Roger Bailey as administrator of the estate of the late Wildon George Bailey v Elaine Tredrea; Elaine Tredrea v Roger Frederick Bailey

[2005] NSWSC 108

CITATION:	Roger Bailey as administrator of the estate of the late Wildon George Bailey v Elaine Tredrea; Elaine Tredrea v Roger Frederick Bailey [2005] NSWSC 108
HEARING DATE(S):	19.04.04; 20.04.04; 21.04.04; 22.04.04; 23.04.04; 18.10.04; 19.10.04; 20.10.04; 21.10.04
JUDGMENT DATE :	25 February 2005
JUDGMENT OF:	Nicholas J
DECISION:	Paras 153, 154

CATCHWORDS:	EQUITY - claims by administrator of estate for recovery from Defendant of payments by deceased - whether deceased and Defendant in de facto relationship of husband and wife - whether relationship of carer and patient - whether deceased under special disadvantage - whether undue influence or unconscionable conduct - whether monies taken post-death without authority part of estate - whether estate entitled to recovery - Deed of Settlement of prior litigation - whether Defendant entitled to payment under the deed
CASES CITED:	Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18, (2003) 214 CLR 51 Bar-Mordecai v Hillston (2004) NSWCA 65 Bridgewater v Leahy (1998) 194 CLR 457 Commercial Bank of Australia Ltd v Amadio (1982) 151 CLR 447 Cubillo v Commonwealth of Australia (2000) 174 ALR 97 Jenyns v Public Curator (Q.) (1953) 90 CLR 113 Noonan v Martin (1987) 10 NSWLR 402 Roy v Sturgeon (1986) 11 NSWLR 454 Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677
PARTIES:	3359/00 Roger Bailey as administrator of the estate of the late Wildon George Bailey - Plaintiff Elaine Tredrea - Defendant 3851/02 Elaine Tredrea - Plaintiff Roger Frederick Bailey - Defendant
FILE NUMBER(S):	SC 3359/00; 3851/02
COUNSEL:	M Evans - Roger Bailey as administrator of the estate of the late Wildon George Bailey; Roger Frederick Bailey G P McNally - Elaine Tredrea
SOLICITORS:	Gilshenan & Luton - Roger Bailey as administrator of the estate of the late Wildon George Bailey; Roger Frederick Bailey Matthews Dooley & Gibson - Elaine Tredrea

LOWER COURT JURISDICTION:

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

25 February 2005

3359/00 Roger Bailey as administrator of the estate of the late Wildon George Bailey v Elaine Tredrea
3851/02 Elaine Tredrea v Roger Frederick Bailey

JUDGMENT

Introduction

1 His Honour: These proceedings are the latest in the litigation concerning the administration of the estate of the late Wildon George Bailey (the deceased) who died on 7 June 1996 aged 76. Roger Frederick Bailey (the Plaintiff) was appointed administrator of the estate pursuant to a grant on 28 September 1999 of letters of administration with the will annexed of the will of the deceased of 4 October 1978.

2 By originating summons filed 20 February 1997 in the Supreme Court of Queensland (OS No. 1533/97) (the Queensland proceedings) Elaine Tredrea (the Defendant) claimed that she had been the de facto wife of the deceased at the time of his death, and sought provision for her maintenance and support.

3 By her statement of claim filed 2 December 1997 in the Probate Division of this Court (No. 118902/97) (the intestacy proceedings) the Defendant sought letters of administration, and claimed that she had been the de facto wife of the deceased at the time of his death, and entitlement to the whole of his estate.

4 By his statement of claim filed 20 November 1998 in the Probate Division of this Court (No. 117832/98) (the lost will proceedings) the Plaintiff sought the grant of letters of administration with the will annexed of the will of the deceased of 4 October 1978.

5 The hearing together of the intestacy proceedings and the lost will proceedings took place before His Honour Mr Justice Windeyer between 7 and 17 September 1999 but did not proceed to judgment.

6 On 22 September 1999 orders were made by consent which disposed of the intestacy proceedings and the lost will proceedings. On the same day the Plaintiff and the Defendant entered into a deed of settlement pursuant to which they agreed to settle the Queensland proceedings, the intestacy proceedings, and the lost will proceedings. Under the deed the parties agreed, inter alia, that the Plaintiff be granted the letters of administration which he had sought, and that the Defendant be paid the sum of $300,000.00 from the estate in full and final satisfaction, and for the release, of all claims she may have against it. The said sum has not been paid to her.

7 By his second further amended points of claim (No. 3359/00) filed 13 October 2004 the Plaintiff sought an order that the Defendant render an account of assets, money and other property of the deceased, and declarations that a number of payments made from bank accounts of the deceased were obtained by the Defendant by undue influence or unconscionable conduct or without authority, and claimed judgment for the amounts of such payments.

8 By her amended statement of claim (No. 3851/02) filed 8 May 2003 the Defendant alleged that in breach of the deed of settlement the Plaintiff had failed to pay her the sum of $300,000.00 to which she was entitled.

9 The present proceedings were heard together. Mr M Evans, of counsel, appeared for the Plaintiff and Mr G P McNally, of counsel, appeared for the Defendant.

The claims

10 Essentially, the Plaintiff’s claims of undue influence and unconscionable conduct arise from the relationship between the deceased and the Defendant from about early 1992 until his death on 7 June 1996 which is alleged to have been one in which he, by reason of mental and physical infirmity including suffering from Pick’s disease, was dependent upon her as his carer and nurse, and during which she handled his financial affairs and had access to his bank accounts and financial records. It is alleged in the circumstances that all of the payments and transactions resulted from the exercise by her of undue influence and/or by taking unconscionable advantage of her special position over him. The total amount claimed on these grounds is $94,280.00.

11 The Plaintiff also claims recovery of sums withdrawn from the deceased’s bank accounts after his death and without authority. The transactions took place between 10 June 1996 and 8 January 1997 and amount to the total sum of $23,839.15.

12 The Defendant denies the allegations of undue influence and unconscionable conduct. She contends that she was the de facto wife of the deceased and had a long, loving and close relationship with him, and that the payments and transactions were the ordinary products of that relationship. She also defends the claims on the ground that, as a consequence of settling the earlier proceedings and of the deed of settlement of 22 September 1999, the Plaintiff is estopped on the basis of res judicata or the principle in Port of Melbourne Authority v AnshunPty Limited (No. 2) (1981) 147 CLR 589.

13 In defence of the claim for payment under the deed of settlement the Plaintiff, inter alia, relies upon cl 3 in denying that the monies are due and payable, as the liabilities of the estate have not yet been finalised. Further, he denies her entitlement by reason of her alleged breach of an implied term of the deed to the effect that she would do all things and provide all information within her knowledge, power, and control to assist the Plaintiff in the administration of the estate. Alternatively, he claims as a set-off against the sum claimed the monies or items of monies worth applied and used by the Defendant for her own benefit and not expended for the benefit of the estate.

The deceased

14 The evidence of the following matters concerning the deceased was not challenged. Most of it is found in the affidavits of the Plaintiff of 13 August 2002 and of the Defendant of 9 December 1998.

15 The deceased was born on 5 September 1919. In about 1951 he married Betty Eileen Bailey. From about then until the late 1960s they lived in New Zealand where he worked as a sales representative for a hotel chain owned by a former fellow serviceman in the Royal Australian Air Force whom he had met during World War II.

16 Upon returning to Australia the deceased and his wife lived in an apartment at No. 33/3 Gallimore Avenue, Balmain (Gallimore Avenue). For some years thereafter he worked as a RSL officer attending to legal and business requirements of returned servicemen in hospital.

17 In about 1970 the deceased was working at the Concord Repatriation Hospital, Concord when he met the Defendant who had begun employment there as a nurse.

18 The deceased’s wife died on 21 July 1978. They had no children.

19 During the 1970s and 1980s the deceased purchased a number of investment properties for rent, development, and/or sale including properties at No. 60 and No. 62 Darling Street and No. 7A Johnson Street, Balmain and No. 21 Williams Road, North Rocks.

20 In about 1981 he purchased the property at No. 429 The Esplanade, Manly, Queensland which he rented until it was sold in 1993. In September 1989 he purchased the property at No. 389 The Esplanade, Manly and later built a house on it. It was his practice to stay there from time to time until about mid 1995 although he resided at No. 4 Eva Street, Hamilton (Eva Street) with the Defendant.

21 During his lifetime the deceased owned assets and operated bank accounts under various aliases e.g. he owned as an investment a house at Harbord in the name of Noel Boulton, and maintained a cheque account at the Gordon branch of the State Bank of New South Wales in the name of Noel Bolton. According to the Plaintiff (affidavit 13 August 2002 para 19) searches revealed that in property transactions the deceased also used the names Don Bailey, Wildon Bailey, and Noel Baillie, and held a bank account in the name of Maxwell Anderson.

22 On 27 December 1983 he suffered a brain stem stroke after which he ceased activities as a purchaser and developer of investment properties and utilised his funds for short-term loans.

23 On 5 March 1991 the North Rocks property was sold for $185,000.00, the proceeds of which were deposited into an account in his name with the Wynnum, Queensland, branch of the Commonwealth Trading Bank. On 11 September 1991 the sum of $161,000.00 was drawn from this account and paid to a firm of solicitors by way of mortgage advance.

24 On 28 September 1992 the property at No. 7A Johnson Street, Balmain was sold.

25 Pausing at this point it appears to be uncontroversial, and there is ample evidence for the finding, which I make, that as at 1992 the deceased had been an investor for many years, was an astute businessman and well able to manage his financial affairs. By this time he was 71 years of age. The evidence did not suggest that in making commercial decisions he turned to others for advice or assistance or that the Defendant was involved in any of them. Certainly it appears to be the case that until 1992 there was no enfeeblement of mind or outside influence which interfered with the free exercise of his will and judgment. The evidence did not show that the stroke suffered in 1983 adversely affected him in any way relevant to the issues in these proceedings.

26 Further history is also relevant to the issues in these proceedings.

27 In mid 1993 the deceased sold the property at No. 429 The Esplanade, Manly for $150,000.00, the proceeds of which were deposited in a term deposit account in New Zealand.

28 On 14 December 1994 the property at Gallimore Avenue was sold for $275,000.00, the proceeds of which were deposited in a term deposit account opened by the deceased in about March 1995 at the Hamilton branch of Westpac.

29 On 25 October 1995 the deceased underwent a PET scan the findings of which were compatible with a frontal lobe dementia consistent with Pick’s syndrome. He was diagnosed by Dr Kevin Grant and Dr Jeff Blackie on 12 and 15 December 1995 respectively to be suffering from a dementia which was probably Pick’s disease. Their reports are referred to later in these reasons.

30 In November 1995 the deceased purchased a Holden “Statesman” car for the price $42,000.00, paid for by way of cash and with the trade in of his car and the Defendant’s car.

31 On 7 June 1996 the deceased died at Eva Street.

32 According to the Plaintiff (affidavit 13 August 2002 para 37) the assets of the estate of the deceased recovered as at 31 October 1999 were valued at about $1,900,000.00.

The Defendant as a witness

33 In final submissions Mr Evans invited the court to find that the Defendant was an unreliable witness whose evidence should not be accepted. During cross-examination an attack on her credit was made based principally upon what was perceived to be her failure to fully disclose the existence and whereabouts of documents relating to the estate which would assist the Plaintiff in locating assets belonging to the estate. The attack was also based upon her conduct in taking monies from the bank account of the deceased after his death without disclosing to the bank that he had died, and in withholding information about this and other transactions from the Plaintiff.

34 The impression made upon me was that there is some ground for the view that aspects of her evidence with regard to responses to the many and various demands for information and documents made over many years by the Plaintiff was unreliable and open to doubt. Nevertheless, it is well settled that a trial judge is entitled to believe part of the evidence given by a witness and to reject or find unreliable another part or parts. (A recent discussion of the cases is in Cubillo v Commonwealth of Australia (2000) 174 ALR 97 paras 118-123). The Defendant impressed me as a witness of truth in giving evidence as to her relationship with the deceased, and as to the circumstances in which the challenged payments were made, and I accept her evidence on these matters. Her evidence as to the relationship was, in large measure, accepted by the Plaintiff, and was consistent with that of other witnesses. Her evidence as to the circumstances in which the payments were made was generally uncontradicted, and accorded with the probabilities having regard to her relationship with the deceased.

The relationship

35 An important issue in this case was the nature of the relationship between the Defendant and the deceased. The Plaintiff does not accept the Defendant’s claim that the relationship was one of de facto husband and wife from about 1981 until his death.

36 The evidence of the Defendant about her relationship with the deceased from the time they met in 1970 until his death in 1996 is to be found principally in her affidavits of 14 April 1997, 5 May 1998, 9 December 1998 and 7 September 1999. No effective challenge was made to her evidence on this issue, and it was not contradicted. I accept it. The following is a summary which demonstrates the progress of a relationship for over 25 years into one of a de facto marriage as that concept is understood.

37 The deceased and the Defendant met in 1970 at the Concord Repatriation Hospital where both were working, she as a nurse and he as an advisor to former servicemen. He was married and 50 years old and she was unmarried and 28. They would meet on social occasions. During 1971 and for the next few years their relationship developed so that they were meeting frequently, and sexual intercourse would take place at his studio apartment in Darling Street, Balmain. Although the deceased continued to reside with his wife he would tell the Defendant that his marriage was over.

38 In 1975 the Defendant left the Hospital to work at the Health Commission in Newcastle. Until 1977 their practice was that every alternate weekend she stayed with the deceased at his apartment, and on the other weekends he stayed with her in Newcastle. In 1977 the Defendant attended the New South Wales College of Nursing at a course in nursing administration. She says that during this year she saw the deceased almost daily, and spent most weekends with him at his apartment. After returning to Newcastle in 1978 she and the deceased continued meeting as before. After the deceased’s wife died on 21 July 1978 she would spend weekends with the deceased at the unit at Gallimore Avenue.

39 In 1976 the Defendant purchased the property at Eva Street following a search together for a house suitable for their retirement. By her will made 13 August 1977 she left this property to the deceased, with the remainder of her property to her sister.

40 In 1978 they went to Cairns on a holiday together during which they visited the Defendant’s mother and family, as well as close family members of the deceased. A similar trip took place in 1981.

41 Until 1981 the relationship continued in similar vein: their leisure time and weekends were spent together; they were on close and affectionate terms and engaged regularly in sexual intercourse; neither were relevantly involved with any other person.

42 In 1980, upon her appointment as director of nursing at Balmain Hospital the Defendant returned to live at Balmain. In 1981 she moved into her property at No. 14/2 Pearson Street, Balmain. Thereafter, until 1989, their arrangement was that they lived together effectively as man and wife for part of each week at her property and for part at Gallimore Avenue. He gave her a ring which she still wears. They shared domestic duties, and the buying of groceries and household supplies, and spent their holidays together. She cared for him in January 1984 during his convalescence from the stroke.

43 For several months during 1989 and 1990 there was a separation. Reconciliation followed, whereupon the relationship resumed as before, and continued thereafter.

44 During 1990 the Defendant suffered back pain which obliged her to retire from employment. The deceased, although recovered from the stroke, was increasingly restricted in his mobility. They jointly decided to live together at Eva Street. The Defendant moved there in about July 1991 and was followed by the deceased in about August. Until the Defendant sold it in December 1994 they would also live at the unit at Gallimore Avenue, and sometimes he would stay there alone.

45 In 1992 they decided to build a house at the rear of the property at Eva Street for their better accommodation in the future with regard to anticipated deterioration in health and mobility of each as they grew older. It was their common desire to live there instead of in a nursing home.

46 The necessary work at Eva Street was carried out during 1993. The total cost was about $60,000.00 of which the deceased paid $28,000.00 and the Defendant paid the balance.

47 Although the circumstances are unclear, in 1985, 1988 and 1993 the deceased nominated the Defendant as his next of kin to the Department of Veterans Affairs.

48 From about 1992 until about mid 1995 the deceased and the Defendant went to the property at Manly several times a year staying in the house he had built there earlier. On many occasions the deceased would travel and stay there alone.

49 From some time in about 1993 or 1994 until his death the Defendant attended to the deceased’s personal hygiene and wellbeing by assisting him with showers, shaving, hair cuts and by giving him leg and foot massages to aid his circulation and mobility. They continued to share domestic duties to the extent of their physical ability, as well as general personal and living expenses. Sometimes they gave each other money to meet day-to-day expenses as the need arose.

50 The deceased was still driving his car in 1995, and together with the Defendant would drive to and from Manly, and on one occasion he drove himself from Eva Street to Manly.

51 Towards the middle of 1995 the Defendant noticed changes in the deceased’s behaviour on two or three occasions when he appeared to be confused as to his whereabouts. On 3 July 1995 she took him to see Dr John Segelov, neurosurgeon. She gave a history of occasions when the deceased had become confused, and of a deterioration in his ability to handle figures including forgetting his tax return. The doctor arranged for him to undergo a PET scan the findings of which were compatible with a frontal lobe dementia consistent with Pick’s syndrome.

52 As earlier mentioned, on 12 December 1995 the deceased was diagnosed by Dr Kevin Grant to be suffering from Pick’s disease, and on 15 December 1995 he was examined by Dr Jeff Blackie, neurologist, who came to a similar view.

53 Thereafter until his death on 7 June 1996 they lived together at Eva Street.

54 Evidence of the relationship, and of the deceased’s general condition was also given by various witnesses who had been friends and acquaintances of the Defendant and the deceased. There was no reason to doubt their evidence and I accept it.

55 Ms Leonore Rae Hughes is a retired director of Community Health Service and Nursing in the Hunter Area Health Service. She met the Defendant in 1975 whilst working at Royal Newcastle Hospital, and was soon introduced to the deceased. Thereafter there developed a friendship with him which continued until his death, and with the Defendant which continues. Until the time they moved to Eva Street she visited the properties of each in Balmain about five or six times a year and in each place saw their clothing and personal effects. When they came to live at Eva Street, Ms Hughes visited them on almost a weekly basis and there noticed their clothing and personal possessions. On most occasions when the Defendant visited Ms Hughes the deceased accompanied her. On an occasion in about 1985 when he was admitted to Balmain Hospital the deceased told her that he had nominated the Defendant as his next of kin. On the day of his funeral Elve Bailey introduced herself to her as the deceased’s sister-in-law. She was aware that the deceased had been diagnosed to be suffering from Pick’s disease. She continued to see and talk to him until about Good Friday, 1996. Her observation was that he was always coherent, with an acute and intelligent mind, and she did not detect any deterioration in his mental capacity. She observed him to be a person of strong opinions, who appeared to dominate, and to be overbearing towards, the Defendant.

She was not cross-examined as to her observations of his mental capacity or understanding.

56 Mr Michael John Bell, stevedore, described visiting the deceased at Manly early in the morning several times a week. He often observed the Defendant in bed with him. The deceased told him that they were just like husband and wife with only the wedding ring missing. There were occasions when he noticed the deceased at Manly on his own. He visited less frequently after moving away in about 1993, that when he did so his observations were the same.

He was not cross-examined as to his observations of the deceased’s mental capacity or understanding.

57 Mrs Edna Joy O’Hara has been a friend of the Defendant continuously since about 1969. She met the deceased with the Defendant upon starting work at Concord Repatriation Hospital in 1970. She sometimes accompanied them on social occasions from 1971. She married in 1974. Thereafter until the late 1980s she and her husband, and the deceased and the Defendant, visited each other on numerous occasions. She observed the personal effects and clothing of both the deceased and the Defendant in each of the properties at Balmain. After they moved to Eva Street until the death of the deceased Mrs O’Hara stayed with them there for up to a week at a time at least once a year. She observed them to share the same bedroom which contained a double bed, and to share domestic duties. As the deceased’s health deteriorated she noticed that the Defendant performed more of these duties. Often when they travelled to and from Queensland they would stay with her for two nights to break the journey. In the few years prior to his death, Mrs O’Hara saw them at least half a dozen times a year. To her observation the ability of the deceased to make decisions and to engage in conversation did not deteriorate.

58 The evidence of Mr Bruce Griffiths was in his affidavits of 6 May 1998 and 12 April 2004. He was not required for cross-examination. In summary, he said he developed a close friendship with the deceased during the 1970s. From about 1981 until they moved to Eva Street he often dined with the deceased and the Defendant at Gallimore Avenue and also at Pearson Street. He noticed they shared the cooking and cleaning, and that their personal possessions were in each place. He observed that they slept in the same bed. He observed the same pattern of living together on his regular visits to Eva Street. He noticed the deceased’s physical dependency on the Defendant increased in the few years prior to his death but he did not notice any deterioration in his mental capacity or ability to communicate.

59 Mr Antonio Angelo Margiotta’s evidence was in his affidavit of 15 April 2004. He was not required for cross-examination. He acted as the deceased’s solicitor on the sale of the properties at No. 21 Williams Road, North Rocks in 1989, and at No. 7A Johnson Street, Balmain in about 1991, and of Gallimore Avenue in 1994.

He first met the Defendant and the deceased together in about 1986 and saw them on numerous social occasions between then and the deceased’s death in 1996. On the sale of each property Mr Margiotta dealt only with the deceased, and neither the Defendant nor anyone else was involved in giving instructions. With regard to the sale of Gallimore Avenue, instructions were given by telephone as recorded in Mr Margiotta’s diary notes of conversations with the deceased in October, November, and December 1994. His observation was that the instructions were always coherent, considered and intelligent, and he noticed no deterioration in the capacity to provide instructions between 1989 and 1994. He saw the deceased on several social occasions after December 1994 when they conversed on numerous topics.

60 The evidence of Mr Granville Alexander Blair was by affidavit of 9 September 1998. He was not required for cross-examination. He has lived at No. 391 The Esplanade, Manly continuously since 1983. He met the deceased in about early 1990 after the latter commenced construction of the house at his property at Manly. He observed the deceased to spend a total of about six months per year there. Over the next three to four years he saw only the deceased there who gave no indication that he had a partner. Although he could not be precise Mr Blair said that for about two years prior to the death of the deceased the Defendant accompanied him. The deceased told him the Defendant was a matron and that he had bought her a car. In about mid 1994 the deceased said words to the effect “I have built a house in the backyard of a house at Newcastle for me to live in”.

61 The evidence of Ms Sarah Judith Simpson was by affidavit of 14 October 1998. She was not required for cross-examination. She is the wife of Mr Blair. Her evidence was in substantially the same terms as his.

62 The evidence of the late Albert Bailey was by affidavit of 8 July 1998. He said that during the period between 1980 and 1994 he visited the deceased at his properties at Balmain and Manly on several occasions but did not see the Defendant or evidence that she stayed there. To the extent that any weight should be given to it, his evidence was not inconsistent with the other evidence of the relationship.

63 The evidence of Mr Donald James Brewer was by affidavit of 8 July 1998. He was not required for cross-examination. He said that he had known the deceased since the late 1970s. He acted as the agent on the sale of the Manly property to the deceased in 1989. He said that at the time of the sale the deceased told him of his intention to build a house on the block to which he could retire, and that he would like to have a nurse live there in a separate room. He visited the deceased in Balmain on two or three occasions. He and his wife met the deceased and the Defendant on a number of social occasions in Brisbane. He referred to an occasion after late 1994 when he was told by the deceased that the Defendant lived in a separate section of the house at Newcastle, and that he paid for the back house so that the Defendant would look after him. The evidence was not inconsistent with the other evidence of the relationship.

Finding as to relationship

64 In analysing the evidence in order to decide the relationship issue I have been guided by the principles discussed in Bar-Mordecai v Hillston (2004) NSWCA 65 paras 86, 87, 105, 125. These require the court to make a value judgment having regard to a variety of factors established by the evidence which are indicative of the core elements of a marriage. In Roy v Sturgeon (1986) 11 NSWLR 454 at p 458 Powell, J identified relevant factors as including, but not being limited to, the following:

“1. the duration of the relationship;
2. the nature and extent of the common residence;
3. whether or not a sexual relationship existed;
4. the degree of financial interdependence, and any arrangements for support, between or by the parties;
5. the ownership, use and acquisition of property;
6. the procreation of children;
7. the care and support of children;
8. the performance of household duties;
9. the degree of mutual commitment and mutual support;
10. reputation and “public” aspects of the relationship”.

(See generally Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 at pp 683-685).

65 Upon the whole of the evidence I find it to be clearly established that the deceased and the Defendant lived together in a de facto relationship as husband and wife continuously at least from about 1981 until the death of the deceased. By about 1981 their relationship had developed into one of permanence, a significant aspect of which was their commitment and support for each other. The relationship was held out to, and recognised by, their friends. Indicia of the relationship which I regard as significant include the following: sharing of domestic duties and expenses; a long lasting sexual relationship; the purchase and development of Eva Street as their home for as long as they were able to live there; that in her will the Defendant left Eva Street to the deceased; and the care and support given to the deceased as his mobility deteriorated.

66 On behalf of the Plaintiff it was faintly argued that the fact that the deceased from time to time stayed alone at the unit at Gallimore Avenue and at the house at Manly indicated that the relationship was less than one of de facto marriage. In my opinion the contention cannot be sustained: bearing in mind that there were also many occasions on which the Defendant stayed with him at those places, the fact that he stayed alone from time to time could not be considered to be inconsistent with the true nature of the relationship as demonstrated by the totality of the evidence.

The claim that payments were made under undue influence or were unconscionable

67 The claim that the Plaintiff should recover from the Defendant the amounts paid to her by the deceased as claimed requires consideration of the circumstances at the time each payment was made, as well as the attributes and capacity of the deceased.

68 The first payment was made on 25 February 1992 when the deceased was aged 71. Four payments were made during 1993, one on 29 March 1995, and one on 1 November 1995, this last when he was aged 76.

69 In summary, the Plaintiff contends that at the times of the transactions the deceased was dependent upon the Defendant to care for, and attend to, his daily personal needs and hygiene, and that from late 1995 he suffered from Pick’s disease which involved a dementia which caused forgetfulness so that he required assistance in dealing with financial matters.

The medical evidence considered

70 The evidence as to the deceased’s mental health relied upon by the Plaintiff was principally that given by Dr S E Williams in his report of 24 August 2003. However, to place it in context I refer briefly to the reports of the doctors who examined the deceased upon which Dr Williams based his assessment. Dr Williams was the only doctor called at the hearing.

71 In his report of 7 July 1995 Dr Segelov recorded that the Defendant had noted some evidence of early organic dementia in that the deceased might wake up not knowing where he was, and sometimes his speech became garbled. He noted deterioration in the deceased’s ability to handle figures and that he forgot his last year’s tax return. A PET scan to enable a clear diagnosis to be made took place on 25 October 1995. The finding was compatible with a frontal lobe dementia consistent with Pick’s syndrome.

72 Dr Kevin Grant, a consultant physician and geriatrician, examined the deceased on 11 December 1995. In his report of 13 December 1995 he recorded the Defendant’s observations as follows:

“His friend has been aware of the change in his personality and behaviour for about five years. She first noted that he became disoriented when he was out of his usual environment. He now becomes confused in his own surroundings particularly on waking in the mornings. In other ways he has good memory but is less astute than he has been in the past. For a time he was suspicious and angry but this problem has now settled”.

His opinion was that the history and the PET were consistent with Pick’s disease.

73 Dr Jeff Blackie, neurologist, examined the deceased on 15 December 1995. His report of that date records the history obtained from the Defendant as follows:

“I obtained the history from his wife who is a retired Director of Nursing. This man has undergone personality changes over the last 3 years. He has always been interested in financial matters, but has lost interest in these activities. Last year when he had to fill in his tax return, he became quite anxious and was not sure of details of the accounts. He has had intermittent confusion and he tends to believe that things that have happened in dreams are true. He tends to confabulate, and his wife has noted that he has just started using wrong words. His memory has not been so good. He performs unusual activities such as placing a used frying pan in the freezer. He has always been interested in politics and current affairs, but his interest in these activities has been waning. He tends to lose objects, such as his keys, more frequently than he did in the past. He has had occasional episodes of faecal incontinence, but this probably relates to reduced mobility”.

After administering a number of tests and a general neurological examination Dr Blackie’s assessment was that the deceased had a dementia which was most likely Pick’s disease, and proposed an appointment in six months.

74 Dr Williams is a consultant psychiatrist with expertise in aged care, psychiatry, and neuropsychiatry. He did not examine the deceased. His report of 24 August 2003 contains an analysis of the reports of Doctors Segelov, Grant, and Blackie for the purpose of giving an opinion, at the request of the Plaintiff’s solicitors, as to the deceased’s capacity to manage his financial affairs, particularly in the six months prior to his death. His opinion was as follows:

“13. I consider that by December 1995 the deceased would have been unable to manage his own financial affairs completely independently. He may have been able to make simple judgments and decisions, particularly if he were supported in this by being given appropriate information and reminders. However, without such guidance he would not have been able to so manage his own financial affairs. I understand, from your letter to me of 8th August 2003 his affairs were complex, and involved substantial property investments.
14. It is more difficult to say at what point his cognitive ability may have receded below a threshold of financial competence before December 1995. The history given to Dr Grant describes his inability to effectively deal with his tax return, “last year”. The history given to Dr Segelov in July 1995 was that he “forgot his tax return last year”. This suggests to me that he would have been unable to autonomously and competently carry out financial transactions at least from July 1995.
15. I also consider that the impairments of function present in December 1995 were, by then, permanent. That is, although the level of the deceased’s function may have varied, it is unlikely he would have improved to such an extent as to have become competent independently to mange his own affairs, even for a short time”.

75 In cross-examination Dr Williams agreed that although the deceased had become forgetful about financial matters, upon reminder he may have been able to make decisions as to what was appropriate and in his interests. He also accepted that, if in November 1995 the deceased was able to buy a car including the trade-in of others, it was possible to carry out transactions which were slightly more complicated.

76 For the Plaintiff Mr Evans submitted that Dr Williams’ evidence established that from December 1995 the deceased required assistance in the management of his financial affairs, and was thus susceptible to the influence of the Defendant in the exercise of his judgment and/or was in a position of special disadvantage which disabled him from making a judgment in his own best interests. It was also put that his evidence provides the basis for the inference that for the period prior to December 1995 extending back to the time of the first transaction on 25 February 1992 the deceased’s enfeeblement was such that he was unable to exercise his free will and judgment, or to make an informed decision, about any of the impugned transactions.

77 In my opinion the medical evidence provides no support, on the probabilities, that in respect of any of the transactions the deceased lacked the capacity to understand or to exercise his independent will and judgment as to his best interests. Doctors Segelov, Grant, and Blackie, who examined the deceased, did not address any question as to the deceased’s ability to manage his financial affairs, and none expressed an opinion about it. They provide no guidance as to the extent or degree, if any, of mental impairment or as to when the degenerative process began.

78 Dr Williams’ opinion is one reached after an assessment of reports which were not directed to the specific question that he was asked to consider and, necessarily, he was obliged to rely upon the interpretation by their authors of the histories given to them by the Defendant. These matters go to the foundation of his opinion and give rise to some doubt as to the weight to be attached to it.

79 In my opinion the medical evidence demonstrates, and I find, that by the time of Dr Blackie’s examination on 15 December 1995 the deceased was suffering a form of dementia known as Pick’s disease which impaired his judgment. The extent of impairment at this time relevant to his capacity to make an independent decision about financial transactions is uncertain. However I am satisfied, as Doctors Blackie and Williams suggest, that from this time the disability was permanent, and the deceased required some degree of guidance or assistance in managing his financial affairs.

80 Dr Williams recognises the difficulty in fixing the point at which it could be said that the deceased lacked financial competence before December 1995. In my view the information from the reports of Dr Grant and Dr Segelov to which he refers is a flimsy basis for his opinion that the deceased lacked the relevant capacity “… at least from July 1995”. (I take the reference to Dr Grant to be a mistake for Dr Blackie. Dr Grant’s report contained no such reference). It seems to me that this opinion is speculative and, in any event, insufficient to support a finding to that effect.

81 Although as a matter of common sense it may be accepted that the onset of the disease began prior to the PET scan in October 1995, the medical evidence falls short of demonstrating at what point prior to 15 December 1995 the deceased became incapable of exercising an independent will and judgment in financial transactions. Accordingly, in my opinion the dementia from which the deceased was suffering from about October, 1995 has not been shown to have affected the exercise of his will and judgment in making any of the payments in issue.

Dependency

82 Central to the Plaintiff’s case is the contention that throughout the period the payments were made the true nature of the relationship between the Defendant and the deceased was one of carer and patient from which arises the presumption that each payment was the product of undue influence or the exploitation by the Defendant of her advantage over him. The Plaintiff seeks a finding that from February 1992 and continuously thereafter the deceased was subject to her control (T p 388) because he was dependent upon her for “… most basic daily care (sic)” (T p 390). It is put that in the circumstances the relationship of carer and patient transcended any de facto relationship so as to attract the intervention of the court absent proof that the transactions were the product of his independent judgment.

83 Support for this contention is placed upon the evidence of the Defendant herself of the nature and extent of the care she provided. This was that from some time in about 1993 or 1994 until his death she assisted him with showers, shaving, hair cuts, and by giving him leg and foot massages to aid his circulation and mobility.

The principles

84 For the Plaintiff it was argued that the circumstances in which the payments were made demonstrate that they result from the exercise of undue influence over the will of the deceased, or from the Defendant’s unconscionable conduct whereby she had taken unconscientious advantage of the disabling condition of the deceased with the consequence that the court should order her to pay the proceeds to his estate.

85 In Bridgewater v Leahy (1998) 194 CLR 457 paras 73-78 the distinction between the equitable doctrines concerned with undue influence and unconscionable dealings or conduct was pointed out:

“73. In addition to the distinction between the doctrine of undue influence as understood in courts of probate and courts of equity, it is appropriate to emphasise the distinction between the equitable doctrines concerned with undue influence and unconscionable dealings or conduct. On occasion, both doctrines may apply in the one case. Each doctrine may be seen as a species of that genus of equitable intervention to refuse enforcement of or to set aside transactions which, if allowed to stand, would offend equity and good conscience. However, there are conceptual and practical distinctions between them and these were insufficiently expressed by the primary judge.
74. In Commercial Bank of Australia Ltd v Amadio , Deane J said that the two doctrines are distinct, undue influence looking to "the quality of the consent or assent of the weaker party", whilst unconscionable conduct looks to the attempted enforcement or retention of the benefit of a dealing with a person under a special disability. Further, the recognition of certain special relations, the existence of any of which would itself support a presumption of undue influence, could provide a particular forensic advantage to plaintiffs.
75. Sir Anthony Mason, with reference to the well developed Australian body of authority on the subject, has contrasted the two doctrines as follows: "My understanding of undue influence ... is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party. In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence.
...
Unconscionable conduct, as the term suggests, focuses more on the unconscientious conduct of the defendant. As a ground of relief in England unconscionable conduct has been confined largely to 'catching bargains' with expectant heirs and others in particular categories of disadvantage eg those who are illiterate. ... In Australia, it has been recognized that unconscionable conduct is a ground of relief which will be available 'whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is taken of the opportunity thereby created'. Unconscionable conduct is also recognized in New Zealand as a ground of relief in these circumstances."

76. In Commercial Bank of Australia Ltd v Amadio , Deane J spoke of unconscionable conduct as occurring where, in the circumstances, it is unconscientious to "procure, or accept, the weaker party's assent to the impugned transaction". It also should be noted that in Hart v O'Connor , an appeal from New Zealand, the Privy Council described unconscionable conduct which provided a basis for equitable relief as "victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances" . In so giving the judgment of the Privy Council, Lord Brightman was reflecting a general proposition put by James LJ in Torrance v Bolton . This was that it was the "ordinary jurisdiction" of the Court of Chancery to deal with instruments and transactions "in which the Court is of opinion that it is unconscientious for a person to avail himself of the legal advantage which he has obtained"”.

86 In Commercial Bank of Australia Ltd v Amadio (1982) 151 CLR 447 Mason, J said:

“… I qualify the word “disadvantage” by the adjective “special” in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party”.

87 In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 the principles in Amadio were considered. Gleeson CJ (at para 12) observed that it was the inability of a party to judge his or her own best interests that was said by McTiernan J in Blomley v Ryan (1956) 99 CLR 362 at p 392, and again by Deane J in Amadio (p 476-477), to be the essence of the relevant weakness. Gummow and Hayne JJ (at para 46) explained that equity intervenes to set aside transactions where unconscientious advantage has been taken by one party of the disabling condition or circumstances of the other. In such situations intervention is not necessarily because the complainant has been deprived of an independent judgment and voluntary will, but because that party has been unable to make a worthwhile judgment as to what was in the best interests of that party.

88 With regard to the passage in the judgment of Mason J in Amadio quoted in para 86 above, their Honours (at para 55) noted the emphasis given to the need for a plaintiff seeking relief to establish the taking of unconscientious advantage of the plaintiff’s disabling condition or circumstance. They said it was apparent that the special disadvantage of which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party’s own best interests.

89 In Berbatis (para 68) Kirby, J observed:

“(3) The factors relevant to determining whether the conduct of a party was unconscionable in the circumstances of a given case cannot be comprehensively catalogued. They may include the wealth or poverty of the party seeking relief, that party’s means and access to independent assistance and advice, as well as the party’s age, state of health, infirmity of body and mind, and also financial and other circumstantial pressures. It is not enough that the weaker party has suffered a hard bargain. There needs to be some special disadvantage that renders the consequences of enforcing the parties’ legal rights unfair to the point of offending conscience when all the circumstances are considered”.

90 Furthermore, in cases where the proven relationship is one which gives rise to the presumption, the relevant question was referred to in Bridgewater as follows:

“118. … Even with respect to the doctrine of undue influence, as distinct from that dealing with unconscionable conduct, equitable principles may be invoked to set aside a gift where a donor is perfectly competent to understand and intend what he or she did. In Huguenin v Baseley , Lord Eldon LC said, in a well-known passage:
“Take it, that she intended to give it to him: it is by no means out of the reach of the principle. The question is, not, whether she knew what she was doing, had done, or proposed to do, but how the intention was produced”.
Thus, as Turner LJ put it of the disponor in Rhodes v Bate , the case was not determined by deciding that she had been “perfectly competent to understand what she did” and had not been “of weak mind”. Further, as Lindley LJ observed in Allcard v Skinner , enthusiasm itself may be the result of the exercise of undue influence”.
(See also Bar-Mordecai paras 167-168).

91 In these proceedings it may be accepted that if the true nature of the relationship at the times of the payments was of carer and patient, any substantial benefit received by the Defendant from the deceased would be presumed to be the result of undue influence. It may also be accepted that proof of a de facto relationship does not enable the court to ignore the carer/patient relationship, or require it to treat the presumed influence as rebutted (Bar-Mordecai paras 148, 149).

92 Nevertheless, the application of the equitable doctrines invoked by the Plaintiff in this case must turn on an analysis of the particular facts. In Jenyns v Public Curator (Q.) (1953) 90 CLR 113 it was said pp 118, 119:

“The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell’s generalisation concerning the administration of equity: “A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case”: The Juliana ”.

(See also Bar-Mordecai para 150).

93 Thus, in this case, a relevant circumstance of the payments is the relationship of de facto husband and wife which I have found to exist.

Findings

94 As earlier indicated, I find that it has not been proved on the medical evidence that at the times of the payments the deceased was suffering dementia which disabled him from making a worthwhile judgment as to what was in his best interests. In my opinion the contention that the deceased was at any relevant time in a position of special disadvantage with regard to the Defendant is baseless, as is the contention that she took some unconscientious or unfair advantage of him in order to obtain the payments.

95 With regard to the submission that the deceased at relevant times was so dependent upon the Defendant for his everyday welfare and the provision of personal care that the payments should be presumed to be the products of undue influence, the following observations should be read in the context of the evidence about the deceased and of the relationship to which I have earlier referred.

96 According to the Defendant, whose evidence I accept, the general health and condition of the deceased from 1991 until about mid 1995 was reasonably sound, although his mobility was restricted. She says that he remained intelligent until the day he died, an observation which was substantially consistent with the evidence of, for example, Ms Hughes, Mrs O’Hara, Mr Griffiths, and Mr Margiotta.

97 The deceased undertook a number of major transactions between about September 1992 and March 1995 being the sale of the properties No. 7A Johnson Street, Balmain, No. 429 The Esplanade, Manly, and Gallimore Avenue, and the opening of the cash management account with Westpac at Hamilton. It was not suggested that the Defendant had any involvement in these or that the deceased lacked relevant capacity.

98 After moving to Eva Street in 1991 the deceased sometimes stayed at Gallimore Avenue alone until it was sold. Sometimes, also, he travelled to, and stayed at, Manly until about late 1995. It is clear that on these occasions he looked after and maintained himself, and it was not suggested that he lacked any capacity to do so. On occasions he drove himself in his car to these places, and he remained licensed to drive until sometime in 1995. The Defendant accepted the suggestion that as at July 1994 he was paying for his own personal expenses (T p 271).

99 In 1993 building work was carried out at Eva Street to provide accommodation suitable for the present and future needs of both the deceased and the Defendant. The Plaintiff accepted that the deceased contributed a total amount of $28,000.00 to the cost of this work, and makes no criticism of the Defendant in respect of this contribution and does not suggest the deceased lacked relevant capacity.

100 It was not until mid 1995, whilst returning to Eva Street from Manly, that the Defendant noticed an occasion when the deceased became disoriented and confused. She then brought him to see Dr Segelov and subsequently arranged for consultations with Doctors Grant and Blackie as shown in their reports. It appears there were later episodes prior to the PET scan in October 1995.

101 By December 1995 the Defendant had noticed some memory failure and that the deceased was less astute than he had been. Nevertheless it is accepted that in November 1995 he purchased a new car for which he traded in his and the Defendant’s cars, a transaction about which no criticism is made of the Defendant or lack of relevant capacity is suggested.

Conclusion

102 In my opinion there is no support for finding that at the time of any of the payments there was a relationship of carer/patient to which the doctrine of undue influence applied. An objective assessment of the evidence of the activities of the deceased throughout the relevant period demonstrates that theirs was not a relationship in which the deceased depended upon and trusted the Defendant to look after the details of his everyday life. Plainly enough, in the circumstances she described, the Defendant did provide the deceased with personal care and, doubtless, it was of benefit and comfort to him. However, I am satisfied that such care was provided as the ordinary incident of their relationship as a de facto married couple. The circumstances in which, and the extent to which, the Defendant cared for the deceased supports no presumption that he was vulnerable to her influence or that his will was overborne by her in financial or any other matters. Furthermore, there was nothing unusual about any of the payments with regard to its amount, purpose, or the occasion of its making which supports such presumption.

103 For the above reasons I find that at the time any of the payments complained of were made there was neither a special disadvantage on the part of the deceased nor unconscientious conduct on the part of the Defendant. The evidence does not establish that any of the payments resulted from a lack of understanding or judgment on the part of the deceased or the exercise of undue influence by her. It follows that no basis has been established to justify the intervention of a court of equity.

104 In the next section of this judgment I deal with each of the transactions in turn. As will be seen, I find that each was made as the product of the deceased’s independent will and judgment, and with the intention that it advanced and benefited the relationship to which he and the Defendant had contributed financially and otherwise from time to time over many years. Furthermore even if, contrary to my finding, it could be said that the circumstances of the payments supported the presumption, I am satisfied that in each case it is rebutted.

The Plaintiff’s payment claims

(A) Payments by the deceased to the Defendant

25 February 1992: $25,000.00

105 On 25 February 1992 the Defendant deposited in her account with the State Bank of New South Wales, Newcastle branch (her account) a cheque for $25,000.00 drawn on the account styled “Noel Bolton account” with the State Bank of New South Wales, Gordon branch (the Bolton account). The Defendant’s evidence was that the cheque was given to her by the deceased to buy herself a new car as a birthday present. She said that a few weeks later whilst with him at Manly the deceased suggested she buy a Holden Berlina car as advertised by a Brisbane dealer, and she did so.

106 In cross-examination it was put to her that her explanation was a fabrication on the basis that she did not lead it in the Queensland proceedings in support of her claim that she was the deceased’s de facto wife. She adhered to her evidence. For the Plaintiff it was submitted that the absence of the explanation in those proceedings was surprising, unexplained, and should be rejected in these proceedings.

107 In my opinion this claim must be rejected. Her explanation, which I accept, is consistent with Mr Blair’s evidence that the deceased had bought her a car. The Plaintiff said that he accepted that evidence. He also said that because he had been unable to obtain any information as to the transaction he did not know whether or not the deceased had made a gift of the car to her (T p 52). It may also be noted that in support of the Plaintiff’s claim in respect of the purchase of a Holden Statesman car by the deceased, which claim was abandoned at the end of the hearing, it was alleged that the Berlina was used as a trade-in for that purchase.

108 In any event, even if her explanation was not accepted, in my opinion the Plaintiff has failed to prove any basis for a court of equity to intervene having regard to the nature of the relationship at the time and the absence of any evidence that the deceased was not of independent will and understanding. Mr Evans, in arguendo (T p 376), properly acknowledged the Plaintiff’s difficulty in saying “ … I appreciate in some respects we are trying to make bricks with straw here”.

18 February 1993: $15,700.00; 5 March 1993: $7,000.00

109 On 18 February and 5 March 1993 the Defendant deposited in her account a cheque for $15,700.00 and for $7,000.00 respectively, each drawn on the Bolton account. Her evidence was that these amounts were given to her by the deceased to pay for plumbing, roofing and other work at Eva Street as well as for work in preparation for the construction of the house at the rear.

In submissions, Mr Evans (T p 331) stated that “ … The money paid by Mr Wildon Bailey to Miss Tredrea in the early 1990s are (sic) consistent with payments he made for the erection of the second house at 4 Eva Street and some necessary improvements to the main house, in order to enable him to have somewhere to live where he could be housed and cared for, rather than considerations made by one de facto spouse to the property of another”. He then said with particular reference to the deposit of $15,700.00, that the Plaintiff accepted the Defendant’s evidence that it was probably the case that it was a payment towards the improvements at Eva Street.

110 I accept the Defendant’s explanation in respect of both amounts. There is no evidence which contradicts it. It is consistent with her bank account statements for the period 29 January to 20 July 1993 which record the deposits of the amounts claimed, and also numerous withdrawals in varying amounts made in payment for work at Eva Street. The notes in the cheque butts in Ex 4 also support the Defendant’s case that she was paying for the work from this account from time to time and used the money given to her for its intended purpose.

111 In final submissions Mr Evans stated (T p 472) the Plaintiff’s acceptance that the deceased paid the sum of $28,000.00 towards the improvement of Eva Street and the construction of the house at the rear, and that any amount to be recovered from the Defendant should be subject to an allowance of that sum. It was not suggested that the circumstances of the challenged payments were different to the circumstances of the payment of this sum.

112 In my opinion, the very nature of the relationship provides plain explanation for the provision of these monies by the deceased including the accepted payment of $28,000.00. He had come to live with the Defendant in Eva Street and it was their intention to remain there. It was their intention that work be done to accommodate their present and future needs. It was to his benefit that this should happen. In the circumstances I find that the monies were given as an ordinary incident of this relationship. That the deceased was under no misapprehension about the transactions is illustrated by, for example, Mr Blair’s evidence that in about mid 1994 the deceased told him that he had built a house in the backyard of a house in Newcastle to live in.

113 I am satisfied that no basis has been established for the recovery by the Plaintiff of these amounts and, accordingly, I reject these claims.

10 May 1993: $10,000.00

114 On 10 May 1993 the Defendant deposited to her account a cheque for $10,000.00 drawn on the deceased’s account at Westpac, Balmain branch. Her evidence was that, although she could not recall the circumstances, she believed that the deceased gave her the cheque as a contribution towards their living expenses.

115 Having regard to all of the circumstances relevant to their relationship at the time, including the sharing of the house at Eva Street, in my opinion her explanation is probable and I accept it. There was no evidence to the contrary. It is consistent with the body of evidence from the Defendant and others that the domestic responsibilities were then, and had been for a long time, shared. Obviously, it is also consistent with the contributions made by the deceased towards the cost of building work at Eva Street.

116 Alternatively, even if the Defendant’s evidence as to the particular purpose of the transaction was not accepted there is ample support for the finding by way of inference, which I make, that it was by way of gift to her or contribution to their household expenses. In the circumstances such a disposition could not be found to be extraordinary.

117 As to this transaction I hold that the Plaintiff has failed to establish his claim for its recovery and, accordingly, I reject it.

15 November 1993: $25,000.00

118 On 15 November 1993 the Defendant caused to be deposited in her account the sum of $25,000.00 drawn on the deceased’s account with the Bank of Queensland. The Plaintiff accepted that the Defendant asserted that the sum was a contribution by the deceased to the cost of wrecking (sic) the rear dwelling (T p 218). I take this to refer to the issue raised under para 20(e) Points of Defence to Amended Points of Claim that the sum was a contribution for work on the rear dwelling.

119 There was no evidence to contradict the Defendant’s explanation as it was understood. In my opinion the issues raised under this claim are the same as those in respect of the other payments made by the deceased for work at Eva Street. For the same reasons I reject it.

29 March 1995: $6,000.00

120 On 29 March 1995 the Defendant withdrew the sum of $6,000.00 in cash from the Bolton account. Her evidence was that at the time the deceased gave her a cheque for this sum he asked her to cash it at his bank’s branch at Gordon. She did not recall the purpose of the payment but suggested it was a contribution to their living expenses. In cross-examination she identified the handwriting on the cheque as the deceased’s, and attributed its shaky appearance to flexibility problems in his fingers and wrists as a result of his stroke and Dupuytren’s syndrome.

121 I accept her explanation. It was not contradicted. Having regard to their relationship and that he was living at Eva Street it is quite probable that he provided such funds for such a purpose. To do so was entirely consistent with the purposes for which he provided money to the Defendant on other occasions referred to.

122 There is no evidence of enfeeblement of mind or will at the time. Indeed, there is evidence of his involvement in substantial transactions at about this time which demonstrate a sound capacity to manage his financial affairs, namely that concerning the completion of the sale of Gallimore Avenue on 14 December 1994 and of the opening of an account with Westpac, Hamilton branch on 16 March 1995 into which the proceeds of sale were deposited (T p 171). It was not contended that he suffered any disability in respect of these matters.

123 In my opinion the evidence does not establish a basis for recovery of the amount claimed and, accordingly, I reject it.

1 November 1995: $5,580.00

124 On 1 November 1995 the Defendant deposited to her account a cheque dated 31 October 1995 for $5,580.00 drawn on the Bolton account. Her evidence was that in the mid 1990’s she regularly asked the deceased for money for their living expenses and on one such occasion she was given the cheque by him and told to put it into her account.

125 In cross-examination she said she wrote the words and figures, and the signature “N A Bolton” was written by the deceased (p 165(a)). She attended his bank’s branch at Gordon to cash the cheque but it was not accepted. After explaining the situation to the deceased they together attended the manager of her bank’s branch at Hamilton. The manager suggested that the cheque be put through her account, as the deceased would have difficulty in proving he was Noel Bolton. She was not challenged on her explanation of the circumstances in which she was given the cheque and it was not contradicted. I accept it.

126 For the Plaintiff it was submitted that by this time the deceased had been diagnosed with Pick’s disease and relied on the Defendant for his daily needs. It was also put that a comparison of the signature on this cheque with the signature on others in Ex D indicates a deterioration in his health.

127 I am not persuaded that the evidence supports the Plaintiff’s submissions, or that the circumstances of this transaction are in any relevant sense different to those of the others. As I have already found, it was entirely consistent with their relationship for the deceased to provide such monies for their living expenses. Furthermore, consideration of the medical evidence with that of Ms Hughes, Mrs O’Hara, and Mr Griffiths that they observed no mental deterioration weighs against a finding that this transaction was not the product of his independent will.

128 In my opinion the evidence does not establish a basis for recovery of the amount claimed and, accordingly, I reject it.

(B) Payments after death of deceased

10 June – 27 December 1996: $18,839.15

129 After the death of the deceased the Defendant had access by means of an ATM key card to his account with the Commonwealth Trading Bank, Wynnum branch, from which she withdrew various sums from time to time to the total of $18,839.15 between 10 June and 27 December 1996.

130 The Defendant admitted that she had not notified the bank of his death because had she done so the account would have been frozen. The amount was not in issue. The money was spent at her discretion principally for payment of her personal expenses.

131 The Plaintiff submitted that after the deceased’s death the Defendant had no authority to withdraw the monies, and that they are recoverable as assets of the estate. It was put that in the circumstances the principles considered in Noonan v Martin (1987) 10 NSWLR 402 apply so that it should be declared that the monies form part of the assets of the estate and there be judgment for the Plaintiff in respect of them.

132 In essence, in final submissions (T p 446) the entitlement of the Plaintiff to recover this amount was not disputed. Rather, it was put that it should be set-off against the amount paid by the Defendant from her monies to meet taxation liabilities of the estate. It was finally acknowledged by the Plaintiff (T p 476) that the Defendant has paid the sum of $29,792.75 towards the estate’s taxation liabilities, and this amount should be set-off against any amount for which she was found liable to the estate.

133 I accept the Plaintiff’s submissions and hold that the sum of $18,839.15 is part of the assets of the estate and that the Defendant is liable to the estate in that amount. I deal with the question of set-off later in these reasons.

8 January 1997: $5,000.00

134 On 8 January 1997 the Defendant deposited in her account a cheque for $5,000.00 drawn on the Bolton account. Her evidence was that after his death she found a blank cheque signed by him and filled in the details. She denied that she forged the signature. She used the proceeds for her living expenses. She knew that the bank had not been notified of the death.

135 The Plaintiff submits that the monies are part of the assets of the estate for which the Defendant is liable on the authority of Noonan, and, in the circumstances, it is unnecessary to decide whether the signature was forged.

136 In final submission (T p 445) the Plaintiff’s claim was not disputed. For the Defendant it was put that the amount should also be set-off against that paid by her to meet the estate’s liabilities.

137 In the result I accept the Plaintiff’s submissions and hold that the sum of $5,000.00 is part of the assets of the estate, and that the Defendant is liable to the estate in that amount. It will be taken into account under the set-off issue.

Findings on payment claims

138 The Plaintiff has failed in its claim to recover from the Defendant the amounts paid to her by the deceased.

139 The Plaintiff has succeeded in its claim that the amounts of the unauthorised payments effected by the Defendant are part of the assets of the estate and that she is liable to the estate for them. The total sum for which she is liable is $23,839.15.

140 The Plaintiff accepts that the Defendant has paid the sum of $29,792.75 towards the estate’s taxation liabilities, which should be set-off against the amount for which she is liable to the estate.

141 The effect of the set-off extinguishes the liability of the Defendant to the Plaintiff. She makes no claim for the balance being the sum of $5,953.60.

142 Having regard to these findings it is unnecessary to consider the issues of estoppel raised in defence to the Plaintiff’s claims.

The Plaintiff’s other claims

143 In addition to the money claims the Plaintiff sought orders that the Defendant render an account of assets, money, and other property of the deceased, and for delivery-up of documents including financial, bank, and medical records of the deceased. However, during final submissions (T p 472) Mr Evans accepted that it would be inappropriate to make such orders if it was futile to do so. I also took him to accept that having regard to the history of the litigation between the parties and particularly to the information produced by the Defendant pursuant to the Anton Piller order made on 26 September 2002 there was little, if anything, to be achieved if such orders were made in these proceedings. It was not suggested even as a matter of possibility rather than probability that the Defendant remains possessed of information relevant to the further administration of the estate. Having regard to all of the circumstances, in the exercise of my discretion it is appropriate that I refuse to make these orders.

Conclusion

144 For the above reasons the Plaintiff has failed to establish entitlement to relief on any of the grounds claimed in the second further amended points of claim. I propose that it be dismissed.

The Defendant’s claim under the deed of settlement

145 The deed of settlement made on 22 September 1999 was part of the arrangement by which the intestacy proceedings and the lost will proceedings were settled and brought to an end.

146 Relevant provisions of the deed are:

“3. RFB agrees to pay to ET the sum of $300,000 from the estate of WGB on finalisation of the liabilities of the said estate including taxation.
…
10 RFB agrees to act with all diligence and expedition in obtaining a final grant of letters of administration of the estate of WGB pursuant to this agreement and the Orders made by the Court in the lost will proceedings and the intestacy proceedings and, in particular, to pay ET the sum of $300,000 from the said estate as agreed”.

147 The Defendant has made numerous demands for payment of the sum of $300,000.00 but it remains unpaid.

148 I am satisfied from the evidence given by the Plaintiff in cross-examination that there no longer is anything further to be done in order to finalise the liabilities of the estate, apart from filing tax returns. There is no evidence of the existence of outstanding or unidentified liabilities. It seems clear that the Plaintiff is reasonably able to file any necessary tax returns but to date has chosen not to do so.

149 It is common ground that the requirements of clauses 4, 5, 6, 8, 9, 11 and 12 of the deed have been fulfilled, as have those of cl 10 with the exception of the payment to the Defendant.

150 The basis upon which the Plaintiff has refused payment to date was his belief that the Defendant had failed to assist him with the administration of the estate in that she did not provide him with documents such as bank and other financial records which would assist in the settling of accounts. He was of the view that at the time of the settlement she probably knew more about the assets and liabilities of the estate than he did, and he suspected that she had fraudulently misappropriated money or assets of the estate, and was concealing relevant information from him.

151 It is unnecessary to review the evidence on these issues, or the history of proceedings in this Court to obtain information from the Defendant, including the execution of the Anton Piller order, or to endeavour to decide them. This is because eventually it was accepted by Mr Evans that all that may reasonably be done by the Plaintiff to finalise liabilities including taxation has in fact been done (T p 480-481). He accepted that the taxation liabilities should be resolved on the information available, and that “… there is nothing more to be done sensibly” (T p 481).

152 In the circumstances I find that there is no basis upon which the Plaintiff may refuse payment of the sum of $300,000.00 to the Defendant. Accordingly, I hold that she is entitled to judgment in that sum.

General conclusion

153 In No. 3359/00 the Plaintiff has failed to establish any of his claims for relief. I therefore propose to order that in these proceedings the claims be dismissed, and there be judgment for the Defendant.

154 In No. 3851/02 the Defendant is entitled to recover from the Plaintiff the sum of $300,000.00 and to a verdict and judgment in that amount, and interest.

155 In the circumstances it is appropriate that I direct the Defendant to bring in short minutes. It is also appropriate to invite the parties to endeavour to agree on the amount of interest to be paid to the Defendant, and on the terms of any costs orders. Failing agreement the parties will have the opportunity to address me on these issues, in which case arrangements should be made with my Associate by 9 March 2005 for the re-listing of the matter.

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