Robertson v Byrne

[2022] NSWSC 1713

Supreme Court

New South Wales

Medium Neutral Citation:

Robertson & Anor v Byrne & Ors [2022] NSWSC 1713

Hearing dates:

8, 9 and 10 December 2020, 23 and 25 February, 28 April, 22 and 23 June, 13 August ,12 November, 14 December 2021, 20 April, 11 May 2022.

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Claims in contract, common intention constructive trust and equitable estoppel succeed against the first defendant, executrix in relation to. Consideration of the claims against the remaining defendants deferred to permit submissions on (1) whether the contract and other relief is enforceable on behalf of the estate of the stepsibling who died before the deceased testator, and (2) whether the plaintiffs are required to exhaust their remedies against the first defendant before seeking relief against the remaining defendants. The second plaintiffs’ Succession Act claim fails against the estate. Parties are directed to bring in short minutes of order to give effect to the Court’s reasons.

Catchwords:

CONTRACTS - contract to make a will – a woman, now deceased, receives a loan from her father to assist her to acquire a property, in exchange for what is said to be a promise by her that she would leave the property by will upon her death to her two step- brothers, both of whom are now deceased, although one of the stepbrothers was alive when she died – upon the woman’s death the property was not left to the stepbrothers – whether the woman made the promise upon her acquisition of the property – whether there is an enforceable contract to leave the property by will – whether to enforce the contract a constructive trust should be declared over the property in favour of the first plaintiff and the estate of the deceased stepbrother, the third plaintiff.

EQUITABLE ESTOPPEL – constructive trust – whether in the alternative to the claims in contract the estates of the stepbrothers may seek relief under doctrines of equitable estoppel and common intention constructive trust arising out of the same circumstances as the contract claim.

FAMILY PROVISION – Succession Act 2006, Chapter 3 – a stepbrother of the deceased, the first plaintiff, and his son, the second plaintiff, apply for further provision out of the estate of the deceased – the first plaintiff dies in the course of the proceedings and his claim is withdrawn – the second plaintiff claims to be an eligible person under Succession Act, s 57(e) as a member of the same household as the deceased and dependent upon her – whether the second plaintiff is an eligible persons – whether the second plaintiff has shown factors warranting the bringing of his claim.

Legislation Cited:

Civil Procedure Act 2005, s 14

Legal Profession Uniform Law Application Act2014

Limitation Act1969, s 14

Probate and Administration Act1898, ss 92, 93

Real Property Act 1900

Succession Act 2006, Chapter 3, ss 54, 54(1)(g), 54(2)(a), 54(2)(b), 54(2)(e), 54(2)(g), 57(e), 57(e)(i) and (ii), 59

Supreme Court Rules 1970, Part 78 Rule 9, r 93(a)

Uniform Civil Procedure Rules 2005, rr 7.10(2)(a) and (b)

Cases Cited:

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

Barnes v Alderton [2008] NSWSC 107

Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169

Churton v Christian (1988) 13 NSWLR 24

Crawley v Short [2009] NSWCA 410

Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95

Flocas v Carlson [2015] VSC 221

Giumelli v Giumelli (1999) 196 CLR 101

Handley v Baddock [1987] WAR 98

Heperu Pty Limited v Belle [2009] NSWCA 252

Ministry of Health v Simpson [1951] AC 251

Palmer v Bank of New South Wales (1973) 2 NSWLR 244

ReFulop (1987) 8 NSWLR 679 at 681

Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132

Saliba v Tarmo [2009] NSWSC 581

Sidhu v Van Dyke (2014) 251 CLR 505; 308 ALR 232

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7

Watson v Foxman (1995) 29 NSWLR 315

Category:

Principal judgment

Parties:

First Plaintiff: Raymond Robertson
Second Plaintiff: Richard Robertson

First Defendant: Lucy Byrne as the executor of the Estate of Gloria May McDonough
Second Defendant: Reece Stewart Purser
Third Defendant: Salvation Army
Fourth Defendant: Royal Society for the Prevention of Cruelty to Animals
Fifth Defendant: Jona Purser
Sixth Defendant: Travis Purser
Seventh Defendant: Alana Purser

In the Estate of Gloria May McDonough aka Marthinsen, Dunn, Reside

Representation:

Counsel:
First and Second Plaintiffs: J.E. Armfield
First Defendant: G.E. Underwood
Second, Third & Fourth Defendants: R. Bianchi

Solicitors:
Plaintiffs: William Barry Beilby, John R. Quinn & Co
First Defendant: Nicholas Eddy, Nicholas Eddy & Company
Second, Third & Fourth Defendants: Indran Sinnadurai, Makinson d’Apice Lawyers

File Number(s):

2019/6448

Publication restriction:

No.

Judgment

1. Spicer Street Woollahra, a suburb in Sydney’s East, is graced with 19th century cottages and Victorian terrace houses, like those of nearby Paddington. After World War II, three generations of the Robertson family lived in one of these Spicer Street Victorian terraces (“the Woollahra property”).

2. Now there is a dispute about the ownership of the Woollahra property. The main contest is whether in 1965 one of three stepsiblings of the second generation of the Robertson family made a promise to a member of the first generation of the family, to bequeath the Woollahra property by will to the other two stepsiblings. The promise was said to have been made to benefit the two second-generation stepsiblings directly and the third generation indirectly.

3. All the family members and other witnesses to these proceedings referred to one another by their first names. Without intending any disrespect to any party or witness, the Court will refer to family members the same way in these reasons.

4. Most of the parties to these proceedings come from the second and third generations of the family. The first generation, who are now all deceased, moved into the property in 1946. In that year the late Richard Edward Robertson (referred to in these reasons as “Richard senior” to distinguish him from a member of the third generation of the same name) first moved into the Woollahra property with his new domestic partner, Ethel Reside. Richard senior’s wife Cora had died five years earlier. Richard senior and Ethel later married.

5. Each of Richard senior and Ethel brought a child by a prior relationship into the household at the Woollahra property. Ethel’s daughter, Gloria May Reside and Richard senior’s son, Raymond Robertson joined each of their parents there, creating a blended family of four. And when they lived at the Woollahra property Ethel and Richard senior had one child together, Trevor.

6. The first generation, Richard senior and Ethel, both died by the early 1980s. And in 2006 Trevor was the first to die of the second generation, after falling on hard times. Gloria died in 2018, leaving Raymond as the sole surviving member of the second generation. Raymond died during these proceedings.

7. Gloria had several domestic partners during her lifetime. She was at various times known as Gloria Reside, Gloria McDonough, Gloria Martinsen, and Gloria Dunn. In these reasons she will be referred to as “Gloria”, or “the deceased”, as these proceedings concern claims made against her estate.

8. Raymond, (and later his estate) as the first plaintiff, and the estate of his late stepbrother, Trevor, as the third plaintiff claim in their Statement of Claim that in 1965 Gloria promised Richard senior that at her death she would bequeath the Woollahra property to her stepbrothers, Raymond and Trevor. The first defendant, Lucy Byrne, Gloria’s neighbour and the executrix of Gloria’s will, contests the claim that a promise was made and she says that she has already distributed Gloria’s estate inconsistently with the claim.

9. Gloria made her last will on 12 July 2017 and died on 7 January 2018. Ms Byrne was granted probate of Gloria’s will on 14 May 2018. After giving a specific gift of real property (other than the Woollahra property) to persons who are not parties to these proceedings, the will gave the residue of Gloria’s estate, including the Woollahra property to her godson, Reece Purser, the second, defendant and to two charities, the Salvation Army and the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”), the third and fourth defendants. Gloria had no children. Her will gave nothing either to Raymond or to Trevor.

10. Ms Byrne engaged solicitors, Nicholas Eddy & Company, to advise and assist her in the administration of Gloria’s estate. Before the commencement of these proceedings, she had sold the Woollahra property and distributed the proceeds to the second, third and fourth defendants. She says this distribution occurred after giving proper notice of her intended distribution of the estate and without any notice of the plaintiffs’ claim, therefore defeating that claim. In reply the plaintiffs say that they gave sufficient notice of their claim prior to distribution of the estate.

11. Raymond’s estate and Trevor’s estate claim that by reason of Gloria’s 1965 promise, after her death Gloria’s executrix held the Woollahra property on constructive trust for them but that in breach of trust, she sold it and distributed the proceeds to the second, third and fourth defendants. To the extent that those defendants still hold any of those sale proceeds, Raymond’s and Trevor’s estates claim that those defendants are volunteers and subject to any available defences of change of position, must now return those proceeds to Gloria’s estate to answer the claims brought in these proceedings.

12. Another claim was brought by members of the second and third generation of the Robertson family. Raymond and his son, Richard (“Richard junior”) also apply for further provision out of Gloria’s estate under Succession Act 2006, Chapter 3. They allege that they lived in the same household as Gloria at the Woollahra property for periods in the 1960s and 1970s when they were dependent upon her and are thus “eligible persons”, able to make a claim against her estate under the Succession Act. They claim that Ms Burns’ distribution of the residue of Gloria’s estate is therefore recoverable as Succession Act notional estate. This claim was withdrawn before the Court finally reserved judgment.

13. Mr J. E. Armfield of counsel, instructed by John R. Quinn & Co solicitors appeared for the first and second plaintiffs. Mr G. E. Underwood of counsel, instructed by Nicholas Eddy & Company, appeared for the first defendant. Ms R. Bianchi of counsel, instructed by Makinson and d'Apice Lawyers, appeared for the second, third and fourth defendants.

14. These proceedings have been conducted over a protracted period. They were first heard in 2020 but were adjourned to allow further evidence to be adduced. Then they needed to be further adjourned because of the death of Raymond and his former wife, Jacqueline, together with the discovery of further evidence. Ultimately the Court sat in the proceedings over the period of two years as follows: 8, 9 and 10 December 2020, 23 and 25 February, 28 April, 22 and 23 June, 13 August ,12 November, 14 December 2021, 20 April, 11 May 2022.

15. When these proceedings commenced Trevor’s estate was not a party. Raymond was the first plaintiff and Richard junior the second plaintiff. But on the evidence adduced in the plaintiffs’ case, Trevor’s estate was also a proper plaintiff to seek to enforce Gloria’s promises as the promises were said to be made for the benefit of both her stepbrothers, Raymond and Trevor. The parties accepted that Trevor’s estate needed to be joined and the Court made orders doing so. Raymond and Jacqueline’s daughter, Tammy Short, consented to be appointed as a representative of Trevor’s estate. The Court made orders appointing her as a representative of his estate under Uniform Civil Procedure Rules, r 7.10(2)(b) (“UCPR”).

16. Later in these proceedings it emerged that the second defendant, Mr Purser had transferred some of the funds he had received into bank accounts in the names of family members, his wife Jona and their children, Travis and Alana. They were joined as the fifth, sixth and seventh defendants.

17. A narrative of the relevant history follows. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.

18. But before the narrative commences some observations are first made about the credibility of some of the witnesses who gave evidence. Observations about the credibility of other witnesses are made in these reasons during the factual narrative below. Anticipating the need to provide flexibility to the parties to adduce further evidence because of the late emergence of some of the issues, the Court made its own notes about the credibility of each of the witnesses contemporaneously with each witness giving evidence. The Court’s assessment of the credibility of other witnesses is recorded throughout these reasons as their evidence becomes relevant.

Observations on the Credibility of Some Witnesses

19. Mr Raymond Robertson. At the time of the trial Raymond, the first plaintiff, was an elderly gentleman in his late 80s, who had long retired from active employment. He was perhaps the most important witness in the proceedings, who gave the most direct evidence of the promise that Gloria allegedly made to Richard senior. His memory showed some of the deficiencies to be expected in a person of his age. He had trouble recollecting some events in the past, especially events outside the scope of the immediate issues. He candidly conceded that the events he was attempting to recall were a long time ago and he had difficulty in recalling them. But he appeared to the Court to be genuinely attempting to draw on his actual recollection of true historical events rather than attempting to create a false narrative from past events.

20. Raymond's accounts of the central conversations did not vary greatly in fundamentals. He well recalled conversations between his father, Richard senior, and the landlord who had offered the Woollahra property to his father in 1965. He recalled conversations between his father and Gloria. He gave an account of these conversations in slightly different ways in his oral evidence, occasionally leaving out some details that had been included in his affidavit. He was reasonably easily distracted by his own wandering train of thought. The inconsistencies that his evidence revealed were well within the range of what might be expected from a person of his age.

21. Raymond’s evidence was punctuated at times with random thoughts. This might be thought to be an indicator of unreliability. In a somewhat arresting style of evidentiary narrative, he would occasionally interrupt himself and interrogate himself about his own thinking. The force of this self-examination would cause his attention to wander from the topic. Although he made efforts to try and stay focused, these efforts were not always successful.

22. The lack of detail and context in some of Raymond’s evidence would be a serious basis to question the recollection of a younger witness. But it was acceptable for a person of Raymond’s age and life history.

23. Raymond had spent some time as a Defence Civilian, working in Royal Australian Navy shore establishments in Sydney. Although not formally qualified as an accountant, he had a good head for figures and had been a bookkeeper for the Australian Defence Force. Although not formally educated to the tertiary level, his syntax, vocabulary, and subject matter responses to questions showed he had engaged in reasonably sophisticated white-collar professional work during much of his career and retained the residue of that sophistication.

24. Raymond had a good comprehension of the questions asked of him and appeared to be able to understand them well. With the occasional blemish, his answers to his interrogator were generally appropriate and responsive. The Court saw no signs that his age impaired his ability to give accurate and reliable evidence, other than to slow him down somewhat. The slowing was due to the greater burden at his age in drawing on memory and organising his thoughts, than it would be for a younger person.

25. Importantly, Raymond was prepared to make concessions about matters that he did not remember. Yet his evidence about the conversations about Gloria were at times quite detailed and he could spontaneously add detail to them. His evidence showed him calling upon actual memory of these conversations about Gloria, rather than merely rehearsing memorised lines.

26. It would have been a challenge beyond the resources of a 90-year-old with Raymond’s capacity limitations to memorise and consistently sustain a falsely fabricated story under strong cross-examination. He was cross-examined well and firmly. But throughout his testimony he maintained generally consistent evidence, giving the Court confidence in his honesty and reliability. The Court generally accepts his evidence.

27. Jacqueline Robertson. The Court mostly accepts the evidence of Jacqueline, Raymond’s former wife. She tended to add additional colour to her account of events but her accounts were correct in the fundamentals, and distorted only slightly by her passion for the plaintiffs’ cause. But the Court accepts her as a witness of truth. To the extent the Court does not accept her evidence is clear from the more detailed findings below.

28. Richard junior. Richard junior was an enthusiastic, strong-minded witness, who gave clear evidence that generally coincided with the credible evidence of other witnesses. The Court finds him to be an honest witness and generally reliable, whose evidence can be accepted. His evidence at times directly dealt with contentious controversies in the proceedings. For example, Richard junior said he often saw Gloria drunk. The Court accepts that evidence. It can be reconciled with evidence of other witnesses who attest to her habits of sobriety and general temperance. The time in her life during which these observations were made is very important.

29. Mr Mark Phipps. Mr Phipps volunteered to give Raymond assistance to write correspondence to the estate on a pro bono basis. He was an honest, reliable and credible witness.

30. Mr Jeffrey Barnes. Mr Jeffrey Barnes was one of the late Trevor Robertson's best friends. He helped organise Trevor's 2006 funeral. Mr Barnes was a generous minded individual who had helped Trevor during the hard times that he faced. Mr Barnes went out of his way to assist the Robertson family after Trevor’s death. He continued that assistance with committed and independent evidence to assist the Court to find the true facts. His recollection was sound, his evidence was honest, and his account was wholly reliable.

31. Ms Lexie Webber. Ms Lexie Webber had been a good friend and close companion of Trevor. She gave evidence by video link. The Court found her to be a witness of truth who attempted to give a clear recollection about relevant events. Some of these events had not been particularly significant to her at the time that she had been involved in them. But she nevertheless displayed a good memory of them. She was careful only to say in evidence what she recalled. Within those limitations, she was of valuable assistance to the Court. Except in minor respects the Court accepts her evidence.

32. Mr Nicholas Eddy. Mr Eddy has at all material times been the solicitor for the first defendant, Ms Byrne. He practices as a sole practitioner in Paddington under the name Nicholas Eddy & Company. He had known Gloria and her domestic partner, John McDonough for many years. He prepared her will of 12 July 2017. He gave reliable and credible evidence which the Court accepts except in minor details, including that at no stage did Gloria mention to him the plaintiffs in this case. He said that Gloria did not name Raymond or Trevor or anyone related to them as beneficiaries in her 12 July 2017 will, or her previous will of 13 February 2008.

19. Ms Lucy Byrne. Ms Byrne was a neighbour of Gloria who Gloria came to know and trust. She was a highly credible honest and reliable witness who impressed the Court greatly with her solicitude for Gloria’s welfare over many years and for the care with which she attended to the affairs of Gloria’s estate as executrix. Her evidence is accepted.

20. Mr Reece Purser. Mr Purser is Gloria’s godson and a one third beneficiary of Gloria’s residuary estate. He gave sound and credible evidence which is accepted. This specific findings about the relief sought against him and other family members to whom he distributed funds from Gloria’s estate, have been deferred for the reasons explained later in this judgment.

The Robertson Family and the Woollahra Property – 1947 to 2018

The Early Years – 1947 to 1965

35. Richard senior married Ethel in 1947. At that time Raymond was 15 years old and Gloria was eight. For the next eight years, until Raymond was 23 and Gloria was 16, the rented Woollahra property comprised a household of four. In 1955, Richard senior and Ethel had a son together, Trevor. For a short time, all three stepchildren lived together with their parents at the property.

36. Raymond married in 1956. Upon their marriage, he and his wife Jacqueline moved into the Woollahra property. Raymond and Jacqueline had two of their three children, Tammy in 1960 and Richard junior in 1962, whilst they lived at the Woollahra property.

37. Gloria married in 1958. Her husband George Dunn also moved into the Woollahra property, where they lived together. But Gloria and George separated six years later in 1964, and George moved out of the property.

38. Ethel died in 1964. By the end of that year the household at the Woollahra property consisted of Richard senior, Gloria, Raymond, Jacqueline, Tammy, and Richard junior. Gloria soon re-partnered with Mr John McDonough, who moved into the property, in late 1964 or early 1965.

A Letter from the Landlord – June 1965

39. The year following Ethel’s death, in June 1965, the landlord of the Woollahra property offered Richard senior an opportunity to purchase the property for £2,200. At that time Richard senior had not yet decided upon his retirement plans. He was contemplating a move to Queensland. In that context it made sense to him for the next generation of the family to take up an opportunity to buy the Woollahra property. So, Richard senior first suggested to Raymond that he buy the property. But in 1965 Raymond’s work and income were intermittent. He felt that he could not afford to commit to such a significant purchase. He declined the opportunity offered to him.

40. So, Richard senior looked elsewhere. He spoke to Gloria about the purchase. He told her about the landlord’s offer to sell the property for £2200 and to provide vendor finance. With the support of John McDonough, Gloria appeared to be in a financial position to make mortgage repayments to enable her to acquire the Woollahra property. She suggested to Richard senior that she buy the property instead of Raymond. Richard senior agreed. Their conversation, witnessed by Raymond, was to the following effect:

“Gloria:   ‘John and I might be able to buy it, but I would need a loan. Could you lend me some money? I will pay you back’.

Richard Snr:   ‘I will help you with an interest free loan of £1,100 on the condition that you allow the whole family to live at the property rent free and that you leave your share of the property to your brothers Trevor and Ray’.

Gloria:      ‘Yes I agree’”

41. Why did Gloria agree to Trevor and Raymond having the house? One explanation is that the expected fulfilment of the promise was deferred a very long way into the future, and Gloria had no children of her own at that time who might have been a priority for inheritance. Her greatest foreseeable family responsibilities were to Trevor, who at that time was only about 10 years of age.

42. At one stage in giving his account of this conversation Raymond left out the sale price from the landlord of £2,200 and he left out the amount of the loan to Gloria of £1,100. But he mentioned those amounts sufficiently often that the Court is persuaded that his memory of those figures is sound. Raymond had a strong recollection that his stepsister Gloria also agreed with Richard senior to pay the loan back at the rate of £3 per week. This seems to have been a reasonable reflection of what she could have afforded to pay with John’s assistance, and which would have led to repayment of the whole loan from Richard senior of £1,100 in about 7.5 years. But Raymond’s memory of the repayment terms was enhanced because Gloria had trouble meeting the £3 per week repayment obligation.

43. Richard senior encouraged the purchase. He advanced Gloria £1,100, as an interest-free loan to help her acquisition of the Woollahra property. The transaction proceeded with Gloria and her husband as the purchasers. On completion, the landlord transferred the Woollahra property into Gloria’s and her husband’s name.

The Conveyance and Mortgage Back – 28 April and 29 June 1965

44. Gloria acquired the Woollahra property for £2,200. But the evidence of her available funding well exceeded this figure. She had the £1,100 loan from Richard senior, as well as a £1,600 vendor loan. These advances totalled £2,700 for a purchase of £2,200, giving her an excess of £500. There was much debate in attempting to reconcile these figures. But without Richard senior’s advance Gloria was £600 short in completing the purchase.

45. Gloria acquired the Woollahra property in April 1965 as a tenant in common with her then partner Mr John McDonough. The conveyance to them dated 28 April 1965 record Gloria as a “feme sole” and Mr McDonough as a truck driver. They are recorded as agreeing to a consideration £2,200 for the property. The vendor gave them on 29 June 1965 a mortgage back for £1,600 secured over the property. The difference of £600, ignoring stamp duty and other costs of acquisition, was a substantial sum.

46. Even at this distance the evidence allows the Court to infer that Gloria was likely to have required funding assistance from her stepfather to acquire the property. Gloria did unskilled housework as a cleaner. She was born in 1938, so in 1965 she had just passed her mid-twenties and was unlikely to have accumulated enough capital from her work to make a major contribution to acquiring the property. Mr McDonough’s financial resources are an unknown factor. But the Court can infer that Gloria needed to find at least £600. Her financial need fits with the evidence of her stepfather’s offer.

47. The defendants use the conveyancing documents to show the disparity of £500 between the claimed loan of £1,100 and the £600 needed to complete the purchase after deduction of the vendor’s mortgage.

48. But this criticism is not compelling. Gloria and Mr McDonough undoubtedly faced other conveyance related outgoings such as stamp duty and legal expenses. They may have had other incidental expenses associated with acquiring the property. The mortgage back seems to have required the making of weekly payments of £6 to the vendor mortgagee, a widow. Perhaps Gloria and Mr McDonough established a small sinking fund to act as a resource to ensure they did not default on these mortgage payments, which appear to be designed to provide reliable income to support the vendor/mortgagee. It is unnecessary and unhelpful to speculate about the precise nature of these expenses. But some such expenses were likely and therefore a £500 surplus is not jarringly inconsistent with the plaintiffs’ case of promises made, which is otherwise well-established by independent evidence.

49. It is probable that Richard senior advanced the £1100 to Gloria to assist her and Mr McDonough to acquire the property. It is likely that the sum was not repaid. Witnesses that the Court accept speak of the tension between Gloria and Richard senior about the non-payment of the £1100. Paying the vendor mortgagee was undoubtedly a priority for Gloria and Mr McDonough, given the mortgagee’s powers to deal with the property in the event of default and the terms of the mortgage. It would not be surprising that Gloria’s family financial obligations to Richard senior would be deferred behind the vendor’s mortgage, despite the family discontent that caused.

Challenges to Raymond’s Account

50. Raymond was cross-examined about whether there was an express promise made to him at the time that the property would be left to him “in Gloria’s will”. He gave little oral evidence of hearing express reference to the Woollahra property being left “in her will". But the subtext of the conversations was that the property would pass to Trevor and Raymond after Gloria's death.

51. Raymond’s account of the conversation between Gloria and Richard senior touched upon Gloria giving Raymond the opportunity to live in the property from time to time before her death. The Court accepts that Richard senior raised this topic with Gloria and secured her consent to accommodating Raymond in that way, as his circumstances may have required from time to time. Richard senior viewed the Woollahra property as a social safety net for all family members. But the core of the conversation was Gloria’s promise to leave the property to Raymond and Trevor by will after her death in exchange for it being transferred to her and her partner, John McDonough at the time of her conversation with Richard senior.

52. Raymond did not later make any specific inquiries of Gloria about the contents of her will. He explained in his evidence that she had indeed mentioned to him from time to time that the Woollahra property would be going to him and to Trevor after her death. Raymond says, and the Court accepts, that he had the full expectation that she would honour that commitment, and he did not pursue it further or seek to verify it. Raymond says, and the Court accepts, that he never thought she would renege on that promise to her stepbrother. He says, and the Court accepts, that right up until Gloria's death that he and she had a good stepsibling relationship. There was no obvious reason for him to be alerted to the possibility she would not honour her promise.

Richard senior Confirms the Arrangement with Gloria - After June 1965

53. On several occasions shortly after the purchase of the Woollahra property, Raymond witnessed Richard senior confirming with Gloria the essentials of his arrangement with her. Richard senior said to Gloria, in Raymond’s presence, soon after Richard senior had first loaned the money to her:

“Richard senior:   ‘I lent you the money on the basis that you will leave the property to Trevor and Ray’.

Gloria:         ‘I know that and agreed to that’.”

54. Raymond also received direct confirmation from Gloria of the arrangement that had been made. Raymond regularly gave money to Gloria. She was often short of funds for daily living expenses. On such occasions the Court accepts that the topic of the promise came up between Raymond and Gloria. When Raymond gave Gloria money, Gloria often made statements to the following effect to Raymond:

“Gloria:   ‘Thanks Ray. I can’t pay you back but don’t forget the deal I had with dad. I will make sure you and Trevor are looked after when I die’

and

Gloria:   ‘Thanks for your help. Don’t worry, the house will be yours and Trevor’s one day’.”

55. The Court accepts that Gloria made statements such as this over many years to Raymond.

56. Raymond relied upon the statements. The Court accepts Raymond’s evidence that before his death Richard senior had explained to Raymond that Richard senior’s loan to Gloria was the inheritance that Raymond and his children would otherwise have enjoyed. Raymond says, and the Court accepts, that based on Richard senior’s assurance that he would inherit the Woollahra property, Raymond took out no life insurance throughout his life.

Gloria’s Repayment Troubles – the second half of 1965

57. Three or four weeks after the loan was made Richard senior followed up with Gloria for the first loan repayments of £3 per week, which were by then due and had not been forthcoming. This resulted in the following conversation between Richard senior and Gloria, which the Court also accepts Richard junior witnessed:

“Richard senior:   ‘Gloria, you need to pay me back. You haven’t paid me anything. Ray and his family are to stay here rent free until you pay back the money’.

Gloria:   Well, I can’t pay yet because I’m not earning anything much’.”

58. Gloria was slow in making repayments to Richard senior. A few weeks after Richard senior made the loan to Gloria, Raymond heard his father engage in the following exchange with Gloria on this subject:

“Richard senior:   ‘You have paid nothing, Gloria’.

Gloria:   ‘I can’t afford to pay anything back now, things may improve. But it won’t matter because I will leave the house to Trevor and Ray’.

Richard senior:   ‘I want you to honour what you promised in relation to Trevor and Ray’.”

59. The Court also accepts Raymond's evidence that his father, Richard senior, said to him about this time that, "Gloria gave me nothing". But this is not to be interpreted literally. It is probable that Gloria paid a few weeks of the loan at three pounds per week, rather than pay nothing at all, and then thereafter it is probable that she paid intermittently.

60. Richard senior continued to chase repayment from Gloria. About a month or so after Gloria originally made the promise, the Court accepts that Raymond heard his father and Gloria conversing in the following way:

“Richard senior:   ‘Have you got anything for me for the loan’.

Gloria:   ‘No I don’t. I only cleaned 2 houses. I can’t pay this week’.

Richard senior:   ‘Well don’t forget about the promise to leave everything to Trevor and Ray’.”

61. Raymond did not recall that Gloria made a specific response to this last statement of his. But she did not dissent. Her silence is a basis to infer her consent to Richard senior’s statement, as it is consistent with her other declarations at the time.

62. From time to time in the years that followed, Raymond made inquiries of Richard senior about whether Gloria was honouring the repayment component of her arrangement with her father. The Court accepts Raymond’s evidence that on several subsequent occasions a conversation to the following effect took place between Raymond and Richard senior:

“Raymond:      ‘How is Gloria going with the repayments?’

Richard senior:   ‘She hasn’t paid anything, but she is still adamant that you and Trevor are the ones getting the house when she dies’.”

63. Raymond recalls hearing this consistent response from his father when Raymond inquired about the financial arrangements for the Woollahra property. And the same conversation took place at times in different words, such as the following:

“Raymond:      ‘How is she getting on with paying you back?’

Richard senior:   ‘She’s not paying nothing. I say to her as long as you remember to leave the property to Trevor and Ray.’”

64. Not long after Richard senior and Gloria made this arrangement, family disharmony surfaced. But before that, two more distant family members came to know of the arrangement, Richard Blackett and Lorraine Carrol.

Richard Blackett Has a Discussion with Gloria – Mid-1960s

65. Mr Richard Blackett is a cousin of Raymond Robertson. Mr Blackett’s mother, Ms Harriet Elsie Blackett, was the sister of Richard senior. Richard senior was Mr Blackett’s uncle and Gloria, though not a blood relation of Mr Blackett, was in a cousin-like family relationship to him. Mr Blackett’s mother, Harriet, and his father also lived in Spicer Street, Woollahra between 1936 and 1957, only a few doors away from the Woollahra property. And Richard senior’s and Harriet’s mother also lived nearby at this time.

66. Mr Blackett gave a compelling account of a conversation with Gloria relevant to the issues in these proceedings. Mr Blackett puts the conversation as having occurred in the mid-1960s. His affidavit said it occurred in 1965, but on closer questioning it was clear that he was given information to fix it in that year. But his own unaided recollection put the timing in about the 1960s.

67. Mr Blackett was an excellent witness. He was a retired gentleman and at the time of giving evidence in his early 80s. He had been a Latin, English and Ancient History teacher. He gave evidence in a thoughtful and precise manner. He was careful about giving as truthful and as accurate evidence as he could to the Court. He paused as he thought through the exact wording of his answers. He was careful not to venture beyond what he was sure of saying. The Court accepts all his evidence.

68. Mr Blackett had a habit of visiting his mother, Harriet, and his father after work at least once a week in the mid-1960s. He was then teaching at St Andrew’s Cathedral School and would stop in to visit his parents in Spicer Street before proceeding on to his family home in North Bondi. When calling in to see his parents he would sometimes be walking in the vicinity of the Woollahra property. On one of these occasions, he remembers stopping at the Woollahra property as Gloria was sitting on the front veranda. The Court accepts that he had the following conversation with her:

Richard Blackett:    “Hello Gloria, I hear that you now are half owner of 12 Spicer Street?”

Gloria:         “Hello Richard, how did you hear that I’m the owner?”

Richard Blackett:   “I heard it from Dick, he told me. Dick said that he lent you 1,100 pounds to help purchase the home.”

Gloria:   “Yes, Dick was able to give me the money and it will be repaid.”

Richard Blackett:   “You have been in this home since you were a little girl.”

Gloria:   “Yes, I’m looking after Trevor now, so the home is for him too.”

Richard Blackett:   “Repaying the 1,100 pounds is important, so make a Will to assure the family.”

Gloria:   “I’ll repay the 1,100 pounds and leave a Will to Ray and Trevor Robertson.”

69. Mr Blackett clearly remembers this conversation in part because it presented a happy outcome for the family who could take up the opportunity of purchasing a house in Spicer Street which came with future stability for Gloria and young Trevor. As a cousin, Mr Blackett was concerned for Gloria and Trevor’s welfare.

70. Some aspects of the conversation were questioned in the defendants’ cases. Mr Blackett was unsure where he got the notion that Gloria was a half-owner of the Woollahra property, and he was unaware that the co-registered proprietor with Gloria was Mr McDonough. In this conversation, Gloria does not admit taking upon herself an obligation to make a will for Raymond and Trevor, so it does not support that element of the plaintiffs’ case. But Gloria’s statement to Mr Blackett implies that in the long-term, Trevor was a beneficiary of the arrangement as she says, “the home is for him too”, which is consistent with the plaintiffs’ case.

Lorraine Carrol Attends a Family Conference - 1965

71. Ms Lorraine Carrol, a niece of Richard senior, put important structure around the events of 1965. Ms Carrol is the daughter of William Robertson, another brother of Richard senior and a niece of Harriet Blackett, Mr Blackett’s mother.

72. Ms Carrol was an excellent witness who had a startlingly good memory of an important family conference that occurred in 1965. Ms Carrol gave clear evidence of the events about which she spoke. She was able to add detail to her account of the events when questioned and under cross-examination her memory did not show any deficiency in what she recalled. The Court fully accepts the account she gave, which is set out below.

73. Ms Carrol recalls that Ethel Robertson (Ethel Reside) who was known to Ms Carrol as “Aunty May” came to live at the Woollahra property with her daughter in the late-1940s. But in 1964, Ethel Robertson died, leaving Gloria, who was then aged about 26 to raise Trevor, who was then aged about eight, with the help of Raymond Robertson and his wife, Jacqueline.

74. Ms Carrol distinctly remembers visiting her uncle, Richard senior, in early 1965 and a family conference taking place at the Woollahra property. In her recollection, present at this family conference were Richard senior, Raymond Robertson, Jacqueline Robertson, and Gloria. Richard senior seemed to Ms Carrol to be convening a discussion about what was to happen with the Woollahra property, announcing to the assembled family members with sufficient flourish that Ms Carrol remembered it, saying that he wanted to discuss “the family home with the family”.

71. Ms Carrol recalls that she was specifically invited to this meeting. She then had a baby who was about six months old who she left with her mother. Her baby was born in 1964 and this meant that she could place the meeting in early 1965 independent of being told any dates. She has a clear recollection of being surprised at being invited to this meeting as she was only quite young, about 18 years of age. She had an older sister, but her recollection is that her older sister was away. Her memory is that she was being invited as part of the wider family to witness the discussion that was taking place at this family conference. She clearly recalls the following conversation taking place in her presence:

Richard senior:   “I received an offer to buy this house. I couldn’t take up the offer to buy the house because I work as a driver and don’t earn enough money. I have saved some money, but I am close to retirement. Would you like to buy this house?”

Jacqueline:   “We can’t buy the house because Ray is concerned about his uncertain income and does not have secure employment and has insufficient means to repay any loan.”

Gloria:   “Can I buy the house if you loan me £1,100 as a deposit?”

Richard senior:   “Well only if you promise me that I, Raymond and Trevor can live here for life and if anything happened to you that you leave Raymond and Trevor the house at 12 Spicer Street, Woollahra in your Will.”

Gloria:   “Yes, I will do that.”

Richard senior:   “Gloria can manage the repayments and she has agreed for me to live here for the rest of my life until I pass away and on condition that she will leave the house at 12 Spicer Street, Woollahra to Raymond and Trevor and also that she will repay the loan I make to her.”

Gloria:   “That’s fine. I agree to that.”

76. In Ms Carrol’s recollection, Gloria made a clear promise to Richard senior in the presence of other family members to leave the Woollahra property to Raymond and to Trevor in her will. The Court accepts that Gloria made that promise to all present at this meeting. Ms Carrol’s evidence of a family conference is consistent with the somewhat less formal conversations that Raymond recounts. It is likely that both took place: Richard senior gathered family to formally witness Gloria’s perhaps less formal earlier promises. Richard senior’s strategy of convening a family conference worked, with surprising success: some 60 years later Ms Carrol, the youngest participant still remembered the solemn event at its core.

77. One incidental issue arose during Ms Carrol’s evidence. A call was made for a letter passing between her and the plaintiffs that she had mentioned during her cross examination. The plaintiffs claimed client privilege over the contents of the letter. The Court determined that she had not waived privileged over this communication by mentioning it in her evidence. The Court determined that because of her family relationship Ms Carrol was not an independent witness, but rather a witness who owes a duty of confidence to the plaintiffs: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 per McClelland CJ in Eq at [134]; Handley v Baddock [1987] WAR 98. The Court is of the view that the client privilege belongs not to Ms Carrol but to the plaintiffs. As such, the reference Ms Carrol made to the letter during her evidence could not amount to a waiver of privilege. The Court therefore did not grant the defendants access to Ms Carrol’s letter.

Jacqueline also Attends a Family Conference

78. Jacqueline gave an account of Richard senior attempting to formalise Gloria’s commitment to Raymond and Trevor in a broader family meeting, corroborating Ms Carrol’s version. Jacqueline’s evidence was strongly challenged as self-interested, and the Court was asked to assess her credibility cautiously. But she gave an account of a family conference which in its essentials was very similar to Ms Carrol’s account. The Court accepts Jacqueline’s evidence generally and accepts most of her evidence of this family conference. Jacqueline says that on one occasion in early 1965 Richard senior called his son Raymond and Jacqueline into the lounge room of the Woollahra property. Present at the same time were Gloria, Trevor, and Richard and Jacqueline’s children, Tammy, and Richard. Jacqueline does not refer to Ms Carrol. But apart from that, Ms Carrol identifies many of the same people in the room for this meeting.

79. The Court mostly accepts Jacqueline’s evidence that Richard senior, Raymond, Gloria and Jacqueline said the following at this family conference:

Richard senior:   “The owner of this place wants to sell to me for 2200 pounds and asks whether I want to buy. I have half the price saved to help, but I’m aged 58 and near retirement, so Ray and Jacqui can you please consider whether you’ll buy it.”

Raymond:   “I’ll need a loan as well as your deposit, Dad, but my work is unstable and Jacqui is busy with Tammy, Richard and helps Gloria with Trevor as Gloria works.”

Jacqueline:   “Oh dear, we wouldn’t be able to afford a loan for half it without stable work”.

Gloria:   “Dad, I’ve got stable work and I’d like to try to buy it with your help.”

Raymond:    “It’s in the family’s best interest if Gloria is to buy it as Trevor is just nine.”

Richard senior:   “Gloria, what could you do to secure my 1100 pounds deposit as a loan.”

Gloria:   “A loan for the rest would have to be repaid first, so I can only promise.”

Richard senior:   “I’ll loan 1100 pounds without interest if you leave a will to Ray, Trevor and their children, and in return for my rent-free accommodation here for my life”.

Gloria:   “Yes I’ll do a will to Ray, Trevor and the children, I won’t have any of my own, repay 1100 pounds no interest and you get rent-free accommodation for life.”   

80. This further confirms that Richard senior made his loan to Gloria conditional upon her promise to give the property to Ray, Trevor and the children. Although parts of Jacqueline’s version here must give way to the different versions of Mr Blackett and Ms Carrol which are discussed below.

Family Members Move Out of the Woollahra Property – 1966 to 1983

81. In 1966 disagreements about the household at the Woollahra property and other personal issues arose between Gloria on the one side and Raymond and Jacqueline on the other side. Gloria asked Raymond and his family to move out of the Woollahra property and they did. Whatever the precise cause of the intra family tension was at this time, it appears to have caused a lifelong distance between Gloria and Raymond and goes a long way towards explaining the contest at the root of these proceedings.

82. Jacqueline explains the reason for the family tension at this time, an explanation the Court accepts. She says that Richard senior and Gloria began to fight about repayment of the loan. Richard senior was demanding that Gloria repay the money, but Gloria refused, saying, “I haven’t got the money”. This led to Gloria demanding that Richard senior and other family members leave the property. But Richard senior resisted. He felt entitled to stay and did so. Richard senior did not move out until 1977. In the meantime he continued to complain to Jacqueline about Gloria not paying him back, saying, “I am cross about it”.

83. Gloria reacted to these demands for loan repayment. She began to make it difficult for Raymond and Jacqueline to stay at the Woollahra property, repeating that she wanted them, “all to leave the house”. It took Raymond and Jacqueline about six months to find a housing commission unit at Maroubra before they could move.

84. In about November 1966 Raymond and his family moved out of the Woollahra property to live in Maroubra. Raymond and Jacqueline’s children were born when they were living at the Woollahra property before they moved. Tammy was born in 1960 and Richard Aaron was born in 1962. Raymond says it was time to leave. He says, and the Court accepts, that he, his wife Jacqueline, their son Richard junior, and their daughter Tammy all moved to Maroubra. There is conflicting evidence about Gloria’s consumption of alcohol. The Court’s findings about that appear below. But the Court does accept that Gloria began to drink alcohol to excess by 1966 when friction was developing within the family, who were all housed together at the Woollahra property, which was only a small two storey cottage that was overcrowded, before Raymond and Jacqueline moved out.

85. Raymond says that Gloria precipitated the move forcing him and his family out of the Woollahra property. Raymond says, and the Court accepts, that matters came to a head when he had a conversation with Gloria in about mid-1966, in which she asked him to leave the Woollahra property. The conversation was in the following terms:

“Gloria:   ‘I want you [Raymond] and your family to leave these premises’.

Raymond:   ‘But you agreed to allow me and my family to stay here for life rent free’.

Gloria:   ‘I don’t care, I want you out’.

86. Gloria, Richard senior, Trevor and John McDonough remained at the Woollahra property. It was another eight years before Richard senior decided to resettle in Queensland.

87. Raymond and Jacqueline’s marriage became troubled after they moved to Maroubra. Raymond moved back to live with Richard senior, Trevor and Gloria at the Woollahra property. Raymond lived there on and off until Trevor was about 21 in 1976 or 1977, although Raymond would return to live with Jacqueline from time to time. Jacqueline recalls that Raymond generally spent about half of each year at the Woollahra property. Raymond described his relationship with Jacqueline as troubled. He said and the Court accepts that at times their marriage was, in his words, "torrid". Jacqueline would visit the Woollahra property from time to time partly because Raymond was living there. She judged the house to be generally untidy and unclean during these visits.

88. Gloria and John McDonough still had financial obligations under the vendor mortgage from the landlord and to Raymond senior. John McDonough appears to have been a positive influence in the administration of Gloria’s financial affairs. By mid-1972, Gloria and John had between them paid off the loan secured by the vendor’s mortgage. But their debt to Richard senior was left outstanding.

89. Richard senior finally moved out of the Woollahra property in 1973 and resettled in Queensland. But the Woollahra property always remained a base for him, whenever he was in Sydney.

90. The Court accepts Raymond’s evidence that Richard senior’s move out of the Woollahra property was not harmonious. Richard senior told Raymond in 1973 that the timing of his departure from the Woollahra property was not his own choice. Richard senior explained to Raymond about the time he left:

“Richard senior:   ‘Gloria is tossing me out of the house’.”

91. Raymond was very unhappy to hear this from his father. He was resentful about the pressure being placed upon his father to leave the Woollahra property and wanted to do something about it. So, he went over to see Gloria to discuss the issue and initiated the following conversation with her:

“Raymond:   ‘Why are you kicking Dad out when he is the one that lent you the money to buy this house and when you agreed that he could stay here rent free with the whole family including myself, my wife and children.’”

92. Raymond says, and the Court accepts, that Gloria did not reply. This is not entirely surprising. By then there was tension between them. She did not feel any need to give an account of her conduct to him. She wanted to divert their conversation away from the subject.

93. Richard senior visited the Woollahra property from Queensland from time to time. But he was not always welcome. The Court accepts that Gloria told both Raymond and Richard senior to leave the property several times. Raymond says he did not leave the first time he was asked. But eventually he says they did leave, as Gloria had become insistent.

94. Throughout most of the 1970s Gloria, John and Trevor occupied the Woollahra property, with occasional stays by Richard senior and Raymond. Gloria and John separated in the late 1970s. That left just Gloria and Trevor at the Woollahra property until the early 1980s.

95. During this period Raymond sincerely worried about the example that Gloria’s lifestyle was giving to Trevor, her much younger stepbrother. Raymond says, and the Court accepts, that in the late 1960s and early 1970s Raymond would often observe her to drink more than two bottles of wine, or a bottle of brandy, in one sitting. In 1970 Trevor was only about 15. Raymond says, and the Court accepts, that he once had an argument with Gloria about the neglected state of the Woollahra property due to her lack of attention and the effect her alcohol consumption was likely to have on Trevor:

“Raymond:   ‘Gloria you need keep this place a bit tidier. It’s no place for the boy [Trevor] to grow up’.

Gloria:   ‘Don’t worry about it. You lucky buggers [referring to Trevor and Raymond] will get this place soon’.

Raymond:   ‘And you better mind your drinking, or you will drink yourself to an early death’.

Gloria:   ‘Then you’ll get this place sooner!’”

96. On many occasions during the 1970s Raymond says that when he visited the Woollahra property, he would give Gloria cash. He observed she spent a lot on alcohol and at the local hotel. But when it came time to buy groceries or pay a bill he explained, “she never seemed to have any money left.”

97. Raymond's and Richard junior’s evidence was convincing as to the squalor in which at times Gloria lived because of her drinking. Raymond felt an obligation to look after his stepsister because of this weakness. He did the best he could for her. And he was careful to look after Trevor when Gloria neglected him. Other quite different accounts by other witnesses were given in the proceedings about Gloria’s alcohol consumption at a later time in her life: these were to the effect that Gloria’s alcohol drinking habits were not deserving of adverse comment at that later time. These other accounts are to be reconciled with Raymond's and Richard junior’s evidence on the basis that it appears that Gloria’s management of alcohol significantly improved as she aged.

98. Raymond’s evidence that Gloria was “drunk most of the time ….” was probably an overstatement but is likely that Gloria drank strongly in her younger years. But Ms Byrne would see her several times a day later in her life and did not observe heavy drinking habits then. Ms Byrne would go into her house after shopping and would converse with her in a neighbourly way on a regular basis without observing any signs of heavy drinking in Gloria. Ms Byrne saw Gloria at the Woollahra Hotel on occasions but said she would not consider Gloria “a big drinker”. Moreover, Ms Byrne’s evidence is supported by the evidence of Reece Purser and Jerry Besanko which the Court wholly accepts on this subject. Both were reliable witnesses.

99. The defendants submitted that any rejection of Raymond’s, Richard junior’s and Jacqueline’s strong evidence about Gloria’s drinking habits should damage their credibility and compel the Court to conclude that they were not truthful witnesses. But Gloria was a heavy drinker in her younger years, an image which persisted with these other family members. They did not invent this side of her character which made a strong impression upon them, but Gloria had become a much more balanced drinker later in life.

100. Richard senior died in 1983. The same year Trevor moved out of the Woollahra property. Born in 1955, he was then about 28. He never returned.

Probate of John McDonough’s Will – 1984

101. John McDonough died in January 1979. Gloria obtained probate of his will somewhat later in 1984, probably to secure the transfer of John’s half share of the Woollahra property to her. By his will Mr McDonough had given his half share as tenant in common of the Woollahra property to Gloria, subject to legacies of $2000 to each of his two sisters. But the transfer to Gloria was held up because the original mortgage to the vendor was still on the title to the Woollahra property, which was old system title. Gloria believed that the mortgage had been fully discharged but could not find a copy of the original discharge of mortgage or any other title documents.

102. So, she swore a statutory declaration, presumably for the purposes of obtaining replacement title documents. After confirming the purchase of the Woollahra property in June 1965, the vendor mortgage, and her de facto relationship with Mr McDonough “for approximately 16 years” until January 1979 when he died, the statutory declaration continued as follows:

“6.   The deceased was responsible for the payment for the principal and interest on the mortgage. To the best of my knowledge and belief all monies due to the mortgagee were paid in or about August 1979 and the mortgagee executed a form of discharge of mortgage, a true copy of which is annexed and marked with the letter ‘B’.

7.   I have searched the deceased’s personal belongings and papers. I have been unable to locate the original discharge of mortgage or any other original document of title relating to 12 Spicer Street, Woollahra.

8.   I have lived at the property 12 Spicer Street, Woollahra since the deceased and I acquired it. No claim has been made to me by any person in respect of any outstanding mortgage or monies owed in respect of mortgage Book 2750 No 553. To the best of my knowledge and belief all monies secured by that mortgage have been repaid.”

103. The statutory declaration is carefully worded to refer to the deceased, John McDonough as being “responsible for the payment for the principal and interest on the mortgage”. But it is unclear how much of the mortgage he actually paid. John McDonough had died in January 1979 and Gloria says that all the monies due under the mortgage were paid in “August 1979” leading to the discharge of mortgage being executed. This statutory declaration should not be read as declaring that John McDonough paid off the mortgage during his lifetime. The final payment to the mortgagee appears to have been arranged after his death. The transmission application under the Real Property Act1900 was not ultimately registered until July 2005. The delay may have been occasioned by converting the Woollahra property’s old system title to Torrens title.

104. This statutory declaration does not assist the defendants’ case and is consistent with the plaintiffs’ case. It is consistent with Gloria paying off some of the vendor mortgage herself. It does not make clear who is “responsible” for paying off any other monies owed to Richard senior under Gloria’s arrangement with him. Mr McDonough being “responsible” for the vendor mortgage is consistent with Gloria being “responsible” for paying off the £1,100 advance that had been made by Richard senior, as the plaintiffs’ case alleges.

Later Family Arrangements at the Woollahra Property – 1983 to 2006

105. Raymond says, and the Court accepts, that throughout his life he regularly visited the Woollahra property to see the Robertson family members living there. He did so during the long period from 1983 until 2006, to check on Gloria. For the period of 23 years from 1983, when Trevor moved out and Richard senior had died, through to 2006, when Gloria’s new companion moved into the Woollahra property, Gloria was living there on her own. Raymond had a continuing sense of responsibility for other family members. The Court accepts his evidence that he was a regular visitor to the Woollahra property during this whole period.

106. Raymond claims, and the Court accepts, that he paid the utility bills for the Woollahra property over very many years. Raymond gave this kind of financial support during all the years between 1983 in 2006 without complaint and without drawing attention to his practical generosity. The Court accepts that whilst conversing with Gloria about that financial support, that time to time Raymond also discussed with her his inheriting the Woollahra property from her.

Jacqueline Visits the Woollahra Property – 1998

107. Jacqueline occasionally also saw Gloria at the Woollahra property when she was visiting Richard senior’s sister, Harriette Blackett, who lived in the same street. On one such occasion in 1998 Jacqueline says, and the Court accepts, that when Jacqueline and her new partner called in together to the Woollahra property, the subject of how Raymond and Trevor were going came up and Jacqueline said to Gloria that Raymond and Trevor were “all doing it tough” at the time. Gloria responded to her on the subject of their welfare by saying, “you won’t have to worry, if anything happens to me they will have the house”.

Jacqueline and Bosco Call on Trevor – 2000

108. Jacqueline remarried in 2000. Shortly after their marriage she and her new husband Mr Bosco Bozinack travelled together to Byron Bay to visit Trevor who had not been well for some time. Jacqueline was surprised to find that he had been living in a rundown caravan.

109. When they were there with Trevor, the subject of the Woollahra property came up. Jacqueline says, in an account that the Court accepts, that Trevor appeared to them both to understand he would inherit the Woollahra property. Trevor said to her and to Bosco on this occasion:

“I have thought about possibly returning to my house in Woollahra. If Gloria should die before me the house will be left to me and Ray.”

110. Jacqueline says that Trevor paused and then continued as follows:

“If anything should happen to me my share in the will should pass on to Rick [Richard Aaron Robertson, the second plaintiff] as I have always treated him as my brother, just as I do Ray.”

111. This conversation is likely to have taken place for several reasons. First, the Court assesses Jacqueline as the generally creditable witness. Secondly, Trevor’s testamentary document, discussed below, dated 17 March 2002 also shows he was conscious that the Woollahra property would be left to him.

The 17 March 2002 Handwritten Document and Trevor’s Death in 2006

112. After leaving the Woollahra property in 1983, Trevor preferred to lead his own life away from the Robertson family. He formed a close personal friendship with Ms Lexie Webber. For the next 23 years he lived life simply on the north coast of New South Wales near Byron Bay. But he did not look after his health. He was often unwell, and he died in 2006.

113. Gloria felt a continuing obligation to look out for Trevor. How much she stayed in touch with him in the years he lived on the North Coast is unclear. When Trevor died, his good friend Mr Barnes telephoned her about arranging his funeral. Without hesitation she paid for the organisation of his funeral service at Byron Bay.

114. After his death (in circumstances which will be described in more detail below) a testamentary document apparently authored by Trevor was discovered among what was said to be his papers. It is convenient to consider the contents of the document now in correct chronological sequence. The circumstances of its discovery are considered in chronological sequence later in these reasons.

115. The 17 March 2002 handwritten document appears to have been written by Trevor and witnessed by a Mr Donald King. The letter was dated 17 March 2002 and read as follows:

“My name is Trevor A. Robertson D.O.B 31/8/1955

I have been very sick and I am writing this letter to my family.

Ray Robertson my brother and my nephew Richie Robbo Robertson who I love as a brother.

Tammy my niece and Paul Robertson and my sister Gloria and Aunt Jacquie Robertson.

My sister Gloria is leaving her house at [address of the Woollahra property] where we lived as a family to myself and my brother Ray Robertson in her will as she was never able to pay back the eleven hundred pounds leant to her for the deposit on the house from my father Richard Robertson.

If I should die before my brother Ray or sister Gloria my share of my inheritance is to go to my brother Ray, Richie, Tammy and Paul and Aunt Jacquie Robertson.

I have not been able to afford a solicitor so I have written this letter in my own hand.

Signed – [signature, T A Robertson] 17-3-2002

Witnessed by – [signature, Donald King] 17/3/2002”

116. The authenticity of this document should be assessed by reference to at least three sources, its contents, its provenance, and from handwriting evidence.

117. As to its contents, much in the 17 March 2002 document is consistent with what is known of Trevor’s life as at March 2002. Those contents suggest that it is likely to be genuine. It is improbably detailed to be a forgery. If a forgery, it contains much unnecessary incidental detail that is accurate and unlikely to be part of a forger’s modus operandi. It includes Trevor’s correct date of birth. It refers to Trevor being sick. All the evidence suggests that he was not in good health, and he died about four years later. The document accurately names other close family members. The document correctly refers to the address of the Woollahra property and to the £1100 loaned to Gloria. The document appears to connect a failure to repay the £1100 with the promise to give by will, even though the connection does not appear in all versions of the earlier conversations on that subject. The document deals with the disposition of the only asset to which Trevor is likely to have believed that he might be entitled, the Woollahra property. What is known of Trevor’s personal circumstances suggest he is unlikely then to have been able to afford a solicitor, as the document declares.

118. The accuracy of the 17 March 2002 document’s multiple points of reference strongly favours an inference that it is genuine rather than fabricated. Its provenance, referred to below, also supports the same inference.

119. Research was undertaken to identify the witness to the 17 March 2002 document. The solicitor for the plaintiff, Mr William Beilby undertook searches through the electoral rolls and the National Library of Australia, to attempt to ascertain the whereabouts of Mr Donald King. Through the National Library, Mr Beilby found several Donald Kings and selected the most likely one as a person who lived in the Ballina area. He ultimately discovered that this Mr Donald Noel King was buried in the east Ballina cemetery following his death on 1 April 2011. He was alive and living in the local area on 17 March 2002 and was probably known to Trevor. It is likely that this Mr King was the witness to a document created by Trevor. These reasons will return later to analyse the provenance and chain of custody of these documents.

Gloria’s Death, Her Will, and the Beneficiaries of Her Estate – 2017 to early 2018

120. In about 2006, Gloria took in a lodger, Mr Trygve Mathinson. Soon afterwards Trygve became her close personal companion until his death in May 2017, a little over six months before hers. Gloria benefitted under Trygve’s will and inherited a house in Woy Woy from him.

121. Gloria made her last will in July 2017, appointing her neighbour, Lucy Byrne as her executrix. Gloria died in January 2018. Her will (clause 3) left the house in Woy Woy she had inherited from Trygve to two family groups of beneficiaries, all in equal share as tenants in common. These beneficiaries are Darren, Kelly and Matthew Gifford (“the Giffords”), and Shane, Try, and Kristie Malcolm (“the Malcolms”). They are not parties to these proceedings. The plaintiffs make no claim against them or to the Woy Woy property.

122. Gloria did not dispose of the Woollahra property specifically in her will. It fell into residue. In her will Gloria left (clause 5) a one-third share of her residuary estate to each of her godson, Reece Stewart Purser, to the Salvation Army, and to the RSPCA, the second, third and fourth defendants respectively. They were added as defendants to the proceedings by the Amended Summons filed 18 April 2019.

123. On or about 20 September 2018, the residuary beneficiaries each received a distribution of $619,234.34 respectively from Gloria’s estate, representing their one-third share of residue, an amount largely accounted for by the sale proceeds of the Woollahra property. The second, third and fourth defendants’ dealings with these distributions to them are analysed in more detail below.

124. It is difficult to know exactly why Gloria did not give the Woollahra property to Raymond and Trevor under her will. The Court is persuaded that she made the promise to do so. The Court does not have to make findings about her motivation or her memory. Although the history shows that tension had developed between Gloria and Raymond which may account for the change of heart. The fact is her will did not correspond with the promise she made to Richard senior about its contents.

The Administration of Gloria’s Estate

125. The defendant, Ms Byrne, was Gloria’s next-door neighbour in Spicer Street. Her agreement to become executrix of Gloria’s estate was generous. She could not have anticipated any of the trouble and legal complexity that was later to befall the administration of Gloria’s estate.

126. Gloria made a wise choice of executrix. Ms Byrne was a most impressive witness who fulfilled her duty as executrix with diligence and loyalty to her memory of the deceased. She took advice. But as these reasons find, due to an omission in the administration of this estate (giving proper notice of intended distribution) has left it open to this claim. Ms Byrne was not aware of that omission at the time.

127. Gloria died on 7 January 2018. As earlier indicated, her principal estate assets included the Woollahra property and a property in Woy Woy. Probate of Gloria’s estate was granted to Ms Byrne on 14 May 2018.

128. The inventory of property of the estate declared total assets of $2,829,234.71 comprised of the Woollahra property, with an estimated value of $2,200,000 and the Woy Woy property with an estimated value of $540,000. The balance of the estate’s funds were held in liquid form in bank accounts in Gloria’s name.

129. Ms Byrne retained Mr Nicholas Eddy of Nicholas Eddy & Co to act in the administration of Gloria’s estate. Nicholas Eddy & Co had been responsible for the drafting of Gloria’s will of 12 July 2017.

130. Ms Byrne gave general instructions to Mr Eddy to handle the correspondence from the Robertsons. She trusted him, followed his advice, and did not need to look at the detail of the estate correspondence. The Court accepts Ms Byrne’s evidence that Gloria never mentioned Raymond or Richard junior to her, and Gloria did not discuss any obligations of the kind now asserted on behalf of the estates of Raymond and Trevor. Moreover, Ms Byrne did not recall any visitors from Gloria’s side of the family visiting her during the six years Ms Byrne lived next door to Gloria.

131. On 15 May 2018, contracts were exchanged for the sale of the Woollahra property at a price of $1,865,000. The property at Woy Woy was sold at about the same time and its net proceeds of sale were divided six ways into sums of $85,958.72 and paid to each of the six beneficiaries entitled to proceeds of sale of that property. All other outstanding liabilities of the estate were paid between 18 May and 17 September 2018.

Jacqueline Visits Ms Byrne’s Home and Mr Eddy’s Office – February 2018

132. In the first half of February 2018 Jacqueline telephoned Ms Byrne and left a note under her door to press Raymond’s claim on Gloria’s estate and to seek a copy of Gloria’s will. This was very intrusive on Ms Byrne’s privacy and her disquiet about it was understandable. Ms Byrne had engaged lawyers to assist her to administer the estate who were the appropriate point of contact. Ms Byrne did not feel comfortable speaking to someone she did not know about Gloria’s affairs. Eventually, Jacqueline found Nicholas Eddy & Company.

133. Jacqueline attended at Mr Eddy’s offices on 21 February 2018 to try and obtain a copy of Gloria’s will. There she encountered Ms Russo in what became a tense confrontation. Jacqueline broke down in tears.

134. Jacqueline gave a very vivid account of her visit to Mr Eddy’s office in February 2018. She said that Ms Russo came running down the stairs screaming and pointing at her: “What are you doing here? We’re getting out an AVO on you”. She says that she asked Ms Russo: “Oh, what have I done wrong.” And Ms Russo threatened to get an apprehended violence order taken out and said that Mr Eddy was upstairs preparing one and that Ms Byrne was thinking of taking one out. This was said to be so improbable that it damaged Jacqueline’s credit. But a file note that Ms Russo wrote supports parts of Jacqueline’s version and Ms Russo undoubtedly reacted very strongly to Jacqueline’s visit to the office in a manner which was quite confronting for Jacqueline.

135. Ms Russo wrote a file note summarising her interaction with Jacqueline from her point of view. Ms Russo’s file note was an accurate contemporaneous account of her meeting with Jacqueline except in one respect. The file note does not record that Raymond came into the office with Jacqueline, which is what happened.

136. The file note recorded that Jacqueline was asking for a copy of Gloria’s will. It clearly assumes that Jacqueline wanted a copy of the will to pursue a claim against the estate on behalf of her ex-husband, Raymond. Mr Eddy says that he was given a copy of this file note only in December 2018 after he came back to work after his illness. That evidence can be accepted, but Ms Russo had verbally briefed Mr Eddy with the substance of the file note very soon after 21 February 2018. The file note is therefore an accurate record of the substance of that briefing.

137. Mr Eddy was therefore fully aware of what had happened on this occasion, and that Jacqueline was seeking a copy of Gloria’s will and that Jacqueline had been sent away to obtain a lawyer to communicate with Mr Eddy. Like Ms Russo, he was unaware from the interaction of the precise connection between Jacqueline and her ex-husband and Gloria. But what must have been clear to Mr Eddy by the end of February 2018 was the connection between this request for Gloria’s will and the making of a claim against her estate by at least Raymond.

138. The principal parts of Ms Russo’s file note recording what happened were as follows:

“Today I received a telephone call from Lucy Byrne saying that she has been left a note under the door by a Jacki Robertson the ex wife of Raymond Robertson and has called Lucy in relation to obtaining a copy of the late Gloria McDonough’s Will. Lucy phone our office feeling anxious and uncomfortable that these people have come to her home and keep contacting her and invading her privacy.

Within 10 minutes of getting off the phone with Lucy Jackie Robertson walked into our office to ask for a copy of the late Gloria’s Will. I advised that I was not in a position to give her this as it is a matter for the The Executor to carry out the late Gloria’s wishes. I further stated that they needed to obtain a lawyer to correspond with us and to also advise them if any claim could be made on the Estate. I advised Jackie that we are on the verge of taking out an AVO against her and her ex-husband if they do not stop contacting our client Lucy. I explained their best option was to obtain legal advice from a lawyer in relation to their situation in claiming on the estate.”

139. The file note continues with Ms Russo making some adverse personal judgments about Jacqueline. Nothing is served by those comments being published in these reasons. But parts of the file note vividly bring Ms Russo’s encounter with Jacqueline to life and hinted Ms Russo’s somewhat imperious style in dealing with Jacqueline. When Jacqueline burst into tears during their interaction, describing how she was trying to help her ex-husband who was “very ill and old” (which the Court finds to be an accurate description of Raymond’s then age and medical condition), Ms Russo records that she said to Jacqueline “put your tears away as I have no sympathy for lies and I am here stating our client’s rights and hers”. Ms Russo recorded that Jacqueline “told me I was speaking to her like a schoolgirl” to which Ms Russo records her response as “I said that is because I have repeated myself four times and you are obviously not listening or understanding what I am saying”.

140. Ms Russo summarises her advice to Jacqueline in the file note as, “I politely asked her to leave and to obtain a lawyer to communicate to Nick Eddy”.

141. Ms Russo briefed Mr Eddy about Jacqueline’s visit to the office. Mr Eddy could recall, when giving oral evidence that Ms Russo had told him that she had asked them to leave and not to annoy the executrix, “otherwise she was going to get an apprehended violence order out”.

142. Mr Eddy admitted in cross-examination that from 21 February 2018 he was aware “there might be a claim made on the estate” when he qualified that by saying “I did not know what it was” or “who…was making claim”. But he qualified this by saying that he knew that the people who had come into the office “wanted the will” but they did not say “they were making a claim” and he decided he would not give the will to them because he did not know who they were. He was prepared to concede that it was “possible” that those who wanted the will would be making a claim.

143. This presented, from 21 February 2018 something of a stalemate. Mr Eddy’s visitors wanted Gloria’s will to help formulate a claim. Mr Eddy would not give them a will because he did not know who they were. But by the time of Mr Phipps’s correspondence on behalf of Raymond, Mr Eddy was aware that Raymond was making a claim against the estate.

144. This incident does not diminish Jacqueline’s credit, but it does show Jacqueline’s interest in obtaining a copy of Gloria’s last will, because of her expectation that Raymond and Trevor would benefit in it.

A Disputed Telephone Call – February/March 2018

145. Raymond said he spoke to to Mr Eddy in February or March 2018 by telephone about the estate. But his evidence on this subject was very uncertain. At one stage he said of the alleged telephone call, “I don’t know it was Mr Eddy or not, because he was talking to him on the phone.” He did not seem to be able to recall Mr Eddy identifying himself on the telephone. This aspect of Raymond’s evidence was confused.

146. The Court accepts Mr Eddy’s denial that the conversation occurred. A conversation at that time, so soon after Gloria’s death, is improbable in any event. Raymond seemed less likely to initiate such a call than Jacqueline. Raymond did not commence correspondence with Mr Eddy until late June when Mr Phipps was on the scene and taking instructions.

Mr Mark Phipps Corresponds on Raymond’s Behalf - 2018

147. Raymond’s account of his conversations with Gloria and the conversations he says he witnessed between Gloria and Richard senior were strongly challenged based on some 2018 correspondence initiated on his behalf to the solicitors for the estate. It was sent from an email address using Raymond’s name. Whether Raymond authorised the precise form of this correspondence is a matter of contention in the proceedings. Another issue arising was whether the correspondence notifies Raymond’s claim to the estate. Before looking at the detail of the correspondence it is useful to analyse how it was composed.

148. The defendants’ case is that Raymond did not assert in this 2018 correspondence that Gloria and Richard senior agreed as a condition of the loan that the property must go to Raymond and Trevor in Gloria's will. The defendants’ case is correct at least to the extent that it says that any such allegation is missing from this correspondence.

149. Raymond denied he was the author of this correspondence, although he conceded that he had requested it be sent on his behalf. Given his age, his lack of facility with modern technology, and the language of the emails, the Court readily accepts that Raymond was not their author. He could not operate a computer on his own either at the time of the hearing or earlier in 2018. Moreover, the emails make legal claims and speak in legal language that was wholly beyond Raymond’s abilities. Raymond has no legal training and was not capable of writing the letters in the form which they appear. The Court accepts Raymond had little knowledge of this correspondence and had only the most general input to it.

258. The defendants’ submissions challenge these elements. They submit there is no evidence of the representations to Raymond or Richard junior. There was a representation to Richard senior. They submit there was no inducement to each plaintiff and no detriment was suffered by either plaintiff. But the Court’s reasons have already provided the answer to those challenges. Representations were made to Richard senior. That is sufficient to raise the estoppel as Richard was the one who suffered the detriment by advancing the £1100 and not recovering from Gloria. The family discord about recovery indicates it was not recovered.

259. Little needs to be said in addition about the common intention constructive trust case. Such a constructive trust is established. Both Richard senior and Gloria had a common intention that Raymond and Trevor would receive the property in Gloria’s will and on that basis Richard senior loaned and did not seek to recover the £1100: see for example Saliba v Tarmo [2009] NSWSC 581 at [27] to [54].

Laches and Acquiescence

266. The defendants argue that equitable relief should be denied to the plaintiff on grounds of laches and acquiescence. It is not in contest that the elements of these defences are knowledge of the wrong, delay and unconscionable conduct caused to the opponent by the delay: Crawley v Short [2009] NSWCA 410 at [163].

267. As to laches, the defendants submit that Richard senior took no action to enforce any rights he may have had prior to his death. Raymond took no action until after Richard senior had died. That means that neither party to the original alleged 1965 agreement is now alive to give evidence and the passage of time means that no documents are available that may shed light on whether the agreement was made. The defendants emphasise that the alleged conversation is said to have occurred some 55 years ago and the defendants are now greatly prejudiced by the delay.

268. This submission is not persuasive. Richard senior and after him Raymond and Trevor were all entitled to assume that Gloria would keep her promise. After all it was confirmed and witnessed a family conference and there is no evidence in the intervening years of Gloria actively denying the promise or saying that she would renege on it. And Raymond and Richard junior are to be accepted when they say that they believed that Gloria had honoured her promise. Raymond’s conduct in instructing Mr Phipps to obtain a copy of Gloria’s last will, rather than to threaten to bring proceedings on the basis that Gloria’s will did not give the Woollahra property to him and Trevor is consistent with his belief that Gloria had honoured her promise to Richard senior.

269. As to acquiescence, the defendants argue that neither the plaintiffs nor Richard senior ensured that Gloria had signed a will leaving the Woollahra property to Trevor and Raymond. The defendants also argue that even after Gloria’s death in January 2018 Raymond was aware of the auction of the Woollahra property in May 2018, but he took no steps to seek injunctive relief to prevent the sale, even though he claimed he knew that Gloria was bound to leave it to him and Trevor.

270. The defendants further submit that at no stage did Richard senior take steps to recover the sum of £1,100.00 from Gloria, the recovery of which has been statute barred under Limitation Act1969, s 14 since 1971 (six years after the advance in 1965), if in fact it had been wholly or partly loaned to Gloria. But the only delay here has been since September 2018 when Ms Byrne distributed inconsistently with Gloria’s 1965 promise.

271. But these submissions are not persuasive. Raymond did not have ready access to legal resources to enjoin the sale of the Woollahra property and did not have the capacity to conjure up such a remedial solution without competent legal assistance. Moreover, the sale of the Woollahra property was not so inconsistent with his rights as was the later distribution the proceeds of sale in September 2018, which took place without proper public notice. And the recovery of the £1,100 Gloria is not significant. It is quite understandable that Richard senior would not lightly bring legal proceedings for recovery of this sum from his stepdaughter when he knew that she had made a promise to ultimately benefit the family with the property at the end of her life. The nature of the promise that Gloria made explains why debt recovery was not the main driving force for Richard senior.

Richard Junior’s Succession Act Family Provision Claim

272. Richard junior’s alternative Succession Act, Chapter 3 family provision claim is weak and should be dismissed.

273. Richard junior lived with his parents at the Woollahra property for a short period between March 1962, when he was born, and about 1966, when they moved to Maroubra and then to Canley Vale. As an adult he visited Gloria about once every two years although at times more frequently than that. He did not visit Gloria in the last few years of her life. Richard junior lived in Sydney from 1986 to 1992 and 2005 to 2008. He says that he provided financial assistance to Gloria when she was on her own at times.

274. Richard junior’s claim is an “eligible person” is under Succession Act, s 57(e)(i) and (ii) that he was wholly or partly dependent on Gloria and lived as a member of the household which she was a member. There is no doubt that he was a member of the household of which she was a member but there is an active contest about his dependency upon her.

275. To succeed Richard junior must establish factors warranting the making of an award under Succession Act, s 59, which are facts which would give Richard junior the status of one who would be generally regarded as natural object of Gloria’s testamentary recognition: Churton v Christian (1988) 13 NSWLR 24 and Re Fulop (1987) 8 NSWLR 679 at 681. The defendants submit that Richard junior did not appear in Gloria’s will and there is no basis for her to have recognised him in that way.

276. But Richard junior fails at the threshold of this claim. He cannot establish dependence upon Gloria. He lived in the same household as Gloria in his early years but to the extent he was dependent upon anyone he was dependent upon his parents Raymond and Jacqueline who would have provided to him at that time. In the early to mid-1960s when Richard was living in the household at the Woollahra property Gloria was in early to mid-twenties. There is no evidence, only speculation at this distance in time, that Gloria’s work as a cleaner and later as a seamstress would be likely to have materially contributed in any way to the financial support of Richard junior.

277. Moreover, there are no factors warranting Richard junior’s claim. Richard junior did not feature in any of Gloria’s wills. Although there is no direct evidence of Gloria’s earlier wills, the Court does not accept that she expressed any testamentary intentions in Richard junior’s favour. She had favourites within the Robertson family. She was undoubtedly close to Trevor all her life and paid for his funeral. But this did not extend to Richard junior. And he saw her only intermittently through her life and had very little contact with her towards the end.

278. It is convenient now to deal with the separate position of Ms Byrne and then to consider the progress of the claims against the other defendants. The claim against Ms Byrne for equitable compensation depends upon the plaintiffs making out their claims against Gloria’s estate which they have done.

The Claim against Ms Byrne

279. The relevant legal principles relevant to the claim against Ms Byrne may be briefly stated. The operation of Probate and Administration Act1898, s 92 protects an executor for liability to any person with a claim against the estate for distributing the assets of the estate after having given notice in the approved form of distribution of the assets of the estate. Without that statutory protection the executor may be personally liable to satisfy the claim: Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 (“Brown”) at 53-54.

280. But if the executor had notice of the claim before distribution the executor may seek protection by employing a mechanism provided for in Probate and Administration Act 1898, s 93, by serving notice on the claimant disputing the claim and calling on the claimant to take proceedings to enforce the claim within three months. After the executor gives such notice to the claimant, the Court is empowered on the application executor to make orders barring the claim or make such other order as is just or equitable. The failure to give the relevant notice means that the executrix is personally liable to satisfy the claim.

281. Supreme Court Rules1970, Part 78, r 93(a) (“SCR”) requires that a notice under Probate and Administration Act 1898, s 93 “must be published” on “the New South Wales online Registry website” if the notice relates to the intended distribution of the estate of a deceased person in relation to which a grant of representation has been made by the Court. In any other case publication can be in a Sydney daily newspaper: SCR, r 93(a). A grant representation to Ms Byrne was made by the Court and the relevant notice did relate to the intended distribution of the estate, so SCR, r 93(a) clearly applied in this situation and the relevant notice must be published on the New South Wales Online Registry. In this case publication was made in the Sydney Morning Herald. This did not comply with SCR, r 93(a) which is in mandatory terms.

282. Mr Eddy conceded that SCR, r 93(a) required advertisement on the Online Registry. He explained that his office had a policy of both publishing notices in the Sydney Morning Herald and in the Online Registry. But if that was his office policy there is very little evidence that it was being implemented. In any event Online Registry publication did not take place before distribution occurred.

283. At the time the estate was distributed, Ms Byrne had several sources of notice of the plaintiffs’ claim. The Court accepts that Mr Eddy was in hospital and incapacitated when distribution occurred. But Nicholas Eddy & Company was still the firm acting for Ms Byrne upon distribution responsible for advising her as to the steps required to be taken before distribution.

284. The parties debated in final submissions whether Raymond had made a claim against the estate before distribution. The Court concludes that he had clearly made a claim. Many circumstances point to this conclusion.

285. First, Mr Eddy ultimately conceded that the June correspondence from Raymond was “clearly asserting a claim against the estate” because “that’s what [Raymond] is saying” in his correspondence. And Mr Eddy agrees that that he was a notice of it no later than 2 July 2018. After assenting to this question, in his answer Mr Eddy pointed out that it was the following day, 3 July 2018, that he be suddenly became ill. And that circumstance goes a long way towards explaining what happened here: a day after Mr Eddy was given notice of the claim, he was suddenly incapacitated from attending to his practice.

286. Second, the language of the 29 June 2018 letter describes Raymond and his pregnant wife, daughter and son being members of Gloria’s household, “and I believe they and I may qualify to have a claim at law or in equity against her estate”. The reference here is clearly enough an assertion that they qualified as “eligible persons” under Succession Act, Chapter 3, as persons living in the same household as Gloria, a deceased person and dependent upon her. The fact that he expresses it as a belief and that he “may qualify” does not diminish the proper characterisation of the letter as a claim. It is still expression of belief in the “may qualify” is merely an appropriate concession that obviously would have to be judicially determined if disputed. But reference to the claim being “in Equity” is brought up to encompass any equitable claim, not necessarily under the Succession Act, which was foreshadowed by the facts set out in Raymond’s correspondence.

287. Third, the recent and longer-term context of Raymond’s 29 June 2018 letter strongly suggests he was making a claim, quite apart from the text. The 29 June 2018 letter and the other letters sent at the same time were a follow-up to Jacqueline and Raymond’s visit to the premises of Nicholas Eddy & Company on 21 February 2018 and in furtherance of the objective of that visit. Raymond’s persistence should not have been interpreted as an idle or busybody request for access to a will, but action motivated by a belief of the claim on the estate. And the 29 June 2018 letter should be interpreted as a response to a specific request in Mr Eddy’s 2018 letter, which had complained about the lack of specificity in Raymond’s 22 June 2018 letter and asked, “you have not told me what your capacity is seeking the will”. The 2019 letter should be interpreted as attempting to make good statement of that capacity, which was clearly enough an assertion of belief he qualified as a claimant against the estate.

288. Fourth, Mr Eddy protested on several occasions under cross-examination that despite Ms Russo telling Jacqueline and Raymond to “get a lawyer”, they had not done so and that was one reason why he tended to discount what they had sent to him as a claim. But this is not persuasive. Raymond’s further correspondence appeared on its face to have been drafted with assistance from a person with familiarity with the law, whether formally qualified to practice law or not. As a result, Mr Eddy was not able to say that the potential claimant had not taken the next step to be expected in making a claim. On the contrary, the potential claimant was furthering action against the estate by consulting legal expertise.

289. Fifth, Raymond’s 29 June 2018 letter should be read as propounding a claim on behalf of Richard senior’s estate, with Raymond as Richard senior’s next of kin, for a debt of £1,100 owed by Gloria to Richard senior arising out of the original arrangement alleged between Richard senior and Gloria. Although this claim was not ultimately pursued in this form its investigation would have undoubtedly led to the unfolding of the present claim.

290. Mr Eddy was influenced by another factor to discount the communications from Raymond as being a valid claim. He had acted for Gloria and her previous husband and had drafted both their wills. He knew Gloria and her previous husband quite well. He could not recollect that Raymond or Trevor had ever been mentioned in conversations with Gloria or her husband.

291. And he went so far as to say that he thought the claim that Raymond was advancing was “dishonest”. But he had no proper basis for saying that without investigating the claim further. Mr Eddy was somewhat disdainful of this correspondence amounting to a claim because it was not “substantiated”. But he never corresponded with Raymond requesting substantiation.

292. But he never had an opportunity to request substantiation. He was very ill and admitted to hospital shortly afterwards. Ms Smith then took over. Estate distribution proceeded through Ms Smith and Ms Russo. The handover from Mr Eddy to Ms Smith had been in emergency circumstances and the extent to which she was briefed about the conversations with Jacqueline in February 2018 and the June/July 2018 correspondence in this matter remains uncertain and outside the scope of the evidence. But some communication gap seems to be the most likely explanation for what should have been detected as a claim being ignored before distribution occurred.

293. Ms Byrne had actual notice of the plaintiffs’ claim before she distributed. She did not bring proceedings under Probate and Administration Act, s 93 to bar the claim. She remains personally liable to the plaintiffs subject to another argument raised on her behalf.

The Civil Procedure Act 2005, s 14 Issue

294. Ms Byrne submits the Court should exercise its discretion under Civil Procedure Act, s 14 to dispense with the requirements of SCR, Part 78 Rule 93. The plaintiffs oppose this course. The Court does not find Mr Eddy submissions persuasive and will not dispense with the requirements of SCR, Part 78 Rule 93.

295. Civil Procedure Act, s 14 provides as follows:

“In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.”

296. A relevant consideration in the Court exercising the discretion under s14 is whether any objection is taken by the opposing party, or any prejudice is likely to be suffered due to failure to comply with the rules, the exercise of the discretion being predicated upon fairness to the parties: Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169; [2012] NSWCA 34 at [24].

297. First, the Court accepts the plaintiffs’ submission that it would be futile to make such an order. Mr Eddy had notice of claim prior to the estate being distributed. The Court may be able to dispense under s14 with the requirement of SCR, Part 78, Rule 93 to publish the notice of distribution in the online registry. But that would only allow Ms Byrne to be treated as if she had published a notice of distribution and no more. But a simple dispensation under s14 will not offer protection for the circumstances that have arisen in this case, where Ms Byrne was already on notice of the plaintiffs’ claim and had attracted personal liability because she had distributed in the face of that claim: Probate and Administration Act, s 92(2). The operation of Civil Procedure Act 2005, s 14 would not amend the effective operation of Probate and Administration Act, s 93. The exercise of its discretion would neither itself create a notice to the plaintiffs’ under Probate and Administration Act, s 93(1), nor make an order of the Court under s 93(2)(a) barring the plaintiffs’ claim. Those further steps would be unaddressed and Ms Byrne’s liability for distribution would remain.

298. Second, even if Ms Byrne was not on notice of any claim at the time that she distributed the estate, and more so because she was in this case on notice of the plaintiffs’ claim, the circumstances weigh strongly against exercising the dispensation power. To exercise the s 14 power would be prejudicial to the plaintiffs, potentially depriving them of a remedy against Ms Byrne and would condone a breach of trust, which should not obviously be excused. Moreover, the omission to publish in the Online Registry occurred in the face of a publication requirement that had been in place for several years before 2018 and had been the subject of notifications from the Law Society of New South Wales to all NSW practitioners.

299. Third, it was submitted on Ms Byrne’s behalf that she should not suffer the consequences of the mistake of Nicholas Eddy & Company. The Court is forced to choose between the plaintiffs and Ms Byrne suffering the consequences of the firm’s mistake. There is no compelling reason why Ms Byrne should be safe from the consequences of the errors of the firm when she has potentially arguable remedies either against that firm for breach of retainer or for negligence. Those claims may be potentially defensible. But it would be a misuse of s 14 for the Court to sweep away a contest that might allow liability to rest, where the mistake had occurred.

300. And Mr Eddy argues for the making the dispensation order because of his grave medical situation. Mr Eddy was wholly incapacitated from 3 July 2018 through until the distribution of the estate. The other solicitor, Mr Smith who oversaw the practice during this period who did not give evidence. It is difficult to unravel the decision-making processes within the firm during this period in relation to publication. But the firm remained responsible for advising Ms Byrne. Notwithstanding Mr Eddy’s great personal trials at the time, the judgments to be made about s 14 dispensation must be made on a wider basis than his personal situation. Mr Underwood of counsel put every available argument on the issue but for the reasons stated a s 14 dispensation order should not be made.

Quantifying the Claim against Ms Byrne

301. But the extent of Ms Byrne’s liability is still in issue. The plaintiffs quantify her liability to pay equitable compensation in the amount of $1,865,858.06. The settlement statement from the sale of the Woollahra property shows this was the amount of the proceeds of sale that would have been available to the plaintiffs but for Ms Byrne’s distribution. But if Trevor’s estate cannot enforce the contract made between Gloria and Raymond senior and Raymond’s estate is only entitled to half the proceeds of sale of the Woollahra property, Ms Byrne’s liability will only be for half of this sum.

302. Interest accrues on this amount from 8 July 2018, the date of settlement of the sale of the Woollahra property up to the date of judgment. A debate took place between the parties about whether interest should be on a compound or simple basis. But compound interest is applicable where there has been a deliberate breach of trust. That is not the case here. Ms Byrne is an innocent party who took legal advice in good faith that turned out to be wrong.

303. The Court will not enter judgment against Ms Byrne at this time because the amount of the liability is uncertain because of the issues discussed in the next section of these reasons.

Ms Byrne and Nicholas Eddy & Company

304. There is no evidence that Ms Byrne was driving the distribution of the estate in the face of the plaintiffs’ claims. Rather she struck the Court as a sincere, honest and dedicated person who was attempting to do her best in the administration of this estate by taking legal advice and acting upon that advice. In this case regrettably that advice was wrong. It has resulted in Ms Byrne without any personal fault on her part, becoming liable to the plaintiffs.

305. Nicholas Eddy & Company has been representing Ms Byrne throughout these proceedings. The firm now has a very clear conflict of interest and duty with Ms Byrne. And indeed, the potential for such conflict has existed for some time. The result in these proceedings brings that conflict into direct focus. Serious consideration should be given to whether the firm should continue to act for Ms Byrne. The Court will require the firm to ensure that a copy of these reasons is given to Ms Byrne and the conflict explained to her so that she can make a choice as to whether she wishes to retain other solicitors to complete the balance of these proceedings including arguments in relation to costs. This is the minimum requirement to ensure the proper administration of justice from this point on in these proceedings. The Court will give Ms Byrne an opportunity to obtain independent legal advice about her position.

The Course of the Claims against the Other Defendants

306. The second third and fourth defendants’ dealings with the distributions from Gloria’s estate have been the subject of extensive evidence. In all cases, there was delay between these distributions taking place and the second third and fourth defendants receiving notification of the plaintiffs’ claims in these proceedings. For example, on 20 September 2018, Mr Purser received his $619,234.34 portion of the net residuary estate. Before Mr Purser was made aware of the plaintiffs’ claims, he had spent much of this money on legal fees, a holiday, house renovations, and he had made a superannuation contribution. In addition, he had placed $100,000 in each of the bank accounts of his wife and two young children. The sum of $100,000 remains in his savings account. The Salvation Army and the RSPCA have each given a detailed account of their dealings with the funds in the administration of their affairs.

307. The Court’s findings against Ms Byrne in these reasons and the circumstances in which the Court has determined she has become liable raise a question as to the timing of the conduct of the proceedings against the other defendants. Apart from the operation of the Probate and Administration Act, the ordinary rule is that even if a personal representative has paid or transferred assets of the estate to beneficiaries the mere fact that the personal representative has done so in good faith and without notice of an outstanding claim against the estate does not excuse the personal representatives from the payment or satisfaction of it: Brown, at 53. The personal representative’s own assets, together with any assets remaining in the estate may be insufficient to satisfy the debt.

308. If because of the operation of Probate and Administration Act barring recovery, or insufficiency of assets of the executor, the estate creditor cannot have the debt paid by the personal representative, equity will assist by allowing a direct suit against the beneficiaries who have received the assets. But the rule which applies is that the creditor may pursue the beneficiaries only when he has exhausted his remedy against the personal representative, Brown at 54.

309. The plaintiffs in this situation must establish “that there is no other way” he may obtain sufficient refund by direct suit against the beneficiaries. Citing Ministry of Health v Simpson [1951] AC 251; [1950] 2 All ER 1137 (“Simpson”), at 267 Kitto J said in Brown:

“The rule which [equity] applies is that when, and only when, the creditor has exhausted his remedy against the personal representative, “so that there is no other way”, he may obtain a sufficient refund by direct suit against the beneficiaries who have received their assets.”

310. It was clearly the efficient course for the plaintiffs to join the second to seventh defendants into the one proceeding and to have them bound by the findings made against the first defendant. But before the Court proceeds to deal with the claims against these subsequent defendants, it is necessary for the Court to examine how the plaintiffs have demonstrated compliance with the principles in Brown and Simpson to exhaust their remedies against the executrix, or to consider any argument that those principles do not apply.

311. The plaintiffs submitted that the second, third and fourth and subsequent defendants receive the funds as volunteers. On this basis the plaintiffs submit they can recover the funds either pursuant to the principles of tracing, or pursuant to principles of restitution citing Heperu Pty Limited v Belle [2009] NSWCA 252 at [127] – [163] (“Heperu”). The principles in Heperu are applicable but subject to the statements made in cases such as Diplock and Simpson relating to the principles that apply where the mistaken payment occurs by the executor in the administration of an estate.

Conclusion and Orders

312. For these reasons, it is desirable for the proceedings to be relisted for further hearing on the issues on which the Court has invited further submissions. The Court will direct the parties to contact Chambers for that purpose and will set a date in February the matter to come back for further directions. The directions are as follows:

1. Direct the parties to bring in Short Minutes of Order to give effect to these reasons; and

2. List the proceedings for further directions on 23 February 2023 at 9:30 AM or at such other time as arranged with the chambers of Slattery J.

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Decision last updated: 14 December 2022