Maxwell v Maxwell

[2022] NSWSC 1028

Supreme Court

New South Wales

Medium Neutral Citation:

Maxwell v Maxwell [2022] NSWSC 1028

Hearing dates:

14 – 15 March 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Equity

Before:

Ward P

Decision:

1.   Dismiss the plaintiffs’ claims in the amended statement of claim.

2.   Note the parties’ agreement that, of the 700 ounces of gold in the first defendant’s custody as at the date of the deceased’s death, 255 ounces were held beneficially by the second cross-claimant (Plassey Pty Ltd).

3.   Order that, unless the first defendant has already delivered 255 ounces of the gold bullion held by her to Plassey Pty Ltd, there be delivery up to Plassey Pty Ltd by the first defendant within 7 days of that amount of the gold bullion held by the first defendant.

4.   Direct the parties to file written submissions on costs within 21 days with a view to costs being determined on the papers.

Catchwords:

PERSONAL PROPERTY – Gifts – Perfection of gifts inter vivos – Intention to make gift – Intention to accept gift – Presumption of assent – Capacity to make gift – Disclaimer by donee

ESTOPPEL – Proprietary estoppel – Encouragement – Detrimental reliance

Cases Cited:

Alderson v Peel (1891) 7 TLR 418

Cochrane v Moore (1890) 25 QBD 57

Commissioner of Taxation v Carter (2022) 399 ALR 521; [2022] HCA 10

Corin v Patton (1990) 169 CLR 540; [1990] HCA 12

Dewar v Dewar [1975] 1 WLR 1532; 2 All ER 728

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2021] HCA 22

Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17

Hill v Wilson (1873) LR 8 Ch App 888

Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78

Howard v Fingall [1853] 22 LTOS 12

In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149

In Re Stratton’s Disclaimer [1958] Ch 42

London and County Banking Co Ltd v London and River Plate Bank (1888) 21 QBD 535

Matthews v Matthews (1913) 17 CLR 8; [1913] HCA 49

Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121

Pape v Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23

Perochinsky v Kirschner (2013) 16 BPR 31,481; [2013] NSWSC 400

Plunkett v Bull (1915) 19 CLR 544

Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931

Re Evans [1946] St R Qd 20

Re Goldcorp Exchange Ltd [1995] 1 AC 74

Re London Wine Co (Shippers) Ltd [1986] PCC 121

Rowland v Stevenson [2005] NSWSC 325

Scott v Bridge [2020] EWHC 3116 (Ch)

Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541

Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Siggers v Evans (1855) 5 EL&BL 367; 119 ER 518

Standing v Bowring (1885) 31 Ch D 282

Szozda v Szozda [2010] NSWSC 804

Thomas v The Times Book Co Ltd [1966] 2 All ER 241

Thompson v Leach (1690) 2 Vent 198

Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575

White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379

Texts Cited:

M J Beazley, P T Vout and S E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (2014, Lexis Nexis Butterworths)

Thornley, “Transfer of Choses in Possession between Members of a Common Household” (1953) 11 Cambridge Law Journal 355

Category:

Principal judgment

Parties:

Marius Maxwell (First Plaintiff)
Ian Howard Maxwell (Second Plaintiff)
Jamila Frances Maxwell (First Defendant)
Plassey Pty Limited (Cross-claimant on second cross-claim)

Representation:

Counsel:
NA Confos (Plaintiffs)
N Bilinsky (Defendant)

Solicitors:
Bray Jackson & Co (Plaintiffs)
Circle Bridge Legal (Defendant)

File Number(s):

2020/00099083

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter involves a dispute in relation to the administration of the estate of the late Neville Graham Maxwell (the deceased), who died on 23 September 2019, aged 93 years. The deceased was survived by his wife, Evelyn, their three adult children (Marius, Ian and Jamila) and two grandsons (Jamila’s sons). I refer to the family members by their first names without intending any disrespect.

2. The deceased’s last Will dated 25 November 2014 appointed Ian and Jamila as the deceased’s executors and trustees; and, relevantly, left the deceased’s shareholding in a family company, Plassey Pty Ltd (Plassey), as to one Preference Class share and either 33% or 34% variously to each of his three children; divided the deceased’s gold bullion in specified percentage shares as between the three children and Jamila’s two sons; and left the residue of the deceased’s estate divided equally between the three children (with a gift over in respect of Jamila’s share to her children equally if Jamila predeceased him).

3. Letters of Administration with the Will annexed were issued on 8 September 2020 to a solicitor, Mr Rohan James McAlpine, in circumstances where the three siblings are in dispute as to the administration of the estate.

4. The dispute in question relates to the ownership of an amount of gold bullion presently in Jamila’s possession, which had been given to her for safe-keeping by the deceased in 2017, around two years before his death. Initially, the dispute was as to the whole quantity (700 ounces) of the gold in Jamila’s custody. However, by the time of the hearing the parties had reached agreement that, of the 700 ounces, the deceased himself owned only 445 ounces (it being agreed that the balance of 255 ounces was owned by Plassey).

5. As the parties have consented to the making of orders in relation to the delivery up by Jamila of the gold that it is accepted is owned by Plassey (although no final orders have yet been made to that effect – see for example the discussion at T 57) , the relevant issue for determination now remains simply whether (as Jamila contends) the deceased made an effective inter vivos gift to her of the balance (445 ounces) of the gold held by her or (as Marius and Ian, the plaintiffs, contend) there was no effective inter vivos gift and this quantity of gold is an asset of the estate for distribution in accordance with the deceased’s last Will (in which case Jamila will be entitled only to a 30% share of that portion of the gold).

6. If Jamila’s contention is correct, then the gift of gold bullion under cl 5(h) of the Will will fail (as the Inventory of Property attached to the grant of Letters of Administration discloses that the gold bullion owned by the deceased at the date of his death was no more than the 445 ounces the subject of the present dispute) and there will be virtually nothing left in the deceased’s estate. The value ascribed to the 445 ounces of gold bullion in the Inventory of Property, as at 23 September 2020, was $998,620.05.

7. The plaintiffs assert that, as at the relevant time (being the weeks leading up to and including 22 May 2019 – see chronology of events below) the deceased had cognitive impairment that caused confusion, hallucinations, or mental infirmity, to the point that he was likely to have been confused or mistaken as to what he was endeavouring to “gift” to Jamila (if in fact he was intending to make a gift at all). It is submitted that the manifestation of this impairment is such that it cannot be concluded that the deceased intended to make a gift of any quantity of gold at all to Jamila (or, at most, that there may have been an intention to make a gift of 70 ounces of gold – see closing submissions at T 69.45-70.10; though the plaintiffs say even that gift would fail for want of any evidence of acceptance by Jamila of the “gift”).

8. In the alternative, the plaintiffs say that, if the deceased did intend to make a gift of 700 ounces of gold to Jamila, then that gift was subject to two conditions: first, that the deceased had ownership of 700 ounces of gold “to gift”; and, second, that such a gift would not cause any “legal complexities” involving Plassey (see [4] of the plaintiffs’ amended reply filed on 24 August 2020). The plaintiffs say that each of those conditions was not (and could not be) satisfied; and therefore that the alleged gift failed (again, see [4] of the amended reply). As to the first condition, the plaintiffs say (as is now accepted) that the deceased did not own 700 ounces of gold bullion (rather, Plassey owned 255 ounces of the gold in Jamila’s custody); and the plaintiffs maintain that the “gift” cannot be understood or treated as a gift of whatever amount of the gold held by Jamila was in fact owned by the deceased. As to the second condition, it is said that a proposed gift by the deceased of that amount of gold bullion that is owned by Plassey would cause legal complexities for Plassey (as I understand it, the “legal complexities” to which the plaintiffs here refer simply being the issue as to Plassey’s ownership of part of the gold).

9. In the first cross-claim, filed by Jamila, a promissory estoppel defence is pleaded as against the deceased’s estate, it being contended (further and in the alternative to the alleged gift pleaded at [16]) that Jamila adopted an assumption (induced by the deceased sending Jamila an email of 22 May 2019 and in which the deceased acquiesced – by reference to an email sent by the deceased on 24 May 2019 to Ian and to the deceased’s accountant, Mr Deann Bramble) that the deceased gave Jamila 700 ounces of gold and would not thereafter contend to the contrary; on which assumption Jamila acted (by deciding not to pursue a new employment opportunity which was then available to her); that the deceased knew or intended Jamila so to act; and that it will occasion detriment to Jamila if the assumption is not fulfilled because that employment opportunity is no longer available to her (see at [17]). Jamila also pleaded an alternative case of estoppel against Plassey but, given the agreement as to Plassey’s ownership of an agreed quantity of gold, it is not necessary to consider this. The declaratory relief claimed in the first cross-claim is no longer pressed as a result of the agreement reached by the parties in respect of the second cross-claim. However, the defence filed by Jamila repeats the matters pleaded in the first cross-claim at [4] and says at [11(d)] that the deceased’s estate is estopped from contending that the deceased did not give Jamila 700 ounces of the deceased’s gold or that any part of the 700 ounces of gold had not been effectively gifted to her for the reasons pleaded at [17] and [19] respectively of the first cross-claim. Accordingly, it is necessary to consider the estoppel defence.

10. In the second cross-claim, filed by Plassey, relief was sought as to its interest in 255 ounces of gold held by Jamila. As noted, this is now the subject of agreement between the parties and it is not necessary to consider the second cross-claim any further.

11. Finally, I note that in the case management of this matter prior to it being listed for hearing, I made directions for the father of Jamila’s sons to be notified of the proceeding (as their guardian) in circumstances where their interests as beneficiaries under the Will might be affected by the outcome of the proceeding; so that they would have the opportunity to obtain independent legal advice as to whether they wished to be joined to the proceeding. I was informed by Counsel that Jamila’s instructing solicitor had attended to that notification; that advice was received; and that no action was taken on the children’s behalf to intervene (see at T 77).

Background

12. The deceased was a British journalist and academic, who had lived and worked in India for a number of years and then became a don at the University of Oxford, before emigrating to Australia. After his retirement, the deceased continued to write books and to publish academic articles. In his later years, the deceased divided his time between homes in Double Bay and Bowral. The deceased suffered a stroke and died in September 2019.

13. In 1970, the deceased established a family company (Plassey), the shareholders of which were the deceased and Evelyn, as well as their three children. Up until his death, the deceased held the preference shares in the company, which, under the company’s Articles of Association, conferred on him the right to manage and control the affairs of the company. It does not appear to be disputed that, during his lifetime, the deceased assumed responsibility for the affairs of Plassey, making decisions and purchases in the name of the company and in respect of its financial affairs; and that Evelyn played no part in the business affairs of the company.

14. From around April 2006, the deceased (as managing director of the company) effected a number of bullion transactions (both of gold and silver) in the name of Plassey (see Mr Bramble’s affidavit affirmed on 17 September 2020 at [8]). In addition, during that time the deceased separately purchased gold bullion in his own name using his own funds (see Mr Bramble’s affidavit at [8]). Mr Bramble has deposed that it was not until 2014 that the deceased first mentioned to him that he (the deceased) personally owned gold in addition to that owned by Plassey ([8]).

15. Mr Bramble has deposed that the deceased reported to him from time to time purchases and sales of the gold or silver bullion that the deceased had executed by dealing with bullion dealers (Perth Mint and Australian Bullion Company (ABC bullion)); and that the deceased took delivery of physical bars of gold and was then responsible for the storage of the gold both for his own account and on account of Plassey (again, see Mr Bramble’s affidavit at [8]).

16. There was some difficulty during the deceased’s lifetime in determining precisely the amount of gold owned by the deceased personally (as opposed to the gold owned by Plassey). Mr Bramble deposed to the manner in which he prepared Plassey’s annual accounts; the instructions he “generally” received from the deceased about a dollar value of precious metals purchased by either him or Plassey; and that all Plassey’s bullion transactions were accounted for in the relevant balance sheet of Plassey’s annual accounts at cost. Mr Bramble has deposed that it was therefore not clear, merely from a perusal of the annual accounts, what underlying holding of gold ounces was reflected in the total “at cost” dollar sum shown in the balance sheet) (see from [9]-[15] of his affidavit). In his oral evidence, Mr Bramble confirmed that initially all the gold was “deemed” to be purchased on behalf of Plassey and that it was not until “recent years” that a reconciliation was obtained to determine what gold was owned by Plassey and what was owned by the deceased (see at T 17).

17. In particular, Mr Bramble has deposed to the reconciliation carried out by him (before the deceased’s death) of Plassey’s gold bullion transactions (see at [16]) and to various of the transactions ([17]ff), and that, after a full reconciliation was completed, three adjustments were needed to reduce the financial asset (gold bullion) recorded in Plassey’s 30 June 2018 Annual accounts to 1,270 ounces (which reconciliation or adjustments appear to have been agreed with the deceased). Those three adjustments included a reduction of Plassey’s gold investment by $132,000 (100 ounces) “which was deemed to be purchased by [the deceased]” and which adjustment was explained as being to agree with the deceased’s ownership of 445 ounces (see at [42]).

18. Although, as noted above, the quantity of the gold owned by Plassey has now been agreed as between the parties, the uncertainty even during the deceased’s lifetime as to how acquisitions of bullion were to be properly accounted for, as between the deceased and Plassey, is of some relevance in that it provides a plausible explanation for some of the confusion expressed by the deceased as to his bullion holdings (as to which, see below). Indeed, it is fair to say that the deceased was not the only one confused or uncertain as to the extent of the deceased’s gold holdings at the relevant time (as Mr Bramble’s evidence illustrates).

“Memorandum On Inheritance” – August 2014

19. In around August 2014, the deceased prepared a document entitled “Memorandum On Inheritance” (the Memorandum), addressed to Jamila, Ian and Marius, which it appears the deceased emailed to each of the three children for consideration by them. A “slightly revised and extended text” of this document (described by the deceased as his “guiding memorandum to my heirs”) was sent by email by the deceased to his solicitor, Mr Cameron Belshaw, on 8 September 2014 in advance of a meeting to be held with the solicitor that day. In his email to Mr Belshaw, the deceased suggested that the first order of business for that meeting might be him signing, and the solicitor witnessing, the Memorandum to give it (the deceased hoped) testamentary force (see annexure “B” to the first affidavit of Marius Maxwell, sworn 4 May 2020).

20. In the Memorandum, the deceased explained his need to clarify and codify his financial affairs in anticipation of demise; that he was setting out the current situation and his intentions (for his children’s consideration and comment); and stated that when he had obtained and considered their “input, in agreement with my intentions or with suggestions for their modification” he would pass the text “modified if/as necessary” to his solicitor to express or confirm his intentions in testamentary form. In the Memorandum the deceased stated that when the solicitor had done that “everyone concerned will be fully informed and I will be confident that there will be no grounds for disagreement or disappointment after my death” (a forlorn hope as has now transpired).

21. The Memorandum identified the deceased’s assets in two main sections: one, being in the name of Plassey (a company that he explained he had formed in the 1970s as an “inheritance-tax avoidance or reduction measure”); the other being comprised of physical holdings of bullion and silver.

22. As to the first, the Memorandum noted: that the directors of Plassey were the deceased, Jamila and Ian (the latter having replaced Evelyn that year at her request); that the deceased did not want to complicate matters by having an overseas director in Marius; that the company secretary was the deceased’s accountant (Mr Bramble); and that the deceased would attach a (previously distributed) summary of the share categorisation and distribution together with a memo of guidance from Mr Bramble about company dissolution and tax implications in the case of Plassey.

23. The Memorandum identified the assets of Plassey as being in two forms: a property in Bowral and capital in the form of bullion retained in a safe deposit box (said to be 750 ounces at time of writing). The deceased stated his wish that “this portion of capital, in both its components (i.e., value of the property and of the bullion)” be shared equally among Jamila, Ian and Marius, with the qualification that “of course all would see the first call on all assets to be your mother’s [Evelyn’s] needs, should she survive me and her own assets at any time prove inadequate”. The deceased stated that he did not wish to put a value on this “at present” and that “and none of you is in a position that would make it useful for you to have such a figure; and will note only that its value is at present in a state of severe compression because of the depressed price of gold”. The deceased stated that the principle of “equal three-way division” among Jamila, Ian and Marius should apply “whenever a different weighting is not indicated by me in this text”; and the deceased parenthetically observed that he had already allowed for their mother (Evelyn)’s interest by “long-previous sharing of assets”. (Pausing here, I note that it appears that Evelyn was the registered proprietor of the Double Bay property and held a quantity of gold bullion in her own name, at least at some stage, in Switzerland. Evelyn is not a party to, and has taken no part in, the present proceeding.)

24. As to the other tranche of his capital (the second and separate physical holding of bullion, which the deceased described as being of “approximately equal (and currently depressed) value, again directly held” (identified as 970 ounces), and the two holdings of silver), the deceased said the following.

19. As to the gold bullion, the deceased wished its value to be divided unequally among family members, specifying the percentage divisions as being: 15% to each of his two grandsons (Jamila’s sons) to be held for them in trust by Jamila “in consultation with her brothers” until they individually reached such age and condition of maturity as, in the judgment of Jamila in consultation with her brothers, would make the bequest (in whole or part) most appropriate and helpful to them”; 10% to Jamila “in recompense for her expenditure on her sons’ early education … and to assist her to extend and continue that educational support” (the deceased parenthetically noting that he had offered to cover that expense and that Jamila’s insistence in paying herself had saved him from the need to realise his own assets when their value was low); and the balance to be divided in equal shares between Jamila, Ian and Marius (i.e., 20% each). It was noted that the same principles of equality should apply to sharing of such personal possessions as had monetary value.

20. As to the silver holdings, which were identified as being one in the name of Plassey and one in the deceased’s name (but which the deceased in the Memorandum seems to have been treating as both assets of his own), the total value was to be subject to equal three-way division among Jamila, Ian and Marius.

21. Under the heading “CODA”, the deceased referred to his pensions; bank accounts (both in Plassey’s and his name) in Bowral and Oxford; and to the substantial family assets in Evelyn’s name which he trusted would be subject to equitable division among Jamila, Ian, Marius and his and Evelyn’s grandsons (including 57 bullion kilos in the custody of Marius and 18 kilos (Evelyn’s share from sales of the couple’s homes in Oxford and France) in the Bowral property). The deceased also stated that “[t]o be noted also as a factor in equitable inheritance was the pre-disposal by gift to Ian in about 2007/8 (to lessen/avoid estate duties) of two units (shop and apartment) at the All Saints Road property in London”.

22. It is therefore apparent that the deceased was here turning his mind to an equitable distribution of his estate amongst his three children, having regard (among other things) to provision made to Ian during the deceased’s lifetime of the London property (for tax avoidance reasons); and to the assets held in Evelyn’s name (which the deceased understood would be disposed of in accordance with Evelyn’s Will).

23. In his email on 8 September 2014 to Mr Belshaw, the deceased stated that Jamila and Ian had expressed their agreement to the guiding memorandum; and that he was taking Marius’ silence as acquiescence. The email referred to a meeting at 11am the following day with Mr Belshaw. There is no evidence of what transpired in this meeting but the provisions of the Memorandum appear to be reflected in the Will subsequently drafted by Mr Belshaw (see below).

Deceased’s last Will – 25 November 2014

30. On 25 November 2014, the deceased executed his last Will. The Will was prepared by the deceased’s solicitors in Mittagong and witnessed by Mr Belshaw and a law clerk in his office.

31. Consistently with the Memorandum, the Will: appointed Ian and Jamila as the deceased’s executors and trustees; provided for one Preference Class share in Plassey to be given to each of the three children and for 34 A Class shares in Plassey to be given to Marius and 33 to each of Jamila and Ian; provided for the gold bullion to be divided in the percentages indicated in the Memorandum (but the gift for the grandsons to vest on them attaining 30 years of age); and left the residue to be divided equally between the three children, with a gift over in respect of Jamila’s share in favour of her children.

Medical notes from 2015

32. The deceased’s general practitioner in Bowral (Dr Jeffrey Pinkstone) gave evidence and was cross-examined as to the medical records of his practice recording consultations with the deceased from 2015 (see Ex E pp 189-335). Dr Pinkstone agreed that the deceased’s problems with failing memory went back to around 2015 (see at T 39.9). In particular, Dr Pinkstone was taken to various notes of consultations (with him and at least one with another doctor in the practice, Dr Chan) from April 2015 onwards; and asked to explain certain of the entries in those notes.

33. In April 2015, there was a medical recording that the deceased had had several episodes the previous day of “word finding difficulties” and complained of “feeling fuzzy in the head”, following which a CT scan was taken for specialist review. However, Dr Pinkstone explained that the findings from the scan (diffuse atrophy and chronic small vessel ischaemia) were not uncommon age-related findings and that those could be present without necessarily progressing to dementia (see at T 40.20-41.6). Dr Pinkstone was also taken to references in the medical notes in April and May 2015 to memory issues; and a record on 11 August 2015 of an episode of loss of consciousness (syncope) some four weeks earlier.

Queries about debt owed by Plassey to deceased - 2017

34. On 17 March 2017 at 3.01pm, Mr Bramble (apparently in the context of preparation of Plassey’s 2016 accounts and responding to an enquiry from the deceased at 12.39pm that day as to whether an amount of roughly $500,000 owed to the deceased by Plassey could be cancelled or reduced by a transfer of bullion at the current $A rate) sent an email to the deceased stating that: the company currently owed the deceased $554,000. Mr Bramble went on to say that if the deceased needed the cash to purchase his next home then Plassey borrowing the money and repaying the deceased’s loan was a good option but that if the deceased did not need the cash then transferring gold at the current $A rate was a “valid option to clear the loan”. (At this stage it appears that the deceased was considering a move into a retirement home or other similar accommodation.) Mr Bramble also asked for information “just to update [his] records”, namely, how many ounces of gold Plassey purchased in 2008/2009 (for $1,183,945) and how many ounces of gold Plassey currently owned (see bundle of emails annexed to the affidavit sworn 8 February 2021 of Dilipcumar Samji, marked in the trial as Ex D at p 4).

35. The deceased responded to this by email at 6.05pm that day, saying that it had just occurred to him that Mr Bramble’s two options might not be mutually exclusive alternatives (“[t]hat is, I can “draw” the bullion (which would not change my financial position vis-à-vis Plassey, only its medium!) and Plassey would still be able to borrow and lend me the funds for the retirement home?”) (see Ex D p 6).

36. Mr Bramble’s response, at 11.35am on 20 March 2017, was that the deceased could do both (i.e., “draw” the bullion and take a loan from Plassey borrowings) but that there would be unfavourable implications if the deceased ended up owing money to Plassey because he would have to pay Plassey interest on the loan which would be higher than bank interest (see Ex D p 7).

37. On 30 April 2017 at 2.30pm, the deceased responded to the second of the two questions that Mr Bramble had raised on 17 March 2017 (i.e., as to how many ounces of gold that Plassey currently held), saying that Plassey owned 750 ounces of gold which “are currently held in custody by me”. As to the first of the two questions (i.e., as to how many ounces Plassey had purchased for the sum of $1,183,945 in 2008/2009 – that figure apparently being drawn by Mr Bramble from the accounting records), the deceased said that he had not yet been able to trace an answer but he thought that it reflected a bullion purchase “at a markedly higher price than today’s” (see Ex D p 10).

38. The deceased then returned to the question of Plassey’s $554,000 debt to him and said that, rounding up that day’s gold price to A$1,700, he calculated that if he took 325 ounces from Plassey’s cache and added that to his own, he would in effect cancel Plassey’s debt. The deceased asked if that would be straightforward in Plassey’s books “not creating problems, now or post mortem?”. (Pausing here, the deceased appears here clearly to be focusing on tax problems or implications from the proposed transaction, which provides context to later communications in which there is reference to “legal complexities” in relation to Plassey.)

39. Mr Bramble’s response, on 1 May 2017, was that, before looking at this, he wanted to reconcile the “750 ounces of gold that you have in custody on behalf of Plassey” with what Mr Bramble had accounted for in Plassey’s accounts. Mr Bramble attached a summary of the gold and silver purchases and sales for Plassey, noting that there was a purchase of bullion in 2008/2009 for $1,183,945 and asking if the deceased had any paperwork in relation to this. Mr Bramble said in this email that “I am thinking that maybe not all of this is Plassey’s” (see Ex D p 10).

40. On 22 June 2017, the deceased responded to this email as follows (see Ex D p 12):

Deann, sorry for the hiatus. Confess I’m getting fuzzy – strong warning to get everything in order. So I take up again the issue of gold ownership, Plassey or me. And I must confess that I can’t give you figures/dates to bring your records into harmony with the present total of 750 ounces owned by Plassey. I know, however, that I have NEVER made a profit from a gold sale, so there can be no issue of CGT owed (there may be potential opportunities of registering LOSSES on sales but I’m prepared to waive those).

At some point (date now uncertain) I took possession of the gold that had been stored at Perth Mint (at hideous expense).

Now please revert to the question I asked in the closing para of my email of 30/4, below. I should add what Plassey owes me to my own hoard(!) for distribution under my Will.

41. Mr Bramble replied on 23 June 2017 that he agreed with the deceased’s calculation for repaying his loan by taking from Plassey’s cache and said that he was able to account for it in the accounts at year end without creating problems. Mr Bramble also noted that on the Plassey bank statements the deceased had written “Purchased from A.B. Company” and said that, based on these purchases, Plassey should have a lot more than 750 ounces (see Ex D p 12).

42. I interpose to note that confusion or a “fuzzy” memory as to particular gold purchases some eight or nine years earlier would not seem to me necessarily indicative of cognitive impairment at this stage; in that it could equally be referable simply to the passage of time or inadequate record-keeping (or both). However, it is relevant to note that the deceased is here displaying a degree of self-awareness as to him “getting fuzzy” and a consciousness of the need to get “everything in order”. Mr Bramble, nevertheless, appears to have had no concerns as to the deceased’s ability to give him instructions as to accounting matters at this stage.

Communications with Jamila in May 2017

43. From late May 2017, there was a series of email communications (see Ex D pp 14-29) between Jamila and the deceased. These appear to be at around the time of separation settlement negotiations between Jamila and her former spouse or partner (the father of Jamila’s two sons), as to financial assistance for Jamila.

44. By email sent to the deceased on 25 May 2017 at 2.48pm, headed “funds”, Jamila wrote that “I have a 10 oz bar of ‘beans’ as you like to call them that you gave me some years ago. If I return it to you can you give me $$ instead? It would save me making a trip to central Sydney to convert it”. (In context, it is clear that this was a reference to a 10 ounce bar of gold.) The deceased responded about two hours later, agreeing to do so and saying that it was that day worth $16,800. The deceased then asked “[h]ow would you like it, fund transfer to your account in a lump sum? Or, easier for me, in say two tranches, separated by a fortnight or so”. Jamila responded the following morning (26 May 2017) that two amounts would be fine and that she would write down her bank details for the deceased and bring them over.

45. On 29 May 2017, the deceased emailed Jamila saying that Westpac limited transfers to $5,000, so he had sent that amount that morning and another five would go the following day. On 31 May 2017 (with the subject heading “Bloody bank”), the deceased emailed Jamila, apologising that for two successive days the bank had refused his instruction to transfer $5,000 to her account and saying that he would go and see the bank first thing the following day. On 1 June 2017, the deceased emailed Jamila to say that he had gone to the bank that morning and sent $10,000 to her account and that “I expected that to be instantaneous but no such efficiency – a “couple of days” before it gets to your account. If you’re pressed I have cash in hand here, another $5k. Otherwise I’ll give you a cheque. Which wd [sic] you prefer?”.

June 2017 email communications between Jamila and deceased

46. There is another series of emails between Jamila and the deceased (this time commencing in June 2017) apparently relating to issues in respect of the non-payment of rent by Jamila’s ex-partner for a flat owned by the deceased (or perhaps Plassey) in Bowral. The emails commence with an email sent at 7.31pm by the deceased to Jamila (with the heading “Problems”), referring to non payment of the rent and saying “[t]he basic point on which I sought, and think I obtained your agreement is that it is in the best interests of the boys that he [the father] and they continue in our flat. So will you, through me and/or your banker/solicitors, cooperate so that he can access “his” capital piecemeal, thus preserving his pension?”. The email contained a suggestion that there could be a standing order by Jamila to her bank to pay the ex-partner’s rent into the deceased or Plassey’s account beginning immediately and thereafter quarterly (such payments “of course to come from “his” funds”).

47. This met with an emphatic refusal by Jamila the following morning (by email sent on 7 June 2017 at 9.16am), Jamila saying “no absolutely not. I will not pay David’s rent. I will pay him what I owe him when he agrees to sign a binding separation agreement. Do not ask me to support David financially while he postpones the separation settlement”. The deceased responded at 12.38pm that day “You’re right – I stand corrected” and later that day, at 8.41pm, the deceased emailed Jamila, saying that “[t]he correction is proceeding” and that he had received a copy of the ex-partner’s solicitor’s version of the Separation Financial Agreement which the deceased found “blatant in its bias and distortion”.

48. There were then further email communications apparently in relation to the Bowral unit (see Ex D). On 12 June 2017, Jamila emailed the deceased (seemingly referring to the position in relation to the settlement negotiations), saying that if her offer was not accepted (presumably by her ex-partner) then “the money stays in my accounts and the unit gets let to someone else”.

49. On 13 June 2017, the deceased sent an email to Jamila at 4.47pm saying:

Hi, J – we’re back in Bwl … and I’ve a change to report. Funds have become available to me without tax or other complications, which enables me to being g/paternal help with your expenditure on the boys’ education in the lump-sum (“ring-fenced”) form convenient and acceptable to you. I’ll begin with $100k this year, in two tranches, half this month, balance in December ….

There are no conditions or implicit expectations attached to this arrangement, I simply hope that the support is timely and welcome.

50. Jamila responded on 18 June 2017 at 8.16am, suggesting that the deceased put the money in her account and that she would set up two deposit accounts, one for each (son), and put half in each, saying that they would then be able to use the money as part payment of university fees.

51. The deceased sent an email responding to that (but with a changed subject header – “My mistake!”) saying:

I don’t get it!! Your cashing in on the value of your gold bar signalled you must be in cash need, so I took the opportunity to throw you a line. You reject it, as if you have no pressing needs beyond your current means.

Your suggestion I put funds (realised from gold sale) into deposit accounts in the boys’ names, paying nearly nil in interest but degenerating daily in purchasing power, doesn’t make sense. I’m looking after the boys’ future needs, educational or general, through trusts set up in my Will.

So my offer is suspended, but is open to renewal should your needs sharpen and/or approach change.

52. This provoked a somewhat terse response from Jamila on 21 June 2017 at 8.49am:

Hi Dad,

this is at least the third time you have said you are setting up ‘trust’ funds for the boys. The second time you told me I said ‘but you told me you did that last year’ and you said ‘I didn’t follow through’. If you now have the boys will be grateful.

As to my financial situation you have no need for concern. I will be able to pay all my debts.

Further queries in relation to Plassey debt to deceased

53. By email dated 22 September 2017 to Mr Bramble, as to the Plassey debt owed to the deceased, the deceased referred back to the earlier correspondence of 30 April 2017 and 22 June 2017 and raised two further questions: first, whether there were tax issues on his side (i.e., any tax liability from the deceased taking that $550,000 owed to him) and, second, as to whether any tax liability would arise on Jamila’s side if he were to pass that $550,000 on to her as a “pre-decease donation” (and said that he would “call in” if that were easier).

54. Mr Bramble’s response, on 5 October 2017 was that, assuming the current holding of bullion in Plassey was correct, there would be no tax consequences for the deceased taking bullion to the value of $550,000 and no tax consequences for Jamila if the deceased were to pass the bullion on; and that there would only be tax consequences for Jamila if she were to sell the bullion later at a value higher than when she received it (but that his concern was whether they had the correct holding in Plassey). However, it does not appear that anything further was done at this stage in relation to the Plassey debt to the deceased.

2017 provision of gold to Jamila for safe keeping

55. The plaintiffs allege that, on or after 21 December 2017, the deceased provided 700 ounces of gold bullion to Jamila to hold on behalf of himself and Plassey (see [10] of the amended statement of claim). The date on which this occurred is not clear from the contemporaneous documents. Jamila admits that in or around 2017 (and in any event on a date prior to 22 May 2018) the deceased delivered into her possession 700 ounces of gold bullion (see Jamila’s first affidavit affirmed on 23 July 2020 at [10]). Jamila has since then remained in possession of the gold. The plaintiffs contend that this was provided to Jamila for safekeeping; and there does not appear to be a dispute as to this. Jamila deposes in her affidavit at [10] to a conversation in which the deceased said to her that he wanted to give her the gold “for safekeeping”.

Hospitalisation – early 2018

56. The deceased was admitted to St Vincent’s Hospital on 6 March 2018, suffering from severe depression after a bout of pneumonia. Dr Pinkstone explained (see at T 49.2-49.10) that the deceased was admitted because of lung disease, suffering from breathlessness and weight loss for which the cause was not known. The deceased was discharged on 26 March 2018 (see discharge summary at p 203 of Ex E).

57. During his admission, the hospital records note that the deceased suffered from a delirium (which I understand to mean an acute mental disorder of attention and cognition caused by medical disturbance rather than a diagnosis of dementia or some kind of neuro-degenerative disorder) and confusional episodes (see the reports referred to in Associate Professor Janine Stevenson’s expert report dated 15 January 2021, marked as annexure “B” to her affidavit affirmed 21 May 2021). In particular, Associate Professor Stevenson, a consultant psychiatrist and psychogeriatrician and Clinical Associate Professor in the Department of Psychological Medicine at the University of Sydney, reports from her review of the hospital records that, during the deceased’s admission: there were reports of confusion, impaired orientation, an MRI brain scan on 16 March 2018 that showed markers of cognitive impairment; on 19 March 2018 a cognitive assessment test (the Montreal Cognitive Assessment or MOCA) recorded a score of 21/30, which was indicative of cognitive impairment; and on 21 March 2018 a further such test recorded 23/30 with deficits in executive function (reasoning) orientation, recall (though “better than testing two weeks ago”). Associate Professor Stevenson also notes the reports from the deceased’s general practitioner, Dr Pinkstone, which included reference to a score by the deceased on the Mini Mental State Examination (MMSW) on 29 January 2018 of 28/30 (which it was said “is not too bad at that stage”).

56. Associate Professor Stevenson, in cross-examination, accepted that there was no formal diagnosis in the medical reports of vascular or other dementia although she said that the reports suggested this (see at T 32.47-33.2).

57. During the deceased’s admission to hospital, he was prescribed prednisone (to treat a lung condition). It appears that Marius (a neurosurgeon himself), albeit overseas at the time, considered that the prednisone had triggered the psychotic episode that the deceased had suffered while in the hospital (see below). Associate Professor Stevenson’s evidence was that prednisone can affect mood and can exacerbate depression but does not usually cause hallucinations (see at T 27.7). In any event, the psychotic episode suffered by the deceased in March 2018 was while he was being treated in hospital.

Discharge from hospital – 26 March 2019

60. As noted above, the deceased was discharged from hospital in March 2018. On discharge, the deceased was prescribed medications for depression (relevantly, venlafaxine – an anti-depressant; and olanzapine – a tranquiliser or sedative). A subsequent letter dated 4 April 2018 from Dr Norrie at St Vincent’s Hospital to Dr Pinkstone noted that the deceased continued to look and feel well post-discharge and that there was no return of nihilistic thinking. The letter stated that “I have discussed the need to continue anti-depressant therapy [i.e., venlafaxine] for at least 12-18 months to reduce the risk of relapse and the dose of olanzapine may be weaned gradually and ceased in 3-6 months” (see Ex E p 170).

61. Marius has deposed to a conversation with the deceased about two weeks after the deceased’s discharge from hospital, in which Marius says that the deceased said he had thrown away all the medications because they were hallucinogenic and causing the devil to influence his actions (see at [4] of Marius’ third affidavit affirmed 11 January 2021). There are relatively contemporaneous emails from Marius (of June 2018) to a medical friend in which Marius sought a referral to a psychiatrist to verify that the deceased was “totally compos mentis without any ‘nihilistic ideation’”, to “bury once and for all the mistaken ‘severe depression’ diagnosis attached to him at [St Vincent’s Hospital]” (it being said that the deceased there had a temporary steroid psychosis/mania that the geriatrician did not recognise) (see Ex 2). (These emails are consistent with a reference in the medical records of a St Vincent’s Hospital case conference on 14 March 2018 to the “overseas son complicating treatment” – see Ex E p 204.)

62. Dr Pinkstone’s medical records note that the deceased had a consultation with him on 19 April 2018 (which Dr Pinkstone thought was probably the first time that he had seen the deceased since his discharge from St Vincent’s Hospital). The notes referred to “depression major and delusions” (see Ex E p 258). In cross-examination, Dr Pinkstone read this note as being a reference to the episode of delusions in hospital and confirmed that the discharge summary from the hospital indicated no delusional thought disorder (see at T 42.30-43.28). The medical notes record that on subsequent consultations the dosage of olanzapine was first reduced (7 May 2018) and then increased again (13 June 2018) (see Ex E pp 260-261).

63. Relevantly (and consistently with Marius’ evidence), the medical records of 3 July 2018 note that the deceased reported that on 26 June 2018 the deceased had stopped taking venlafaxine and recorded that the deceased was advised by his son that his mental health problems were due to prednisone and that he did not have depression (see Ex E p 261). The records indicate that there was a consultation on 10 July 2018 (the reason for contact being recorded as “depression major”). Dr Pinkstone explained that this was following up on the deceased’s depression – saying that his recollection was that they were watching closely for delusional mood or a recurrence of any psychotic symptoms but that this did not appear to occur (see at T 44.39-47). In any event, on that occasion (10 July 2018) venlafaxine was again prescribed (and the following week’s notes of 17 July 2018 record that the deceased’s mood had much improved over that week).

64. Dr Pinkstone’s records note that on 2 October 2018, the deceased had reported that he had ceased taking venlafaxine again – the notes refer to “adherence problems” which Dr Pinkstone explained was a reference to the patient making his own decision to cease the medication (T 45.42-46.6). Dr Pinkstone candidly admitted that he had had difficulty in the past in changing the deceased’s mind as to medication (T 40.6); and that the deceased always tended to make his own decision about medications (T 54.22-27). Dr Pinkstone admitted that he had forgotten (when his affidavit was drafted) that the deceased had stopped the venlafaxine, restarted and then stopped again; but nevertheless said that it did not seem that the deceased had suffered ill effects from stopping the medication in the longer term (T 54.33).

65. Pausing here, there is thus no record of any observation or episode of delusions or hallucinations suffered by the deceased after his discharge from St Vincent’s Hospital in late March 2018.

Request for confirmation of quantity of gold bullion in Jamila’s custody – October 2018

66. By email sent by the deceased to Jamila on 14 October 2018 at 5.24pm, with the subject header “Memory/mind problems”, the deceased asked Jamila (see Ex D p 34):

J, love, can you please check and confirm the bullion quantity I’ve just passed to your custody; I need to get this on record for Plassey’s accounts. I think it was two white bags each containing 15 ten oz bars (30 bars) plus eight small bags each containing five ten oz bars (40 bars). Total seventy 10 oz bars.

Hate to bother you, but I have to confront increasing senile confusion.

67. If the reference to “just passed to your custody” is a temporal reference (to when the bullion was actually provided to Jamila), then it suggests that (unless this was an example of confusion on the part of the deceased) the gold was given into Jamila’s custody much later than around December 2017. However, it may be that the reference to “just” means “only” (i.e., that this is gold that was only being held by Jamila; not hers to keep). In any event, there is no dispute (as noted earlier) that the gold bullion was in Jamila’s custody by then for safekeeping.

68. The following day (15 October 2018) at 5.16pm, the deceased sent another email to Jamila, this one headed “Holding”, saying (see Ex D p 35):

Sorry to bother you, but can you please check my memory of the beans quotient I transferred to your custody? (Needed for Plassey’s financial records) I think it was 700 oz; two large white bags each containing fifteen 10 oz bars and eight small brown bags with five each. 30 +40 = 700oz. Just an OK and I’ll file this email.

69. Whether the second email was chasing up the first or (which from the text seems more likely) the deceased had forgotten sending the first is not clear but in any event there does not appear to have been a response to either of these requests.

70. The reference to Plassey’s financial records is consistent with a request made by Mr Bramble by email sent in the morning on 16 October 2018 (there are copies in evidence variously suggesting that this was sent at 9.50am or 10.51am) for, among other things, “[c]onfirmation from Jamila of the amount in ounces of Gold Bullion she is looking after for Plassey” (see Ex D p 36). The deceased responded to this, at 3.46pm that day, that “I believe the answer is 700 ounces but am waiting for her confirmation. Please use that figure meanwhile – I would correct if necessary” (see Ex D p 37).

71. Pausing here, although the deceased’s email of 14 October 2018 made reference to the need to confront “increasing senile confusion”, it seems that the deceased’s memory of the amount of gold given into Jamila’s custody was both accurate and relatively consistent (there being, as I note in due course, some inconsistency between whether there were eight small brown bags or eight small black bags; but otherwise the deceased’s memory is consistent as to how the gold was provided to Jamila).

Consultation with solicitor

72. It appears that the deceased had arranged to see his solicitor on 16 October 2018 but failed to make or cancelled that appointment, since, by email sent to Mr Belshaw on 17 October 2018 at 20.38am, the deceased wrote, with a subject heading “Memory holes”:

Cam, you will have wondered, with annoyance, about my appointment/cancellation yesterday – about which I apologise. But “beyond my control”. These days I get frequent memory holes, and I went blank on the purpose of my appointment yesterday. My Will seemed in shape … what else did I need to discuss? Couldn’t remember, so cancelled.

The answer came much later. I would like to set up a trust (right word?) to fund the education of my two grandsons … which has long been born solo by daughter Jamila. I would make an initial contribution and I think my two sons, Ian and Marius would chip in. I guess I could do that by Will, but would like it to set up while I’m still more or less alive.

Would that be straightforward, manageable and in your view practical and worthwhile?

73. On 22 October 2018, at 1.06pm, the deceased resent the message, saying “You seem to have over-looked this, Cam?” (see Ex D p 39).

74. Mr Belshaw responded at 1.25pm on 22 October 2018 to the effect that he had not overlooked this but that he had not had an opportunity properly to review the old Will to ascertain whether such a fund may already exist and the extent of the value under the existing Will terms. Mr Belshaw then made some comments, including that he expected it might be better to create the trust under the Will but asked for a few days to prepare a considered response (see Ex D pp 38-39).

75. The deceased responded at 3.46pm that day to say “Thanks, Cam. I am coming to recognise that I have outlived my rational capabilities. I will have to pass more and more to decision by my son Ian” (see Ex D p 38). (Consistently with this, albeit at a later stage, it appears that at least around May 2019, the deceased obtained Ian’s involvement in his dealings with Mr Bramble – see below.)

76. On 23 October 2018 at 10pm, Mr Belshaw sought some information as to the advice that had been sought (including the total value of the gold bullion), noting that each of the grandsons was to receive 15% of the gold bullion under the current Will (see Ex D p 38). Mr Belshaw also noted that the trust for the purpose of education expenses had “arisen a few times before” and attached two email threads where he said that the issue had been raised in the past and his (Mr Belshaw’s) replies, saying that this was to “allay your concerns regarding … education expenses not having been properly dealt with in your will”.

77. The deceased replied on 24 October 2018 at 8.38am that “Cam, the files show that I’m being a damnable nuisance to you … the curse of a nonagenarian! Please out [sic; put] all this aside and I’ll try to straighten some of it out. Regrets” (see Ex D p 38).

78. Mr Belshaw’s response to this (at 1.33pm that day) was to say that in all of the circumstances the deceased was doing “just fine” (Mr Belshaw saying that he had been forced to look up the definition of the term nonagenarian; and complimenting the deceased on the apparent humour in signing off “Regrets” not “regards”) (see Ex D p 40).

79. Pausing here, while I accept that Mr Bramble and Mr Belshaw are not medically trained, it is relevant to note that each seems to have had no concern when dealing with the deceased in emails and conferences in this period as to the deceased’s cognitive ability in general or his ability to give instructions in relation to the accounting or legal matters on which they were communicating with him.

Educational trust

80. In early November 2018, it appears that the deceased met with Mr Bramble for a briefing on, or to review, Plassey’s annual accounts (see emails on 2 and 5 November 2018 at Ex D p 45).

81. On 14 November 2018, at 10.17am, the deceased sent an email to Mr Bramble (headed “Looking ahead”), saying:

Now that Plassey’s major debt to me has turned out to be a chimera I must find another way forward to my aim: that from the 2019/20 school year onward my two grandsons’ educational costs are covered by me, through a family trust or kindred structure, thus relieving Jamila of that burden. I need your ideas/guidance on this project, please start thinking! No rush.

Should I set up a separate trust/foundation, funded either from the bullion of which Jamila is now custodian, or from my personal resources? OR should we consider a metamorphosis of Plassey itself, with its shareholders deciding unanimously that it should change its nature, from property holding company into a trust or foundation dedicated to serving the interests of any/all members of the Maxwell tribe? Specifically including Evelyn, when widowed, as well as g/sons …

Please cogitate and give me your ideas … next week?

82. On 15 November 2018 at 3.37pm, the deceased re-sent this email to Mr Bramble, asking him to confirm receipt; which Mr Bramble duly did (see Ex D p 43).

83. What can clearly be seen from the communications to this point is that there was a consistency in the deceased’s expressed concern to provide financial support for the education of his grandsons (as Associate Professor Stevenson noted in her review of the relevant correspondence at T 31.40). It is also clear that the deceased was conscious of the other claimants on his testamentary bounty (the Maxwell tribe).

Further request for confirmation from Jamila of gold holding

84. On 20 November 2018 (it is not clear apropos of what but perhaps this related to the briefing session with Mr Bramble earlier that month in relation to Plassey’s annual accounts), the deceased sent an email to Jamila (to two different email addresses) in which, he said, among other things:

Then: I need to check the quantum of gold I transferred to your custody. My memory says: two white cloth bags each containing fifteen 10 oz bars, total thirty. Plus eight small black bags each containing five 10 oz bars, total forty.

Grand total: 30 + 40 = seventy 10 oz bars, which means 700 ounces.

Hope this will be straightforward, sorry to bother you – no hurry.

85. Two points may be noted about this email: first, though I do not suggest that anything here turns on this, the colour of the small bags is now said to be black, not brown, although the description of the quantities is consistent; second, that this is at least the third time that the deceased has sought this confirmation from Jamila and there is nothing to suggest that Jamila responded to any of the deceased’s queries as to the gold that she was holding.

86. On 22 November 2018, the deceased sent Jamila an email asking her to disregard that request “which would have given you bother – NO NEED!”. (It is hard to see what bother would have been caused by responding to this simple request; and perhaps this is indicative of the deceased fearing to upset Jamila in relation to this issue – as is the tenor of other later correspondence from the deceased, including his email to Mr Bramble on 24 May 2019, to which I refer in due course.)

Advice re educational trust

87. Meanwhile, by email on 20 November 2018 at 1.14pm, Mr Bramble gave the deceased some advice in relation to the question of an educational trust or the like (first, a Child Education Bond; second, a Family Trust with Plassey as trustee) but said that Plassey itself should remain mainly unchanged (see Ex D p 44). The email also said:

In relation to the Gold Bullion, up until now I have deemed all of it to be owned by Plassey. According to my estimates the total Gold Bullion holding is approximately 1,764 ounces of which 680 is held by Jamila and 1,084 held by you. According to this treatment Plassey owes you $485,000. The problem with deeming the ownership of 1,084 ounces to you instead of Plassey is that you will owe Plassey $600,000. The reason for this is that the Gold was purchased using Plassey’s cash reserves. The alternative is to deem approx. 485 ounces ($484,000) of Gold as being owned by you and the balance owned by Plassey. This scenario would eliminate your loan account with Plassey.

This will need to be considered further once a decision has been made on how you will fund the education costs.

January 2019

88. On 19 January 2019, the deceased sent Jamila an email at 2.39pm (headed “memory problems”), asking “J, love please remind me: what day do you return?” (see Ex D p 49). The following day at 8.35am the deceased sent an email saying “Disregard this plea – I find the date is noted in my diary: see you on the 23^rd” (see Ex D p 50).

May 2019

89. This brings me to the critical events of May 2019.

90. On 18 May 2019, the deceased sent an email at 5.44pm to Jamila referring to a letter (not in evidence) from her on 17 May 2019:

Dear J, we came back from DB [Double Bay] today, … we have returned, confidently now, to Plan 1: vacate the house here and move into the adjoining flat for our remaining time together.

Now I turn to your letter which I found here on return.

It would certainly be better for you and your boys to retain the current three-day form of your job, and I understand that you must have greater financial backing to help you make that choice – and I have an alternative for your consideration. Rather than going through the company legalities of switching Plassey ownership, I pass to you (by legal deed) ownership of the 700 ounces of gold (less say five) of which you are custodian, current value about A$1.25 million. With that reserve, immediately cashable according to need or wish (and, in general expectation, liable to signal increase in value over the next couple of years), you would not need to take on the much more demanding/higher income position.

And if you would take on the letting management of the main house here at [Bowral] you would have the income from that rent, which I would augment with a proportionate “rent” for our occupation of the flat.

Our Wills will bequeath this property to you, DB to Marius, gold serving to equalise.

I recognise that, my memory and therefore my word, being so unreliable, we would need to back up this arrangement with a legal document (which Dean Bramble would draft); and we would put Ian and Marius into the picture.

I hope this proposal is acceptable/welcome.

91. There is no letter (or email) of 17 May 2019 from Jamila to the deceased that is in evidence. Jamila in her second affidavit affirmed 20 February 2021 at [65] deposed that all of her father’s emails had been deleted on 12 October 2019 after the deceased’s laptop came into her possession, although she deposed that she did not delete them nor did she know how they came to be deleted – and there was evidence from an IT expert as to what could be retrieved from the laptop, being correspondence sent from and to the deceased’s email account and draft correspondence (see Annexure “B” to the affidavit of Dilipcumar Samjl, affirmed 8 August 2021). One might infer, from the text of the deceased’s above email, that the 17 May 2019 communication from Jamila at least referred to whether she would seek a full time working arrangement (though this is speculation).

92. On Sunday, 19 May 2019, the deceased sent an email at 8.14pm to Mr Bramble saying that he badly needed an “elucidating session” with him about Plassey, its ownership and control; and asking Mr Bramble to keep plenty of time available “for them” on the Wednesday.

93. On 20 May 2019, Ian sent an email to Mr Bramble (headed Plassey), copied to the deceased, in which Ian said that he understood that the deceased was meeting Mr Bramble in the next few days to discuss Plassey matters and that the deceased had asked him to outline the points he wanted to cover as an “aide memoire”:

1.   He would like to formally itemise the bullion holdings and confirm how and where there [sic] are held. The majority is held in a safe custody depository in Sydney for which he and I are registered key-holders. I can give you full details later. Jamila holds the balance of the bullion.

2.   Jamila is interested in receiving some or all of the portion of capital represented by her shareholding in Plassey immediately – ie prior to Dad’s death. Dad is keen to enable her to do so if at all possible within the terms of (or by amendment of) Plassey’s structure. Mum, Marius and I would be agreeable to doing this. Is there a way that this can be achieved? Is it possible for Jamila to transfer a part or all of her shareholding to Marius and/or I in return for a cash payment representing the current estimated value?

3.   Dad would also like to arrange a payment from Plassey to his grandchildren … after his death – perhaps via a Trust arrangement. I think around $50k each.

94. On 22 May 2019, there was a meeting between Mr Bramble, and the deceased. In his affidavit (at [47]), Mr Bramble deposed that:

… at a meeting that took place on 22 May 2019, Neville Maxwell discussed with me whether he would be able to make a gift to his daughter of 70 ounces of gold bullion. He never discussed with me at that meeting whether he could gift her 700 ounces of gold bullion.

95. Mr Bramble took no file note or minute of that meeting (saying that he “followed up” with an email the next day) (T 17.27). Mr Bramble’s memory thus appears to be based largely on the summary in his 23 May 2019 email as to what occurred at the meeting. Mr Bramble was, however, adamant as to his recollection that what was discussed at the meeting was a gift to Jamila of 70 ounces (not 700 ounces) of gold (T 21.37-40).

96. As to the reliability of Mr Bramble’s present memory on this point, I interpose to note that Mr Bramble gave evidence in cross-examination that it was not until the following emails (i.e., those after his 23 May 2019 email) that he became aware that Jamila was looking after 700 ounces of gold (T 19.46) and he said at T 21.33-34 that “he honestly thought she was only holding 70, not more”. However, the email communications set out earlier in this chronology make clear that the deceased had told Mr Bramble that he thought Jamila was holding 700 ounces and Mr Bramble had made reference to that in his own email communication of 20 November 2018 (see above).

22 May 2019 Email

97. On 22 May 2019, at 3.33pm, following the meeting with Mr Bramble, the deceased sent an email to Jamila (the 22 May 2019 Email on which Jamila places great weight – see Ex D p 52), in which the deceased wrote:

Dear Jamila,

I had a detailed discussion this morning with Deann Bramble and on the strength of what I was reminded about the structure and resources of Plassey, and the instructions I was able to give him, I am returning to our previous exchange of letters, initiated by yours of 17^th May with my response dated 18^th May, and yours dated 19^th May.

I can begin with words from my previous letter – “It would certainly be better for you and your boys for you to retain the current three-day form of your job, and I understand that you must have greater financial backing to help you make that choice”; and to that end I can simply GIVE you the 700 ounces of gold of which you already have custody. There are no legal complexities involving Plassey: the gold you hold is mine to give. So you may now regard it as your own…immediately cashable according to your need or wish (and bound to increase in value far beyond its current approximate A$1.25 million) there is no financial need for you to take on the much more demanding/higher income position on offer. (Deann Bramble would confirm that this fund transfer is now on the record if you ask him, and he knows you may be in contact – you could simply forward this email to him for comment.) [My emphasis]

Let me at this point acknowledge receipt of your letter dated 19^th May. No corrections of the family financial record from me would change your perception of the history, so I will make no such attempt. I suggest we all proceed as if that letter has been forgotten.

The essential point is that you do not need to increase your income, so can decline the five day week position offered.

I will write separately in a few days about parental plans and their implication for you, if any.

[Underlining as per original]

98. It may well be that the deceased’s reference to “our previous exchange of letters” is in fact a reference to emails (since his communication of 18 May 2019 was an email) but in any event there is no communication of 17 or 19 May 2019 from Jamila to the deceased that is now in evidence. Jamila in her affidavit deposes that she does not know to what document the deceased was referring when he acknowledged receipt of a letter dated 19 May 2019 from her (although surely the reference to her perception of family history might have given a clue to the kind of communication the deceased was apparently saying he would not give a response) but in any event it is clear that the deceased did not accept whatever he understood to be Jamila’s view as to “the family financial record”.

99. Jamila’s evidence was that, when she read the 22 May 2019 Email, she understood the position to be that “the gift was a “done deal” and could not be undone or revoked; and that the gold was now [hers] to deal with however [she] wanted and that [she] could make life decisions on that basis” (see at [18] of Jamila’s first affidavit). Jamila has deposed that, based on her understanding that the gold was now hers, she decided not to apply for the full-time position then on offer as a Family Dispute Resolution Practitioner at Campbelltown; and that someone less experienced applied for, and was offered, the role (although he did not ultimately take this up). Jamila has deposed that the role was filled by another person in around February 2020 (see at [20] of her first affidavit).

Subsequent communications

100. On 23 May 2019 at 6.44pm, Mr Bramble sent an email to the deceased and Ian, summarising the 22 May 2019 meeting as follows:

Below is a summary of our meeting yesterday:

•   Jamila is currently looking after 70 ounces of gold (2 x 15 = 30) + (5 x 8 = 40)) which is owned by [the deceased]. This is a value of $130,000 based on the current gold price of AUD$1856. This gold was purchased by [the deceased] for approximately $70,000 on 8 December 2008.

•   To assist Jamila financially [the deceased] is going to allow Jamila to sell the gold when needed. The arrangement could be considered a loan from [the deceased] to Jamila which is only repayable from capital received when Plassey is liquidated.

•   There will be capital gains tax to consider when Jamila sells the gold because you are realising a profit on the sale of an asset. Given [the deceased’s] low income each year and with the 50% Capital Gains Tax Discount the tax effect should be low. To minimise any tax implications I recommend that if possible for the gold to be sold over a number of tax years. For example selling 1/3 before 30 June 2019, 1/3 in FY20 & FY 21.

•   We discussed whether anything could be done within Plassey to assist Jamila financially but given how the shares are structured and that there is large Pre-CGT capital reserve (which is able to be distributed tax free when the company is liquidated) it is best to leave the company as it is.

•    [The deceased] indicated that he has sold 4,577 ounces of Silver that Plassey owned but could not recall when this was.

Additional Notes:

•   We didn’t discuss a payment to [the grandsons] of $50k each from Plassey. My thoughts are that this arrangement should not involve Plassey but should be part of [the deceased’s] will. A testamentary trust allows funds to be held in trust for children until they reach a certain age. I recommend speaking to the solicitor further about this.

•   Can you please confirm how much gold is currently held in the safe custody depository in Sydney.

101. Significantly, Mr Bramble’s email refers to Jamila holding 70 ounces of the deceased’s gold, not 700, and calculates the value of the gold to be gifted on that basis. By that stage, Mr Bramble had already been told by the deceased that Jamila was holding around 700 ounces (see the deceased’s earlier communications) and, as noted above, Mr Bramble had himself emailed the deceased on 20 November 2018 saying that according to his estimates the total gold bullion holding was approximately 1.764 “of which 680 is held by Jamila”.

102. Therefore, unless Mr Bramble had simply forgotten about the earlier communications and the instructions given by the deceased as to the quantity of gold that Jamila was holding (which would seem somewhat surprising given the various requests by Mr Bramble for confirmation of this – and his reconciliation of the gold holdings for the purpose of the annual accounts which had led to the adjustments referred to above), the reference in the above email to the “70 ounces of gold” that Jamila was holding cannot have been intended to suggest that this was the whole of the gold that was in Jamila’s custody. Nor does it seem that this was a typographical error, since Mr Bramble goes on to describe the breakdown of the holding in terms of numbers of bars of gold, consistent with the figure of 70 ounces.

103. The reference to 70 ounces would be consistent with a discussion on 22 May 2019 in effect that, of the total amount in Jamila’s custody (700 ounces), the deceased was proposing to make a gift of only a portion thereof (70 ounces). That is certainly Mr Bramble’s recollection. However, Mr Bramble’s recollection (as noted earlier) was also that he did not become aware that Jamila was looking after 700 ounces until the emails that followed his 23 May 2019 email (see at T 19.46; T 21.6) and this is demonstrably incorrect having regard to the earlier communications.

104. It is, of course, conceivable that the deceased himself had made a typographical error in the 22 May 2019 Email (and had intended there to refer to 70 ounces not 700 ounces) but that is not consistent with the value that the deceased there attributed to the gold (approximately A$1.25 million) and, in any event, the deceased made perfectly plain in his subsequent email to Mr Bramble that he had, in fact, intended to make a gift of the whole 700 ounces.

105. The deceased’s response to Mr Bramble’s 23 May 2019 email this (sent the following morning, 24 May 2019, at 10.19 am) to Mr Bramble and copied to Ian, headed “Re Plassey – MISUNDERSTANDINGS” (and, atypically, not concluding with a salutation), was emphatic in its terms:

Deann, I left you on Wednesday with the belief that I could GIVE/TRANSFER to Jamila the 700 ounces of gold in her possession, and that when I had done so, in writing, she could regard that as her own reserve capital and shape her life decisions accordingly – and so I wrote to tell her her custodianship had now become ownership.

She is not in urgent need of cash, and I don’t believe she will wish/need to SELL any gold; but the aim is to so strengthen her financial position that she can decline the promotion offer that has been made to her, since acceptance would necessitate changes in her work pattern injurious to her family.

I CANNOT now retract that without confirming her suspicion that I’m being shifty and acting against her interests, and I will NOT act in that way. Your wording “allow Jamila to sell the gold when needed” in no way matches the impression I gained from our meeting (the very purpose of which was to enable me to extend IMMEDIATE financial assistance or assurance to Jamila) – which was that custody of this particular gold tranche of 700 ounces could be transmuted into Jamila’s OWNERSHIP without complication.

I have acted on that belief, and my action cannot be undone.

Referring now to Ian’s note to you: It is quite wrong to say “Jamila is interested in receiving … capital …” She is not involved in or knowledgeable of ANY of this, and has not asked for anything, but must believe, naturally, that when I give her something it must be mine to give. Please do not reply if she contacts you without consultation with me … and Ian, since he’s in this too.

[My emphasis]

106. This email makes crystal clear, in my opinion, not only that the deceased’s intention was to confer on Jamila ownership of the whole of the gold she then held as custodian (700 ounces not 70 ounces) but also that the deceased understood that Jamila’s custodianship of the gold was (without more) transmuted into ownership; and that the deceased regarded that act as having already been effected (and “cannot be undone”). That said, the reference to “cannot be undone”, in context, seems to me to be the deceased not being prepared to undo the action (lest he confirm Jamila’s suspicion that he was being “shifty”); not as an understanding by the deceased that there had been an acceptance by Jamila of the gift as such at that stage so as to render the gift irrevocable.

107. Mr Bramble responded (to the deceased only; i.e., not copied to Ian) on 24 May 2019 at 10.42am, saying:

Mr Maxwell,

I was trying to be very careful with my wording so as not to create any animosity between family members. I can appreciate these situations need to be handled with care. As you said below Ian in his email mentioned that Jamila was interested in receiving some or all of her capital represented by her shareholding in Plassey. As discussed in our meeting it was best not to do this but wait until the company is liquidated. I was not aware that she had no knowledge of any of this. I was only merely suggesting the gold could be seen as a loan so as not to alter any current arrangements you have with your estate planning. If you wish for the gold to be given/transferred to Jamila then that is okay. I will still need to know if she sells any gold so I can account for it when I prepare you annual tax return.

Just to clarify Jamila only has 70 ounces and not 700 ounces. Please confirm.

108. Mr Bramble agreed in his cross-examination that he did not copy this email to Ian because of his concern about how the deceased’s instructions might be received by Ian (see at T 21.25).

109. Questioned as to why he had sought to clarify that Jamila only had 70 ounces and not 700 ounces (when the deceased had just emphatically told him the opposite), Mr Bramble said that at the meeting on 22 May 2019 they were talking about 70 ounces of gold; that that is what he thought Jamila held; and that he thought that the deceased was confused (T 21.37).

110. At the same time on 24 May 2019, Ian emailed Mr Bramble apologising that he (Mr Bramble) and Plassey had been caught up in “Dad’s internal family relations drama” and suggesting that they discuss how best to resolve and stabilise things. That email also suggested that this must be “a fairly regular feature of dealing with very elderly people” (see annexures to Marius’ affidavit marked in the trial as Ex B p 16).

111. The same day (24 May 2019), Mr Bramble emailed the deceased at 11.36am:

Dear Mr Maxwell,

I have reviewed my spreadsheets in regards to the overall gold holdings for Plassey and you. Below is now my understanding:-

1.   Plassey owns in total 1,265 ounces

a.   1,015 ounces is being held in a vault in Sydney

b.   250 ounces is being held by Jamila

2.   You own in total 450 ounces which is being held by Jamila

Therefore Jamila currently possesses 700 ounces of gold which is made up of 70 x 10 ounce bars (25 are Plassey’s and 45 are yours).

Yesterday in our meeting I calculated the gold value held by Jamila to be $130,000 which was based on 70 ounces of gold. This I believed was the amount you were going to give her. But if my understanding is correct the actual value is $1.3 million based on 700 ounces.

112. Thus, Mr Bramble here confirmed that his understanding as to the respective gold holdings had been incorrect according to his review of the spreadsheets.

113. At 1.39pm, on 24 May 2019, Ian emailed Mr Bramble saying that the deceased had forwarded to him Mr Bramble’s 11.36am email; and that the deceased “wants [to] take his hands off the steering wheel and allow us to regularise this, given that it’s now a bit beyond him”. Ian said that he would confirm the status of the holdings at the Sydney depositary the following week and that then “we can ensure that what is in Jamila’s possession is also confirmed – ideally with a confirmation of how it is held” so that Mr Bramble could then ensure that the deceased’s transfer wishes were properly documented as far as Plassey and his own accounts were concerned (see annexures to Mr Bramble’s affidavit marked in the trial as Ex C p 50).

114. At 3.04pm on 24 May 2019, the deceased sent an email to Mr Bramble, copied to Ian, referring to the statement in Mr Bramble’s 23 May 2019 email about the sale of silver. The deceased said that the proceeds of some of the silver sold (and he did not have or could not for the present find the documentation) were immediately re-invested in gold, which meant that some of the gold now held nominally by him was bought with proceeds of sale of silver and another portion of the sale proceeds went into his bank account.

115. The deceased also there stated “What a muddle I have created. Best I opt out now lest I create even more. Any emails to me must now be copied to Ian, or better still please deal with Ian, but copy to me so that I can contribute when my mental confusion allows” (underlining as per original). The deceased also noted his request that Mr Bramble deal with him before any attempt to bring Jamila into the discussion. This email is consistent with Ian’s statement to Mr Bramble to the effect that the deceased wanted to take his hands off the steering wheel, but indicates that the deceased wished to be part of the communications. Relevantly, the email does not resile from the deceased’s previously stated communication as to the transmutation from custodianship to ownership of the gold held by Jamila; and it is not clear what the deceased was referring to when saying that he had created a muddle (particularly since this followed the statements as to lack of documentation in relation to the sale of silver).

Response by Jamila

116. Significantly, for the purpose of assessing whether there was acceptance (or communication of acceptance) by Jamila of the gift said to have been made in the 22 May 2019 Email, there does not appear to be any direct reply by Jamila to the 22 May 2019 Email. The first communication to the deceased by Jamila after that email appears to be the email sent by Jamila on Saturday, 25 May 2019 at 1.50pm, when Jamila wrote to the deceased as follows:

Hi Dad,

[Jamila’s son] brought a large book home yesterday. It list most of the university courses available in Australia. Later this term he will spend several days, with his year group, visiting Sydney universities.

Would you like me to warn him that he and [Jamila’s other son] shouldn’t assume they will be able to attend a University in Sydney? After all, not only will they have to pay fees but rents in Sydney are very high.

If I do warn them they might ask whether they could stay at [the deceased’s Double Bay home] if they weren’t to a University in Sydney. I would have to tell them that you are giving this house to Marius. They might ask why. Would you like me to reply honestly? If so, then I will say that he is a multi millionaire with no family to support. I will say the last time he lived in the same country as you for more than a few months was about 35 years ago, when he was a student. I’ll say that they shouldn’t feel bad about your choice to give the house to Marius, it isn’t their fault that their needs are being overlooked. I’ll explain that they, [her children] couldn’t have done more over their short lives than they already have to give you pleasure and practical support. I’ll say that in the short time they have been helping you with garden chores, cleaning, problem solving, assembling furniture, moving rubbish etc they have already given you more practical help than Marius has in all his 58 years.

198. Although the plurality’s observations were obiter, I consider that I am bound to apply the presumption of assent for the reasons set out by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2021] HCA 22 at [134], [158]; namely, that this was seriously considered dictum of the plurality. Moreover the dictum conforms with some long-established authority (see Pape v Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 at 161 [473] per Heydon J (dissenting but not on this point); see also M J Beazley, P T Vout and S E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (2014, Lexis Nexis Butterworths) at [3.12] p 35) (albeit that there was some tension in the authorities in this regard).

199. On that basis, the donee’s assent to a gift is to be presumed (in the absence of proved dissent), it being human nature to accept a benefit which is provided gratuitously (London and County Banking Co Ltd v London and River Plate Bank (1888) 21 QBD 535 at 542 per Lindley LJ), although this position is not without strong criticism (as per Edelman J above).

200. The question of the effect of disclaimer on the passing of property by way of gift has been the subject of much judicial consideration (see, for example, In Re Stratton’s Disclaimer [1958] Ch 42). Although the present case does not involve an issue of disclaimer, the line of authority on waiver may be relevant to the question whether in the present case there was acceptance manifested at the relevant time, as it raises questions as to the precise time in which property is vested in the donee.

201. In Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575 at 577, Bayley J considered a gratuitous devise to be “nothing more than an offer which the devisee may accept or refuse”, such that the effect of disclaimer was that “the estate was never in him at all” (which reasoning thus appears to proceed on the basis that until acceptance there is no devise). Further, at 577, Holroyd J considered the presumption of assent in the context of disclaimer, stating:

I think that an estate cannot be forced on a man. A devise, however, being prima facie for the devisee’s benefit, he is supposed to assent to it, until he does some act to shew his dissent. The law presumes that he will assent until the contrary be proved; when the contrary, however, is proved, it shows that he did never assent to the devise, and consequently, that the estate was never in him.

202. At 578 in that case, Best J said that “[i]t seems contrary to common sense to say, that an estate should vest in a man not assenting to it: there must be the assent of the party, before any interest in the property can be passed to him”.

203. Accordingly, on the above authorities, while it is necessary that there be acceptance of the inter vivos gift before it is complete, a presumption of law (in the absence of evidence of express refusal or disclaimer) as to the acceptance of the gift applies.

204. As to the quality of assent, in Dewar v Dewar [1975] 1 WLR 1532; 2 All ER 728, Goff J, as his Lordship then was, considered the relevance of the donee’s intention in the acceptance of a gift, in circumstances where the donor had made a payment intended to be by way of gift but the donee had considered the transaction to be a loan. At 1538-1539, Goff J said:

[W]here a person intends to make a gift and the donee receives the thing given, knows that he has got it and takes it, the fact that he says: “Well, I will only accept it as a loan, and you can have it back when you want it” does not prevent it from being an effective gift. Of course, it does not turn it into a loan unless the donor says: “Very well, let it be a loan.” He could not force the donor to take it back, but the donor, having transferred it to him effectively and completely, intending to make a gift, and he — so far from repudiating it — having kept it, it seems to me that that is an effective gift and accordingly I hold that the defendant has established that the mother's contribution was a gift.

205. As to delivery, in Horsley, Santow J, as his Honour then was, said (at 14,367-14,368) that delivery (meaning the voluntary transfer of possession of the goods to another) may be by means of the physical transfer of the property or by some constructive delivery; and emphasised that delivery need not be made at the time of the gift (it may occur prior to or contemporaneous with or subsequent to the words of gift) (citing In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149 (Stoneham)). His Honour there said that:

… if the goods are already in the possession (or custody) of the donee, an effective oral gift of those goods may be made without the need for any further delivery, because delivery has occurred prior to the words of gift: In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149; Elder’s Trustees and Executor Co Ltd v Gibbs [1922] NZLR 21; Pascoe v Turner [1979] 2 All ER 945...

206. In Horsley, Santow J (at [58]) referred to an article by Thornley, “Transfer of Choses in Possession between Members of a Common Household” (1953) 11 Cambridge Law Journal 355 at 358, where it was said that “words of gift uttered by the owner, and words of acceptance by the donee who is already holding the chattels concerned as bailee for him, change the character of the donee’s possession so as to constitute a constructive delivery which will pass the title” (the author there citing Alderson v Peel (1891) 7 TLR 418; Stoneham) and that the “same is true where the donee merely had custody of the chattels” [my emphasis].

207. Similarly, in Rowland v Stevenson, Gzell J applied Stoneham, holding that delivery “need not be contemporaneous with words of gift” (see at [52]). In contrast to the judgment of Santow J in Horsley, Gzell J did not suggest that words of acceptance were required to change the character of the donee’s possession. I further note that Stoneham imposes no such requirement.

208. As to the consequence of a partial failure of an inter vivos gift, clearly if a donor purports to make a gift of chattels over which the donor has no title at all the gift will fail (such is the fundamental principle of nemo dat quod non habet). However, where the gift is one of fungible property, it is by no means apparent that a gift of the whole of such a gift must necessarily fail (and I was taken to no authority to suggest this).

209. Finally, as there has been an issue raised as to whether the deceased suffered cognitive impairment such as to preclude the formation of intention to make a gift, it is pertinent to note the principles relevant to determining issues as to capacity (noting that, ordinarily, a party putting in issue the question of capacity would bear the onus of establishing incapacity).

210. The test for “general” mental capacity is decision-specific; see Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 at 437-438 where Dixon CJ, Kitto and Taylor JJ stated that:

The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation…

Ordinarily the nature of the transaction means in this connection the broad operation, the ‘general purport’ of the instrument ...

211. In Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541 Lindsay J said at [205] (there considering the requisite mental capacity to make a valid Power of Attorney):

What is required, rather, is an appreciation that the concept of ‘mental capacity’ must be assessed relative to the nature, terms, purpose and context of the particular transaction. Nothing more, or less, is required than a focus on whether the subject of inquiry had the capacity to do, or to refrain from doing, the particular thing under review.

212. As to the capacity to make an inter vivos gift, the plaintiffs say that the test for testamentary capacity is applicable, by analogy, to determine capacity to make gifts of chattels and they refer to Perochinsky v Kirschner (2013) 16 BPR 31,481; [2013] NSWSC 400 per White J, as his Honour then was, at [96]. Jamila contends that the deceased did not have to appreciate the far-reaching ramifications of his actions as if he were having to meet the standard applicable to testamentary capacity or a written instrument such as an Enduring Power of Attorney.

213. With the above in mind, I turn to the submissions by the respective parties and, as Jamila bears the onus of establishing an effective inter vivos gift, I turn first to her submissions.

Jamila’s submissions

214. Jamila contends that the donative intent on the part of the deceased to make an immediate gift to her of his gold (believing it to be 700 ounces as opposed to 445 ounces) from the gold already being held by her as his custodian was clearly manifested in the communications with her and with Mr Bramble, in May 2019 – in particular the 22 May 2019 Email and the subsequent exchanges with Mr Bramble in which the deceased affirmed his intention to make an immediate gift (not a loan) and not limited to the 70 ounces suggested by Mr Bramble. Jamila says that the fact that the deceased had initially hoped that the gold Jamila was to receive would be the whole of the 700 ounces in her custody is irrelevant once it is accepted that the deceased conveyed his intention to make a gift of the gold in her possession which he did own.

215. Jamila says that her acceptance of the gift can be presumed in the circumstances. It is noted that, following receipt of the 22 May 2019 Email, and the express words of gift contained therein, Jamila has asserted her beneficial entitlement to the gold in question and maintained her physical possession of it. Furthermore, it is said that (as she was urged to do by the deceased in his 22 May 2019 Email) Jamila considered the gold her own and consequently did not take up the higher income position that was then on offer to her as a Senior Family Dispute Resolution Practitioner; instead, she trusted in her belief that the gift of gold had made her much more financially secure. As such, Jamila says that the second element for a valid inter vivos gift is clearly satisfied.

216. Relying on the authority that delivery need not be made at the time of the gift (and may occur prior to, contemporaneously with, or subsequent to the words of gift) (citing Stoneham), Jamila says that the deceased made it expressly clear that she could now assume that the gold he owned, and which previously he had asked her to look after, was now hers (in the sense that she owned it in her own right); and that there was no further delivery which needed to occur to perfect the gift.

217. It is submitted that, at that point, the gift was complete and irrevocable; and that it was not invalidated or unwound by any subsequent change of heart or regret on the deceased’s part (or by any back-tracking about it in later correspondence with his other children).

218. As to the plaintiffs’ claim that, up until the time of his death, the deceased suffered from hallucinations, confusion and mental infirmity, such that his judgment was impaired, Jamila says that, to the extent that the pleading asserts that the deceased was incapable of making a gift of his gold to her owing to mental infirmity, such a proposition is not supported by the evidence.

219. Jamila submits that the deceased had more than sufficient mental capacity to understand “the general nature” of what he was doing (i.e., making a simple, albeit valuable, gift to his daughter). It is said that the deceased wrote with great clarity and eloquence and had a full appreciation for the concept of gift (referring to the emails between 22 and 24 May 2019); and that the deceased’s emails were not only nuanced and comprehensible but also demonstrated good factual recall.

220. In particular, it is said that the deceased: knew that for the past two years Jamila was holding 700 ounces of gold; knew the basis on which she was holding the gold (namely, as a custodian/bailee); appreciated that the gold had a significant value and that in gifting it to Jamila he would be improving her financial security; knew that custodianship could “transmute” to ownership because Jamila was already in possession of his gold; understood that there was no constraint on him gifting gold he owned (as opposed to gold that Plassey owned); and promptly confirmed his gift made two days earlier when subsequently corresponding with Mr Bramble on 24 May 2019 (at the same time rejecting any idea of a loan to Jamila).

221. Jamila says that, more generally, other facts militate against the notion that the deceased lacked a general understanding of what a gift was or what it entailed, including that the hallucinations or disorders of thought or perception experienced by the deceased were specifically related to a psychotic depressive episode, which was temporary and which related to the deceased’s use of prednisone during his admission to St Vincent’s Hospital in early 2018. It is noted that, by the middle of 2018, the deceased had ceased taking any anti-psychotic medication (although I note that there was some uncertainty as to precisely when this occurred, since the deceased is recorded as having stopped the medication in June 2018 and then re-started in July until around August 2019) and that there was no reoccurrence of such symptoms. It is said that this was reinforced by observations made by Marius (referring to the letter he wrote in late June 2018 – see chronology above).

222. Jamila points out that the deceased was able to discuss in detail with Mr Bramble the affairs of Plassey, sign and approve its annual accounts, and agree Balance Sheet adjustments with him, as at late October 2018; and that, in the opinion of his solicitor (Mr Belshaw) the deceased was “doing just fine” (pointing to Mr Belshaw’s correspondence with the deceased in late October 2018). Jamila also notes that the deceased was able to engage in numerous discussions (face-to-face and by telephone) with Mr Bramble, regularly exchange emails with him, and provide relevant information to him concerning Plassey’s gold bullion holdings, as at 2019.

223. Jamila says that, in consultations with his regular general practitioner, Dr Pinkstone, in the period from 1 April 2019 until his death, the deceased: was generally orientated in both place and time; was observed to make appropriate decisions for himself; was able to understand the explanations given to him about his conditions and treatments; and had no difficulty making logical decisions about his treatment and explaining them.

224. Further, Jamila points to Ian’s opinion that the deceased retained “exceptional verbal acuity” until the end of his life. Jamila also notes that the deceased personally embarked upon a project to transfer his lifetime collection of writings to the China Institute for International Studies in Beijing and maintained a good relationship with the Chinese ambassador and embassy in Australia until the very end of his life.

225. Jamila thus contends that she enjoys the absolute beneficial interest in the 445 ounces of gold bullion previously owned by the deceased in his lifetime but which was gifted to her in clear terms on 22 May 2019. It is said that the suggestion that the deceased had no basic idea of the general nature of the gift which he purported to make cannot be sustained in light of the breadth of lay evidence suggestive of the contrary, the clarity of the deceased’s own writing and the views of his treating physician. Accordingly, it is submitted that there should be no declaration made that the 445 ounces of gold held by Jamila belongs to the deceased’s estate.

Plaintiffs’ submissions

226. The plaintiffs maintain that Jamila has not established that there was an effective gift but that if there was a gift then it failed because it was subject to conditions that failed.

227. As to the requirement for intention, the plaintiffs say that the 22 May 2019 Email cannot be looked at in isolation; and that, on a close examination of all the emails (before and after that date), and the mental health of the deceased, as at 22 May 2019 and prior to that date, it should be concluded that the deceased never intended to make a gift to Jamila of any quantity of gold bullion. In the alternative, the plaintiffs assert in their submissions that the deceased did not have the requisite legal capacity to make a gift of any quantity of gold bullion to Jamila.

228. As noted above, the plaintiffs say that the test for testamentary capacity is applicable by analogy to determine capacity to make inter vivos gifts of chattels. It is said that, for the deceased to have had the capacity to make the gifts he would have to have had the capacity to understand: first, the nature and effect of the transaction (that is, that he was giving away his gold bullion); and second, generally the extent of his property, or at least the extent of the property that was the subject of the transaction (that is, how much gold bullion he owned and how much he was intending to give away). It is said that the deceased must also have had the capacity to assess the persons who would have a moral claim on him who would be affected by the decision and the capacity to weigh the claims of such persons (in this case, his adult children and his grandchildren) so as to make a balanced judgment as to whether or not it was proper to make the gift.

229. Further, the plaintiffs say that the gift (insofar as it was intended to be a gift of 700 ounces of gold, when the deceased does not have 700 ounces of gold) is uncertain. The plaintiffs emphasise the need for clear intention as to the subject matter of the gift and here the disposition was expressed by reference to 700 ounces of gold. It is submitted that the words of disposition are those commencing “I can simply GIVE” (not the words “So you may now regard it as your own” (see at T 68-69).

230. As to the question of acceptance, the plaintiffs emphasise that there is no evidence manifesting Jamila’s communicated acceptance of the gift; and they say that her conduct (demonstrated by her emails) makes clear that the gift was not accepted by her. It is noted that the second affidavit of Jamila (after Marius had filed his affidavit deposing to the deceased’s conversation with her as to the return of the gold bullion - see [57] of her second affidavit) does not deny that the deceased requested its return.

231. The plaintiffs emphasis the maxim that equity will not assist a volunteer (and the extract from Corin v Patton referred to above) in the context of the requirement for certainty as to the subject matter of the gift.

Determination

Capacity to form intention to make the gift

232. The issue of capacity is raised by the allegation made in the amended statement of claim as to cognitive impairment, delusions and hallucinations, although no formal declaration as to incapacity was sought. As I understand the plaintiffs’ submissions, the issue of capacity is in effect raised as going to the first element that must be proved for an effective gift (namely, donative intention); that being something as to which Jamila bears the onus (albeit that ordinarily a party alleging incapacity would bear the onus of establishing this). In any event, I have concluded that the evidence does not establish that the deceased lacked capacity to form the intention to make a gift of the gold bullion in May 2019.

233. As noted above, in the summary of legal principles, the test for capacity is issue specific (and see for example, Szozda v Szozda [2010] NSWSC 804at [27] per Barrett J, as his Honour then was). Even if, which I do not accept is necessarily the case, the test for testamentary capacity provides a useful analogy, here the deceased had, at least since 2014, been conscious of those with claims on his testamentary bounty and well aware of the extent of his estate in general (though there was a need to reconcile his personal bullion holdings with those of Plassey). Relevantly, the deceased had consistently expressed a desire to provide financial assistance to Jamila and, in particular, to contribute to the educational expenses of his grandsons (and had contemplated so doing in a variety of ways); and the 22 May 2019 Email makes clear the deceased’s desire that Jamila be financially able to continue working part-time rather than full-time. Associate Professor Stevenson concluded (and I accept her expert opinion on this issue, which is consistent with the deceased’s communications to Jamila and others at the relevant time) that the deceased as at 22 May 2019 understood the nature and effect of the gift of gold bullion.

232. It is also relevant in the context of the pleaded allegation as to cognitive impairment that, after the deceased’s psychotic episode while hospitalised at St Vincent’s Hospital, the medical notes of his general practitioner do not record any episodes or observation of delusions or hallucinations; and any lingering depression does not appear to have affected the deceased’s ability to confer with and give instructions to his accountant and lawyer over the two years leading up to his death. The most that the evidence establishes is difficulty with short term memory about which the deceased exhibited self-awareness and which does not appear to have been so pervasive as to remove the deceased’s cognitive ability to make decisions such as the decision to make a gift of the gold in Jamila’s custody to her.

Donative intention

235. I have concluded that the 22 May 2019 Email, particularly when read with the deceased’s subsequent 24 May 2019 email to Mr Bramble (the latter in very adamant terms), makes very clear that the deceased intended to make a gift to Jamila of the gold that she then held. The statement that “I can simply GIVE” (the gold) might perhaps be read as an indication of what the deceased was capable of doing or might choose to do; however, the deceased went on to state that Jamila’s custodianship was now transmuted to ownership and that Jamila was free to deal with the gold as she wished. To my mind that is a very clear expression of donative intent (and any doubt as to this is removed by the deceased’s own clarification of intention in his email to Mr Bramble of 24 May 2019).

236. As to the plaintiffs’ contention that this was a conditional gift, I do not read the 22 May 2019 Email as imposing any conditions on the gift. The email is not conditional in its terms and I see no basis to imply the terms contended by the plaintiffs. As to the first (that the deceased in fact owned the 700 ounces of gold), it goes without saying that the deceased could not make a gift of something that he did not own (and I address below the issue as to the proper construction of the subject matter of the gift and consequences of a partial failure of the gift) but that does not render this a conditional gift in the sense contended for by the plaintiffs, as I understand their submissions. As to the second condition (as to there being no legal complexities arising out of the gift in relation to Plassey), I read the statement that there were no legal complexities as a statement that records the deceased’s understanding that that was the position; not as the imposition of a condition to that effect. Moreover, it is tolerably clear (having regard to the earlier communications between the deceased and Mr Bramble) that the deceased’s concern as to any legal complexities vis-à-vis Plassey was as to the potential tax consequences of the making of the gift.

237. As to whether the gift was expressed with sufficient certainty, the context in which the gift was made is relevant. It is clear (again from the deceased’s earlier communications with Mr Bramble but also from the deceased’s attempts to obtain confirmation from Jamila as to the amount of gold she was holding as his custodian) that the deceased understood that Jamila was holding 700 ounces of gold of which he was the beneficial owner (and hence which he was free to give to her).

238. I do not accept that the deceased was confused, at the time of his email making the gift, as to whether Jamila held 70 or 700 ounces of his gold (even if, during the course of his discussion with Mr Bramble, the figure of 70 ounces had been discussed – as Mr Bramble recalls it was). That is because the deceased’s immediate reaction (when he received Mr Bramble’s summary of the meeting) was to correct Mr Bramble. So, if there had been any error at the meeting, the deceased was here emphatically correcting the position. Moreover, the deceased’s earlier communications made clear his recollection or belief that Jamila was holding 700 ounces of gold as his custodian. Any suggestion that the deceased was intending a gift of 70 ounces is also inconsistent with the value he ascribed to the gold in his email.

239. The deceased expressed in the email his belief that the gold (that was his own) was gold with which he was free to deal. In those circumstances, the gift of 700 ounces was clearly intended to be a gift of all of the deceased’s gold that was then being held by Jamila. I do not accept (as the plaintiffs contended might at the most be established) that the deceased expressed an intention in the 22 May 2019 Email to make a gift of only 70 ounces of gold. Nor do I accept that the gift should be taken to be a gift of precisely 700 ounces of gold, such that the gift would fail if there was one ounce more or less.

240. However, the question that here arises is as to whether there was sufficient certainty as to the object and extent of the gift if what the deceased was conveying in the 22 May 2019 Email (as I think sensibly understood he was) was the intention that there be a gift to Jamila of so much of the gold she held as custodian as was the deceased’s to give (i.e., whether the deceased had sufficiently clearly delineated the object and extent of the gift).

241. I have referred above to authorities in the context of trusts (White v Shortall and Re Goldborough Exchange) which have considered not dissimilar situations where the trust is of an unseparated portion of a greater mass (identical shares in the case of the former, gold bullion in the case of the latter). I consider that the present case is more analogous to the position considered in White v Shortall in that the gift concerns a collection of gold bars owned by two different purchasers and there is no apparent distinction between the gold bars themselves (other than that some are 10 ounce bars and some are 5 ounce bars). This is not a situation akin to the position in Re Goldborough Exchange, where the company was trading in gold and there was uncertainty as to what gold might be subject to open contracts or the like, or which the company would otherwise be free to deal. Here there is no such complication. There was simply uncertainty (not perceived by the deceased at the time) as to how much of the 700 ounces of gold was personally owned by him and that issue has since been resolved. Once the amount of gold owned by the deceased was ascertained, the gift left Jamila free to deal with so much of the gold as was the deceased’s to give, provided that the gold was not reduced below the amount owned by Plassey. I do not consider that a gift of so much of the gold held by Jamila as the deceased in fact beneficially owned lacks sufficient certainty (and although I accept that the gift was not expressed in those terms, I consider that this was the deceased’s clear donative intent).

242. The question that I raised in the course of oral submissions during the hearing as to what would be the consequence of a partial failure of the gift (i.e., because the gift in terms spoke of 700 ounces and, of the gold held by Jamila as custodian, the deceased owned only 445 ounces). I was taken to no authority on the question whether, as a matter of law, there will be held to have been an ineffective gift where there has been a clear donative intention to make a gift of fungible chattels held in another’s custody but the donor did not own the precise quantity of goods referred to in the words of gift (i.e., the donor had purported to gift a greater amount than the donor owned). I see no reason (if there is sufficient certainty of the object and extent of the gift – relevantly, in the present case, that it extends to so much of the gold held by Jamila that the deceased did in fact own) for the gift wholly to fail. It simply means that the gift is effective only for such lesser amount of gold as the deceased in fact owned. That is because, in my opinion, the 22 May 2019 Email, read in context of the other communications (see chronology above) indicates that the deceased was intending to make a gift of the whole of the gold that was then in Jamila’s custody and which he believed to be his own gold (see the statement in the email that “the gold you hold is mine to give”, read with the explanation the Jamila “may now” spend it as she wished. The gift to my mind was sufficiently certain and does not fail because the deceased in fact owned only 445 ounces of the gold in Jamila’s possession.

Acceptance of the gift

243. The second of the requirements for a valid inter vivos gift of chattels is the intention on the part of the recipient to accept the gift. The plaintiffs maintain that it is necessary that there be a communicated acceptance of the gift by Jamila (whether by words or conduct) and that there was none prior to the deceased’s retraction or withdrawal of the offer to make a gift of the gold; for Jamila, it is said that acceptance can be presumed from her refusal to return the gold when requested.

244. I have referred above to the recognition in Carter of the presumption of acceptance of the gift (noting this decision was handed down by the High Court in April after the conclusion of this trial and thus it did not form part of the parties’ submissions). (Since the issue as to acceptance (and presumption of acceptance) had squarely been raised during submissions at the hearing, including the submission made for Jamila that acceptance should be presumed (from the fact that she had refused requests to return the gold) I considered that this issue was sufficiently ventilated not to seek further submissions from the parties on that issue.)

245. Prior to Carter, there was tension in the authorities (as noted above) between the requirement for a manifestation of acceptance of the gift and those cases where the donee’s acceptance of a gift has been presumed (subject to express refusal). The plurality of the High Court (albeit in obiter) has resolved this tension in favour of the application of the presumption of assent. Therefore, if Jamila’s conduct after the making of the gift does not amount to a disclaimer, Jamila must be presumed to have accepted the gift.

246. There was no response from Jamila to the 22 May 2019 Email acknowledging the gift, let alone accepting it (indeed, the first reference to the gold being gifted to Jamila is after the deceased’s death in the letter from her solicitors). At the time, Jamila’s focus was on the perceived unfairness of her treatment vis-à-vis that of her brothers and her desire to have an inter vivos transfer of the Double Bay property. Perhaps, as was suggested in submissions, Jamila was simply asking for more from the deceased than just the gold. However, that does not emerge from her correspondence with the deceased (in which she stakes her claim to the Double Bay Property by reference to the provision made for her brothers, without any reference to the gold bullion that on her present case was already transmuted from custodianship to ownership on her part).

247. Nevertheless, the emails sent by Jamila discussed above do not go so far as to disclaim the gift of gold (indeed, there is no mention of the gift in any of her correspondence), nor was I taken to any other evidence in which Jamila expressly disclaimed the gift. Accordingly, upon application of the presumption of assent I find that this element has been established.

Delivery

248. As noted above, and applying what was said in Horsley, this element for a valid inter vivos gift is here satisfied.

Estoppel claim

249. The first cross-claim was not pressed. However, as noted above, Jamila’s defence raises the estoppel claim at [11(d)] and repeats the arguments made in the first cross-claim at [17] and [19]. In light of my findings that the three elements have been satisfied for an inter vivos gift and hence the promissory estoppel claim does not here arise.

250. For completeness, however, I say the following about this argument. I have no difficulty with the proposition that the deceased induced in Jamila an assumption or expectation that the gift of the gold was to permit her to keep her working hours on a part-time basis. The email communications at the time make it very clear that this was the deceased’s concern (and indeed, the deceased appears to have thought that Jamila had taken on the additional hours – see the September 2019 email, for example).

251. Jamila has deposed to her reliance on that assumption (in effect that the gift of the gold would not be withdrawn) in not taking up the offer of the full-time position. However, the difficulty I have with that proposition is that Jamila’s own email communications at the time express her inability to rely on the deceased’s promises (and suggest that Jamila was well aware that the deceased might forget or might not fulfil a promise or might simply change his mind). Therefore, I cannot see that reliance on the promise (without it being formally documented) was reasonable. Moreover, Jamila’s subsequent communications (relating to her endeavour to obtain a transfer of the Double Bay Property) as to her being able to work part time and assist the deceased suggest that, far from the foregoing of an opportunity to work full time being something done in reliance on an expectation that the gold was hers to keep, this was being used as leverage to persuade the deceased to transfer the Double Bay Property (which I note was in Evelyn’s name in any event) to her.

252. Furthermore, on Jamila’s own evidence, the full-time position was not finally filled until February 2020. Therefore, it was seemingly open to Jamila (once the deceased requested the return of the gold bullion in June 2019 and effectively withdrew his offer of a gift) still to apply for the full-time role; and, as such, I do not accept that detrimental reliance (in the sense of a life-changing decision in reliance on the assumption – see Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [84] per French CJ, Kiefel, Bell and Keane JJ) has been established so as to make it unconscionable for the deceased to have acted otherwise than in accordance with the assumed state of affairs (i.e., to have withdrawn the gift before his death). Nevertheless, given the finding that there was an effective gift before its purported withdrawal, the issue of estoppel does not arise.

Conclusion

253. For the above reasons, I have concluded that there was an effective inter vivos gift of the gold bullion in question. Accordingly it does not form part of the deceased’s estate for distribution in accordance with the Will.

Costs

254. The parties sought to make submissions as to costs after judgment was delivered. I will make directions for written submissions to be forwarded to my associate, with a view to determining the issue of costs on the papers.

Orders

255. For the reasons set out above, I make the following orders:

1. Dismiss the plaintiffs’ claims in the amended statement of claim.

2. Note the parties’ agreement that, of the 700 ounces of gold in the first defendant’s custody as at the date of the deceased’s death, 255 ounces were held beneficially by the second cross-claimant (Plassey Pty Ltd).

3. Order that, unless the first defendant has already delivered 255 ounces of the gold bullion held by her to Plassey Pty Ltd, there be delivery up to Plassey Pty Ltd by the first defendant within 7 days of that amount of the gold bullion held by the first defendant.

4. Direct the parties to file written submissions on costs within 21 days with a view to costs being determined on the papers.

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Decision last updated: 03 August 2022