificate of Title in response to his letter dated 4 March 2014, albeit she did not do so.[46] He also made a declaration in support of an application to the Registrar-General to issue a summons to Ms Petrenko to produce the duplicate Certificate of Title with respect to the property.[47]

    [46]   Exhibit D1 p 51.

    [47]   Exhibit D1 pp 74-75.

46. Mr Gladys attended upon the defendant on 12 March 2014. Relevantly Mr Gladys’ note of this attendance states:[48]

    … He said his uncle had a fall the other day. He came in to Port Adelaide, fell over in the car park, has been having some problems apparently previously with low blood pressure, was in hospital for a couple of days but now he is okay. They have stopped him from driving because he recently did a driving test, in the last six months or so and was granted his licence.

    [48]   Exhibit D1 p 51.

47. On 16 March 2014 Mr Tsiplakidis was admitted to the Queen Elizabeth Hospital at which time he reported a history of visual, auditory and tactile hallucinations, commencing 12 days before the admission. He remained an inpatient at the QEH until he was discharged home, albeit with support from the defendant and his wife, on 9 April 2014. Thereafter Mr Tsiplakidis’ health continued to decline, with further periods of hospitalisation as a result of recurring hallucinations.

48. On or about 8 April 2014 Mr Gladys contacted the LTO and in response Ms Pivato of the Land Services Group wrote to Ms Petrenko via her solicitors Dixon Gallasch by letter dated 9 April 2014 making a formal request for the production of the Certificate of Title.[49]

    [49]   Exhibit D1 p 76.

1. The Certificate of Title for the property was not produced by either Ms Petrenko or the plaintiff in response to either Mr Gladys’ request or that of Ms Pivato.

2. The Registrar-General did not issue a summons to Ms Petrenko to produce the Certificate of Title.

3. On 9 December 2014, the plaintiff, on behalf of Ms Petrenko, by way of email to Master Rice, foreshadowed an offer to be made to Mr Tsiplakidis to resolve the claim on the basis that the joint tenancy be severed but only on certain terms and conditions favourable to Ms Petrenko. The proposed offer was never conveyed to Mr Tsiplakidis.

4. Mr Tsiplakidis died on 19 December 2014.

5. On 16 February 2015 the plaintiff filed an Application to Register Death by Survivor at the LTO with respect to the property.[50] The application was withdrawn the next day.[51]

   [50]   Exhibit D1 pp 81-82.

   [51]   Exhibit D1 p 83.

6. Ms Petrenko died on 22 November 2015.

7. The claim remained on foot until it was dismissed by court order on 23 June 2016.

   Capacity

   The issues

8. The defendant alleges that Ms Petrenko and Mr Tsiplakidis engaged in a course of conduct that is inconsistent with the existence of a right of survivorship with respect to the property.

9. In the alternative, the defendant pleads that the unilateral action undertaken by Mr Tsiplakidis in signing the Transfer on 4 March 2014 had the effect of severing the joint tenancy in equity.

10. The plaintiff denies that Mr Tsiplakidis had legal capacity to:

    1.     Sever the joint tenancy on 4 March 2014;

    2.Execute a Transfer in registrable form on 4 March 2014;

    3.Instruct the Registrar-General in relation to the severance of a Title or registration of a Transfer on or about 11 March 2014; and

    4.Form an intention as to the right of survivorship on or after 4 March 2014.

11. Accordingly the issue of capacity is relevant to my determination of both of the issues outlined above.

    The Evidence

    Documentary Evidence

12. The plaintiff tendered a volume of QEH records pertaining to Mr Tsiplakidis.[52] Those records were supplemented by additional records from the QEH tendered by the defendant.[53]

    [52]   Exhibit P1.

    [53]   Exhibit D1 pp 169-173; Exhibit D2 pp 8-32; Exhibit D3.

13. There were numerous medical reports and records pertaining to Mr Tsiplakidis tendered as exhibits in the absence of their author(s) being called to give evidence.[54]

    [54]   Exhibit D1 pp 125-149.

14. On 29 November 2012 Dr Craig Raeside, psychiatrist, visited Mr Tsiplakidis while he was in custody awaiting trial with respect to the shooting incident. The purpose of the visit was to assess whether Mr Tsiplakidis was fit to stand trial in June 2013 on charges including a charge of attempted murder. That visit was cut short when Mr Tsiplakidis indicated he would prefer to be interviewed with the assistance of a Russian interpreter, particularly given he also had some hearing difficulties.

15. On 12 December 2012 Dr Raeside conducted an extensive interview with Mr Tsiplakidis with the assistance of a Russian interpreter. In a report dated 11 January 2013,[55] Dr Raeside described Mr Tsiplakidis as being a pleasant man, who did not appear to be depressed or unduly anxious and was not displaying any psychotic features such as perceptual disturbances, delusional ideas or psychotic thought disorder.

    [55]   Exhibit D1 pp 125-136.

16. He expressed the opinion that there was no evidence that Mr Tsiplakidis was suffering from any mental illness or impairment at the time of the alleged offending. He also expressed the opinion that as at the date of the assessment Mr Tsiplakidis was fit to stand trial having regard to the relevant criteria in s 269H of the Criminal Law Consolidation Act 1935.

17. In about June 2013, Mr Tsiplakidis was examined by Dr Mark Sobieraj at which time he conducted a mini mental state examination (‘MMSE’) in English (score 22/30). He then arranged for a further MMSE to be conducted in Russian.

18. A subsequent MMSE was undertaken by Dr Anna Kozil on 3 July 2015. Mr Tsiplakidis achieved a score of 25/30 on the MMSE conducted by Dr Kozil, meaning that no significant cognitive impairment was identified.[56]

    [56]   Exhibit D1 p 137.

19. Dr Sobieraj wrote to Dr Jason Ng on 15 July 2013[57] requesting he ‘review’ Mr Tsiplakidis. In that letter Dr Sobieraj stated that he considered that Mr Tsiplakidis’ results upon recent MMSE testing (both in English and Russian) were consistent with him having the cognitive ability to understand and make his own decisions although he recommended further investigation with the assistance of an interpreter ‘to be absolutely sure’.[58]

    [57]   Exhibit D1 p 139.

    [58]   Score 22/30 – see Exhibit D3 p 36.

20. It seems likely and I find that these examinations were prompted by a request from Mr Gladys to Mr Tsiplakidis and the defendant that a report be obtained to address Mr Tsiplakidis’ capacity.

21. On 16 July 2013 Mr Tsiplakidis underwent a CT of the brain.[59] The comment as to the same is:

    No acute intra-cranial pathology is identified. The ventricles, sulci and cisterns appear prominent but in keeping with age related involutional changes.

    [59]   Exhibit D1 p 140.

22. There is a letter from Dr Jason Ng addressed ‘to whom it may concern’ dated 13 July 2015 (sic) wherein reference is made to a MMSE conducted on 29 July 2013 in the presence of a Russian interpreter wherein Mr Tsiplakidis also scored 25/30.[60] 

    [60]   Exhibit D1 p 138.

23. The letter from Dr Ng has been amended by hand to record the fact that Mr Tsiplakidis’ nephew Alex was present ‘after the consultation’. The defendant gave evidence that he drove Mr Tsiplakidis to that appointment[61] but stayed in the waiting room throughout the consultation and neither observed nor heard any of the communications between Dr Ng and Mr Tsiplakidis.[62]

    [61]   T 243.15.

    [62]   T 244.14-15; T 286.12-18.

24. Based on the results of that assessment Dr Ng considered Mr Tsiplakidis ‘was mentally competent to make legal decisions at the time of assessment’.[63]

    [63]   Exhibit D1 p 138.

25. On 2 December 2013 Mr Tsiplakidis was admitted to the Queen Elizabeth Hospital (‘QEH’) presenting in an ‘altered mental state’. It was reported that he ‘initially seemed confused, now alert’.[64] In the relevant Separation Summary it is noted ‘He normally lives at home alone with support from his nephew, who acts as his carer. He is (sic) reports still driving.’[65]

    [64]   Exhibit D2 p 25.

    [65]   Exhibit D2 p 26.

26. It is apparent there were earlier similar admissions to the QEH on 1 September 2013 (with respect to a vasovagal attack) and on 8 August 2013 with respect to hypotension, although there are no records in evidence pertaining to those earlier admissions.

27. In December 2013 Mr Tsiplakidis also underwent a CT of the brain which showed ‘moderate + symmetrical cerebral involution with mod – severe small vessel ischaemic change and old lunar infarcts in (L) internal capsule, ant capsule + (L) thalamus.’[66]

    [66]   Exhibit P1 p 8.

28. On 10 March 2014 Mr Tsiplakidis was admitted to the QEH following an unconscious collapse at a shopping centre.[67] During that admission Mr Tsiplakidis underwent a ‘Falls and Fall-Injury Risk Assessment’, which included observations as to whether he was suffering any issues with behaviour or cognition which affected his behaviour, mental state, risk-taking, judgment or insight as to his own physical ability.[68] At that time it was noted he had ‘severe difficulty hearing, speaking or following instructions’ but otherwise there was no evidence of dementia, cognitive impairment or marked depression, and importantly no evidence of delirium, anxiety or agitation.

    [67]   Exhibit D2 p 9.

    [68]   Exhibit D2 p 16.

29. The notes record that Mr Tsiplakidis was ‘deaf’ and that a language barrier was present. This is a probable explanation for the observation that he had ‘difficulty following instructions’, in the absence of there being any other noted explanation for these difficulties.

30. Review Fall and Fall-Injury Risk Assessments undertaken later that day and the following day indicated no change in Mr Tsiplakidis’ condition in this respect.[69]

    [69]   Exhibit D2 p 18.

31. In nursing notes dated 10 March 2014 it is recorded that Mr Tsiplakidis was ‘usually independent + niece helps with personal care and shopping’.[70]

    [70]   Exhibit D2 p 11.

32. During the admission cardiology staff spoke to the defendant who raised three concerns with respect to Mr Tsiplakidis namely that he was still driving, that he needed assistance with aspects of personal care and he queried whether there was a need for the various medications prescribed.

33. Mr Tsiplakidis was discharged on 11 March 2014. The Separation Summary records his presentation upon admission as ‘likely due to postural hypotension secondary to polypharmacy’.[71] Importantly during the admission there was no record of anyone expressing any concern as to Mr Tsiplakidis’ ability to manage his affairs or make decisions affecting his well-being. There was no record of any delusional thought process.

    [71]   Exhibit D2 p 26.

34. On 16 March 2014 Mr Tsiplakidis was admitted to the QEH Emergency Department via ambulance. He was seen by Medical Officer Bill Loucas in the QEH Emergency Department at 16:15 hours (4.15 pm) on that day. He noted Mr Tsiplakidis to be a difficult historian due to the language barrier. He recorded a history from Mr Tsiplakidis that ‘4 days ago he saw 6 people in his room at night …’[72]

    [72]   Exhibit P1 p 3.

35. At 9.20 pm that same day Mr Tsiplakidis was seen in the Psychiatry ED wherein the notes record a ‘History mostly taken from nephew and daughter-in-law[73] due to language barrier. Described sudden onset of perceptual disturbances 12 days ago, reported 6 people in his room …’[74] There was a history of visual, audio and tactile hallucinations.

    [73]   There was no evidence that Mr Tsiplakidis had a daughter-in-law. This is a likely reference to the defendant and his wife.

    [74]   Exhibit P1 p 7.

36. The QEH notes pertaining to this admission contain numerous references to Mr Tsiplakidis having a history of experiencing hallucinations for 12 days prior to admission.

37. There are also numerous references in the notes to Mr Tsiplakidis having difficulty understanding English.

38. On 17 March 2014 Mr Tsiplakidis underwent a MMSE wherein he scored 17/30.[75] It was noted that his performance was likely impaired due to language difficulties, the examination having been undertaken in English. Dr Griguol noted her belief that he would do better if the testing was performed in Russian.[76] The previous day an attempt for Mr Tsiplakidis to undertake a MMSE was aborted due to the language barrier.[77]

    [75]   Exhibit D3 pp 23-24.

    [76]   Exhibit D3 p 13.

    [77]   Exhibit D3 pp 7, 21-22.

39. On 19 March 2014 the Clinical Record refers to a discussion between ‘GENU RMO Oh’ and the defendant namely:[78]

    Explained that capacity Ax is best to be performed after resolution of acute illness, and that now is not an appropriate time to make such Ax.

    However as the nephew has ePOG explained that he has the ability to prevent pt from making harmful financial decisions.

    [78]   Exhibit D3 p 36.

40. During that discussion the defendant described the change in Mr Tsiplakidis’ presentation from three years earlier, when he was said to be independent and active, maintaining the country house at Purnong. He described a decline in Mr Tsiplakidis’ cognition following his move to Adelaide, with a significant deterioration in mood following his imprisonment on remand. He said that over the last year Mr Tsiplakidis had been sleeping more, spending up to 20 hours per day in bed and that over the last month he had presented with physical weakness and a low appetite.[79]

    [79]   Exhibit D3 p 35.

41. RMO Oh reported:[80]

    Cognitively significant decline noted from IQ-CODE (Score = 4.66)

    - Long term memory relatively preserved however short term memory poor ...

    [80]   Exhibit D3 p 35.

42. That same day Mr Tsiplakidis completed a ‘Frontal Assessment Battery’ achieving a score of 6/18[81] and RUDAS testing achieving a score of 15/30.[82] It was intended that those tests be conducted with an interpreter present but it is unlikely he had his reading glasses with him.[83]

    [81]   Exhibit D3 pp 50-52.

    [82]   Exhibit D3 p 52-53.

    [83]   Exhibit D3 p 31.

43. On 24 March 2014 Mr Tsiplakidis was transferred to the Psychogeriatric ward for further management.

44. On 25 March 2014 Mr Tsiplakidis was (first) seen by Dr Fraser in that ward. The notes of that consultation state that Mr Tsiplakidis was very deaf and preferred to speak in Russian but was happy to speak in English. He described the hallucinations and gave a history that ‘after 1-2 weeks his nephew visited and confirmed it was hallucinations and brought him in to hospital’.[84]

    [84]   Exhibit P1 p 56.

45. Mr Tsiplakidis underwent a SPECT scan of the brain on 2 April 2014. The comment was as follows:[85]

    Right sided hypoperfusion involving the posterior parietal and temporal lobes. While this may simply reflect the pronounced cortical atrophy, an early asymmetrical presentation of Alzheimers disease cannot be excluded.

    [85]   Exhibit P1 p 203.

46. On 3 April 2014 Mr Tsiplakidis was seen by the Adelaide Aged Care Assessment Team and, based on that assessment, on 9 July 2014 he was approved by the Delegate for permanent residential aged care and high level respite care.[86]

    [86]   Exhibit D1 pp 141-144.

47. Mr Tsiplakidis underwent neuropsychological assessment conducted in Russian on 4 April 2014 at the Lyell McEwin Health Service (‘LMHS’). There were modifications to the testing to take into account what was described as a ‘significant hearing impairment’.

48. At that time Mr Tsiplakidis was noted to have insight into his perceptual experiences and expressed gratitude for his treatment. It was recorded that he had a history of gradually declining memory and functioning since moving to Adelaide from his country home three years earlier. He was described as presenting as an ‘inconsistent historian getting confused in years and events with a partial insight into this’ although he gave an accurate history as to his admission.[87]

    [87]   Exhibit D1 p 145.

49. The conclusions and recommendations were reported as follows: ^[88]

    Overall the cognitive profile shows evidence of significantly diminished cognitive capacity against the pre-morbid estimate with marked weaknesses in memory, visuo-spatial and executive functioning. The type of memory errors, intact storage and no significant naming difficulties are not consistent with Alzheimer’s presentation…The current cognitive profile, the medical history including multiple cardiovascular risk factors, neuroimaging (moderate ischaemia and pronounced cortical atrophy), history of falls are largely consistent with vascular type cognitive impairment. This has been likely exacerbated by elevated anxiety and depression. Significant hearing loss might be another likely contributor to the psychiatric presentation. Although a possible concurrent process of Alzheimer-type pathology cannot be excluded, and acknowledging some mood effect and current legal stressors and partial sensory loss in the presentation, the primary reason is likely to be an early stage of vascular dementia.

    Issues arising:

    ·    Collateral information from the nephew, Nicholas Derkatch

    ·    Capacity assessment in light of the current litigation and conflict of interests within the family

    ·    Guardianship, administration

    ·    Social support and services.

    [88]   Exhibit D1 pp 146-147.

50. Mr Tsiplakidis was discharged from the QEH to his home on 9 April 2014.

51. On 12 May 2014 Mr Tsiplakidis’ general practitioner Dr Sobieraj wrote a letter addressed ‘To whom it may concern’ wherein he expressed the opinion that as a result of Mr Tsiplakidis’ diagnoses and cognitive impairment he did not believe he was fit to manage his own financial or medical affairs or to make informed decisions about his welfare.[89]

    [89]   Exhibit D1 p 149.

52. On 17 May 2014 Mr Tsiplakidis was examined in the Emergency Department at the QEH following an incident outside his house attended by SAPOL at which time it was determined that a Level 1 Treatment Order made that day continue.[90] He was confused and mumbling with incoherent speech.[91] The Separation Summary records that prior to the admission he had been suffering increasing paranoia, was spending 23 hours per day in bed and was incontinent. He was withdrawing large sums of money from the bank in order to prevent it from being accessed by family members.[92]

    [90]   Exhibit P1 p 187.

    [91]   Exhibit P1 p 247.

    [92]   Exhibit P1 p 330.

53. Mr Tsiplakidis was again admitted to the QEH on 1 October 2014, at which time it was reported that the defendant had discharged Mr Tsiplakidis from respite care the previous Friday but as he was now fully dependent in terms of activities of daily living the defendant had requested placement.[93]

    [93]   Exhibit D1 pp 171-173.

54. On 27 June 2014 the Guardianship Board made orders pursuant to s 32 of the Guardianship and Administration Act 1993 with respect to Mr Tsiplakidis, including an order that he reside at such place as the defendant thinks fit, upon being satisfied that his health or safety was seriously at risk.[94]

    [94]   Exhibit D1 p 150.

55. Between 17 May 2014 and 25 July 2014 Mr Tsiplakidis was an inpatient at the QEH and thereafter was discharged to a residential home for respite, with the intention being that he then be cared for by the defendant at the defendant’s home.[95]

    [95]   Exhibit P1 p 330.

56. On 10 October 2014 Dr Fraser wrote to Mr Jackson wherein she stated her belief that Mr Tsiplakidis ‘does not have capacity to understand or make decisions in regards to his medical treatment, his finances or his accommodation and care needs’.[96]

    [96]   Exhibit D1 pp 174-175.

57. In that letter Dr Fraser noted that Mr Tsiplakidis had deteriorated markedly since he was discharged in July 2014. She made no reference to the admission in March 2014.

58. Mr Tsiplakidis was discharged from the QEH to a residential aged care facility on 13 October 2014 when a bed became available. He died on 19 December 2014.

    Defendant’s evidence

59. The defendant was born in 1965 and is the son of Mr N Derkatch, Mr Tsiplakidis’ nephew. His paternal grandmother was Mr Tsiplakidis’ sister. The defendant was Mr Tsiplakidis’ grand (or great) nephew. He referred to Mr Tsiplakidis in his evidence as ‘uncle’.

60. The defendant gave evidence that he was effectively raised by his paternal grandparents who spoke Russian at home, as a result of which he had a good understanding of Russian. He described having had a very close relationship with Mr Tsiplakidis particularly since he was aged 17, following the death of his paternal grandfather (Mr Tsiplakidis’ brother-in-law). He said that from that age he would visit Mr Tsiplakidis regularly (including when Mr Tsiplakidis lived at Purnong), with their relationship becoming even stronger following Mr Tsiplakidis’ acquittal of the charges arising from the shooting incident.

61. He said although Mr Tsiplakidis’ first language was Russian he spoke regularly to him in English. He described Mr Tsiplakidis’ English as ‘more than adequate’ and noted that Mr Tsiplakidis had worked as both a truck driver and forklift driver for many years.[97] He also described observing Mr Tsiplakidis converse in English with Master Rice during hearings pertaining to either the claim or the Gousev action.[98]

    [97]   T 235.25-34.

    [98]   T 296.25-27.

62. The defendant gave evidence that when Mr Tsiplakidis lived at Purnong, he ‘would always go to see him on weekends and during holidays’[99] and that he was aware of his uncle’s purchase of the Buller Terrace property. However, he did not visit Mr Tsiplakidis while he was in custody on remand. He explained that he had sent several unanswered letters asking for permission to see him and was never added to his uncle’s list of visitors.

    [99]   T 235.15-16.

63. The defendant gave evidence that a few days after the attempted murder trial Mr Tsiplakidis telephoned him to tell him he had ‘been abandoned and that everything was gone and that he needed help’.[100] The defendant said that thereafter he had started visiting his uncle much more frequently and helping him with anything that needed to be done.

    [100] T 238.6-7.

1. These visits became more frequent over time, as Mr Tsiplakidis’ health deteriorated and he became less independent. The defendant said that following the attempted murder trial Mr Tsiplakidis ‘was significantly, physically weaker’.[101]

   [101] T 238.30-32.

2. The defendant denied playing any role in Mr Tsiplakidis starting to see Mr Gladys,[102] although he had a recollection of driving him to Mr Gladys’ offices on one occasion only and of carrying him up the stairs.[103]

   [102] T 239.17.

   [103] T 239.27-29.

3. The defendant described this one occasion as being an occasion when he was not present in the room during his uncle’s discussions with Mr Gladys. He described sitting in the waiting room, while his uncle attended with Mr Gladys. He said ‘he would call me back afterwards’.[104] I note that by reference to the records in evidence from Mr Gladys’ file, this occasion must have been on 2 July 2013.

   [104] T 244.35-245.2.

4. In his evidence-in-chief the defendant stated he was only present infrequently during discussions between Mr Gladys and Mr Tsiplakidis. He explained that when Mr Gladys visited his uncle at his uncle’s home he would escort Mr Gladys into the lounge room where his uncle was usually sitting, translate ‘simple matters’ to his uncle (being those he ‘couldn’t bother talking about’) and ‘then when it came to the nitty-gritty Mr Gladys would ask me to leave the room’ and he would go outside to the garden.[105]

   [105] T 244.16-31.

5. Having regard to the records in evidence from Mr Gladys’ file, it is likely that the defendant left the room when Mr Gladys was obtaining instructions with respect to Mr Tsiplakidis’ will. However, consistent with some findings referred to later in this judgment, it is also likely that when the defendant was available to assist, he interpreted more than just ‘simple matters’ to his uncle, as it was the more difficult or legally complex matters which he required assistance from an interpreter to understand.[106]

   [106] See Mr Gladys’ note dated 17 October 2013; Exhibit D1 pp 39-40.

6. The defendant said that he was present during discussions between his uncle and Mr Gladys when they discussed what would happen to the Buller Terrace property in the event that either Mr Tsiplakidis or Ms Gousev died. He recalled it being discussed in simple terms that if Mr Tsiplakidis died first Ms Gousev would inherit the entire property and if she died first then Mr Tsiplakidis would inherit the entire property. He said he reinforced this in Russian to his uncle but that he already understood this. He could not recall any discussions between Mr Gladys and his uncle as to how that situation could be changed and stated that ‘I was much more worried about his health’.[107]

   [107] T 239.30-240.23.

7. The defendant said that after the attempted murder trial Mr Tsiplakidis got progressively weaker, spent more time sitting in his chair and needed everything done for him.[108]

   [108] T 241.35-38.

8. He said that his wife and mother-in-law cooked meals for Mr Tsiplakidis and he would take them to him. He washed his uncle’s clothes and cleaned his house, mowed the lawns and median strip, trimmed the palm trees, washed his car and drove him to appointments.[109] However he said Mr Tsiplakidis was still driving as at Christmas 2013.[110]

   [109] T 243.3-15.

   [110] T 287.14.

9. As to the state of Mr Tsiplakidis’ health in the early part of 2014, the defendant gave evidence that his uncle would constantly speak about the state of his health when he visited him and therefore that was a matter he was also very much concerned about.

10. He recalled an occasion when Mr Tsiplakidis collapsed in the carpark of a shopping centre and had to be taken to hospital. By reference to the medical records this appears to have been the fall which occurred on 10 March 2014.

11. The defendant could not recall being at the QEH on 11 March 2014 and speaking with hospital staff about the concerns he had about his uncle, but said that if that had occurred, and if his uncle had been complaining about hallucinations at that time, this is something he would have told hospital staff.[111]

    [111] T 291.24-34.

12. The defendant had no recollection of being present when Mr Tsiplakidis executed the Transfer and said he probably wasn’t present.[112] He had no recollection of what was then to occur with the Transfer and described his involvement thereafter in the following terms:[113]

    Only simple things like I would – uncle might ask what’s going on, so I’d ring Mr Gladys in uncle’s presence and ask him what’s going on ‘The file at the office’ or something ‘We have to wait for an answer’ things like that.

    [112] T 292.11.

    [113] T 292.21-25.

13. He clarified he meant an answer from the LTO.

14. The defendant said he visited Mr Tsiplakidis every day in hospital following his admission on 16 March 2014[114] and that following his discharge, his uncle returned to live at the Buller Terrace home, although he said he was there ‘the majority of the time’.[115]

    [114] T 292.32.

    [115] T 293.5.

15. The defendant gave evidence that as the year (2014) progressed he had some concerns about Mr Tsiplakidis’ mental ability to make decisions in his life and that he would have told Dr Fraser or her ‘subsidiary’ Dr Williams, about those concerns.[116]

    [116] T 293.12-18.

16. On 16 July 2014 the defendant swore an affidavit with respect to the Gousev action in support of an application that he be appointed Litigation Guardian in that action wherein he attested:[117]

    My uncle has been in reasonably poor health for some time. He has, until recently, been largely able to manage his own affairs with assistance. As of May this year my uncle’s condition significantly deteriorated. My uncle can no longer manage his own affairs.

    [117]  Exhibit D1 p 152.

17. Annexed to that affidavit was a copy of the orders made by the Guardianship Board on 27 June 2014,[118] a copy of Dr Sobieraj’s letter dated 12 May 2014[119] and a copy of the ACAT assessment (dated 3 April 2014 but approved on 9 July 2014) approving Mr Tsiplakidis for permanent residential aged care and high level care.[120]

    [118] Exhibit D1 p 161.

    [119] Exhibit D1 p 163.

    [120] Exhibit D1 pp 165-168.

18. The defendant said he had made the application to be appointed litigation guardian in the Gousev action at the request of Dr Fraser.[121] He also said he had taken the steps required for the Guardianship Board to make the orders dated 27 June 2014 ‘at the behest of the hospital’.[122] He remembered the latter as being important because ‘uncle wasn’t able to make decisions in the best interests of his medical treatment’.[123]

    [121] T 294.10-13.

    [122] T 294.34.

    [123] T 295.9-13.

19. In this respect I note that it was not until 10 October 2014 that Dr Fraser wrote to Mr Jackson to express the opinion that Mr Tsiplakidis did not have capacity to understand or make decisions with respect to his medical treatment, finances or accommodation and care needs, at which time she noted a marked deterioration since July 2014.[124]

    [124] Exhibit D1, pp 174-175.

20. The defendant’s recollection was that Mr Tsiplakidis went into an aged care facility in the middle of 2014 after a second ACAT assessment had resulted in him being approved for such care following a further fall, which caused him to be hospitalised again. He said he visited Mr Tsiplakidis every day when he was in the nursing home and elaborated ‘I would visit uncle every day from the very first time he rang me and it was the day after being released from custody’.[125] I note that earlier in his evidence he had described the day of that phone call as being a few days after the trial (June 2013), not after his uncle’s release from custody (which was earlier, on 8 February 2013).

    [125] T 296.2-4.

21. He said he had never seen the plaintiff visit Mr Tsiplakidis while he was at the QEH or at the nursing home.[126]

    [126] T 296.8.

22. In cross-examination the defendant was asked a series of questions as to when he first became aware that Mr Tsiplakidis was having hallucinations.

23. The defendant gave evidence that he was called by police at 2.00 am to attend at the Buller Terrace house as his uncle had been seen on the street half naked and yelling. He was taken to hospital in an ambulance and the defendant had gone separately, alone, to the hospital, after going home to get changed. His wife did not go with him. He remembered that his uncle said something to him to the effect that he had been having hallucinations for 12 days. He had sat with his uncle until about five or six in the morning.

24. During his daily visits in the lead up to this admission he had not noticed his uncle was hallucinating. However he described his uncle as ‘physically frail, he was weak, he was complaining about his health’.[127]

    [127] T 299.37-38.

25. When asked to clarify the time his uncle was admitted to hospital on this occasion he was certain he had been called at 2.00 am and described this as the occasion that his uncle was ‘hallucinating or ranting and raving’.[128] [In this respect I note that the QEH records for the admission on 16 March 2014 suggest he was seen in the Emergency Department at 16:15 (4.15 pm).[129] The records for the admission on 17 May 2014 following an incident outside Mr Tsiplakidis’ house attended by SAPOL at which time he was noted to be confused and mumbling with incoherent speech record that he was seen in the Emergency Department that day at 2.30 am.[130]]

    [128] T 300.30.

    [129] Exhibit P1 p 3.

    [130] Exhibit P1 p 185.

26. The defendant’s memory of the occasion when he first learned his uncle was hallucinating was not assisted when his attention was directed at a notation in the QEH records from the admission on 16 March 2014 to the effect that the defendant’s wife, Olena, was present.[131]

    [131] T 301.27.

27. The defendant was asked if he could recall speaking to his uncle on that day and he could not specifically recall doing so, although said he had spoken to him, as he had every day. He recalled his uncle as ‘carrying on’ and being ‘very upset, unhappy, “What’s going on?” He didn’t know, he was confused’.[132]

    [132] T 303.22-24.

28. The defendant said his uncle had told him (and many others, including Dr Fraser) that he had seen a seven foot tall man – but that he was not present when his uncle was having that hallucination and he recalled his uncle telling him about this while he was in hospital.

29. In cross-examination the defendant was asked numerous questions about how it came to be that Mr Gladys drafted the Transfer. The following exchange occurred in cross-examination:[133]

    QDo you recall why you would be ringing Mr Gladys to arrange a time for your uncle to sign the Transfer.

    AI can speculate that I would have been asked to ring him by my uncle.

    QPresumably your uncle’s told you about the transfer.

    ANo, my uncle wouldn’t have said anything about the transfer, he would only speak generally about the issue of how the matter was progressing. He wouldn’t have said anything about a particular document, he wouldn’t be able to name it.

    QHe wouldn’t have been able to name the document.

    AHe wouldn’t have been able to say ‘What’s going on with the lodgement of the transfer’ of the whatever to the Lands Titles Office. He would have said ‘What’s going on with the Petrenko matter, what’s going on with my house, has he organised to get it sold yet’.

    [133] T 315.1-16.

30. The defendant said that the issue of the Transfer was ‘totally unimportant’. When pressed as to why he was continuing with this action, it effectively being about the Transfer, he said that his purpose in bringing the action ‘was to do as uncle instructed me to do’ which was ‘to get half of his house back’[134] (being the property).

    [134] T 316.30-33.

31. The defendant was asked when his uncle had told him that and he said ‘Right from the very beginning when I started visited (sic) after …’[135] Although he did not complete this sentence, this appears to be a reference to the period after the phone call he said his uncle had made to him a few days after the trial, as he had described earlier in his evidence.

    Dr Fraser’s evidence

    [135] T 316.35-36.

32. Dr Fraser was the only medical expert called to give evidence on the issue of capacity. In addition she prepared a report dated 25 March 2016.[136]

    [136] Exhibit D1 pp 115-124.

33. Dr Fraser’s opinion is that as at 4 March 2014 Mr Tsiplakidis had legal capacity to make the decision to sever the joint tenancy with respect to the property. However as at October 2014 Mr Tsiplakidis’ vascular dementia, diagnosed in April 2014, had progressed to the point that he did not have capacity to manage his affairs or direct his care needs.

34. Dr Fraser first saw Mr Tsiplakidis on 25 March 2014, at which time he was an inpatient at the QEH. As such, her opinion as to his capacity as at 4 March 2014 is based in part upon her observations of him as at 25 March 2014, but has also necessarily been informed by her analysis of the available documentary evidence which sheds light on Mr Tsiplakidis’ health, his cultural expectations, his interactions with various legal advisors and the reasoning for and timing of his actions during the relevant period.

35. Dr Fraser agreed that she had made certain assumptions when reviewing the relevant materials and that these had informed her opinion as to capacity.

36. She noted that it was presumed that as an adult Mr Tsiplakidis had capacity and she stated that she ‘couldn’t find anything that proved that he didn’t have capacity’.[137]

    [137] T 263.27-28.

37. Dr Fraser stated that an assessment of a person’s capacity generally involved a determination of a person’s ability to make a decision and involved assessing the way in which the decision was made.

38. She explained that some decisions are more complex than others meaning a person may have the capacity to undertake some tasks or decision-making but not others. Further, a person’s capacity may fluctuate – in the sense that they may lack certain capacity for a very short period of time due to a medical reason and then regain that capacity.[138] In cross-examination Dr Fraser made it clear that a person’s capacity to make a certain decision needed to be assessed at the time they made the decision, noting that capacity can fluctuate.

    [138] T 120.31-32.

39. Dr Fraser gave evidence that in determining capacity she would look at whether a person could identify what is the task they are being asked to do, whether they can identify the pros and cons of their decision in terms of its impact on them and others and what are the solutions. In other words, how can they go about getting what they want done.

40. In cross-examination she reiterated that in determining whether a person has capacity to make a certain decision it was critical that they understood what they were doing. Although she did not regularly undertake such assessments, if she was testing for capacity to sever a joint tenancy, she agreed that she would be looking for responses which demonstrated a knowledge and history of the relevant property and transaction, an understanding of the consequences arising from entering into the transaction and general coherence in terms of presentation with respect to that subject.[139]

    [139] T 254.35-255.5.

41. Dr Fraser noted that prior to his admission to the QEH on 16 March 2014, Mr Tsiplakidis had no history of psychosis. She expressed the opinion that his symptoms at the time of that admission were in keeping with an acute (that is, recent onset) delirium, depression and related to dementia and she noted his hallucinations had reportedly resolved during that admission.[140]

    [140] Exhibit D1 p 119.

42. Dr Fraser gave evidence that when she first met Mr Tsiplakidis there was nothing which caused her to question his capacity to give her information she needed about him. Although he was quite deaf, she described Mr Tsiplakidis as being quite articulate, able to talk about his childhood and upbringing and capable of speaking several languages. In this respect she noted that on 19 March 2014 (that is, six days before she first met him) he had spoken to a member of the psychiatric liaison team in Japanese – which she considered supported her opinion that as at that date (let alone on 4 March 2014), Mr Tsiplakidis was alert and demonstrating good cognition.

43. She said he was aware that the delusions he was having were imaginary and was seeking her help to get rid of them. He was pleasant and willing to take medication.

44. She was asked whether at the time she first met Mr Tsiplakidis she formed a view as to whether he was impacted by dementia. Dr Fraser said that as Mr Tsiplakidis did display some confusion upon his admission to hospital on 16 March 2014, tests were organised to determine if there was an organic cause for this confusion. She stated ‘So we weren’t that concerned, it was “Let’s get some tests done”’.[141]

    [141] T 95.7-8.

45. She explained that some of Mr Tsiplakidis’ results on MMSE were likely to be impacted by his difficulty in speaking English and his deafness and would also be affected if he completed them without wearing his glasses.

46. She agreed that as at 18 March 2014 neuroimaging by way of CT scan revealed Mr Tsiplakidis’ condition had progressed to the state that there was ‘moderate small vessel ischaemia’ and she agreed with a proposition that this was not something which would have developed over a couple of days and was more likely to have developed over months or indeed years.

47. Dr Fraser was asked about the results of neuropsychological testing conducted on 4 April 2014 which indicated a likely diagnosis of vascular dementia and that on tests for memory and learning Mr Tsiplakidis was impaired across all spans and modalities.[142]

    [142] Exhibit D1 p 146.

48. Dr Fraser accepted a proposition that vascular dementia could affect the frontal lobe of the brain, which in turn could affect executive functioning and ultimately affect capacity. She acknowledged that it was possible that such findings did have significance in answering whether, at that time, he had capacity to make a decision of this type. However, she maintained that a mere diagnosis of vascular dementia did not of itself lend itself to a finding that a person lacked capacity.

49. It was put to Dr Fraser in cross-examination that as Mr Tsiplakidis had progressively deteriorating vascular dementia as at 4 March 2014, it was incorrect to assume he had capacity as at that date and she said she was unable to answer that question. She agreed it was possible that the vascular dementia was causing Mr Tsiplakidis some deficits as at the date of the Transfer but she said it was equally possible it was not.

50. She repeated that despite the diagnosis of vascular dementia on 4 April 2014, Mr Tsiplakidis did not present (to her, at or about that time) as someone with a long history of not functioning and this was reflected in the fact that he was discharged to live at home and was aware he was struggling and needed help.

51. She went on to say that even if Mr Tsiplakidis was suffering acute symptoms of delirium in mid-late March 2014, he may still have retained capacity at that time to make certain decisions, including giving instructions with respect to a will.[143]

    [143] T 120.38-122.2.

52. Dr Fraser’s opinion is summarised on the final page of her report, namely:[144]

    On the history of capacity over time from 2011 until March 2014 Mr Tsiplakidis consistently wanted to sever joint tenancy of the property belonging to him and Valentina Petrenko. This either took the form of severing the joint tenancy so he could leave his share to whomever he wished upon his death or that the property would be sold with profits being equally divided between them. He demonstrated clear knowledge of what joint tenancy meant and the impact on those within the tenancy should it be severed or left as is. This direction from him persisted up until at least the 13^th March and possibly even April as he mentions during neuropsychological testing he was currently involved in a legal dispute with his family. His decisions regarding this property was (sic) influenced as expected by his cultural background and it was not based on a delusional belief system or incapacity due to other causes. Neuropsychological testing in April demonstrates early cognitive deficits that are most likely to affect new learning rather than old. It did not test specifically capacity. It is my opinion given this was a decision he had made years earlier and that had been actively pursued over the preceding 2 years his mental state in early March did not alter his understanding or direction and he continued to have had capacity for the question of his decision to sever the joint tenancy with Valentina Petrenko.

    [144] Exhibit D1 p 121.

1. In Hummelstadt v Hicks[420] the court dealt with a dispute between co-owners of a property held by them as tenants-in-common. The parties had both resided at the property until February 2004, when the defendant departed the property. At or shortly thereafter the plaintiff changed the locks on the property. Each party had previously taken out an AVO against the other, although the terms of each AVO are not known.

   [420] [2006] NSWSC 120.

2. There was a dispute as to whether the plaintiff’s actions constituted an ouster, noting that the practical effect of the changing of the lock was to deny the defendant access to that part of the property he had previously occupied. The plaintiff thereafter remained in occupation of property.

3. McLaughlin JA noted that the question of whether one co-owner had been ousted or wrongfully excluded by the other co-owner was a question of fact, to be decided on the evidence in each individual case. McLaughlin JA found:[421]

   When, on 10 February 2004, the Defendant departed in circumstances which he described in his affidavit of 9 May 2005 and in his oral evidence, and when he attempted to return to the house, he, on account of the conduct of the Plaintiff in relation to the locks, was not able to regain access. Once the Defendant had departed the Plaintiff was not prepared to have him return. The asserted failure of the Defendant to meet his share of the mortgage payment for February 2004 did not justify the Plaintiff in depriving him of occupation of the subject property. It seems to me that the practical effect of the conduct of the Plaintiff was to oust or to exclude the Defendant from his rightful occupation of the subject property, to which as a co-owner he was entitled.

   (My emphasis)

   [421] [2006] NSWSC 120 at [45].

   The Evidence

4. The evidence establishes, and there is no dispute, that Mr Tsiplakidis left the property in the early 1980s of his own volition as he had purchased the property at Purnong and sought to live there instead.

5. The evidence given by the plaintiff as to the frequency with which Mr Tsiplakidis then visited and/or stayed at the property thereafter was, in certain respects, inconsistent with what she told police in her statement dated 26 July 2012. The plaintiff gave evidence that after Mr Tsiplakidis went to live at the Purnong property (in about 1984), he would return to stay at the property from time to time and stored various items at the property, such as shoes, shirts, shaving cream and boxes containing other items. When he returned to visit he would sleep in a separate bed in his own bedroom.[422]

   [422] T 433.11-14.

6. She said he stopped coming to the property ‘in about 2005, 2007, I’m not sure’. In cross-examination she eventually agreed that there were lengthy periods of time when her father would not attend at the property and effectively disappeared from the lives of her and her mother, being consistent with what she had told police in her statement.[423]

   [423] T 433.4, noting that this is what she said to police in her statement dated 26 July 2012.

7. At paragraph 5 of the Statement of Claim, it is pleaded that the relationship between Ms Petrenko and Mr Tsiplakidis ‘ended in or about 2009 when the plaintiff changed the lock on the matrimonial property’.[424]

   [424] Exhibit D1 p 3.

8. At paragraph 7 of an affidavit sworn by Ms Petrenko on 18 September 2012, she attested that her relationship with Mr Tsiplakidis ‘ended in about 2009 when I changed the locks on the Matrimonial Home’. ^[425]

   [425] Exhibit D2 p 55.

9. As set forth on page 81 herein, the plaintiff conceded in cross-examination that when the lock to the back screen door at the property was changed in about 2009, the effect of the same was to exclude Mr Tsiplakidis from gaining entry to the house on the property except in certain circumstances. She also gave evidence that on 24 July 2014 additional locks at the property were changed and further security measures adopted at the property at the suggestion of the Victims of Crime Unit in the aftermath of the shooting incident.[426]

   [426] T 355.29-356.2.

10. I note my earlier observations that the plaintiff maintained in her evidence that the lock to the back screen door was changed only to facilitate her mother’s easy access through that door and not to prevent her father from accessing the property, or because of the fact her parents’ relationship had ended.

11. The plaintiff gave evidence that after the lock to the back screen door was changed, although she did not see her father at the property, she believed he had attended at the property from time to time as she observed three specific items had been removed from the property, and she saw those three items at a later time at the Buller Terrace property. She described these as ‘three notable things’.[427]  These three items were a statue of an eagle that had been sent from Poland, a painting and an ornament.[428]

    [427] T 356.38.

    [428] T 356.25-357.8.

12. In cross-examination the plaintiff agreed that in her statement to police made in July 2012[429] she had stated that about four years earlier she had suspected her father was letting himself into the property because ‘strange things were going missing from inside the house, like a lamp, a bird statue and a doona’. She said that statement was true.[430]

    [429] Exhibit D1 pp 214-227.

    [430] T 438.12-30.

13. When asked why these were not the same three notable items she had described during her examination-in-chief, the plaintiff stated that there were lots of different things that had gone missing and that the three items she had described earlier in her evidence were what had come to her mind at that time.[431]

    [431] T 438.33-36.

14. Ms Petrenko gave the following evidence in Mr Tsiplakidis’ attempted murder trial:[432]

    QDid you tell the lawyer, through Lidia, that the relationship ended in 2009 when you changed the locks.

    APublic servants changed the locks. The locks were very weak, you could push and they open, and they changed. And he was taking his belongings away because when I checked, I saw that some of his belongings were missing. He was not taking mine, but he was taking his.

    [432] Exhibit D1 pp 293-294.

15. It seems likely, having regard to the plaintiff’s evidence, that the locks Ms Petrenko was referring to are those at the home on the property which were changed in response to the shooting incident, rather than at an earlier time, noting the plaintiff’s evidence that all of the locks to the home on the property were changed after that incident.

16. Ms Petrenko was also asked whether she had asked her lawyer to tell Mr Tsiplakidis not to come to see her. She replied ‘No, We did not have talks with the lawyer about him. Only about house’.[433]

    [433] Exhibit D1 p 306.

17. The plaintiff gave the following evidence during cross-examination in Mr Tsiplakidis’ attempted murder trial:[434]

    QIn 2009 did your father come to see your mother at Melbourne Place when you were there and tell her that he wanted to sell Purnong because he was getting old and couldn’t manage it and he wanted to come back to Adelaide to live with your mother.

    AYes.

    QOnce that request was made, is that when the locks were changed.

    ANo.

    QOr was it in 2009 that the locks were changed.

    AI believe it was later.

    [434] Exhibit D1 p 365.

18. Later the following exchange occurred:[435]

    QSo somehow or other in 2009 this meant that there should be proceedings so your mother got the lot, is that what you’re saying.

    AThe aim was not to have my father there, that was our aim.

    QBut you changed the locks in 2009 to make that point.

    AThe locks, that is a lock was changed which only fitted one key because it had broken and my husband replaced it with a new lock, that’s all that had happened.

    [435] Exhibit D1 p 371.

19. When asked (in the attempted murder trial) why there was any urgency in her mother pursuing the claim, the plaintiff’s reply was:[436]

    We had a problem with having him around. It was very difficult to live with him. It was very difficult to allow him back into our lives again and he exacerbated the problem by moving so close. He couldn’t get into the house in which my mother resided for so long and then he exacerbated the issue. He knew that we were very, very – well, we felt very intimidated by him, I felt very intimidated by him. I feared him. I was very uncomfortable with the fact that he moved into Buller Terrace.

    [436] Exhibit D1 p 375.

20. The plaintiff gave evidence during cross-examination (in the within trial) that after the back screen door lock was changed Mr Tsiplakidis:[437]

    … came less frequently but I don’t know if it was directly related to the change of the key. There were some uncomfortable situations but I believe – I think that it assisted a sense of relief in the sense that he came less frequently.

    [437] T 441.1-8.

21. The following exchange occurred in cross-examination:[438]

    [438] T 441.9-28.

    QWhen he came after the lock was changed he couldn’t come in unless he was let in; that’s correct isn’t it.

    AYes.

    QAnd did that give you a sense of relief.

    AAgain, if you are talking about the solely by the lock, he could let himself in other ways, in many other ways, but via that lock you probably couldn’t.

    QHe certainly couldn’t, could he.

    AI don’t know, I wasn’t there when he tried to open the door, if he tried to open the door.

    QOnce the lock was changed you had a sense of relief that he couldn’t enter the property.

    AI had a sense of relief that he came less frequently.

    QAnd did you infer he came less frequently because he knew he couldn’t get in.

    AI don’t know why he came less frequently.

    QSo there is no connection in your mind between changing the lock and him coming less frequently.

    AThere was no mention of a lock, ‘You’ve stopped me from coming in’, he just came less frequently.

22. When asked how Mr Tsiplakidis could have accessed the property after this lock was changed the plaintiff said:[439]

    [439] T 441.33-35.

23. My father could break in or he could imagine ingenious ways to get in, so I don’t know what he could or would have done.

24. The plaintiff also gave evidence that in August 2011, being at a time when she said her father had not yet left Purnong, he visited her mother at the property and discussed his desire to return to live permanently at the property. The plaintiff said that she told her mother that if she agreed to this, she would choose not to come to the property. She said her mother ‘took my advice’, such that she did not accede to Mr Tsiplakidis’ request.[440]

    [440] T 361.12-32.

25. In cross-examination the plaintiff agreed this conversation may have occurred earlier than August 2011, noting that Mr Tsiplakidis purchased the Buller Terrace property as joint tenants with Ms Gousev on 28 June 2011 and sold the Purnong property on 14 July 2011.

26. She said that thereafter she approached the police due to concerns she and her mother held as to what may happen in the future due to ‘what seemed to be a denial for him to come back to his property’.[441] In accordance with police advice they had then consulted a solicitor, Mr Harley, of Dixon Gallasch.

    [441] T 362.14-20.

27. It is unclear from the evidence precisely when Ms Petrenko (and the plaintiff) first consulted Dixon Gallasch. However, the letter sent by Dixon Gallasch to Mr Tsiplakidis dated 31 October 2011 is written in language to suggest it was written in response to recent instructions obtained by them from Ms Petrenko to act on her behalf.[442]

    [442] Exhibit P2.

28. In her statement to police dated 26 July 2012, the plaintiff referred to a visit by her and her mother to Purnong about two years earlier. She went on to say:[443]

    I don’t recall whether it was before or after going to see my father at Purnong that my father came to see my mother at her home. I was there at the time. My father was smiling and pleasant enough. He told us that he wanted to sell his property in Purnong and come back to Adelaide and live with my mother. My mother and I were shocked that he wanted to do this after all these years. My mother was scared to say no to my father and didn’t even know if she had the right to refuse him. I was outraged that he thought he could just walk back into our lives.

    When he rang up a few days later my mother actually said to him that she didn’t want him to come back into the house. He was outraged by this. I don’t think she has ever stood up to him before.

    In June 2011 my father bought a house at 56 Buller Street (sic) Alberton …

    [443] Exhibit D1 p 219.

29. In a letter apparently sent by Mr Tsiplakidis to Dixon Gallasch dated 11 November 2011 reference is made to occasions when he could not gain access to the property, but when these occasions were is not stated.

30. During the attempted murder trial, Mr Tsiplakidis gave evidence that he sold the Purnong property because he ‘was crippled’ and ‘couldn’t work any longer’.[444] He said that he spoke to Ms Petrenko and told her that he was going to sell the Purnong property and come back to live in the property.[445] He said that Ms Petrenko disagreed and ‘(t)hey change the locks and not let me in any more after that’.[446] He said that thereafter he went to live at the Buller Terrace property, which he bought using some of the proceeds of sale of the Purnong property.

    [444] Exhibit D1 p 418 line 13.

    [445] Exhibit D1 p 419 lines 12-14.

    [446] Exhibit D1 p 420 lines 3-8.

31. The defendant gave evidence that the last time he attended at the property was in about 2011 (although he could not recall the precise date and was not certain it was in 2011, it being ‘years ago’).[447] He attended the property with Mr Tsiplakidis after having driven him back from the river. He said that he waited inside the car while Mr Tsiplakidis embraced Ms Petrenko, who had come outside to greet him. He said they were quite friendly towards each other.

    [447] T 322.19-323.8.

32. The defendant gave evidence that after Mr Tsiplakidis was released from custody he had mentioned to him many times that he wanted to go to the property and that he had a right to go there.[448]

    [448] T 323.25-324.8.

33. He did not know what, if any, of Mr Tsiplakidis’ personal property had been stored at the property in more recent times.

34. The only evidence relating to any request by the defendant for access to the property is that contained in the letter from Camatta Lempens to the plaintiff dated 29 August 2014 wherein a request was made to the plaintiff to enable Mr Tsiplakidis and the defendant to have access to the property to inspect it and for the purpose of having a real estate agent give an appraisal.[449]

    [449] Exhibit D1 p 57.

35. The plaintiff responded by way of letter to Camatta Lempens dated 22 September 2014 wherein she stated that she agreed to have the property assessed within proper guidelines but ‘I do not wish for Alexander Derkatch or anybody else associated with my father to be present. They pose a threat to me and my family …’[450]

    [450] Exhibit D1 p 58.

36. The plaintiff agreed in cross-examination that in effect what she was conveying by this letter was that she would agree to an assessment of the property but would not permit the defendant or Mr Tsiplakidis access to the property.[451]

    [451] T 503.20-23.

    Findings of Fact

37. There is no dispute that Mr Tsiplakidis was previously in occupation of the property before he left of his own volition to live at the Purnong property in the early 1980s.

38. The plaintiff gave evidence at trial and in the attempted murder trial that from time to time her mother lived with her (following her discharge from hospital after the shooting incident), in respite care and in residential care such that at certain times the property was in fact unoccupied.[452] However I am satisfied that Ms Petrenko (and/or the plaintiff as her Attorney) was in effect in occupation of the property until the date of Ms Petrenko’s death and that thereafter although the plaintiff has not lived at the property she has exercised a right of occupation with respect to it.

    [452] T 375.-11; T 380.25-381.13; T 384.14-37.

39. Having regard to all of the evidence I find that the lock on the back screen door of the property was changed no later than in or about mid-2009.

40. I note my previous observation that the plaintiff agreed in cross-examination that the effect of the change of this lock was to exclude the entry of anyone into the house on the property unless they had a key to that door.[453] Having regard to all of the evidence I find that Mr Tsiplakidis was never provided with a key to enable him to unlock the back screen door, after that lock was changed in or about 2009.

    [453] T 435.22-26.

41. There is no evidence that Mr Tsiplakidis sought to return to live at the property until he made a decision based on his deteriorating health to sell the Purnong property and return to Adelaide to live.

42. Although Mr Tsiplakidis gave evidence in the attempted murder trial to the effect that the locks were changed after he had requested to return to live at the property, I consider he was likely mistaken in this respect.

43. Having regard to all of the evidence, I find that Mr Tsiplakidis discussed with Ms Petrenko the possibility of him returning to live at the property at least six months prior to his purchase of the Buller Terrace property.

44. The Buller Terrace property was purchased in late June 2011 at or about the same time the Purnong property was sold.

45. It is difficult to be precise as to the timing of this discussion, given the numerous inconsistencies in the evidence. However, it is likely and I find that because of his ill-health, Mr Tsiplakidis intended to sell the Purnong property and return to live in Adelaide. He made his intentions clear to Ms Petrenko, namely that he wanted to return to live with her at the property. When his request was denied he instead purchased the Buller Terrace property, being in very close proximity to the property, consistent with him wishing to reside near Ms Petrenko who had previously performed the role of ‘carer’ for him from time to time.

46. It would have taken several months, if not longer, for Mr Tsiplakidis to find a buyer for the Purnong property and to both source and purchase the Buller Terrace property.

47. I note what the plaintiff said in her statement to police in July 2012 as to the likely timing of her father’s request to return to live at the property, namely it being about two years before the giving of that statement. I do not accept the plaintiff’s evidence given at trial that this discussion in fact occurred in August 2011. I consider what the plaintiff told the police in this respect to be far more reliable than the evidence she gave on this topic, noting the statement was given several years earlier and at a time when both her memory of this event was likely to have been much better and the relevance of the discussion was not fully understood by her.

48. Doing the best I can on the available evidence I find it more likely than not that Mr Tsiplakidis told Ms Petrenko of his desire to return to live at the property and to sell the Purnong property no later than late December 2010. While it is possible he made this desire known to Ms Petrenko at an earlier time, I cannot make such a finding on the balance of probabilities.

49. The plaintiff told the police in her statement that Mr Tsiplakidis rang her mother a few days after he made the request to return to live at the property and that it was at that time that Ms Petrenko told him she did not want him to return to live at the property.

50. Again, doing the best I can having regard to the evidence, I find that Ms Petrenko refused Mr Tsiplakidis’ request to return to live at the property within a few days of that request being made. In the absence of a specific date being known, I find it is more likely than not that Ms Petrenko refused Mr Tsiplakidis’ request to return to live at the property no later than 1 January 2011.

    Was there an ouster and if so when and for what period?

1. In accordance with the authorities outlined above, having left the property voluntarily to reside at Purnong in the early 1980s, I find that until Mr Tsiplakidis expressed a desire to return to live at the property, the action taken by Ms Petrenko in changing the lock on the back screen door to the property did not, of itself, constitute an ouster.

2. Although the practical effect of that lock being changed was to deny access to the home on the property by Mr Tsiplakidis (except in certain circumstances), there is no evidence that Mr Tsiplakidis had attempted to gain access to the property and been denied such access, at any time prior to expressing the desire to return to live there.

3. In accordance with the authorities, from the time Mr Tsiplakidis made his desire and intention to return to live at the property known to Ms Petrenko, her refusal to allow him to do so thereafter constituted an ouster. Mr Tsiplakidis had a right to both use and occupy the property which he sought to exercise and was denied the right of occupation.

4. In refusing Mr Tsiplakidis’ request to return to live at the property, Ms Petrenko wrongfully excluded Mr Tsiplakidis from the property.

5. From time to time thereafter Mr Tsiplakidis was prevented by law from attending at the property by virtue of his incarceration, his bail conditions and the terms of the Intervention Orders obtained by the plaintiff and Ms Petrenko. At times, particularly during mid to late 2014, he was too unwell to reside there. However, having regard to the reasoning in Biviano v Natoli,[454] the ouster continued nevertheless. Similarly the fact that Mr Tsiplakidis was able to continue to live at the Purnong property until such time as he purchased the Buller Terrace property is irrelevant.

   [454] (1998) 43 NSWLR 695.

6. I find that Ms Petrenko wrongfully excluded Mr Tsiplakidis from the property from 1 January 2011 until the date of his death, 19 December 2014.

7. In light of my earlier findings, upon Mr Tsiplakidis’ death, Ms Petrenko assumed sole ownership of the property as the surviving joint tenant, meaning the defendant has no claim for occupation rent after Mr Tsiplakidis’ death.

   Remedy

8. The defendant seeks an order for compensation from the plaintiff for the use and occupation of the property. It is submitted that compensation should be assessed as one half of the fair market rent for the property during the period of any wrongful exclusion.

9. The defendant relies on the expert evidence of Mr Carter, which was not seriously challenged, as to the estimated market rental for the property during the period 2010 – 2017 as set forth on page 11 of his report dated 8 March 2017.[455]

   [455] Exhibit D1 p 529.

10. The plaintiff submits that as a matter of law, any claim for compensation should not simply be assessed by reference to half the market rent for the property during the period of the ouster, having regard to the fact that the property was not vacant during the entirety of that period, as Ms Petrenko was living in it.[456]

    [456] Albeit there was evidence that Ms Petrenko lived in residential care for some of the period, particularly after Mr Tsiplakidis’ release from custody.

11. Further the plaintiff contends that any sum awarded by way of compensation should be reduced to reflect a contribution by Mr Tsiplakidis (and/or the defendant) towards the holding costs of the property (that is, council rates, water rates, emergency services levy etc).

12. At common law, a co-tenant who has occupied common property and has excluded his co-tenant in common therefrom can be sued for ejectment and for mesne profits and liable to be charged an occupation fee.[457]

    [457] Scapinello v Scapinello [1968] SASR 316.

13. The calculation of the relevant occupation fee is problematic.

14. As Beazley JA said in Biviano v Natoli,[458] notwithstanding the fact that a co-tenant has an entitlement to the use and occupation of the whole of the property, it is not appropriate to calculate the occupation fee by reference to the rental value for the whole of the property when there was another co-tenant in occupation and that any occupation fee may not even equate to 50 per cent market rental.

    [458] (1998) 43 NSWLR 695 at 704.

15. He stated:[459]

    The onus of establishing the quantum of the occupation fee falls upon the party claiming it – namely, the ousted co-tenant. The respondent proved the rental value of the property based on there being no other person already in occupation. He did not prove the rental value on the basis that the appellant and her daughter also occupied the property, as they were entitled to do. Notwithstanding that, I am of the opinion that that as the appellant did not seek to assert any lesser figure than 50 per cent, that is the appropriate percentage to apply. Accordingly, the respondent is entitled to half the rental value of the property from 2 August 1995. I do not consider it appropriate to make any deduction for capital outgoings such as local council and water rates in the circumstances of the case. If there was evidence that the occupation fee sought did not include an allowance for these matters, there undoubtedly would have to be an accounting between the parties. That was not the case.

    [459] (1998) 43 NSWLR 695 at 704.

16. Mr Carter gave evidence that he estimated the likely market rent attributable to the property by reference to available comparator properties, being those set out in his report,[460] which he acknowledged did not include comparable rent for the entirety of the period as claimed by the defendant. This meant that his estimates were, in part, based upon his own experience and knowledge of the industry.[461]

    [460] Exhibit D1 pp 519-540.

    [461] T 141.18-142.4.

17. I accept that Mr Carter as an experienced and practising valuer has the appropriate expertise to make the estimates as set forth on page 11 of his report and I accept his evidence as to the likely market rent achievable for the property during the relevant period. Mr Carter’s estimates as to likely achievable market rent for the property, provided as at 8 March 17, were:[462]

    [462] Exhibit D1 p 529. There was no evidence as to whether these are references to calendar or financial years. I have assumed the former, in the absence of any contrary evidence.

    As at 8 March 2017:           $325 per week

    2016:$325 per week, $16,900 pa

    2015:$315 per week, $16,380 pa

    2014:$325 per week, $16,900 pa

    2013:$310 per week, $16,120 pa

    2012:$300 per week, $15,600 pa

    2011:$295 per week, $15,340 pa

    2010:$290 per week, $15,080 pa

18. In cross-examination Mr Carter acknowledged that these estimates were made on the assumption that the property was available for exclusive occupation by a prospective tenant.[463]

    [463] T 142.7.

19. Mr Carter agreed that if it was possible for the property to somehow be divided up between two people, the market rent payable for half of the property would be substantially less than half of what he had estimated for the entirety of the property. However, he went on to say that it could also be more, as there was a base that someone may be prepared to pay for a property that has utility.[464] He agreed that he had not been briefed to comment on that position.

    [464] T 143.34-144.8.

20. The period from 1 January 2011 to 19 December 2014 is three years and 11.61 months.

21. Adopting the same approach as that in Biviano v Natoli[465] half of the market rent for the property for that period is:

    [465] (1998) 43 NSWLR 695 at 704.

    2011$7,670

    2012$7,800

    2013$8,060

    2014 (to 19/12/14)             $8,177

    Total$31,707

22. It was submitted by the plaintiff that in the event that I found the plaintiff was liable to pay occupation rent, the parties intended to compile a schedule outlining relevant council rates, water rates and other holding costs incurred by the plaintiff and/or Ms Petrenko with respect to the period of any ouster, from which a contribution would be sought from the defendant, thus reducing the amount payable by way of occupation rent. As such no evidence was led at the trial of such holding costs. I agreed to that course of action.

23. I find the plaintiff is liable to pay the defendant occupation rent of a sum not exceeding $31,707, such sum being potentially subject to reduction upon receipt and consideration of further evidence relating to the holding costs for the property for the period of the ouster, and any further submissions relating thereto.

    Summary of Findings

    1.Mr Tsiplakidis had capacity when he signed the Transfer on 4 March 2014.

    2.Mr Tsiplakidis’ instructions to lodge the Transfer for registration were likely given at the time of execution of the Transfer, despite the lodgement occurring on 11 March 2014.

    3.The steps taken by Mr Tsiplakidis to execute and lodge the Transfer and to request the production of the Certificate of Title by Ms Petrenko, both via his solicitors and the LTO, did not effect a severance of the joint tenancy in the property.

    4.The joint tenancy in the property was not severed by the mutual conduct of Ms Petrenko and Mr Tsiplakidis.

    5.The circumstances as I find them are not such as to require equity to impose a constructive trust over half of the interest held in the property by the plaintiff, for the benefit of the estate of Mr Tsiplakidis.

    6.Ms Petrenko wrongfully excluded Mr Tsiplakidis from the property on or about 1 January 2011 when she denied his request to return to live at the property. The ouster continued until the date of Mr Tsiplakidis’ death.

    7.The plaintiff is liable to pay to the defendant occupation rent for the period of the ouster, such sum not to exceed $31,707 and being subject to reduction upon receipt of and consideration of further evidence pertaining to the holding costs for the property during the period of the ouster.

    Orders

24. I will hear the parties as to the issue of holding costs with respect to the property for the period of the ouster and as to precise form of any orders sought arising from these findings, interest and costs.