Mills v Dodds

[2025] NSWSC 396

Supreme Court

New South Wales

Medium Neutral Citation:

Mills v Dodds [2025] NSWSC 396

Hearing dates:

28-29 August 2024

Date of orders:

28 April 2025

Decision date:

28 April 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Determination that plaintiff’s contractual claim succeeds. Finding against cross-claim for recovery of monies. Parties to bring in short minutes of order.

Catchwords:

SUCCESSION — Testamentary promise — Deceased who was battling cancer with a prognosis of 3-6 months to live approaches sister for care — Plaintiff (sister) claims that the deceased promised her half of her estate if she looked after her — In the context of the COVID-19 pandemic, the plaintiff moved from Ocean Grove in Victoria, first isolating in Sydney for 2 weeks, and then travelled to Port Macquarie where she lived with and took care of the deceased for some 10 months, returning to Victoria for a period of 6 weeks — There was no written contract or document reflecting the alleged promise and there was limited contemporaneous documentary evidence generally — Deceased’s Will does not give effect to the purported contract but rather only gives by way of provision to the plaintiff items of personal effect, $20,000 and a motor vehicle, with the residue of the estate being divided between a cancer trust and a wildlife charity — Defendant, who is the executrix and a friend of the deceased, disputes the alleged promise was made or, if made, that it is enforceable — Defendant’s counsel contends that the plaintiff and witnesses in her case (her brother and her husband) have each reconstructed memories of material evidence — Plaintiff’s counsel postulates a case that the deceased harboured negative feelings for the plaintiff for leaving the deceased to look after their sick mother on her own, which led her to plot her revenge against the plaintiff in the form of not honouring the alleged promise

CONTRACTS — Testamentary contract — Whether the deceased promised the plaintiff half of her estate if she looked after her — Deceased updated her Will one week after the alleged promise conversation but before the plaintiff arrived in Port Macquarie and did not make the alleged promised provision — Defendant’s witnesses assert the deceased never told them she was giving the plaintiff half of her estate — Submission by the defendant that these factors are inconsistent with the alleged promise conversation not accepted — Found that the alleged promise conversation occurred as asserted by the plaintiff and foreshadowed by the evidence of the deceased’s and plaintiff’s brother that the deceased mentioned her plan to offer the plaintiff the alleged promise — Found that the promise conversation constitutes an agreement — Submission that the terms of the agreement are not certain rejected — Submission that there was no real consideration rejected — Submission that there was no intention to create legal relations rejected — Held that there was a valid testamentary contract between the deceased and the plaintiff which was breached by the deceased

ESTOPPEL — Equitable estoppel — Found that there was a clear and unequivocal promise — Discussion of whether an existing or future legal relationship needs to be assumed — Held that no assumption is required by the plaintiff — Found, in any event, that the plaintiff assumed there was an oral contract — Whether the plaintiff acted reasonably in reliance on the promise — Submission that the plaintiff’s reliance was artificial and unrealistic rejected — Whether the deceased knew or intended that the plaintiff would act in reliance on the promise — Found that the deceased knew or intended for the plaintiff to act in reliance on the promise — Whether the plaintiff’s reliance on the promise was to her detriment — Discussion of financial and non-financial detriment — Submission that the plaintiff acted in reliance to her detriment accepted — Whether the deceased acted unconscionably in not honouring the promise — Unpersuaded that the minimum equity is to enforce the promise according to its terms — Held that equitable estoppel is not made out

RESTITUTION — Common counts — Claim for money had and received — Whether the plaintiff’s withdrawal of sums totalling $81,799 during the last days of the deceased’s life and after the deceased’s death were authorised by the deceased — Found that the payments were authorised in a conversation between the deceased and the plaintiff — Held there is no obligation for the plaintiff to pay the sums back into the estate

EVIDENCE — Unchallenged and uncontradicted evidence — Submission that evidence which is unchallenged and uncontradicted must be accepted or acted upon — Discussion of authorities — Held there is no general rule that such evidence must be accepted

EVIDENCE — Rule in Browne v Dunn — Alleged non-compliance with rule — Held no breach of the rule

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Conveyancing Act1919 (NSW)

Evidence Act1995 (NSW)

Law Reform (Testamentary Promises) Act 1949 (NZ)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 13 ATR 825

Allison v Farrington, Hobbs v Farrington [2005] NSWSC 106

Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151

Application of Marais [2009] NSWSC 206

Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12

Ashton v Pratt (No 2) [2012] NSWSC 3

Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582

Battenberg v Phillips [2020] NSWCA 249

Browne v Dunn (1894) 6 R 67

Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 87

Clayton v Clayton [2023] NSWSC 399

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752

Coshott Family Pty Ltd v Lyons (2022) 110 NSWLR 44; [2022] NSWCA 216

Coss v Norman [2021] NSWSC 1464

DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) (2011) 83 NSWLR 728; [2011] NSWCA 348

Dulhunty v Dewhirst [2005] NSWSC 350

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Evans v Levy [2011] NSWCA 125

Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172

Finlay v Mack [2001] NSWSC 443

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galaxidis v Galaxidis [2004] NSWCA 111

Gill v Garrett [2020] NSWSC 795

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58

Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374

Horton v Jones (1935) 53 CLR 475; [1935] HCA 7

Juul v Northey [2010] NSWCA 211

King v Adams [2016] NSWSC 1798

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Lucas v Salman [2022] NSWSC 1301

Marginson v Potter & Co (1976) 136 CLR 161; [1976] HCA 35

Maxwell v Maxwell [2022] NSWSC 1028

McBride v Sandland [No 1] (1918) 25 CLR 69; [1918] HCA 32

MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833

Moore v Aubusson [2020] NSWSC 1466

NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838

Norris v Pendino (Estate of Louise Edith Fernandez) (Supreme Court (NSW), Master Macready, 21 September 1995, unrep, BC9505523)

Oneflare Pty Ltd v Chernih [2017] NSWCA 195

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35

Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51

Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605; [2015] NSWCA 313

Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353; [1969] HCA 29

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469

Rathswohl v Court [2021] NSWSC 356

Re Gonin [1979] Ch 16

Schaefer v Schuhmann [1972] AC 572

Sheahan v Woulff [1927] St R Qd 128

Shymko v Lach [2022] NSWSC 1096

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

Silver v Dome Resources NL [2007] NSWSC 455; (2017) 62 ACSR 539

Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268

Slade v Brose [2024] NSWCA 197

Starr v Miller; Starr v Miller [2021] NSWSC 426

Steria Ltd v Hutchison [2006] EWCA Civ 1551

Stojanovski v Stoyanovski [2024] NSWSC 1582

Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755

Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293

The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Thomas v Thomas (1842) 2 QB 851; 114 ER 851

Thorner v Major [2009] 3 All ER 945; [2009] UKHL 18; [2009] 1 WLR 776

Todd v Nichol [1957] SASR 72

Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769

Varma v Varma [2010] NSWSC 786; (2010) 6 ASTLR 152

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431

Weston v Hourn [2000] NSWSC 543

Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106

Texts Cited:

Aitken, Lee, “Unscrambling ‘detriment’ — unjust enrichment, mistaken payments, and estoppel” (2014) 38(3) Australian Bar Review 269

Bryan, Michael, “Almost 25 years on: some reflections on Waltons v Maher” (2012) 6 Journal of Equity 131

Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis)

Edelman, James & Elise Bant, Unjust Enrichment (2nd ed, 2016, Bloomsbury Publishing)

Evans, Michael, Theresa Power & Joseph Power, Equity and Trusts (5th ed, 2024, LexisNexis)

Heydon, JD, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)

Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)

Macquarie Dictionary, online ed

Nield, Sarah, “‘If You Look After Me, I Will Leave You My Estate’: The Enforcement of Testamentary Promises in England and New Zealand” (2000) 20(1) Legal Studies 85

Ong, Denis S K, Ong on Equity (2011, Federation Press)

Restatement of the Law Third: Restitution and Unjust Enrichment (American Law Institute Publishers, 2011)

Sue, Eugène, Matilda, Or, The Memoirs of a Young Woman, (1843, J Winchester New World Press)

Category:

Principal judgment

Parties:

Jennine Catherine Mills (Plaintiff / Cross-Defendant)
Karen Ann Dodds (Defendant / Cross-Claimant)

Representation:

Counsel:
M Maconachie with M Summerhayes (Plaintiff / Cross-Defendant)
D Yazdani (Defendant / Cross-Claimant)
Solicitors:
Priest Legal (Plaintiff / Cross-Defendant)
Donovan Oates Hannaford (Defendant / Cross-Claimant)

File Number(s):

2023/256033

JUDGMENT

Introduction

1. HIS HONOUR: Revenge “served cold”, ^[1] by a duplicitous manipulating sister on one side ^[2] and a reconstructed memory contorting a mere expression of goodwill into a hoped for inheritance on the other side ^[3] are the main competing case theories advanced by counsel to explain certain perplexing events bearing upon a now disputed arrangement said to have been established between the plaintiff, Jennine Catherine Mills (Jennine or plaintiff), and her older sister, Lynette Rose Paton (deceased), in the context of the deceased’s terminal cancer diagnosis and advice that she had only a matter of months to live.

   1. Plaintiff’s Outline Submissions (POS) [104] “Revenge is a dish best served cold” citing Eugène Sue, Matilda, Or, The Memoirs of a Young Woman, (1843, J Winchester New World Press); T 134.4-.46.

   2. POS [114].

   3. T 41.42-42.1, 80.30-.34, 89.20-.28, 94.17.20, 142.46-.48, 148.26-.31, 150.5.34.

2. Jennine claims that, during a telephone conversation in October 2020, the deceased promised her that, if Jennine lived with and cared for the deceased until her death, the deceased would leave half of her estate to Jennine (alleged promise). Jennine travelled interstate, quarantined, lived with and she says cared for the deceased, yet the deceased did not make a Will to the effect asserted. Jennine sues the defendant, Karen Ann Dodds (Karen or defendant), the executrix of the deceased’s estate, to enforce the alleged promise by alternative claims based on a testamentary contract or equitable estoppel.

3. Karen, who on 15 February 2022 was granted probate of the deceased’s Will dated 26 October 2020 (Will), disputes the claim. Further, by her cross-claim for money had and received, Karen claims that certain withdrawals from the deceased’s bank account by Jennine in the days prior to and immediately following the deceased’s death, totalling $81,799, were unauthorised and ought to be paid to her as executrix of the deceased’s estate, with interest.

4. The above case theories did not ultimately reconcile in a convincing way all the materials and the quandaries in the evidence and in that sense were flawed. In the final analysis, I have rejected the notion that Jennine’s evidence on the critical issues was reconstructed. Similarly, the revenge theory did not withstand final scrutiny.

5. The defendant led evidence suggesting the deceased’s relationship with Jennine was not close, was marked with discord, ^[4] and had been earlier fractured by an alleged failure by Jennine to assist, financially or otherwise, the deceased in caring for their sick mother. Karen gives evidence that, at times, the deceased told her that she was “betrayed and hurt by Jennine”. ^[5]

   4. For example, Court Book (CB) 89[11].

   5. CB 114[6].

6. In outlining the revenge theory, Mr Maconachie and Ms Summerhayes gathered in their outline of opening submissions ^[6] (POS), under the heading “Betrayal”, the various references in the affidavit material relied upon by the defendant setting out statements made by the deceased to certain of those witnesses and by them to her identifying aspects of the apparent discord. ^[7]

   6. Dated 20 August 2024.

   7. POS [71]-[77].

7. Under the revenge theory, the deceased was some form of Jekyll and Hyde character who found a way to be all things to all people, presenting to her friends as a generous and thoughtful person, whilst avenging her sister for what she perceived to be a prior betrayal. ^[8] Allegedly, the deceased acted in a duplicitous ^[9] manner to Jennine, sent her disingenuous cards ^[10] and harboured ^[11] a long-standing resentment arising out of historic events in which she was left by her siblings to principally care for their mother. Mr Maconachie submitted that the evidence of discord and betrayal led on the part of the defendant was a surprise to the plaintiff, with her believing that she had always had a close and loving relationship with the deceased. ^[12]

   8. POS [71], [92], [95], [96], [99], [103]-[105], [109]-[110].

   9. POS [114]; T 116.47-117.2.

   10. T 23.22-.25.

   11. According to some of the evidence led by the defendant.

   12. T 22.15-.17, 23.10.14.

8. However, that material sits uneasily with facts showing the deceased turning to her sister in her hour of need, appointing her to positions of being executrix, enduring attorney and enduring guardian, and corresponding with her sister and her husband in seemingly loving and effusive terms.

9. Mr Maconachie in the oral opening indicated that the “vast majority” of what is stated in Mr Yazdani’s submissions is common ground. ^[13] Mr Maconachie did not cross-examine the deponents called in the defendant’s case, other than the defendant and her husband. His reason for limiting cross-examination (at least in part) was that he did not dispute that the deceased had made statements to those deponents regarding her testamentary intentions ^[14] and that Jennine was coming to Port Macquarie as an act of love rather than anything else, which in some respects might be said to have been at odds with the plaintiff’s case. ^[15] Mr Maconachie also relied upon what he said were “multiple contradictions and curiosities in the defendant’s case” within the evidence of the witnesses ^[16] (such as care for the deceased). ^[17] Cognisant of such evidence, which potentially was conflicting with the plaintiff’s case, the plaintiff’s counsel in the POS used strong language to characterise the deceased’s conduct referring to what they described as the deceased’s “mala fides”. ^[18]

   13. T 13.36-.37, 13.50-14.1.

   14. POS [67]-[70].

   15. T 169.5-.14, 169.20-.23.

   16. POS [65], elaborated at POS [63]-[95].

   17. POS [8]-[10].

   18. POS [12].

10. Despite the above, Mr Maconachie submitted that I do not need to determine why the deceased did not honour the agreement or promise. ^[19] Further, by the end of the proceedings, it is not entirely clear to me that Mr Maconachie maintained that indecorous designation, in that he indicated that some of the deceased’s conduct was “just a bit strange”. ^[20]

    19. T 134.45-.46.

    20. T 169.14-.16.

11. There are some cases, including this one, where, in the long run, it is not possible nor necessary to pristinely reconcile all of the conflicting material in the case. Some aspects of this case remain a degree perplexing. However, what I have done is make findings on the evidence according to the applicable standard and burden of proof. I will first state those findings and then address the issues and provide further comment below.

Outcome 

12. For reasons which I explain below, I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the cross-claim are not liable to be repaid by the plaintiff.

13. Having regard to my findings in relation to the testamentary contract, it is not strictly necessary for me to address the estoppel claims. However, in case I be incorrect in relation to my findings on the testamentary contract, I have addressed the estoppel claim. In summary, whilst I have found that most of the elements of the estoppel have been made out, I am ultimately not persuaded that the appropriate remedy is to enforce the promise according to its terms. Essentially, that is because I have concerns regarding the proportionality of the value of half of the estate as to the prejudice or detriment suffered.

Sketch of deceased and party details

14. The deceased, a retired police officer, ^[21] was born in July 1956 ^[22] and died on 5 September 2021, aged 65. ^[23] She had no children ^[24] and was predeceased by her partner Alan Dawson (Alan) (in September 2020, also aged 65) ^[25] and also by her parents Rose Ellen Paton ^[26] (in 1995) ^[27] and Frank Trevor Paton ^[28] (in 2010). ^[29] The deceased is survived by Jennine and her brother Glen Paton (Glen).

    21. CB 296, 264.

    22. CB 106[2].

    23. CB 44[5], 264.

    24. T 30.34-.35; CB 88[5], 264.

    25. CB 195.

    26. CB 88[3], 264.

    27. CB 103[20].

    28. CB 88[4], 264.

    29. CB 103[20].

15. Jennine, the deceased’s elder sister, was born in September 1952 and is currently aged 72. ^[30] She retired from her career as an air hostess/flight attendant in 2018, ^[31] and is married to Phillip Mills (Phillip) who was a Contracted Maintenance Supervisor with Jetstar. ^[32] He was stood down from the position on 24 March 2020 (during Covid), was placed on JobKeeper receiving a small percentage of his regular pay, and received a final payout on or after 29 November 2020 consequent upon his position being made redundant. ^[33] They have no children (or at least none are referred to in the evidence).

    30. CB 205.

    31. CB 213, 89[12]; T 27.9-.10.

    32. CB 56[7].

    33. T 97.22-98.7, 100.14-.32; CB[7].

16. Glen, a retired Wing Commander with the RAAF ^[34] was, at least for some period, or still is, married to Rosemary ^[35] and has two adult children, Freya Chantelle Paton (Freya) ^[36] and Gene Blake Paton (Gene). ^[37] Glen currently resides in Burleigh Heads, Queensland. ^[38]

    34. CB 62 (stated occupation).

    35. CB 190 (there are refences to a marriage breakdown: CB 74[11], 127[20]).

    36. CB 298.

    37. CB 298.

    38. CB 62.

17. Sadly, the deceased and some of her immediate family had been afflicted with disease. She had been diagnosed with metastatic colorectal cancer in or around 2012 which she battled for 9 years. ^[39] Alan died from metastatic bowel cancer which he had battled for 11 years. ^[40] Her mother had died from Motor Neurone Disease, in or around 1995. ^[41]

    39. CB 264, 108[14].

    40. CB 108[14].

    41. CB 103[20].

14. Whilst Jennine receives certain personal effects, a motor vehicle and a $20,000 legacy under the Will, she does not receive anything close to half of the residuary estate.

15. Karen, a retired real estate salesperson/property manager, ^[42] was a very close friend of Lynette, having known her since 2002 as they both resided at South West Rocks and, between 2002 and 2010, would see each other on an almost daily basis. ^[43] In 2010, Karen moved to Port Macquarie and would meet up with Lynette once a month. Despite not seeing each other as often, they remained close friends. ^[44]

    42. CB 107[9].

    43. CB 106[4].

    44. CB 106[5].

16. Without intending any disrespect, it is convenient to refer to the parties and the various other protagonists by their given names, as they have done in the various affidavits, with the exception of Justin Levido, a solicitor, whom I will refer to as being Mr Levido.

Hearing

21. On the hearing, Mr Maconachie of counsel appeared on behalf of Jennine with Ms Summerhayes of counsel. Mr Yazdani of counsel appeared on behalf of Karen. Counsel for both sides provided a written outline of submissions prior to the hearing and made oral closing submissions following the completion of evidence. For convenience, I will refer to the submissions on behalf of Jennine as submissions by Mr Maconachie.

22. I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the POS of Mr Maconachie and Ms Summerhayes and Mr Yazdani’s opening written submissions dated 21 August 2024 (DOS). There are numerous occasions in emails and letters within the Court Book where words are misspelt or mistakenly used. Where I quote from such material, I have left the mistaken wording within the quote.

Deponents

23. Jennine relied on affidavits by herself (14 November 2023 and 9 April 2024), her husband Phillip Mills (15 November 2023 and 9 April 2024) and her brother Glen Paton (16 November 2023 and 10 April 2024).

24. Karen relied upon affidavits from:

1. herself – affirmed 8 December 2023 and 18 March 2024;

2. Pamela Little, retired public servant – a friend of the deceased (Pamela) affirmed 4 December 2023;

3. Ronald Deiter Fisher, real estate agent – a friend of the deceased (Ronald) affirmed 7 December 2023;

4. Helen Denise Molloy, retired registered nurse – a friend of the deceased (Helen) sworn 7 December 2023;

5. Jane Heatherington Cordin, paramedic – a friend of the deceased since 1989 (Jane) sworn 7 December 2023;

6. Justin Gerard Michael Levido, solicitor and principal of the law firm Levido Law + Property – who acted for the deceased in 2020-2021 (Mr Levido) sworn 8 December 2023;

7. Nada Mion (nee McDonald), retired Chief Inspector of Police – close friend of the deceased since 1980 (Nada) sworn 8 December 2023 and 18 March 2024; and

8. Kenneth Harold Dodds, retired land developer – Karen’s husband (Kenneth) affirmed 18 March 2024.

25. Other than Jane, Ronald and Mr Levido, all of the other deponents are retired.

The Will and the deceased’s estate

26. According to the inventory of property, the deceased’s estate consists of the following assets: ^[45]

    45. CB 301.

1. a strata unit in Home Street Port Macquarie, with an estimated value of $540,000;

2. monies in two Commonwealth Bank accounts (CBA) being a Smart Access Account and a NetBank Saver Account totalling $71,665.44;

3. an AHM health insurance death benefit of $1,500 and a $72.10 refund of recalculated paid health premiums;

4. superannuation estimated at $536,527.15;

5. a 2017 model Volkswagen Tiguan motor vehicle estimated at $26,350; and

6. furniture and personal effects with an estimated total value of $5,000.

Total: $1,181,114.69.

27. The deceased and some others described her strata title unit in Port Macquarie as her “Villa” ^[46] and I will refer to it as such.

    46. CB 196 (deceased), 89-90[14] (Jane), 100[5] (Nada).

28. By cl 2 of the Will, the deceased appointed Jennine as the sole executrix and trustee of her Will, provided that in the event that Jennine predeceased her or is unwilling or unable to act in that capacity, she appointed Karen as her alternative executrix and trustee.

29. By cl 3 of the Will, the deceased directed that the Villa is to be forthwith placed on the open market for sale using Port Macquarie First National Real Estate, with the property to be sold on a “walk in-walk out” basis as to major household items, furniture and appliances therein.

30. The following specific gifts and bequests were made:

1. certain wall mounted canvass prints are bequeathed to the treasurer or proper officer of The Hastings Cancer Trust (HCT) for the general purposes of HCT: cl 4;

2. any personal effects, including items of jewellery, personal adornment and/or ornament owned by the deceased are bequeathed to Jennine absolutely: cl 5;

3. the sum of $20,000 is bequeathed to each of the deceased’s niece, Freya, and nephew, Gene, absolutely: cl 6;

4. the sum of $20,000 is bequeathed to Tanya Laws (Tanya) absolutely: cl 7;

5. the sum of $20,000 and any motor vehicle owned by the deceased (being the 2017 model Volkswagen Tiguan) are bequeathed to Jennine absolutely: cl 8; and

6. the deceased’s sewing machine, Janome overlocker, Horn sewing machine cabinet and associated accessories, sewing books and items of fabric or thread are bequeathed to Liberty Domestic & Family Violence Specialist Services Inc (trading as Liberty Cottage) for its general purposes: cl 9.

31. By cl 10 of the Will, the residue of the deceased’s estate is divided as follows:

1. HCT is to receive a 70% share absolutely; and

2. the NSW Wildlife Information Rescue and Education Service Incorporated (WIRES) is to receive the remaining 30% share (free of all duties) “in aid of that Foundation and for their general purposes”.

32. By cl 11 of the Will, the trustee is given various powers, including to sell any asset of the estate which is not the subject of a specific gift, and to sell, call in and convert into money such part or parts of the estate and property as may not consist of money.

33. Various details regarding administration of the estate have been provided in the evidence. The Court Book records estate administration statements as at 10 January 2023, ^[47] and 31 March 2023. ^[48]

    47. CB 325.

    48. CB 331.

34. On 17 January 2023 and 6 February 2023, the gifts in cll 6, 7 and 9 of the Will were distributed to the respective legatees. Jennine in her evidence stated that she made no claim and did not wish to interfere with the specific bequests in cll 6, 7 and 9 of the Will. ^[49] That accords with Karen’s understanding that Jennine had relinquished any claim to those gifts. ^[50]

    49. CB 52[64].

    50. CB 108[13].

35. As at 8 December 2023, the deceased’s estate was valued at $1,050,251.67, which included the sale proceeds of the Villa. ^[51] At that time, $1,020,000 was held in a term deposit and had accrued approximately $8,925, with the remaining $21,326.67 being held in trust by Levido Law + Property. There are no liabilities of the estate as at the deceased’s date of death or as at 8 December 2023 of which Karen is aware. ^[52]

    51. CB 107[11].

    52. CB 108[12].

36. In correspondence to Mr Levido in July 2023, both the solicitors for WIRES and the HCT, indicated their respective positions that the executrix of the deceased’s estate ought to oppose Jennine’s claims and distribute the estate in accordance with the Will. ^[53]

    53. CB 340-342.

37. The claim for “half of the estate” was clarified by Mr Maconachie to be 50% of the net residuary estate of the deceased in lieu of the monetary gift in cl 8 of the deceased’s Will (see below). ^[54] He submitted that if Jennine is successful on her claim, but unsuccessful on the cross‑claim, “the figure of $1,051,052.22 would increase by $81,799 to $1,132,851.22”. ^[55] The figure of $1,051,052.22 is drawn from the estate administration statement as at 31 March 2023, being the funds of the residuary estate available for distribution after allowance for certain expenses and distributions of the $20,000 gifts to Tanya, Freya and Gene, an amount of $20,000 retained to pay tax and accounting fees, and an amount of $550,000 being anticipated costs and disbursements in finalising distribution. ^[56]

    54. T 112.24-.29; POS [115(1)].

    55. T 112.31-.32.

    56. CB 332.

38. It is not apparent to me that that is the appropriate figure because administration has progressed since 31 March 2023. As at 8 December 2023, excluding the costs of the proceedings, the residuary estate is said to total $1,050,251.67. ^[57]

    57. CB 107[11].

39. However, having made that observation, neither counsel suggested that it was necessary for me to identify some precise amount which constituted “half of the estate”. That is a matter that can be addressed in the administration of the estate having regard to the findings that I have made.

Issues

Preliminary comment

40. The defence, with a limited concession that the plaintiff lived with and assisted the deceased until her admission to hospital on 1 September 2021, ^[58] relevantly denies all aspects of the contractual claim and the estoppel claim. ^[59] The defence is otherwise unilluminating as to particulars and raises no positive defence to the claims.

    58. CB 25[11].

    59. CB 24-26.

41. The DOS was equally unilluminating in relation to defence of particular aspects of the plaintiff’s claims. Other than by reference to denial that the alleged contractual conversations occurred, ^[60] reference to the plaintiff’s “self-interest” ^[61] and reminders of the caution expressed in caselaw of approaching evidence regarding claims on deceaseds’ estates, ^[62] the DOS made no particular revelation regarding how the plaintiff’s contractual claim was being challenged. The approach taken as to the estoppel claim was only slightly more revealing in that the DOS, by reference to the six elements required for estoppel, essentially indicated that the Court should not be satisfied that any of the elements were made out ^[63] and noted that the words upon which the estoppel was said to be based were “too vague and uncertain to establish promissory estoppel”. ^[64]

    60. DOS [40].

    61. DOS [35].

    62. DOS [35], [36].

    63. DOS [48]-[51], [55], [56].

    64. DOS [48].

42. The pleadings to support the cross-claim simply raise the issue that the alleged withdrawals and transfers were not authorised. ^[65] There was no real disclosure in the DOS of how the case of a lack of authorisation was put, indicating essentially that “there is no evidence that the deceased, at any point of time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account.” ^[66]

    65. CB 33[7].

    66. DOS [61].

43. In the POS, the plaintiff’s counsel apprehended that Jennine’s claim was being defended on the basis that the deceased’s conduct was not consistent with the claimed contractual or equitable obligation. ^[67]

    67. POS [14].

44. During Mr Maconachie’s opening, I made the observation that I understood that Mr Yazdani was pitching his case essentially on the basis that I should not accept the plaintiff’s evidence, though noting that I would have to wait and see how he developed his case. ^[68]

    68. T 16.1-.4.

45. Mr Yazdani had opportunity to elaborate on the nature of the defence after Mr Maconachie’s opening at the commencement of the hearing, but simply indicated that there was “nothing really I wish to say by way of opening”, noting that I had the DOS and that he would be in a position to go through the evidence by way of closing submissions. ^[69]

    69. T 25.45-.49.

46. In the above context, Mr Maconachie essentially understood the character of the defence as being an executrix who was a stranger to the principal conversation subject of the plaintiff’s claim, putting the plaintiff to proof. ^[70] As earlier noted, Mr Maconachie contended that there were contradictions which were a “dominant feature of the defendant’s case” ^[71] including, for example, in relation to the deceased’s state of health and need for care. ^[72]

    70. T 112.38-.49.

    71. POS [10].

    72. POS [8]-[10].

Agreed issues

47. In preparation for the hearing, the parties provided the following agreed list of real issues:

Testamentary Contract

1. In relation to Jennine’s claim in contract:

1. Did the purported conversation between Jennine and the deceased in or about mid-October 2020 that she would receive half of the deceased’s residuary estate upon her death constitute an agreement?

2. If issue (a) is determined in the affirmative, are the terms of the agreement certain?

3. If issue (b) is determined in the affirmative, was there real consideration for the agreement?

4. If issue (c) is determined in the affirmative, was there an intention to create legal relations?

Equitable Estoppel

2. In relation to Jennine’s alternate claim in estoppel, if issue 1 is determined in the negative:

1. Did the purported conversation between Jennine and the deceased in or about mid-October 2020 constitute a clear and unequivocal promise?

2. If issue (a) is determined in the affirmative, did the deceased’s promise cause Jennine reasonably to assume that a particular legal relationship existed between her and the deceased?

3. If issue (b) is determined in the affirmative, did Jennine act reasonably in reliance on the promise?

4. If issue (c) is determined in the affirmative, did the deceased know or intend that Jennine would act in reliance on the promise?

5. If issue (d) is determined in the affirmative, was Jennine’s reliance on the promise to her detriment?

6. If issue (e) is determined in the affirmative, did the deceased act unconscionably in not honouring the promise?

Money had and received

3. In relation to Karen’s cross-claim in money had and received:

1. Were the sums totalling $81,799 which were withdrawn by Jennine from the deceased’s CBA account between 3 September 2021 and 8 September 2021 authorised by the deceased?

2. If issue (a) is answered in the affirmative, ^[73] is Jennine obliged to pay back the sum of $81,799 together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) to Karen?

   73. This is the parties’ wording, which seems incorrect. Issue (b) arises only if the withdrawals were unauthorised.

48. Having regard to the conflicting accounts of the sisters’ relationship and how counsel deployed those accounts in an attempt to explain the deceased’s conduct, prior to addressing particular contested factual issues, I will address the deceased’s relationship with Jennine and Glen later in this judgment.

Nature of the alleged estoppel

49. The estoppel case was pleaded in terms of the deceased making a representation, which she knew the plaintiff was relying upon, and which she did rely upon to her detriment, in circumstances in which it would be unconscionable for the deceased to resile from the representation and not to leave 50% of the value of her residuary estate to the plaintiff upon her death. ^[74]

    74. Statement of Claim (SOC) [15]-[24], see CB 16-17.

50. Self-evidently, there are differences between various forms of estoppel, including estoppel by encouragement, estoppel by acquiescence and estoppel concerned with the exercise of rights arising from or said to arise from presently subsisting contractual (or legal) relations between the parties.

51. The terminology used in the POS was somewhat varied, referring to equitable estoppel, promissory estoppel and equitable estoppel by encouragement. ^[75]

    75. Equitable estoppel (POS Heading to paragraph 48, [49], [62]); promissory estoppel (POS [48]); equitable estoppel by encouragement (POS [54]).

52. The DOS consistently described the estoppel claim as “promissory estoppel” and used the expressions equitable estoppel and promissory estoppel interchangeably. ^[76]

    76. DOS [9(b)], Heading to paragraph 41, [41], [42], [43], [45], [48], [53], [54].

53. In opening the case, Mr Maconachie expressly indicated that the reference in the pleading to the heading “Proprietary estoppel” should probably have read “Equitable estoppel”. ^[77] During submissions, Mr Yazdani consistently referenced “promissory estoppel”. ^[78] That eventually led me to seek to clarify the nature of the estoppel. Following some debate on the issue, all counsel appeared to settle on describing the estoppel as “promissory estoppel or equitable promissory estoppel”. ^[79]

    77. T 5.3-.7.

    78. T 136.46, 141.29, 141.34, 142.15-.16, 158.25-.26.

    79. T 159.

54. The framing of the list of estoppel issues were drawn in a manner almost exactly reflecting Barrett JA’s wording in Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 (Van Dyke v Sidhu (CA)) at [40]. The High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke (HC)) described the relief sought in that case as being found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. ^[80] Barrett JA had observed that the above-mentioned elements had been relevantly drawn by the trial judge (Ward J) from various authorities, including relevantly Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (Waltons v Maher) per at 428-429. ^[81] The prevailing principles of promissory estoppel in Australia have been described by reference to that part of Brennan J’s judgment. ^[82]  

    80. French CJ, Kiefel, Bell and Keane JJ at [2], Gageler J at [89] relevantly agreeing.

    81. See Barret JA at [41].

    82. JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis) (MGL) [17-260] page 540.

55. Having regard to the framing of the list of issues using particular language to describe the elements of the estoppel, and the written and oral submissions, I propose to proceed with the understanding that the parties litigated on the basis that the estoppel being relied upon was “promissory estoppel” and the elements necessary to be established with are those set out in the list of issues.

Factual overview

56. Given that the parties’ claims in the proceedings are based upon significantly conflicting accounts of the relationship between Jennine and the deceased and the events which occurred in the months before the deceased’s death, it is helpful to set out a factual overview of matters. Most of what I record below under this factual overview is not the subject of any substantial dispute. However, some aspects gave rise to dispute and what I have recorded immediately below in that respect is simply to chronologically raise reference to the matter and I deal with the disputes regarding those issues further below.

57. In around 1980, the deceased commenced her career as a police officer with the New South Wales Police Force. ^[83]

    83. CB 99[1].

58. Between approximately February to August 1991, the deceased took six months’ leave from the Police Force to look after her mother, who passed away that year. ^[84] According to Glen, the deceased was “in a position” to look after their mother, whilst he and Jennine were not. ^[85] For his part, Glen, who worked with the Royal Australian Air Force, was living in the RAAF Bases Williamtown and Point Cook and had a young family at the time of his mother’s illness. According to Jennine, the deceased had volunteered to look after their mother as she was close to her. ^[86] The deceased’s care for their mother during this time, and the perceived lack of support from her siblings, is the source of some controversy as to the deceased’s potential motives for having Jennine care for her later on. I will set out that controversy in more detail below.

    84. CB 67[8(a)], 103 [20].

    85. CB 74[10].

    86. CB 66[5(b)], 67[8(a)].

59. In 1992, Jennine moved to live in Ocean Grove, Victoria, where she has continued to reside. ^[87]

    87. CB 55[5].

60. In or around 1995, the deceased met Alan and sometime thereafter entered into a de facto relationship with him. ^[88]

    88. CB 84[4].

56. In around 2009, Alan was diagnosed with metastatic bowel cancer. ^[89] It seems he had bowel surgery in November 2009 and then follow-up chemotherapy for six months. ^[90]

    89. CB 84[5], 108[14], 189; T 31.

    90. CB 188.

57. On 21 March 2012, the deceased attended the wedding of her niece Freya. In an email that she sent in June 2012 to a number of friends including Nada, she made the following comment which reveals some insight regarding her siblings Jennine and Glen: ^[91]

P.S. My niece's wedding on the 21st March was lovely, and I felt a bit frumpy in my hand-made cream long pants and second-hand top- but I don't think anyone noticed, they were all too blinded by Jennine's gold jewellery and glamorous attire! Freya(niece) looked more like a super-model than a doctor!, and you could sense the disappointment of both my brother Glen, and his weird wife Rosemary, that she has married Rob, a brick-layer! Ah, such is life.

91. CB 190.

63. In March 2012, it being unclear whether before or after the wedding, the deceased used a Bowel Cancer testing kit, submitted the completed test, and was subsequently informed that she had tested positive for metastatic colorectal cancer. ^[92] On 12 April 2012, she underwent an operation in which part of her bowel was removed. ^[93]

    92. CB 67[10], 108[14], 188.

    93. CB 188.

64. Some four days after Alan collected the deceased from Port Macquarie Private Hospital, he received testing results which showed the rapid growth of the tumour outside his bowel. He underwent surgery on 7 May 2012. Although the surgeons were unable to remove the tumour, they conducted a form of bypass surgery. ^[94]

    94. CB 189.

65. On 25 May 2012, the deceased started a course of chemotherapy. ^[95] On 1 June 2012, a week later, Alan commenced chemotherapy. ^[96]

    95. CB 188; T 31.21-.22.

    96. CB 189.

66. It appears that the deceased was discharged from the Police Force around that time on medical grounds. ^[97]

    97. CB 73[7].

67. On 12 June 2012, some two months after that operation, the deceased sent an email to various recipients, essentially updating them on the events of those three months. ^[98]

    98. CB 188.

68. In around 2013, the deceased and Alan moved from South West Rocks to Port Macquarie as they were both being treated for cancer and wanted to be closer to Port Macquarie Base Hospital. ^[99] The couple were under the care of Dr Stephen Begbie (Dr Begbie), an oncologist based in Port Macquarie. ^[100] Relevantly, Dr Begbie is also the founder and chairman of the HCT, and both the deceased and Alan were the beneficiaries of the charity’s work during their treatment.

    99. CB 106[4], [6]; T 31.47-32.6.

    100. T 32.11-.14.

69. On 14 September 2020, Alan died. ^[101]

    101. CB 106[7].

70. Later that day at 4:47 PM, the deceased sent Jane a text as follows:

Our little grey Mouse has left this life of stress and worry to be at peace. He passed away at 4.15am today. xo

71. On 24 September 2020, the deceased sent to Karen a message she had sent to “Ron” (i.e. Ronald) which records what appears to be some testamentary intentions that she had, at least at that stage. It is as follows: ^[102]

This is the message I sent Ron: Hello Ron, this is Lynette Paton. You met Alan (Dawson) and myself at 10/50-52 Home Street. I'll let you know that Alan passed away in his sleep in his own bed on Monday 14th September. I'm very pleased you got to meet him. However this message isn't about Alan. Firstly I hope you are making a speedy recovery. The reason for this text is I really need your advice about our villa - and not the selling of it. I want to bequeath it for accommodation for out of towners at the end of life who don't have the security and convenience of being near the services in town That's the basics. I'll be setting it up for myself for when I need it. I want to share it with many people going through this terrible time, so the patient and a few loved ones can enjoy this sunny little villa and it's proximity to town and services, at the most distressing time in their lives. I have already run the idea past Stephen Begbie and he thought it was a nice idea but could be difficult to apply. I suggested it would be run purely as accommodation, not as a medical facility. I know you have an off-sider you work with and I know this is unreasonable for me to text you on your private phone, however I feel some urgency in having this set up and written in my will and I'm not too sure how much longer I've got myself. I'm on the same treatment that Alan was on last; when this fails there's no more options except if a new trial pops up. Forgive me for the intrusion, but I felt that you were one of the best people to discuss this with. When you're well enough I would just love for you to come around here again with your workmate, so you can get a better understing of my great idea. If this is too much for you and you don't reply, I understand. [smile emoji] [email protected]

102. CB 196.

72. On 14 October 2020, the deceased telephoned Mr Levido to discuss the assistance which he could provide in respect of Alan’s estate and the preparation of a Will and associated documents. ^[103]

    103. CB 94[4]-[5].

73. By mid-October 2020, it was clear that the deceased’s condition was terminal and she was undergoing palliative chemotherapy. Whilst there are conflicting accounts as to the basis on which Jennine travelled from her home in Victoria to Port Macquarie, it is clear that by mid-October 2020, some arrangement had been made between the deceased and Jennine whereby Jennine would visit the deceased for “end of life support”.

74. On 19 October 2020, Dr Shuen Yi Long, a Medical Oncology Advanced Trainee (Dr Long) prepared a letter which was signed by Dr Begbie addressed to the NSW Ministry of Health, as follows: ^[104]

I am writing with regards to the above named patient who is currently under our care for management of metastatic bowel cancer. Lynette’s condition is terminal and she is currently undergoing palliative chemotherapy.

Lynette’s sister Mrs Jennine Catherine Mills has plans to visit Lynette for end-of-life support to take on a role as her carer during this difficult time. We appreciate your kind understanding with regards to Mrs Mills making an application for a compassionate entry permit into New South Wales.

Should there be any concerns from your end do not hesitate to get in touch.

104. CB 201.

75. On 20 October 2020, the following day, Dr Chloe Blanshard, a general practitioner (Dr Blanshard) signed a letter (in context, seemingly also prepared in support of Jennine being allowed to travel to New South Wales), which stated as follows: ^[105]

Lynette has End Stage Metastatic Bowel Cancer, she is under Palliative Treatment. Her prognosis is six months. Can we please get an exemption for travel for her sister Mrs Jennine Catherine Mills, to travel from VIC to be with her as Lynette has no family in NSW.

105. CB 202.

76. On 20 October 2020, the deceased attended Mr Levido’s office and she provided him with instructions regarding the following: ^[106]

1. obtaining from the NSW Trustee and Guardian documents they were holding in safe custody for herself and Alan;

2. assisting with finalising Alan’s estate by registering a notice of death at the NSW Land Registry Services regarding the Villa; and

3. assisting with the preparation of new enduring power of attorney, appointment of enduring guardian and Will document.

   106. CB 94[6]

77. On the morning of 26 October 2020, the deceased attended Mr Levido’s office and approved and executed an enduring power of attorney and appointment of enduring guardian, as well as the Will. ^[107] By the first two documents, the deceased granted an enduring power of attorney in favour of Jennine, and appointed Jennine as her enduring guardian. ^[108] Karen was made the deceased’s substitute enduring attorney and alternative enduring guardian.

    107. CB 95[8].

    108. CB 213-224.

78. In late October and November 2020, Nada stayed with the deceased. The first occasion was from 29 October 2020 to 1 November 2020 (i.e. about 3 to 4 days) and the second occasion being between 8-16 November 2020 (i.e. a little over a week). ^[109]

    109. CB 124[3]-[4].

79. On 2 November 2020, Jennine’s COVID-19 New South Wales border entry permit application was approved. ^[110] The permit category noted on the border entry permit was described in the following terms: “Person entering for compassionate grounds, being the provision of end of life support or to attend a funeral or memorial service”. ^[111]

    110. CB 202-205.

    111. CB 205.

80. Between approximately 4-18 November 2020, Jennine was quarantining in Sydney. ^[112]

    112. CB 46[13].

81. On 19 November 2020, Jennine arrived in Port Macquarie after spending a period of two weeks in quarantine in Sydney. ^[113] Apart from a period of time in February to March 2021 during which Jennine returned home to Victoria for a dental appointment, it is common ground that Jennine stayed with and assisted the deceased in Port Macquarie from November 2020 until the deceased’s death in September 2021. ^[114]

    113. CB 46[13], 108[18].

    114. CB 25[11], 47[23]-[24], 109[19]; T 52.10-.11.

82. On 27 November 2020, Jennine and Karen attended Mr Levido’s office and accepted their respective appointments. ^[115]

    115. CB 95[9], 216.

83. On or about 7 December 2020, the deceased ceased chemotherapy but continued palliative and end of life support. ^[116]

    116. T 32.34-.39.

84. On 7 December 2020, the deceased sent Jane a text as follows: ^[117]

Hello. Saw oncologist today. CT scan reveals spots on lungs have grown which means the drug has lost its effectiveness. Stopped taking the drugs because they'd do me more harm than good and would increase risk of infection. Will check in with the oncologist again in early February to see how I'm going - or earlier if anything tricky arises. There's no trials underway currently for advanced bowel cancer, and I'm not interested anyway. So no more chemo for me - yahoo. The cancer is very slow growing so no serious symptoms for the near future. Feeling good at the moment with no new aches or pains or breathlessness and still have a good appetite. Only an aching lower back bothering me. Otherwise will enjoy every day of my holiday which is life. Easier to send you this text than repeating story over and over, and telling you that l feel happy and am enjoying every minute of every day. Enjoying having Jennine here fussing over me like a sister/mummy does! [smile eyes emoji] xo

117. CB 191-193.

85. On 9 December 2020, the deceased sent Karen a text (exhibit D3) which stated as follows:

Having a nice time in Coffs Harbour. Jennine and I both bought a pair of shoes from Jacquie's!! Actually I bought them but we're both going to share them cos we’re both size 38. I also got a lovely colourful pair of light summery long pants for there. Had asian last night and booked in to ‘Fiasco’ for italian tonight. Lower back still annoying me and having to take pain killers. Got the physio on Friday. Signing out, Lynette xo

86. On 3 February 2021, the deceased sent Nada ^[118] and Karen ^[119] texts with much of the first part of the text almost identical in content. The concluding parts of the texts are different. I set out the texts below and have underlined the concluding parts of the texts, which are different.

    118. CB 227-228.

    119. CB 226.

87. The text the deceased sent to Nada ^[120] at 4:08pm stated as follows:

Hello [happy face emoji]. I'm going ok but my back's still has it's moments and I have to be super careful how I move. I've decided to get someone in to do the floor. I'II wash the sheets on the day they come to do the floor and have them make the bed too. Everything else I can do without hurting my back. Aside from the back thing, I feel well so if /when I start to succumb to other symptoms that are non-existent at the moment, then Jennine will come back again if not before. She's decided to go home next Tuesday for an indefinite time. She'll pretty well be on ‘stand by’, until I need her. Phil's getting upset that she's been gone for 3 months - he chucked a little boy tantrum! Poor Jennine was very upset. Anyway, I'll manage quite well on my own, especially now I've decided to get paid help. However I do need my little friend up here to play with!! So any time you feel like escaping the city, you know where to come! Jennine bought you a nice pair of terry scuffs (in your size) to …. ^[121]

120. CB 227-228.

121. The last sentence is underlined, which is only viewable on the Caselaw website.

88. The text the deceased sent to Karen ^[122] apparently at 4:25pm stated as follows:

Hello [happy face emoji] Hello [happy face emoji]. I'm going ok but my back’s still has it's moments and I have to be super careful how I move. I’ve decided to get someone in to do the floor. I'll wash the sheets on the day they come to do the floor and have them make the bed too. Everything else I can do without hurting my back. Aside from the back thing, I feel well so if/when I start to succumb to other symptoms that are non-existent at the moment, then Jennine will come back again if not before. She's decided to go home next Tuesday for an indefinite time. She'll pretty well be on 'stand by’, until I need her. Phil’s getting upset that she's been gone for 3 months - he chucked a little boy tantrum! Poor Jennine was very upset. Anyway. I'll manage quite well on my own, especially now I've decided to get paid help. Jennine would like us all to go out again before she goes home, so do you have a spare night or two? Nada will more than likely come up next week when she knows Jennine’s going home. I think she'll come back up at Easter with Richard. Anyway, that's what's happening at Home Street. [smile emoji] xo ^[123]

122. CB 226.

123. The last four sentences are underlined, which is only viewable on the Caselaw website.

89. Later on the same day (3 February 2021), apparently at 20:53, the deceased sent Phillip a text message as follows: ^[124]

Hi Phil. I returned from physio this morning to find Jennine very distraught. I’m so sorry that my predicament has impinged on her happy life at home with you. From when Alan died in September, I truly believed I’d be following him much quicker than I anticipated, especially with my rapid weight loss and the overall way that I felt. It’s been two months now since I’ve ceased having the last chemo and so far I’ve not had any obvious symptoms that the cancer is progressing at any speed. I’ll be getting paid help soon to help me with chores that aren’t good for my back like the floors, but otherwise feel I’ll cope ok. There is a possibility that scar tissue from the original tumour is pulling on muscles connected to the front of my spine, and I wonder if that could be why my back isn’t making great progress. Scans don’t seem to be definitive but I’m happy if I only have to deal with a bad back. Luckily the tumours in my lungs are slow growing and I’ll have longer on this planet than I expected last November. I think I’ve put weight on too, so I’m happy about that. Jennine has been enormous help with sorting out so much stuff that was overwhelming me. I have felt guilty taking her away from her Ocean Grove life. It’s hard to believe it’s thirty years since she moved down south! Seeing her so torn and distressed this morning reminded me of just how really special she is, and how she wants to please all of us. I’m grateful she has such an understanding husband and friend in you. I really can’t tell how long I’ll be around, but I’m grateful for every day and feel very blessed to have such a caring sister. I feel so bad that my situation upsets her so much. Life is such a random thing and we all only have today. When things start getting nasty, I know she’ll be back here for me so that gives me great comfort. It’d be great to see your face up here too one day – we’re sure to find a special T-bone to put in it!!! I can hear Jennine talking to you in the next room – she’ll sleep better now. Sweet dreams Phil, good night [sleeping face emoji] [zzz emoji x3]

124. The text at CB 229 is barely legible. A more distinct and larger-print version of the text appears at CB 230-231.

90. Seemingly within minutes, on the same day (3 February 2021) apparently at 20:55, Phillip responded to the deceased with a text message as follows: ^[125]

My dearest Lynette, I have been so tearful after reading your very heart felt message. I could not sleep without writing a reply. My beautiful soulmate & most bestest friend / wife is as you’ve known for a along time is a very very special person with an absolute heart of gold, I love her so deeply & hearing her in tears this morning tore at my sole. I would give absolutely anything to make things right for both of you…… miracles can happen & I prey that happens for you both. When I have spoken with you, it is like there is nothing wrong which is a true testament of your positivity & I sincerely believe that your positive approach & attitude will see you here for many many years to come. You are an amazing person with what you have endured & the same goes for Al. I could not begin to imagine the stress & pressures you have battled, especially during Al’s later stages. Your strength & fortitude is truly boundless and unimaginable. Life has many chapters and while the previous chapter tested you dearly, I am positive that this new chapter will see your worries eased to assist in stabilising your health. I sure something can be done about your back, maybe a cortisone injection or something to deaden the nerve in that area which will surely help see you return to a more normal quality of life. I know you have had some good days after Physio so hopefully a treatment as mentioned can see you have a lot more good days than bad. I truly wished we lived close by so that Jennine could keep a close watch on her very cherished little chook sister, she would be like your own little personal mother Teresa. My loving little CP is truly a saint in disguise with an enormous heart that just wants to please everyone. I also know that big passionate heart of hers has been hurting more than she has let on while helping & caring for you, I so wish I could take that pain away for her. You absolutely mean the world to her & so it is truly her love for you that will see you here for many more years to come. As much as it tears me up hearing her upset and being away from her I will never stop her from coming to see her so dearly cherished sister chook [chicken emoji]. Her happy cheerful & smiling person is what puts a smile on my T Bone chops [happy face emoji] and I have missed her so dearly for the past 3 months as to has many of her friends down. We will always be here for you chookster and I promise I will get my T Bone chops up to see you before long. Love T Bone [happy face emoji x3] Hopefully now I can get to [zzz emoji]

125. CB 232-233.

91. On 5 February 2021, the deceased sent Karen a text (exhibit D2) as follows:

[Picture of a woman modelling a Fresh Print Long Sleeve Blouse reduced from $64.20 AUD to $39.30 AUD]

Just bought some tops for Jennine and me from fripley.com.

They use PayPal. [smiling face with smiling eyes emoji]

92. On 9 February 2021, the deceased sent Karen a text (exhibit D1) which stated as follows:

Wow they're really lovely. I remember looking at them with Jennine. Great colour too-you'll get lots of use out of them. We need to go out more so that we can wear all our new things!!! Jennine originally said she'll probably be home for about 6 weeks but I might summon her earlier, especially if funny things are going to start happening to me. I want to be well enough to go away and stuff [beaming face with smiling eyes emoji]. Funny thing she said - “I haven't missed Phillip at all. I know that sounds awful!” I can understand exactly what she means though. Men miss women more than vice versa. Enjoy the rest of your day. I will. [frog face emoji]

xo

93. On 10 June 2021, the deceased sent a message to Karen, ^[126] inviting her to a party on 14 June 2021 she was hosting at her house at which (according to Karen) she invited her and Jennine’s mutual friends. The text was in the following terms: ^[127]

Next Monday there's a few friends and family coming for a little party. Glen, Maria, Nada, Richard and my friend Jane, the paramedic. You're invited of course. Kick off time is 4 o'clock. We’re doing all the food. I'm telling everyone not to bring any food at all because there'll be no room in the fridge. Will have gluten-free things too. Just bring your own wine. xo

126. CB 115[14].

127. CB 261.

94. On 1 September 2021, the deceased had a “bad fall” and she was taken by ambulance to Wauchope District Memorial Hospital, where she remained until her passing. ^[128]

    128. CB 48[27], 110[27]; T 29.29-.31.

95. The deceased died at the Palliative Care Unit at Wauchope District Memorial Hospital on 5 September 2021. ^[129] Shortly thereafter, Jennine telephoned Mr Levido to inform him of the deceased’s death. ^[130]

    129. CB 264.

    130. CB 96[16].

96. Over a period of six days from 3 to 8 September 2021, it is common ground ^[131] that Jennine either withdrew or transferred sums on 10 occasions totalling $81,799 from the deceased’s Smart Access Account with the CBA to herself. ^[132] I will set this out below in dealing with the evidence regarding the impugned transactions.

    131. DOS [60].

    132. CB 32[5], 39[5], 110[28].

97. Jennine subsequently transferred $30,000 from her account to Glen on 9 September 2021. ^[133]

    133. CB 51[47].

98. On 10 September 2021, Mr Levido sent a letter to Jennine enclosing a copy of the Will and outlining various matters to be completed in relation to the deceased’s estate. ^[134]

    134. CB 262-263.

99. On 15 September 2021, Jennine, Phillip and Glen attended Mr Levido’s office. ^[135] Mr Levido observes that, shortly into the conference, it became apparent that there was an “issue” with the contents of the Will, with Glen doing most of the talking. ^[136] Mr Levido states that “it was made clear to me that there was an expectation or feeling that Jennine Mills should have received a lot more than the entitlements set out in the Will, due to her looking after her sister and giving up a lot to do that in the last 6 to 12 months of her life.” ^[137]

    135. CB 96[19].

    136. CB 96[20].

    137. CB 96[21].

100. On 20 September 2021, Glen returned to Jennine the $30,000 he received from her on the advice of Jennine’s solicitor that the payments may be disputed. ^[138]

     138. CB 64[14].

101. On 22 September 2021, Jennine, Phillip, Karen and Kenneth had dinner together at a restaurant in Port Macquarie. Precisely what was said by the various attendees is, again, described in various conflicting accounts, as I set out in more detail below.

102. On 24 September 2021, Jennine signed a renunciation of probate. ^[139]

Approach to contested evidence

139. CB 280-281.

Standard of proof and weighing evidence

103. In relation to the requisite standard of proof for determining the facts in issue in this case, s 140 of the Evidence Act1995 (NSW) provides:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—

(a) the nature of the cause of action or defence, and

(b) the nature of the subject‐matter of the proceeding, and

(c) the gravity of the matters alleged.

104. The statutory standard requires “actual persuasion” of the occurrence or existence of a fact in issue, and not a mere mechanical comparison of the probabilities as between the competing accounts: Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47] per Gleeson JA (Bell CJ at [1] and Stern JA at [62] agreeing).

105. The frailty of human recollection is well-known, particularly where the issues in the proceedings focus on events and alleged statements made many years ago.

106. Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.

107. Mr Yazdani submitted that “in view of the frailty of human memory, the inability of the deceased herself to give evidence and the plaintiff's self‑interest… more weight should be placed on contemporaneous documents where they are available, the objective surrounding circumstances and the inherent probabilities and improbabilities of events. Evidence of statements made by the deceased, particularly where they are disputed, ... must be examined carefully and treated with caution and, where possible, the Court should look for some corroboration”. ^[140]

     140. T 137.2-.9.

108. The Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14.

109. Broadly speaking, it seems to me that Mr Yazdani’s description of approach is consistent with the authorities and the Court ought to assess the evidence essentially in accordance with it.

110. A particular difficulty in this case is that few contemporaneous documents bear directly upon the events in the approximately one year period between September 2020 and September 2021 when the deceased died and, with a limited exception of a few texts which purport to record some comments of relevant parties in the proceedings, there are no contemporaneous documents that bear directly upon the critical conversations said to have occurred between Jennine and the deceased giving rise to the claims on the statement of claim and cross-claim.

111. The deceased kept a form of notebook or diary which was tendered and marked exhibit P1. It is an A5 spiral-bound “Project Book” with a number of dividers. It appears to include a range of different content, including, for example, some notes of physiotherapy exercises, phone numbers of various medical persons and other friends and family members, various appointment dates and payments referable to that, food recipes and a poem. I will refer to it as the “Project Book”.

Unchallenged and uncontradicted evidence

112. Mr Yazdani submitted on a number of occasions that the evidence of the defendant’s witnesses was unchallenged and ought to be accepted by me.

113. There is no rule of law that in all cases, or even “ordinarily”, evidence which is not the subject of cross‑examination must be accepted: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 per Beech-Jones JA at [36] (Brereton JA at [1] and Mitchelmore JA at [103] agreeing).

114. In Clayton v Clayton [2023] NSWSC 399, I addressed some remarks to the question of evidence that had not been cross-examined upon or was otherwise unchallenged. I stated at [84]-[92]:

84.   However, the decision to cross-examine is not dictated solely by questions of onus of proof. It is also impacted by questions of fairness to witnesses as established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).

85.   In Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 13 ATR 825, Hunt J stated at 16C-E as follows:

38   It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

86.   In West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 (West v Mead), Campbell J (as his Honour then was) noted (in the context of the obligation of procedural fairness) that the circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: at [98].

87.   Further, his Honour noted that even where there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: at [99].

88.   For the purposes of the application of the rule in Browne v Dunn the case that a party is called upon to meet may be made evident by written opening submissions: e.g. Meissner v Lindsay [2016] NSWSC 790 at [80] per Robb J.

89.   The consequences of a failure to cross-examine may vary in any given case depending on the relevant circumstances: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [366]-[367] per Hallen J; Gooley at [1147]-[1158]. A trial judge is not required to accept evidence merely because it is unchallenged. The fact that evidence is unchallenged may provide a cogent reason for its acceptance. However, ultimately, it depends upon the nature of the evidence including, for example, whether the unchallenged evidence is ex facie illogical or inherently inconsistent: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293 at [130]per Beazley JA (as her Excellency then was), with whom Basten (as his Honour then was) and Macfarlan JJA agreed, citing Hull v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing).

90.   Nonetheless, according to the ordinary conventions of the adversarial system, when a party does not cross-examine on evidence relating to a significant issue in a case, that party is taken to concede the point: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 (Goodrich) at [117] per Ipp JA (Mason P at [1] and Tobias JA at [126] agreeing).

91.   On the other hand, it has been said that a cross-examiner’s job is not to make out a party’s case for her (or him). If the evidence is insufficient, it may be perfectly sensible for a cross-examiner not to provide an opportunity for the party to overcome the deficiencies: Evans v Levy [2011] NSWCA 125 (Evans v Levy) at [41]-[43] per Young JA (Campbell JA and Sackville AJA agreeing).

92.   Thus, where there is an absence of evidence from the party on a particular issue, the Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she (or he) did: Evans v Levy at [43] citing Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA.

115. A related evidentiary proposition is in respect of uncontradicted evidence. It is sometimes said that in general, uncontradicted evidence in an uncontested proceeding, if it is not improbable or unreasonable, it should be acted upon.

116. In Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 at 378, Sugerman J (Richardson and Macfarlan JJ agreeing at 380) stated:

Leaving aside questions of the witnesses demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon ^[141] …

A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself and must not be unreasonable

141. Citing inter alia Macrossan SPJ in Sheahan v Woulff [1927] St R Qd 128 at 131.

117. In NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838, Ward CJ in Eq stated at [426]-[428]:

426.   As to the submission that the explanations proffered by the Respondents were “inherently improbable”, I note that evidence is said to be “inherently” or “glaringly” improbable where it is “contrary to compelling inferences of the case”, so “incredible and unreasonable that no reasonable person could accept it”, “inherently incredible”, “contrary to incontrovertible facts” or subject to “inherent contradictions” (see, for example, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29], [42], per Gleeson CJ, Gummow and Kirby JJ; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 at [63]-[64], per Gaudron, Gummow and Hayne JJ; at [93], per Kirby J; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 (Brunskill) at 844, per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ; [1985] HCA 61; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff, per McHugh J, Mason CJ, Deane, Dawson and Gaudron JJ agreeing; [1990] HCA 47; Holman v Holman [1964] 5 FLR 406 (Holman) at 409, per Sugerman J, Richardson and Macfarlan JJ agreeing; and Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 at [49]-[50], per Handley AJA, Giles JA and Sackville AJA agreeing).

427.   Evidence is not glaringly improbable merely because there is conflicting testimony or conflict between compelling but not conclusive documentary evidence and other evidence (documentary or oral) (see Fox v Percy at [25]ff, per Gleeson CJ, Gummow and Kirby JJ; at [88], per McHugh J; Hecron Ltd v Cousins [1990] NSWCA 93). To accept that evidence is glaringly improbable is to acknowledge that it would constitute an injustice to accept it, such that, on appeal, the finding would be set aside. Evidence is typically shown to be glaringly improbable where it is contradicted by “uncontroverted facts” (such as uncontested oral testimony, or uncontested contemporaneous documents), or by compelling inferences of the case (such as may be drawn from the “inherent commercial probabilities”, or “objective commercial probabilities” of the facts).

428.   Where evidence is contested or contradicted, the inherent improbability of testimony given may be used as evidence against the credibility of the witness and, in some circumstances, as proof of the contrary conclusion (see J D Heydon, Cross on Evidence (10th ed, 2015, LexisNexis Butterworths) at [17600]). However, while demeanour may be used as part of the process of assessment of the evidence, it will not overcome any “incontrovertible facts”. One tool for assessing the improbability of evidence in a civil context is to consider the “inherent commercial probabilities” of the circumstances (Effem Foods Pty Limited v Lake Cumbeline Pty Limited [1999] HCA 15 at [16], per Gleeson CJ, Gaudron, Kirby and Hayne JJ).

118. How the above-mentioned general principles apply in any given case will depend upon the circumstances of the case in and the context in which the evidence arises.

119. The fact that context is important was recognised by Sugerman J who noted that his stated proposition (regarding uncontradicted evidence in an uncontested proceeding) suffices when none but the opposing party can be adversely affected but requires some qualification with respect to proceedings in divorce. ^[142]

     142. At 378.

Aspects of human nature

120. Experience tends to suggest that sometimes people say different things about a particular subject matter or topic to different people ^[143] depending on what effect they wish to achieve, ^[144] or want people to believe, ^[145] or depending upon the position that they occupy in their lives. ^[146]  There might well be inconsistency in what a deceased person has disclosed to different people and the nature of disclosure. Commonly, a deceased’s motive for saying different things about the same subject matter or topic to different people, especially children, is in the interests of maintaining harmonious relationship with each of them. ^[147]

     143. See e.g. Coss v Norman [2021] NSWSC 1464 per Parker J at [99] .

     144. Norris v Pendino (Estate of Louise Edith Fernandez) (Supreme Court (NSW), Master Macready, 21 September 1995, unrep, BC9505523) at 12.

     145. Finlay v Mack [2001] NSWSC 443 per Master Macready at [10].

     146. Weston v Hourn [2000] NSWSC 543 per Master Macready at [18].

     147. See e.g. Rathswohl v Court [2021] NSWSC 356 per Rees J at [116].

The rule in Browne v Dunn 

121. Mr Maconachie referred to a number of instances in which he submitted that Mr Yazdani had not complied relevantly with the rule in Browne v Dunn (1893) 6 R 67 (Brown v Dunn).

122. The circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [98] per Campbell J.

123. The rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version is in contest: see e.g. Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 (Gayle) at [117] per Leeming JA (Bell P and Gleeson JA agreeing at [1] and [4], respectively), citing J D Heydon, Cross on Evidence (11^th ed, 2017, LexisNexis Butterworths) at [17445].

124. The rule is not applied mechanically. The very nature of the rule is such that what is sufficient in any given case to meet the requirements of procedural fairness will vary. Even when the rule applies so as to require a matter to be addressed in cross-examination, it should not be thought that the rule in Browne v Dunn requires that each individual inconsistency be put to the witness: Gayle at [123]-[128] per Leeming JA, clarifying comments of the Court of Appeal in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40].

The deceased

Honesty and trustworthiness

125. Mr Yazdani submitted that I should find that the deceased was a trustworthy and honest person throughout her life. ^[148] He referenced the fact that Jennine had accepted that. ^[149]

     148. T 138.

     149. For example, T 50.25-.32, also T 49.38-.44, T 50.9-.12.

126. There is evidence from Pamela that she considered the deceased ro be (relevantly) very honest. ^[150] In cross-examination, Jennine accepted that (from her perspective) the deceased was an honest and trustworthy person throughout her life. ^[151]

     150. CB 77[3].

     151. T 50.25-.32.

127. By and large, I accept that the deceased was honest and trustworthy. In that regard, as will be seen below, I reject the suggestions that the deceased was disingenuous in sending cards containing effusive and loving sentiments towards Jennine. As will be seen, I accept Jennine’s evidence regarding the alleged promise conversation with Jennine. The body of material whereby the deceased failed to make a Will in accordance with the promise, and other statements which are said to be counter to having made such a promise, does not necessarily lead to the conclusion that the deceased ceased to be, on the whole, an honest and trustworthy person.

Cases decided since the Waltons Stores case have stressed the ‘minimum equity’ when stating the principles on which relief is to be awarded to enforce a promissory estoppel. In ACN 074 971 109 Pty Ltd v National Mutual Life Association of Australasia Pty Ltd, the Court of Appeal of Victoria said that since the decision of the High Court in Giumelli v Giumelli, ‘in the majority of commercial cases not involving the acquisition of an interest in real property’ in which an equitable estoppel was made out, ‘the relief accorded it has been no more than was necessary to avoid detriment’. The assumption is that a prima facie entitlement to fulfilment of the expectation or promise applies only in the case of proprietary estoppels. Sidhu v Van Dyke may require that assumption to be revised. The purport of the reasoning in the latter case seems to be that all species of estoppel by conduct (or in pais) share the one object, the one notion of detriment, and common remedial considerations. If so, the analysis of relief offered earlier in respect of estoppel by encouragement will apply here.

583. In “Almost 25 years on: some reflections on Waltons v Maher” (2012) 6 Journal of Equity 131, Michael Byran concluded at 142 (omitting footnotes):

Waltons Stores has been rationalised in some recent decisions and in legal writing as a decision on proprietary estoppel, albeit a decision containing some dubious and unnecessary dicta on promissory estoppel. The rationalisation ignores the pleading of the plaintiff’s case and, arguably, the tenor of the judgments. There is no need to read down the reasoning in Waltons Stores in this way. Rightly or wrongly, the High Court judgments of Mason CJ and Wilson J, and of Brennan J, deliberately propounded a model of promissory estoppel as a cause of action. The judgments were aware the obvious objection to the recognition of such a cause of action, namely, that it would subvert the doctrine of consideration and become an alternative method of promise enforcement. An important respect in which relief in promissory estoppel differs from contract enforcement is in the nature of the relief awarded. The emphasis placed in the judgments in Waltons Stores and Verwayen on the ‘minimum equity’ required to relieve against the detriment incurred by the plaintiff was intended to demonstrate that promissory estoppel is not an alternative method of promise enforcement. A plaintiff’s expectations arising out of a promissory estoppel will not be enforced unless enforcement was the ‘minimum equity’ which would do justice to the claim, as was the case in Waltons Stores itself.

The terminology of ‘minimum equity’ has since been replaced in both English and Australian law by the concept of proportionality. The concept is applied, however, somewhat differently in these jurisdictions. In Australia a plaintiff’s expectations will be enforced in proprietary estoppel cases unless enforcement would be disproportionate to the detriment incurred by the plaintiff. In English law the proportionality test empowers a court to take into account a wide range of interests in a manner not dissimilar to the evaluation of contributions and needs that characterises an application to a court administering family law legislation. It is unclear, particularly on the latter interpretation, how proportionality in equitable relief will be measured although recent authority suggests that it eliminates any assumption that the expectations of a plaintiff who can establish the requirements of a valid proprietary estoppel will be satisfied. Nevertheless, although the ‘minimum equity’ and ‘proportionality’ tests were developed as guides to the award of relief in proprietary estoppel cases, they remain relevant to determining relief under the model of promissory estoppel proposed by the High Court in Walton Stores.

584. In “Unscrambling ‘detriment’ — unjust enrichment, mistaken payments, and estoppel” (2014) 38(3) Australian Bar Review 269, Lee Aitken in essaying the then state of the law concluded at 281-282 (omitting footnotes):

It is not being unkind to say that the present state of the authorities is rather a mess. Both Mason CJ and Brennan J in Verwayen prescribed the ‘minimum equity’ as the appropriate measure of relief. Verwayen has not been formally overruled. However Giumelli, a case without a ratio, now provides the ‘test’.

Sidhu recognises this explicitly but fails entirely to tell the expectant adviser when a case will require a restrained, ‘minimum equity’ approach to relief, and when it is open slather and the ‘full value of the promise’ is to be awarded. The possibility of full relief as opposed to circumstances in which the court must ‘unscramble’ the detriment which is likely to be suffered by the representee is at large. It is relevant to note here that an unvarnished view of Giumelli does not reflect at all well on our system of jurisprudence — a case which began in 1994 as a dispute over a tomato farm in 1993 concluded in 2004 — was anything left on the bare carcase after the legal fees were deducted? From a practical viewpoint, the present state of authority makes in very hard indeed for the competent adviser in Gunnedah or Cootamundra to advise what may become of the family farm short of a long, and very expensive journey, through the trial and appellate courts of NSW, and beyond.

Furthermore, the notion that any ‘detriment’ which cannot be ‘monetised’ gives the trial court carte blanche on relief — in Sidhu it would have been perfectly possible to put a monetary value on the ‘detriment’ as it would have been in Donis. It was much harder to put any monetary value on the ‘detriment’ suffered by the plaintiff in Verwayen and that is, perhaps, the root cause of all the present problems.

585. The authors of Michael Evans, Theresa Power & Joseph Power, Equity and Trusts (5^th ed, 2024, LexisNexis) at [18.63] in a passage which bears a marked similarity in wording to the above-mentioned passage from MGL, state (omitting footnotes):

The plurality in Sidhu acknowledged statements in the earlier cases that the fundamental purpose of all types of estoppel by conduct is ‘protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted’. In ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v National Mutual Life Association of Australasia Ltd (2008) 21 VR 351 (at [169]) the Victorian Court of Appeal observed that nothing in Giumelli detracts from this view either, and asserted that, since Giumelli, in the majority of commercial cases not involving the acquisition of an interest in real property (ie promissory, not proprietary estoppel cases), the relief accorded has been no more than was necessary to avoid detriment. That statement assumed that prima facie entitlement to fulfilment of the expectation or promise applies only in cases of proprietary estoppel. It is therefore at least arguable that in promissory estoppel cases, the ‘minimum equity’ necessary to do justice to the plaintiff’s claim is a governing principle.

586. In Zugic, Ward CJ in Eq stated:

[310]  I cannot accept that the loss of the Doyle Avenue Land rent for the relevant period is a loss that should be borne by Vesuvius. The appropriate starting point in an estoppel case is that the “prima facie entitlement” to relief is framed on the basis of the assumed (or expected) state of affairs (see Verwayen at 442, 445–446 per Deane J; Giumelli v Giumelli (1999) 196 CLR 101 (Giumelli) at [42]–[50]; Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis v Donis ) at [19] per Nettle JA, as his Honour then was, (Maxwell ACJ and Ashley JA agreeing); Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [63]–[65]; and Sidhuv Van Dyke at [82]–[86] per French CJ, Kiefel, Bell and Keane JJ) (though I acknowledge that some of these authorities were cases of proprietary estoppel). A not wholly unresolved point is whether the concept of the “minimum equity” has been discarded in the context of promissory estoppel (as well as in the context of proprietary estoppel). Be that as it may, in Sidhu v Van Dyke, the High Court explicitly framed the question of remedy (there, as noted, a case of proprietary estoppel) by reference to the “requirements of good conscience” (at [83]). That is not, of course, an appeal to idiosyncratic notions of fairness. The concept of good conscience is given content incrementally, by close attention to the facts and reasoning of the cases. The current holistic approach to relief for an equitable estoppel is in my view well encapsulated in the following passage from the judgment of Allsop P (Giles JA agreeing), as his Honour then was, in Delaforce at 485:

Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character.

[311]  What is made clear by cases such as Giumelli and Sidhu v Van Dyke is not only that any prima facie entitlement is to be framed by reference to the assumed or expected state of affairs but also that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration (and as recognised in Delaforce at [4], this consideration is sometimes of considerable importance). In Rodda v Ian Rodda Pty Ltd [2015] SASC 95 (see also Rodda v Ian Rodda Pty Ltd (No 2) [2015] SASC 128, again a proprietary estoppel case), Nicholson J said at [305]:

Whilst it is not the case that the court should search for the “minimum equity” to do justice in the circumstances and it is not a case of assessing or measuring or weighing the detriment minutely in order to convert it into some equivalent of cash or kind, there must be a sufficient proportionality of any interest or remedy ultimately granted when compared with the prejudice or detriment suffered by the plaintiffs and the overall justice of the case.

587. I have reflected upon the plaintiff’s evidence that the deceased did not proffer any particular reason for making the payments to the plaintiff totalling $30,000 other than because the deceased stated “I want to.” I accept Jennine’s evidence. Even on Mr Yazdani’s submissions, the deceased was a selfless and compassionate woman. ^[654]

     654. T 137-138 citing CB 88 [5].

588. Nonetheless, I accept that the payments are significant. I have given anxious consideration as to the issue of countervailing benefits. I have also given anxious consideration to the detriment suffered by the plaintiff. The value of one half of the residuary estate is significant. As indicated by Ward CJ in Eq in Zugic “any prima facie entitlement is to be framed by reference to the assumed or expected state of affairs but also that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration”.

589. On balance, I confess that I am unpersuaded that the minimum equity appropriate to do justice to the claim is to enforce the promise according to its terms.

590. No submissions were made by or on behalf of the plaintiff in respect of what would constitute the minimum equity and be a proportionately just amount to assuage the conscience of the deceased, in the event that I were to conclude (which I do) that I am unpersuaded that the minimum equity required is to enforce the promise according to its terms.

591. Having regard to the findings that I have made in relation to the attempt that was made by the plaintiff at a testamentary contract case, there is no need for me to further ponder this.

Issue 3 – Money had and received

Principles

592. Mr Yazdani submitted ^[655] that an action for money had and received is applicable wherever the plaintiff has received the monies which in justice and equity belongs to the defendant as executrix of the deceased’s estate, under circumstances which render the receipt of it a receipt by the plaintiff to the use of the defendant, citing Juul v Northey [2010] NSWCA 211 at [216] per McColl JA (Basten at [251] and Campbell JJA at [260] agreeing). It applies, he says, as between principal and agent, ^[656] citing Coshott Family Pty Ltd v Lyons (2022) 110 NSWLR 44; [2022] NSWCA 216 at [27], Kirk JA (Meagher JA at [1] and Griffiths AJA at [61] agreeing). He noted that an action for money had and received is only maintainable against a party who actually received the monies (here, the plaintiff). ^[657]

     655. DOS [58].

     656. DOS [59].

     657. DOS [58].

593. Mr Yazdani contended that the plaintiff did not handle the deceased’s money as a mere bailee for the use and benefit of the deceased – rather, she personally received the monies for her own use and benefit. ^[658]

     658. DOS [59] citing James Edelman & Elise Bant, Unjust Enrichment (2nd ed, 2016, Bloomsbury Publishing) p. 78.

594. In Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67, Leeming JA stated at [22]-[23]:

22.   The pleading included a claim in unjust enrichment. However, it was confirmed that this rose no higher than a claimed entitlement to recover monies advanced by Lakis in breach of the implied term and therefore without authorisation (T 4.6-18). In such circumstances, there is a prima facie obligation upon the part of the person who has received the principal’s money paid by an agent without authority to make restitution. That obligation is vindicated by an action for money had and received: see Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; [2014] NSWCA 310 at [27], where Barrett JA said with the agreement of Bathurst CJ and Ward JA that:

If, as the Company contends, the payment by the Company occurred through an unauthorised act of Mr Gould, the payment was made without the Company's assent. The situation is therefore the same as others in which someone receives another person's property in a non-voluntary transaction - for example, through mistake, duress or theft, although without any of the overtones of dishonesty that will commonly be present in those cases. The remedy potentially available to the Company is accordingly by way of common law restitutionary action for money had and received in which a money judgment is sought against the Defendant.

23.   Or, as it was put by a very strong Full Court of the Federal Court in Great Investments Ltd v Warner (2016) 243 FCR 516; [2016] FCAFC 85 at [65], endorsing a proposition from the Restatement: ^[659]

A transfer by an agent, trustee, or other fiduciary outside the scope of the transferor’s authority, or otherwise in breach of the transferor’s duty to the principal or beneficiary, is subject to rescission and restitution. The transferee is liable in restitution to the principal or beneficiary as necessary to avoid unjust enrichment.

659. Restatement of the Law Third: Restitution and Unjust Enrichment (American Law Institute Publishers, 2011), §17.

Evidence

595. There is no dispute that, between 3 and 8 September 2021 (inclusive), the plaintiff transferred a total of $81,799 from the deceased’s CBA number [XXX] to herself. The question is whether that transfer was done with the authorisation or with the fully informed consent of the deceased and, accordingly, whether the continued retention by the plaintiff of that sum is unjust. ^[660]

     660. DOS [60].

596. Following the fall on 2 September 2021, the deceased was admitted to Wauchope Hospital. In the following days, 10 payments were made from the deceased’s Smart Access account which are the subject of the cross-claim. They are as follows: ^[661]

     661. CB 110[29], 277-279.

1. $400 on 3 September 2021;

2. $400 on 4 September 2021;

3. $400 on 5 September 2021;

4. $400 on 5 September 2021;

5. $200 on 5 September 2021;

6. $15,000 on 5 September 2021;

7. $5,000 on 5 September 2021;

8. $20,000 on 6 September 2021;

9. $19,999 on 7 September 2021; and

10. $20,000 on 8 September 2021.

597. Jennine gave evidence addressing these claims as follows: ^[662]

     662. CB 48-51[27]-[47].

27. …..The deceased had a bad fall on Wednesday 2nd September 2021. I could not pick her up and she said to me words that I recall as I think I might have to go to Wauchope hospital because it is getting far too hard for you to look after me now. I called an ambulance which took the deceased to the Wauchope Hospital where she remained until she died 3 days later.

28. Before the deceased left in the ambulance, she gave me instructions on what to bring her that afternoon when I visited, such as clothes, toiletries and her phone. l followed the deceased to hospital and stayed with her until just before dark, when she told me to go home because she didn't want me driving in the dark. The deceased gave me her bank card and pin number and requested that I get some cash out for household expenses whilst she was in hospital.

29. I notified Glen and Phillip that the deceased was in hospital and that I thought she might die. Glen and Phillip made immediate arrangements to travel to Port Macquarie.

30. On the night of 2 September 2021, the deceased phoned me and asked me to bring in her charger and computer and some photos in the next day.

31. On 3 September 2021 I withdrew $400 from the deceased's bank account at an ATM using the deceased's bank card and pin.

32. Glen arrived in Port Macquarie on 3 September 2021.

33. On or around 3 September 2021 when I visited the deceased I gave her computer, charger and photographs. We had a conversation which I recall as follows:

Plaintiff: I took out $400 out of your account.

Deceased: Go and get another $400 out. I'm not sure how long I'll be in here for.

34. On 4 September 2021, I withdrew another $400 from the deceased's bank account at an ATM using her bank card and pin.

35. On or around 4 September 2021, I visited the deceased and we had a conversation which I recall as follows:

Deceased: I want to give you $1,000 so you can buy yourself something for your birthday. What are your account details?

Plaintiff: I don't have them.

Deceased: Use my card and get the money out. Make sure you buy something with it. I also want to pay you $20,000 for all the money you've spent getting here and looking after me so bring in your account details.

Plaintiff: Okay.

36. Phillip arrived in Port Macquarie late on 4 September 2021. Unfortunately, Phillip was not allowed into the hospital because of Covid restrictions, having just travelled from Victoria.

37. On 5 September 2021 I withdrew $1,000 from the deceased's bank account at an ATM using her bank card and pin. I was not sure if there was a limit on the amount of cash that could be withdrawn at the time, so I withdrew the cash in 3 transactions of $400, $400 and $200.

38. On or around 5 September 2021 when I visited the deceased. We had a conversation which I recall as follows:

Deceased: You have been so good to me. I don't know what I would have done without you. I know it must have been hard for you, I'm sorry.

Plaintiff: Don't be silly. It was my pleasure.

Deceased; I am transferring you the $20,000 for all the money you've spent getting here and looking after me. I also want to give you and Glen $30,000 each. Can I transfer Glen's into your account and will you give it to him?

Plaintiff: Yes, but you don't have to do that. Don't worry about money at the moment. Just rest.

Deceased: No, I am doing it. What are your account details?

39. I provided my account details to the deceased.

40. After some time on her computer the deceased said to me words that I recall as: It won't let me transfer any more today. Can you please do it for me? I agreed, and the deceased gave me her internet banking and password details. She said words to me words that I recall as Take $30,000 each for you and Glen. You will have to do a few transactions.

41. The deceased made 2 deposits totalling $20,000 into my account on 5 September 2021. These deposits of $15,000 and $5,000 which appear on the deceased’s bank account statement on 5 September 2021 appearing at page 27 of the Exhibit, ^[663] and which I understood to be for the $20,000 she wished to pay to me as reimbursement.

42. The deceased died on 5 September 2021. My brother Glen and I were with the deceased when she died.

43. I subsequently processed the following payments from the deceased's bank account into my bank account: for the $30,000 for each of my brother Glen and I:

(a) $20,000 which appears on the deceased's bank account statement on 6 September 2021 appearing at page 27 of the Exhibit; ^[664]

(b) $19,999 which appears on the deceased's bank account statement on 7 September 2021 appearing at page 27 of the Exhibit; and

(c) $20,000 which appears on the deceased's bank account statement on 8 September 2021 appearing at page 28 of the Exhibit. ^[665]

44. I processed the payments over 3 days because I thought there may have been a daily transaction limit on the account. I cannot now recall specifically why I transferred the odd figure of $19,999 on 7 September 2021, but vaguely recall that it was also because of concerns I had about a daily transaction limit.

45. Copies of my corresponding bank account statements for the period 5 September 2021 to 17 September 2021 appear at pages 31-31 of the Exhibit. ^[666]

46. Following the death of the deceased I attempted to locate the deceased's funeral documents. I located some funeral documents from Graham Bayes Mid Coast Funeral Service Port Macquarie. I contacted Graham Bayes' office who advised me that the deceased had not paid for her funeral yet. I paid for the deceased 's funeral using the deceased's bank card and pin on 11 September 2021 in the sum of $3,600 which appears on the deceased's bank statement at page 28 of the Exhibit. ^[667]

47. I subsequently transferred $30,000 from my bank account into my brother Glen's bank account.

663. CB 277.

664. CB 277.

665. CB 278.

666. CB 282-283.

667. CB 278.

598. Jennine was cross-examined about the expenses, initially by reference to the enduring power of attorney. Jennine understood that the crossing out of what is described as “Additional powers” which separately provide power for the attorney to “give reasonable gifts”, “conferred benefits on the attorney to meet his/her reasonable living and medical expenses” and to “conferred benefits on the following person/s to make them reasonable living in medical expenses” ^[668] meant that she did not have those powers. ^[669]

     668. CB 214.

     669. T 69.18-70.12.

599. The following emerged from Jennine’s cross-examination on these payments:

1. Jennine confirmed that certain of the payments ($1,000) was consequent upon the deceased gifting her, stating that Jennine could buy something for her birthday; ^[670]

   670. T 70.17-.24.

2. Jennine agreed that the deceased did not send her a text message or email authorising her to withdraw $1,000, she thought that Glen was in the vicinity although may not have heard what the deceased said because he was watching something on his iPad; ^[671]

   671. T 71.13-.34.

3. Jennine was “not sure” as to why Lynette had asked for Jennine’s bank details given the deceased previously transferred monies to her; ^[672]

   672. T 70.31-.39.

4. Jennine noted that the deceased was not in a lot of pain as she was heavily medicated, at the time she seemed to be very coherent and laughing, and chatting; ^[673]

   673. T 70.41-71.4.

5. the conversation on 5 September 2021 ^[674] took place in the morning in the deceased’s room at the palliative care unit, Glen was present, she acknowledged that Glen may not have heard it and she accepted that the deceased did not send her a text message or email expressly authorising the transfers of the $20,000 and $30,000 sums nor did Jennine ask the deceased to confirm the transfers in writing nor asked for anyone else to be present in the room for that purpose; ^[675]

6. Jennine accepted receipt of the funds in circumstances where the deceased had already promised her half of her estate because the deceased told her to do it, ^[676] she did not know why the deceased said what she did and did not ask her to transfer the funds, indicating that “it’s what Lynette wanted to do”; ^[677]

7. Jennine agreed that this occasion would have been the “perfect opportunity” for her to have “clarified this promise that you say Lynette gave to you with her”; ^[678]

8. Jennine agreed that if the deceased had promised her half of her estate, there would have been no need for Jennine to have accepted a sum of over $81,000; ^[679] and

9. Jennine denied that the reason why she accepted receipt of the monies was that she knew that the deceased had not promised her half of the estate. ^[680]

   674. CB 49[38].

   675. T 71.36-73.36.

   676. T 73.38-.46.

   677. T 74.22-.37.

   678. T 74.3-.6.

   679. T 74.44-.46.

   680. T 74.39-.42.

600. Mr Yazdani put to Jennine, who agreed, that she understood that the $20,000 “was in consideration for your services rendered for Lynette during your stay with Lynette”. ^[681] Mr Maconachie in a quia timet submission made reference to this indicating that I would not conclude that Jennine had in some way bargained away her rights as distinct from making some sort of more general recognition that a promise of 50% of the estate had been earlier made. ^[682] However, Mr Yazdani did not make reference to it and did not, as I understand it, contend as Mr Maconachie had anticipated.

     681. T 71.9-.11.

     682. T 123.43-125.24.

Submissions

601. Mr Yazdani submitted that there is no evidence that the deceased, at any point in time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account and accordingly the plaintiff is obliged to pay back the sum claimed and interest to the estate. ^[683]

     683. DOS [61]-[62].

602. Mr Yazdani submitted as follows: ^[684]

First, at the time that these transfers took place the deceased was in her dying days in hospital. There is no corroborative objective or, indeed, documentary evidence that the deceased at any point in time expressly authorised or gave her fully informed consent to the plaintiff to transfer significant sums of money.

Second, in circumstances where the deceased was in palliative care unit at hospital where she was under pain relief medication and in circumstances where the purported conversations with the plaintiff took place a day before or on the day that the deceased died, your Honour should not accept that in those circumstances the deceased would have been in any position to give any express authorisation or consent.

684. T 163.16-.27.

603. Mr Yazdani also made reference to the events of the dinner on 22 September 2021 where the plaintiff at some point started crying and said words to the effect "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back. I don't want to have to go to court". He contended that that was an acknowledgement by the plaintiff that there was no express authorisation or consent from the deceased to transfer the funds. ^[685]

     685. T 164.42-165.5.

604. Lastly, Mr Yazdani submitted that there is no independent corroboration by anyone of the authorisation having been given. ^[686]

     686. T 175.9-.10.

605. Mr Maconachie in opening submitted that with respect to the first two impugned transactions being withdrawals of $400 on each of 3 and 4 September 2021, the deceased’s bank statements clearly show these were withdrawn from an ATM in Wauchope. ^[687] He submitted that that was objective evidence of authorisation, the withdrawals occurring in the same town at which the deceased was in hospital and could only have occurred by the deceased providing Jennine with her bank card and PIN. ^[688]

     687. CB 277.

     688. T 14.46-15.34.

606. Mr Maconachie submitted that I was bound to accept that the transactions were authorised based on Jennine’s evidence because (he says) Mr Yazdani did not squarely put to Jennine that the deceased did not authorise the transactions as distinct from suggesting that it was inappropriate for Jennine to take the monies in the context of being the deceased’s attorney. ^[689]

     689. T 113.10-.39, 114.28-.34.

Issue 3(a) – Were the sums withdrawn by Jennine authorised by the deceased?

607. I reject Mr Maconachie’s submission that I am in some way bound to accept the evidence of Jennine on the basis that alleged lack of authorisation was not squarely put to her.

608. It seems to me that the issue regarding authorisation for the transactions is evident on the pleadings. Without going into an excursus on the rule in Browne v Dunn, in part it involves giving a witness a fair opportunity to explain their conduct. It seems to me that the tenor of the questioning gave Jennine a fair opportunity to explain the transactions. Her explanation is that Lynette had expressly authorised her to do it.

609. Having stated the above, and accepting that Mr Yazdani was not precluded from challenging Jennine’s evidence, I accept Jennine’s evidence in relation to her discussions with the deceased.

610. There is no evidence that the deceased had, prior to 3 September 2021, given Jennine her PIN for her CBA account. There is no particular evidence that the deceased had recorded her PIN in some location which could have been readily discovered or accessed by Jennine prior to 3 September 2021. Jennine’s affidavit does not expressly state that the deceased gave to Jennine the deceased’s PIN. Her evidence is as follows: ^[690]

31. On 3 September 2021 I withdrew $400 from the deceased's bank account at an ATM using the deceased's bank card and pin.

..

33. On or around 3 September 2021 when I visited the deceased I gave her computer, charger and photographs. We had a conversation which I recall as follows:

Plaintiff: I took out $400 out of your account.

Deceased: Go and get another $400 out. I'm not sure how long I'll be in here for.

690. CB 48[31],[33].

611. That evidence, which I accept, gives express authority for the withdrawal of the $400 on 4 September 2021 and is consistent with the deceased having either previously authorised the prior withdrawal, or then ratifying authority for the withdrawal. There is no suggestion in the conversation that the deceased challenged Jennine in some way as to how she had obtained the deceased’s PIN. The conversation is consistent with the deceased having informed Jennine of her PIN. Further, Jennine was not challenged in cross-examination to the effect that she had improperly discovered or accessed the deceased’s PIN without her knowledge.

612. In that respect, as to Mr Maconachie’s submission that the withdrawals in Wauchope were authorised, I accept that submission.

613. There is some force in Mr Maconachie’s submission that the challenge by Mr Yazdani to Jennine regarding the transactions was by reference to the power of attorney.

614. The fact that a person who undertakes transactions by transferring or withdrawing funds from another’s bank account is an attorney of the other under a formal power of attorney does not mean that the transactions may only be authorised by reference to the terms of the power of attorney. The transactions may be separately expressly authorised by the other person: see e.g. Dulhunty v Dewhirst [2005] NSWSC 350.

615. Here, Mr Maconachie contends, and I accept, that the transactions were undertaken on the deceased’s express oral instructions. ^[691]

     691. T 113.22-.23.

Deceased’s condition

616. Concerning the deceased’s condition (i.e. the second submission), Mr Yazdani contended that it was not necessary for me to make a positive finding as to the deceased’s mental capacity. Rather, he submits that, having regard to her physical state and in circumstances where she was under medication and dying, even if authorisation may have been given, it does not constitute fully informed consent. ^[692]

     692. T 163.29-.46.

617. There was no formal pleading in the cross-claim that the deceased was not in a state to give a fully informed consent. Nor was there any reply to the defences to the cross-claim (which met the claim of lack of authority with the pleading that the transactions were undertaken at the express direction of the deceased), ^[693] that even if authority was purportedly given it was not an effective authority because the deceased was unable to give a fully informed authority or consent because of her physical or mental state.

     693. CB 40[10].

618. For that reason alone, I do not consider that it is open to the defendant to raise an issue regarding the physical or mental state of the deceased in some way vitiating an apparent consent.

619. However, if I be wrong on that and it is open to the defendant to raise the issue, then I reject it on the evidence.

620. The submission is somewhat undermined by evidence led on the defendant’s side to which Mr Maconachie made reference ^[694] from Kenneth that “the deceased’s mental condition did not weaken and she continued to be of strong disposition”. ^[695] Mr Maconachie also made reference to other evidence of the defendant that the deceased was compos mentis right up until death, referring to Nada’s evidence at CB 99[4] and Karen’s evidence at CB 106. I confess those last two references do not appear to support his contention. Nonetheless, there was no express evidence from any deponent on the part of the defendant that the deceased was lacking capacity during the period 3-8 September 2021. Nor did, subject to one question regarding the deceased’s recall of the plaintiff’s bank account details, did Mr Yazdani cross-examine the plaintiff to the effect that the deceased lacked capacity because of her mental physical condition.

     694. T 170.41-42.7.

     695. CB 121[9].

621. Further, Mr Yazdani accepted that there are no medical or hospital records which indicated one way or another whether the deceased realised that on or about 5 September 2021 that she was in extremis, ^[696] and further, whilst she was in a palliative care unit, there were no materials indicating what actual medications she was receiving at the time. ^[697]

     696. T 164.4-.14.

     697. T 164.27-.38.

Issue 3(b) – Is Jennine obliged to pay back the sum of $81,799 together with interest?

622. The determination of the issue of whether Jennine is obliged to pay the money back is really consequent upon and foreclosed by the findings that I have made above.

623. In light of my findings that the sums were withdrawn by authorisation, I find there is no obligation for Jennine to pay those monies back.

Conclusion

624. I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the counter-claim are not liable to be repaid by the plaintiff.

625. The defendant did not seek judicial advice in relation to the defence of the proceedings and prosecution of the cross-claim. Mr Yazdani confirmed that Karen is proceeding on the basis that in the event that Jennine is successful, the half share of the residuary estate that Jennine claims is not to be burdened by any deduction for legal costs. ^[698]

     698. T 1.21-2.32.

626. I direct the parties to bring in short minutes of order to give effect to these reasons for judgment including addressing the cost of the proceedings.

**********

ANNEXURE 1

Annexure A is a photo of two pages of a spiral A5 notebook.

The left page shows an asterisk with the title "To Do" in the left-hand corner and "Done" a little below it to the right. The text on the lined section of the page, with a diagonal strike through it, reads:

Levido Law & Property Law Practice

Trust Account

Commonwealth Bank

BSB: [XXX XXX]

Acc No: [XXXX XXXX]

* Reference: [XXXX]   - must include

Pexa fees to register Notice of Death… (ineligible)

NSW Land and Registry Services Notice of Death

registration fee: $146.40 [in a box: TRANSFER DONE: 25.10.20]

TOTAL: $182.59

- Need to sign will before J arrives

* Make app’t with Justin, once

Jennine has arrived to sign

as Enduring Power of Attorney

- also Karen as substitute

- Will part II. ?

Sign Monday 9-30 am 26/10/20

? Can Jennine Jennine to stay in

house as long as necessary.

The second page contains the following:

(?)hm       3/3/21

left    $470 physio

1/7/21 - $375 + init.   $28 each

visit

podiatry $494   $25

+ init visit

health improvement   $500 left (250+250)

$40 each

remedial massage – natural therapy

acupuncture   $600 (ineligible) $27 each

exercise physiology      $22

Note: There is some underlining and strikethrough of certain words, which is only shown on the Caselaw website (and not the downloaded word version).

Endnotes

Decision last updated: 28 April 2025