Stone v Registrar of Titles

[2012] WASC 21

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   STONE -v- REGISTRAR OF TITLES [2012] WASC 21

CORAM:   SIMMONDS J

HEARD:   23 APRIL, 19 MAY, 16, 17, 24 & 28 SEPTEMBER 2010

DELIVERED          :   25 JANUARY 2012

FILE NO/S:   CIV 1672 of 2007

BETWEEN:   SIMON ELLIOT STONE

First Plaintiff

GRAHAM LESTER STONE
Second Plaintiff

JOSEPHINE STELLA-MARIE WALTER
Third Plaintiff

AND

REGISTRAR OF TITLES
First Defendant

FABIENNE COHEN-STONE
Second Defendant

Catchwords:

Gifts - Gift in form of intended transfer of interest of registered proprietor as joint tenant of property under Transfer of Land Act 1893 (WA) to third parties - Whether gift of such interest perfected in equity where executed transfer delivered but duplicate certificate of title not obtained by transferees

Gifts - Whether gift in form of intended transfer of interest of registered proprietor as joint tenant of property under Transfer of Land Act 1893 (WA) to third parties not perfected in equity was subject to the exception in the rule in Strong v Bird - Whether the rule capable of application to gift of interest of joint tenant

Gifts - Whether elderly donor who acting while in palliative care in hospital suffering from fatal condition of which he died not long afterwards lacked capacity to make a gift of his most substantial asset to his children - Whether such donor shown to have known and approved of the term of the gift - Proper date as at which to determine capacity and other matters by which it was sought to impugn gift

Gifts - Whether gift should not be enforced because of undue influence - Whether influence shown

Gifts - Whether gift should not be enforced because of duress - Whether illegitimate pressure shown

Gifts - Whether gift should not be enforced because of unconscionability - Whether special disadvantage or disability shown

Legislation:

Conveyancing Act 1919 (NSW), s 36, s 38
Transfer of Land Act 1893 (WA), s 52, s 56, s 74, s 188, s 203

Result:

Plaintiffs' claim for declarations failed

Category:    A

Representation:

Counsel:

First Plaintiff                :     Mr J R Birman

Second Plaintiff            :     Mr J R Birman

Third Plaintiff               :     Mr J R Birman

First Defendant             :     No appearance

Second Defendant         :     Ms C F Greville (23 April 2010); Ms CF Greville & Mr J C Hammond (19 May 2010); Dr JJ Hockley & Mr D Warren (16, 17, 24 & 28 September 2010)

Solicitors:

First Plaintiff                :     Birman & Ride

Second Plaintiff            :     Birman & Ride

Third Plaintiff               :     Birman & Ride

First Defendant             :     No appearance

Second Defendant         :     Hammond Worthington (24 April & 19 May 2010) and In person (all other dates)

Case(s) referred to in judgment(s):

ASB Bank Ltd v Harlick [1996] 1 NZLR 655

Barton v Armstrong [1976] AC 104

Benjamin v Leicher (1998) 45 NSWLR 389

Blackett v Darcy (2005) 62 NSWLR 392

Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Cope v Keene (1968) 118 CLR 1

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

Costin v Costin (1997) 7 BPR 15,167

Crago v McIntyre [1976] 1 NSWLR 729

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29

Fisher v Kay [2010] WASCA 160

Gibbons v Wright (1954) 91 CLR 423

Goldsworthy v Brickell [1987] Ch 378 (CA)

In re Stewart; Stewart v McLaughlin [1908] 2 Ch 251

In the Will of Wilson (1897) 23 VLR 197

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

McLaughlin v Daily Telegraph Newspaper Co Ltd [No 2] (1904) 1 CLR 243

Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 23 ACSR 647

Nattrass v Nattrass [1999] WASC 77

Nicholson v Knaggs [2009] VSC 64

Nock v Austin [1918] HCA 73; (1918) 25 CLR 519

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10

Powell v Powell [2002] WASC 105

Public Trustee v Jones [2007] SASC 390

Re Beaney [1978] 2 All ER 595

Rutledge v Sheridan [2010] QSC 257

Strong v Bird (1874) LR 18 Eq 315

Tessmann v Costello [1987] 1 Qd R 283

Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277

Urane v Whipper [2001] NSWSC 796

Watt v Lord [2005] NSWSC 53; (2005) 62 NSWLR 495

Whereat v Duff [1972] 2 NSWLR 147

Wilby v St George Bank [2001] SASC 388; (2001) 80 SASR 404

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

Table of Contents

Introduction
Factual background in more detail
The present proceedings and the evidence before me
The issues
The issue of perfect gift: applicable principles
The issue of perfect gift: application of the principles
The issue of perfect gift: whether the rule in Strong v Bird applies here
The issue of capacity: applicable principles
The issue of capacity: application of the principles
The issue of undue influence: applicable principles
The issue of undue influence: application of the principles
The issue of duress: applicable principles
The issue of duress: application of the principles
The issue of unconscionability: applicable principles
The issue of unconscionability: application of the principles
Conclusions and call for orders, including as to costs

SIMMONDS J: 

Introduction

1. Ronald Nathan Stone (Ronald) died on 27 May 2007, aged 86.  He died in the Hollywood Hospital Palliative Care Unit (the Hollywood Palliative Care Unit).  The cause of death shown on his death certificate was '[t]ransitional cell carcinoma bladder (5 years)'.

2. At the date of his death Ronald was the registered proprietor jointly with his third wife, the second defendant, Fabienne Iris Cohen-Stone (Iris or the second defendant), of a house and land.  That house and land was 135B Wordsworth Avenue in Yokine in this State, more particularly described as Lot 2 on Strata Plan 37532, being the whole of the land comprised in Certificate of Title Volume 2186 Folio 900 (the Property).

3. On 7 May 2007, at the Hollywood Palliative Care Unit, Ronald had executed a transfer of land form T1 under the Transfer of Land Act 1893 (WA) (the Transfer Form of 7 May 2007) in respect of his interest in the Property for a consideration of 'Nil'. The Transfer Form of 7 May 2007 named Ronald as Transferor and, as Transferees and as tenants in common in equal shares, the plaintiffs. The plaintiffs, Josephine Stella-Marie Walter (Josephine), Graham Lester Stone (Graham) and Simon Elliot Stone (Simon), are his three children (collectively, the children or the plaintiffs). The children are by his first wife, Abigail Berad (Abigail).

4. Ronald then made two unsuccessful attempts to obtain the duplicate certificate of title to the Property. 

5. Subsequently, on 16 May 2007, he signed an application for the issue of a new duplicate certificate of title to the Property on Form A5 under the Transfer of Land Act (the Application for a New Duplicate Certificate of Title), as well as an application for the Registrar of Titles to dispense with the production of the duplicate Certificate of Title in respect of the Property, under s 74, also on Form A5 (the Application to Dispense with the Duplicate Certificate of Title) (together, the Applications). On the same date he also swore a statutory declaration in support of the Applications (the Statutory Declaration).

6. Iris refuses to recognise any interest of Josephine, Graham and Simon in the Property.  It is not in contest that if they have no interest in the Property by virtue of what they say is the transaction of which the Transfer Form of 7 May 2007 was a part (the claimed gift to the children of Ronald's interest in the Property) then Iris is entitled to be the sole registered proprietor of the Property by survivorship.

7. Josephine, Graham and Simon bring these proceedings by originating summons for declarations and orders.  The declarations sought are that as tenants in common in equal shares the plaintiffs are equitable owners of one undivided half interest in the Property; that the second defendant is the equitable owner of one undivided half interest in the Property; that pursuant to the Transfer of Land Act the plaintiffs are entitled to be registered as the proprietors of one undivided half interest in the Property; and that pursuant to the Transfer of Land Act the second defendant is entitled to be registered as the proprietor of one undivided half interest in the land as tenant in common with the plaintiffs.  The orders sought are principally that the first defendant, the Registrar of Titles, do all necessary things to give effect to the declarations; and that the second defendant produce the duplicate certificate of title to the Property to the first defendant for that purpose.  During the course of the proceedings counsel for the plaintiffs indicated that they were abandoning their application for orders against the first defendant, and were simply concerned to have the declarations sought.

8. I begin these reasons by describing the factual background in some detail.  I turn then to describe the proceedings including the evidence before me and the issues I must address.  I then review the applicable law for each of those issues, before applying that law to the issue in question.  The final section of my reasons is my summary of my conclusions and the orders I would make.

Factual background in more detail

1. What follows is, like the factual background in the preceding section of these reasons, either common ground or evidence not in contest, except as I indicate.

2. On 11 January 1944 Ronald married Abigail.

3. On 6 November 1946 the first of the three children of the marriage, Josephine, was born.  On 27 November 1950 the second of the three children, Simon, was born.  On 13 December 1954 the third of the three children, Graham, was born.

4. On 2 March 1993, after the death of Abigail, Ronald married Annie Segler.  She later died in a car accident.

5. On 25 February 2000 Ronald became the sole registered proprietor of the Property.

6. In August 2004 Ronald met Iris and began to go out with her.

7. On 31 August 2006 Ronald and Iris were married in small ceremony at the Property with none of Josephine, Graham or Simon present.

8. In early or mid-October 2006 a physician who had been treating Ronald, Dr Phua, organised a meeting at which Ronald, Iris, Josephine and Simon, as well as Simon's wife and at least one social worker, but not Graham, who was in Israel, were present.  It appears not to be in contest that at all material times Dr Phua was head of palliative care at the Hollywood Palliative Care Unit; it may be noted that at all material times Ronald also had as his general practitioner a Dr James Chong.

9. At the meeting in early or mid-October 2006 Dr Phua said to those present that Ronald had cancer and was terminally ill while his condition was such that he would need care.  It was at that meeting that Josephine and Simon first learnt that Ronald had married Iris, and subsequently to that meeting Graham was informed of the marriage.  At the meeting Josephine was very upset to learn of the marriage: she called Iris 'names' and left the meeting.

10. By letter dated 28 November 2006 Ronald wrote to 'Conveyancing Services Perth' to request a transfer of the Property 'copy attached' to the joint names of Iris and himself.

11. On 4 December 2006 Ronald executed a will of that date (the Will of 4 December 2006).  Having revoked all previous wills and testamentary dispositions, it provided that a niece of Iris, a Ms Galit Zohar, was to be executor.  Following provision for his debts and funeral expenses and the death duties on his estate, there were two dispositive clauses.

12. One dispositive clause provided that

    All my estate share of house and contents to my wife Fabienne Cohen‑Stone.  I have every confidence in her to carry out my personal wishes where possible.

13. The other dispositive clause provided

    My Jaguar car to my daughter Josephine.

14. On 19 February 2007 a transfer of the Property from Ronald to Iris and himself as joint tenants, showing as consideration 'Natural love and affection', was stamped and on 14 March 2007 the transfer was registered (the Transfer to Iris).  At or about this time, on Iris's unchallenged evidence and that of Linda Tudori (Mrs Tudori), both Ronald and Mrs Tudori, who on Mrs Tudori's evidence had been present at a dinner at the Property in or about late March or the first week of April 2007 when this occurred, had said in the presence of one another that the effect of the transfer of the Property to Iris as a joint tenant was that if one of the joint tenants died the survivor took the Property.

15. On 22 February 2007 Iris, who was and continues to be a citizen of Israel, was granted a visa giving her permanent resident status in Australia.

16. On 30 March 2007 Ronald executed a will of that date (the Will of 30 March 2007).  Having revoked all former wills and testamentary dispositions, the Will of 30 March 2007 provided for Ms Zohar or, failing her, her husband Oren Zohar, to be the executor and trustee.  The Will of 30 March 2007 also provided, after giving Ronald's Jaguar car to Josephine, the following disposition:

    I GIVE the rest and residue of my estate both real and personal to my Trustee UPON TRUST to pay my debts funeral and testamentary expenses and all other expenses payable by reason of my death and hold the balance UPON TRUST for my wife FABIENNE COHEN-STONE PROVIDED THAT if she predeceases me, or does not survive me by thirty (30) days my trustee is to divide or treat the balance as being divided into four (4) equal parts and to hold them UPON TRUST as follows:

    (a)two (2) parts for my son GRAHAM LESTER STONE,

    (b)one (1) part for my son SIMON ELLIOT STONE, and

    (c)one (1) part for my daughter JOSEPHINE WALTERS

    PROVIDED THAT

    (i)if any of my said children predecease me leaving children who survive me and attain eighteen (18) years of age then those children take the part of my estate which their parent would otherwise have taken and if more than one then as tenants in common in equal shares, and

    (ii)if any of the trusts of a part or parts in this paragraph fail because no person attains a vested interest in that part or those parts, then from the time of that failure that part or those parts is or are added equally to the other part or parts the trusts of which have not then so failed, and this provision applies to both the original parts and to parts which have increased as a result of the application of this provision.

17. It will be seen that the Will of 30 March 2007 principally differed from the Will of 4 December 2006 by its contingent provision for Graham, Simon and Josephine and any children of theirs.

18. By letter dated 6 April 2007 Ronald wrote to Simon (Ronald's letter dated 6 April 2007) in the following terms, which are handwritten, all in capitals, apart from the signatures:

    My dear Simon,

    As you are aware I recently remarried Fabienne Eris [sic Iris] Cohen.  The most caring person I have ever met.  

    So naturally I have changed my will etc and power of attorney.  I have advised Gary and revoked all former instructions  Dr Chong and head doctor of palative [sic palliative] have both endorsed my new instructions.  Thanking you for past favours etc.

    Yours faithully [sic faithfully]

    [signature]

    P.S.  A healthy, happy pesac [Passover?] to you all.

    I thought the enclosed blue book my [sic might] bring a smile to you all.

    More love  [signature]

    Instead of staying in hospital I'm having treatment at home apart [sic in part] from Eris [sic Iris].  I have regular visits from Silver Chain almost daily and an area of 4 local doctors who are in conference and available 24 hours a day per week so I am well cared for.  The enclosed book on caring for aged may be of interest not having a shot at you.  [signature] (emphasis in the original)

19. There is an annotation 'home visits' in the margin alongside the passage beginning 'and available' and ending 'cared for'.

20. Notwithstanding its date, Ronald's letter dated 6 April 2007 was not posted until some time later, on or about 20 or 21 April 2007, on Iris's evidence, or 'late in April', which on Simon's evidence was when Simon received it, which on his evidence occurred before a conversation he had with Ronald on 27 April 2007, which I reach below.  On Iris's unchallenged evidence, Ronald had left the letter in his Jaguar car.

21. On 13 April 2007 Ronald was admitted to the Hollywood Palliative Care Unit, where he was to stay, with only brief absences, during the period remaining until his death, 44 days later.

22. On 15 April 2007 Ronald executed a will of that date (the Will of 15 April 2007).  It differed from the Will of 30 March 2007 materially for my purposes only in substituting as executor and trustee, for Ms Zohar, and failing her, her husband, Estelle Blackburn and Harold Joseph Paiker.  Both Ms Blackburn and Mr Paiker were solicitors.  It is not in contest that the Will of 15 April 2007 was prepared by Paiker & Overmeire, barristers and solicitors.

23. On or about 21 April 2007 on Iris's evidence she had brought Ronald's letter dated 6 April 2007 to the Hollywood Palliative Care Unit where she and Ronald had a conversation in which she reminded him about the letter and she asked him what he wanted done with it.  He indicated he wanted it posted, and she thought that while she was alone she left the letter for posting with the front desk of the Hollywood Palliative Care Unit.

24. However, Mr Cohen's evidence was that it was at or about 6 April 2007, at the Property and before Ronald's admission to the Hollywood Palliative Care unit, Ronald had asked Iris to post Ronald's letter of 6 April 2007, on or about 20 April 2007.  Mr Cohen's evidence was also that on 22 or 23 April 2007 he took Iris in his car to a letterbox near the chemist for the Hollywood Palliative Care Unit in which she deposited Ronald's letter of 6 April 2007.

25. On my analysis of the issues in this case, it is not necessary to resolve these differences in the evidence.  That is because it is not in contest that the letter was, notwithstanding its date, posted some time later, to be received by Simon not long before his telephone conversation with Ronald of about 27 April 2007.

26. On the evidence of Iris she and Ronald had a conversation about two days after Ronald's letter dated 6 April 2007 was posted, that is, about 23 April 2007, in which they decided that the locks to the Property should be changed.  It was Iris's evidence that, although at the time she was concerned about the possibility of others having access to the Property, it was Ronald's idea that the locks be changed.  He had explained this on the basis that Josephine had keys to the Property, and he had said she was 'dangerous'.  On Iris's evidence, shortly thereafter Ronald rang Mr Cohen and asked him to change them.  On Mr Cohen's affidavit evidence he went to Hollywood Palliative Unit on or about 23 April 2007 and had a conversation with Ronald about changing the locks, in which Ronald said to him he was concerned about Josephine having a key to the Property, and it was decided Mr Cohen would change the locks.  However, in cross‑examination he testified that this was incorrect.  Ronald had telephoned him on 23 April 2007 and asked him to change the locks, after which Mr Cohen had visited the Hollywood Palliative Care Unit, but been unable to talk with Ronald, who was asleep.  He left Ronald's room, encountering Dr Phua and Iris in the corridor, where Dr Phua recommended a locksmith; on a later day after Iris had told Mr Cohen the locksmith's charge for changing the locks was too great he had bought locks.  On Iris's evidence and that of Mr Cohen Mr Cohen did change the locks.  On Iris's evidence he gave the keys to Iris.  On her evidence neither Mr Cohen nor she gave the keys to Ronald, which she explained as that '[t]here was no need, we were together'.  It will be seen that, although it is common ground the locks were changed, by Mr Cohen, the evidence that they were changed at the time indicated on Iris's and Mr Cohen's evidence, and that Ronald was involved in the changing of the locks at the time as indicated by their evidence, is sharply contested.

1. On the evidence of Iris, in late April 2007, but no later than 28 April 2007, she was in Ronald's room in the Hollywood Palliative Care Unit where she overheard a telephone conversation between him and Simon.  On her evidence the conversation was about a 'rape allegation' concerning Ronald and Josephine which, as I will explain it, it was Iris's evidence had been made.  I should note that in cross-examination Iris accepted that Simon had perhaps not used the word 'rape', although it was also her testimony that that was the subject-matter of Simon's exchange with Ronald.

2. I should also note at this point that it was Josephine's evidence that in 1991 she had complained to police and to the Sexual Assault Resource Centre that Ronald had molested her in a sexual way.  However, she did not pursue the complaint, and no charge was laid against Ronald in connection with the incident.  Her evidence was that she had never referred to the matter as 'rape'.

3. Returning to the telephone conversation in Ronald's room in the Hollywood Palliative Care Unit, it was Iris's evidence that Simon was saying to Ronald words to the effect that 'Well, you have to prove it in court that you didn't do it', and Simon asked Ronald if Iris knew about the allegation, to which Ronald replied that 'No she does not know, but now she will know.  There are no secrets between us'.

4. On the evidence of Simon, on 27 April 2007 he had a telephone conversation with Ronald in which Ronald told him he and Iris were going to have a Jewish wedding ceremony and he had transferred a half interest in the Property to Iris.  In view of Simon's evidence as to what formed part of that conversation that I will reach, I consider it more likely than not this is the telephone conversation to which Iris's evidence as to the telephone conversation between Ronald and Simon in late April 2007 related.

5. In respect of the first matter that on Simon's evidence was discussed in the telephone conversation, the Jewish wedding ceremony, it was Simon's evidence that Ronald said he wanted Simon to attend the ceremony with Simon's wife and daughters, and said that Graham was coming to Perth from Israel, to which Simon said he knew this as he had been in contact with Graham about Ronald's health.  Ronald also said that Josephine was not invited to the Jewish wedding ceremony because of what she had said to Iris at the hospital meeting in early or mid-October 2006. 

6. Simon's evidence was that during the conversation he asked Ronald whether Iris knew about the 'the business with Jo', to which Ronald said Iris did not know but he would tell her.  It is this evidence which causes me to conclude that the conversation the subject of Simon's evidence was the conversation the subject of Iris's evidence.

7. Simon's evidence was also that he had never discussed with Ronald a 'rape allegation' by Josephine, had never said to Ronald 'Well, you have to prove it in court that you didn't do it' or words to that effect and had never given Ronald advice about the matter concerning Josephine.

8. In respect of the second matter, it was Simon's evidence that Simon said to Ronald that if Ronald had transferred a half interest to Iris then on his death she would own the entire land, regardless of Ronald's will.  Simon tried to explain survivorship to Ronald, but he concluded Ronald did not understand the difference between joint tenancy and tenancy in common.  Simon asked Ronald to rectify the situation by having Iris transfer her interest in the Property back to Ronald, saying that if Iris did this Ronald would have full control of the land and be able to deal with it as he wished, and if Iris did this Simon would admit he was wrong about his attitude towards Iris.

9. On the evidence of Iris on 28 April 2007 there was a 'further telephone conversation', on this occasion between Josephine and Ronald, which she also overheard.  In that conversation Josephine said words to the following effect:

   You have given this and that to Iris, but if you don't do it my way I'm going to tell the Jewish community that you raped me.  I have pictures and other proof.  I have complained to Rabbi Frielich and others.

10. Josephine in her testimony denied she used the words Iris attributed to her, or any words to that effect.

11. On Iris's evidence Ronald had told Iris and Dr Phua that he believed Josephine was 'dangerous' and that she had previously been treated in a psychiatric hospital.

12. On the evidence of Josephine on or about 28 April 2007 there was a telephone conversation between her and Ronald in which he asked her, repeatedly, to 'forgive' him, to which she said 'Forgive you for what? Are you asking me to forgive you for what you did me over my lifetime?', which Ronald did not answer.  Iris in her testimony denied that Ronald used any such words with Josephine in that conversation. 

13. On 30 April 2007 Josephine by her solicitors Birman & Ride commenced proceedings in the Magistrates Court to recover $10,000 from Ronald (Josephine's Magistrates Court Proceedings).  Her evidence was that this amount was made up of two amounts of $5,000 each, one she lent to Ronald on or about June 2003 and the other she lent to him on or about June 2006.  It was also her evidence that until a conversation she had had with Simon's wife in April 2007 Josephine had had no discussions with either of her siblings concerning Ronald's will or the Property.  Although after this conversation she still thought Ronald was obliged 'under the Inheritance Act' to make provision for her and her siblings and would do so, she had instructed Birman & Ride, solicitors, to commence Josephine's Magistrates Court Proceedings to establish her claim against his estate in case it transpired that Iris received everything.  She also testified that she had not had Josephine's Magistrates Court Proceedings issued to put pressure on Ronald to alter his will or the title to the Property.  This evidence was not challenged.

14. On the unchallenged evidence of a Stanley Murray Fletcher, who had known Ronald for some time as a fellow member of the Perth Lions Club, Ronald had told him during a visit Mr Fletcher made to Ronald at the Hollywood Palliative Care Unit that Ronald was not going to agree to leave the Property to his three children as he wanted to make provision for Iris.  It appeared not to be in contest that this visit by Mr Fletcher, as a long-time acquaintance of Ronald's, had occurred in early May 2007.

15. Also at about the same time, on the evidence of Iris, Ronald had told her she should get herself a lawyer, as 'my children are determined that you will be left with nothing'.

16. On the unchallenged evidence of Simon, at about the same time, on 3 May 2007, Graham arrived in Perth from Israel to see Ronald before he died.

17. On 4 May 2007 Ronald instructed Paiker & Overmeire to prepare a transfer of Iris's interest in the Property from Iris to Ronald and a transfer of land form T1 under the Transfer of Land Act for that purpose was prepared (the form for a Transfer from Iris to Ronald).  On the same date Ronald telephoned Simon to say he was going to ask Iris to transfer her interest in the Property back to Ronald, and to tell Simon to collect the necessary documents from Parker & Overmeire.  Also on 4 May 2007 Mr Paiker showed Simon the form for a Transfer from Iris to Ronald together with a letter from Paiker & Overmeire to Ronald confirming instructions to prepare that document.  Late in the afternoon of 4 May 2007 Simon delivered a sealed envelope addressed to Ronald from Parker & Overmeire and marked 'Private and Confidential', which it appears contained these two documents, to Graham and asked him to deliver the envelope to Ronald.

18. On Iris's unchallenged evidence Ronald asked her to sign the form for a Transfer from Iris to Ronald, on a number of occasions, saying that the children wanted her to transfer the Property back to Ronald, which she refused to do. 

19. On 6 May 2007 a traditional Jewish marriage ceremony for Ronald and Iris was held at the Property.  Graham, but neither Simon nor Josephine, attended.  Another of those present at the ceremony was Mrs Tudori who attended it with her husband.  At the ceremony, Graham produced a handwritten note, signed by Ronald, and asked Iris to sign it.  She refused to do so.  The handwritten note (the Handwritten Note) read as follows:

    The law at present would be 30%?  - Iris receives 50% of the sale of the property and the contents of the home.  Personal effects belonging to Abigail Stone can be harmoniously taken into possession by the children of Ron Stone.  The balance of the estate to be divided amongst the children Simon, Josephine and Graeme Stone.

    [apparent signature]  5 May 2007

    It is suggested that Simon Stone and Harold Paiker be authorised as the [unclear].

20. Later on the same day, 6 May 2007, on the evidence of Simon he received a telephone call from Graham in the course of which Simon spoke with Ronald.  Ronald said that Iris had refused to sign the transfer of her half of the Property back to him, his wallet and chequebook were missing from his jacket pocket, he had asked Iris where they were and Ronald wanted to know what to do.  Simon told Ronald he did not want to become involved, but he would arrange for a lawyer to visit him.  Ronald asked Simon to arrange this, and Simon arranged for Jeremy Birman to visit Ronald in the Hollywood Palliative Care Unit.  Simon's evidence was that his purpose was that Mr Birman should provide Ronald with whatever advice Ronald needed.

21. Still later on the same day Mr Birman and Clinton Peter Kevin Russell, both from Birman & Ride, solicitors, met with Ronald at the Hollywood Palliative Care Unit.  Their conversation with Ronald was recorded digitally and a transcript of the recording was in evidence before me.  There was no challenge to the accuracy of this transcript.  I understood it to be before me as evidence of Ronald's state of mind and his other condition on the occasion in question, as well as what was said to him and by him then.

22. The transcript includes the following, in the order in which the exchanges proceeded (I follow the transcript in italicising Ronald's words):

    •Ronald referred to having meals with Iris, asking her to be his carer and applying for a visa for her, saying in the application she would look after him and eventually they would marry; eventually they had married, '[l]ast September', and had also had a Jewish ceremony that day (being 6 May 2007); however, the children had not 'taken' the marriage to Iris 'very well';

    •Ronald said that that, following the marriage in September, he had written 'to my son and I wrote to his lawyer and I told him please revoke all former', and Ronald had made a 'new Will';

    •Ronald referred to putting the Property into Iris's name, saying it was '[m]y idea', Iris had not suggested it: he wanted to 'get her a bit of security' so as to 'help strengthen our case' for Australian citizenship;

    •Ronald, when asked what effect he wanted to have 'these documents to have', replied '[i]f anything happened to me she would have somewhere to live and stay in Australia';

    •Ronald, when asked '[s]he would get the entire house?', said that he did not 'realise the complications', explaining that meant '[t]hat the children could take her to court etcetera etcetera and that I had made sure that I left the kids something hoping it wouldn't come to a court case';

    •Ronald added he wanted 'so much for her and the balance [for] the kids', and, when it was suggested to him that would not have happened if she 'owned the house', replied 'I don't know';

    •Ronald, when asked what he wanted to happen, said he wanted to 'stall everything until tomorrow morning' but 'I was told it might be too late';

    •Ronald, after he was asked whom he wanted the Property to belong to, said he wanted the Property to 'revert back to the original owner, myself', adding '[t]he law has been broken';

    •Ronald, after he was asked '[w]hy should the law have been broken?' and if 'somebody' had told him the law had been broken, replied '[b]ecause I asked her to fill out these forms today';

    •Ronald, when asked what form he wanted Iris to fill out, referred to a document he had dictated to Graham, and, when the words 'the law at present should be 30%?  Iris receives 50% of the sale of the property and the contents of the house.  Personal effects belonging to Abigail Stone', were read out, Ronald said '[m]y previous wife';

    •Ronald, when he was asked again what he wanted to have happen 'as far as the house is concerned', and after one of those at the meeting said to him 'the present situation is that when you die she will own the whole house do you understand that?  Is that what you want?', said

    No to virtually say I have been conned if that actually happened.  I would like to think I haven't been conned.  I know you can't go both ways but that's my general feeling.;

    •Ronald, when one of those at the meeting said to him that 'at the moment you own a half share in the house still', and was asked '[d]o you want to transfer that to anyone else?', said '[t]ransfer to my children';

    •When one of those at the meeting said to him that if he transferred the Property

    then you couldn't change your mind because you … The situation would then be that Iris would end up with half of the house and your children would end up with the other half

    Ronald said '[o]kay.  That's okay';

    •Ronald, when asked '[i]s that what you want?', said '[y]es if it stops her selling', referring to the Property;

    •Ronald, after being told that one or other of the holders of interests in the Property 'could force the sale of the house', but that the proceeds would be split '50/50', and being asked whether that was what he wanted, said '[y]ep' and added '[b]y the same token I would like to be able to wait until tomorrow morning';

    •Ronald, after one of those present at the meeting asked him if he would like to get some legal advice, and whether there was someone he would like, had responded '[w]hat's wrong with you Sir?';

    •When Ronald was told that the person speaking to him was 'your daughter's lawyer and she rather wants the house transferred to her or half of it', and that person did not want 'there to be any suggestion that I am forcing you to sign the documents', Ronald responded

    [n]o, certainly.  Sign it.  I'm not under duress or anything like that.

    •One of those present at the meeting then said that he would 'much prefer' Ronald talk to his own lawyer before signing the documents he had given Ronald, adding he 'would have a conflict because I am acting for her.  I am grateful for you talking to me but you don't have to obviously', to which Ronald responded, with the exchange between that person and Ronald continuing thereafter, as follows:

    My son told me to see you.

    Well I have spoken to him but of course he and your daughter have the same interest as they all want … I can't do anything about Iris has already got half of the house and I can't unless she agrees to hand over her half that's the way it will stay.  You at the moment own the other half and it is possible for you to transfer that what you own.

    You tell me then could she borrow against one, her half share or something like that.

    As things stand when you die she will own the whole property and no doubt she can borrow against that.  If you transfer your share to you [sic] son, your sons and your daughter then I don't think anybody can borrow, the only way they can get money is to sell the house.

    I would do that … I would be prepared to transfer to my children.

    •One of the persons present then said to Ronald that

    the best thing to do would be that we will prepare a transfer but I think it would be good if someone could come and see you an independent lawyer coming to confirm to you what the document says and make sure that you are happy to sign it in the morning

    to which Ronald said '[t]hat's what I want';

    •When one of those present at the meeting asked Ronald if there were a lawyer that person could contact for Ronald, Ronald said '[n]ot at this stage' adding, when asked whether he was 'happy for me to prepare a transfer and we'll deal with it in the morning', 'yes';

    •Ronald, when asked 'do you want to make a new Will?', said 'I will make a new Will eventually yes';

    •Ronald said, when some one present at the meeting asked Ronald towards the end of the meeting 'do you want to leave [matters] at that?',

    The other question is if I may.  Is there any merit in me now I have phoned her a couple of times I said, I stalled her, 'I said there is somebody here I owe money to and I haven't got my cheque book'.  It was a lie, I know.  I don't normally tell lies but I said it deliberately as a trap: 'will you bring over some money, my wallet' and she said it's in my bag.  I said my cheque book.  It's in the bag.  I said that will be good.  And my credit card.  She said everything is in the bag here for you.  She said I will see you in the morning.

    •Ronald also said, when some one at the meeting said '[s]he hasn't come',

    She hasn't come.  I phoned at home a couple of times there is no answer.  She sounds as though she was knocked out you know she really worked her guts out.  She made the place nice.  She did a lot of the catering.  I'm the sort of bloke …  I know it's silly but I see the good in everything.

23. On the morning of 7 May 2007, on Josephine's unchallenged evidence Mr M drove Ronald, Josephine, Graham and Iris together in his car to celebrations of the commemoration ceremony of the Battle of the Coral Sea.

24. Also on 7 May 2007, Mr Birman and Mr Russell, together with a Rodney Stephen Aldus, an employee of Birman & Ride, again met with Ronald at the Hollywood Palliative Care Unit.  On this occasion Dr Phua was also present.  The conversation with Ronald was also recorded digitally and a transcript of the recording was also in evidence before me.  As with the previous one, there was no challenge to the accuracy of this transcript.  I understood this transcript, like the previous one, to be before me as evidence of Ronald's state of mind and his other condition, as well as what was said to him and by him, on the occasion in question.

25. The transcript includes the following, again in the order in which the exchanges proceeded (again I follow the transcript in italicising Ronald's words):

    •Ronald confirmed his understanding of what one of those present at the meeting told him was the effect of his joint ownership of the Property with Iris, that

    If I kick the bucket she becomes the owner of the whole house.

    •Ronald said, when one of those present said to him he was the lawyer for his daughter, she wanted Ronald to transfer his share of the Property that was effectively a half share to 'Josephine, Simon and Graham, your kids' and that person asked him whether he wanted to transfer his share of the Property to his children, '[y]es';

    •One of those present asked Ronald what would happen if he signed the paper transferring his share of the house to the children now and he said '[w]hen I pass away she wouldn't get the lot', and when he was asked what Iris would get, he replied '[s]he'd get 50% or something and let the kids, can get a third share each'.

    •Ronald said, when one of those present said to him that Iris got half of the Property and the children got half 'between them' and asked him if that was what he wanted

    Not what I want but at this particular stage I will go along with it

    immediately after which the following exchange occurred:

    Well it's not really a matter of going along with it.  If you don't want to transfer your half share to the kids …

    Well I certainly will at the present moment.

    •Ronald said, after one of those present at the meeting had shown him a transfer of land and explained features of the document to him, indicated he would not sign immediately, confirming he was 'stalling' adding '[b]ecause I am quite confident that there's a misunderstanding.  In my opinion.  It's probably not worth much.'

    •Ronald said, after one of those present had said he had suggested to Ronald the previous day he get a lawyer, that the person speaking was not his lawyer but his daughter's lawyer, Ronald could get a lawyer to come and represent him, Ronald did not have to sign and that person asked him if he understood that and whether he would like a lawyer to come and see him, '[a]t the present moment I would say no';

    •Ronald said, when one of those present asked him if wanted to do anything about making a new will at that stage, '[a]t the present moment no';

    •Ronald said, when one of those present told him that if he wanted to execute the transfer there was no deadline for the purpose, but that if he did not when he died his half of the Property would belong to Iris, that his understanding then was that 'the children will have nothing' and added 'I am not a gambling man.  I'd like I would be prepared at this stage to sign half.  The kids own half', later stating 'I wish to sign it.  I'd like to do it that way.  At least the kids are covered.  If I sign now I'll gamble on half';

    •Then ensued the following exchange:

    I am not sure what you mean by gamble.  It's up to you.

    I might have to change it again.

    Well you are leaving the run a bit late I think.  That's up to you of course.  Not something you want to be bothered with every day I shouldn't think.

    No.  Okay say it's 3 o'clock today we sign it.

    Alright well do you want us to be here or do you want to do it by yourself?

    No, I'll do it now in front of you fellas. I want to get our witnesses together.

1. A short time later Ronald signed the Transfer Form of 7 May 2007 and handed it over to Mr Aldus, Mr Birman or Mr Russell.  It appears that the transferees signed the Transfer Form of 7 May 2007 subsequently.

2. Still later on 7 May 2007 Simon visited Ronald at the Hollywood Palliative Care Unit.  Ronald told him that he had transferred his interest in the Property to his children and that his children's lawyers needed the certificate of title to the Property and Ronald was going to get it from his study.

3. On the morning of 8 May 2007 Josephine and Graham visited Ronald in the Hollywood Palliative Care Unit.  Ronald said he wanted to go to the Property to get his lists of the items he wanted to bequeath to his family.  The three went to the Property, and Ronald entered the password on a digital pad to gain entry to the garage and asked Josephine for her key to the Property, which she produced.  When she tried to open the door the key did not work.  After the three tried other doors it became apparent the locks had been changed.  They returned to the Hollywood Palliative Care Unit.

4. On or about 8 May 2007 Mr Birman telephoned David Lenhoff, solicitor of Holborn Lenhoff Massey barristers and solicitors, to have him prepare a will for Ronald after taking his instructions; and on 8 May 2007 Mr Lenhoff visited Ronald at the Hollywood Palliative Care Unit.  On Mr Lenhoff's affidavit evidence, Ronald told Mr Lenhoff that he wanted to execute a new will naming the plaintiffs as his residuary heirs and Simon as executor, that he wanted to give his half interest in the Property to the plaintiffs and that he had signed a transfer of land document for that purpose.  In his cross‑examination Mr Lenhoff testified that, while he was aware that Ronald held the Property jointly with Iris, he could not 'independently recollect' whether, at the time he took the instructions, he was aware of a transfer of Ronald's interest in the Property from Ronald to the children.  Mr Lenhoff's testimony was that after taking instructions from Ronald he learnt from Mr Birman that a certificate of title was needed to complete a transfer of Ronald's interest in the Property from Ronald to the children.  Mr Lenhoff's evidence was that during the day on 9 May 2007 he telephoned Ronald and told him of that need, and Ronald said to him he was going to the Property the following day, Thursday 10 May 2007, to get the certificate of title and a list of items he wanted dealt with in his will.

5. On the evening of 9 May 2007 Mr Lenhoff met Ronald at his request.  Mr Lenhoff's evidence was that he told Ronald he had prepared a will on Ronald's instructions leaving everything to the plaintiffs equally and appointing Simon as executor.  Mr Lenhoff told Ronald that because Ronald held his interest in the Property jointly with Iris she would acquire that interest by survivorship, and he could not deal with it in his will; the children's lawyers needed the title to the Property to register the transfer to the children pursuant to the Transfer Form of 7 May 2007; and if Ronald wanted to discuss that matter he could speak to their lawyer, Mr Birman. 

6. Ronald then signed the will (the Will of 9 May 2007) and Mr Lenhoff witnessed the signature. 

7. Mr Lenhoff's evidence as to Ronald's capacity to give instructions for the Will of 9 May 2007 was as follows (ts 478):

   Did you have any concerns that he may not be able to give you instructions?---No.

   You didn't have any?---He was perfectly lucid and I was able to understand him and he was able to understand me.

8. I also note Simon's evidence that as at 7 May 2007, at the time of Ronald's attendance with Josephine, Graham and Iris at the commemoration ceremony for the Battle of the Coral Sea, Ronald's condition was as follows (ts 476):

   This is a man who was dying, Mr Hockley, yes, but dad had a lot of strength and he had all his faculties about him.  That may be why he took the time that he took to deal with things.

9. The Will of 9 May 2007, having revoked all previous testamentary acts, provided that Simon was to be executor and trustee.  Following provision for Ronald's debts and funeral expenses and the trustee's professional fees, administration fees and expenses and any death duty on his estate, there was a single dispositive clause.  That clause gave the residuary estate to Graham, Josephine and Simon, in equal shares, and if any of them predeceased him then their share to be held in trust by the trustee for whichever of their children lived to the age of 21 years, if more than one in equal shares, and failing any such children their share to 'my surviving brothers named above'.  I note in passing that there was no such person 'named above', unless 'my surviving brothers named above' should be read to refer to Graham and Simon if they survived Ronald.  However, the matter was not explored in evidence or submissions before me: in particular, there was no evidence as Ronald having any brother or brothers.

10. There was no evidence before me of any later will or other testamentary instrument of Ronald's than the Will of 9 May 2007.

11. On 10 May 2007 Ronald telephoned Josephine to talk to her about a roster for visits by Iris and the children to Ronald at the Hollywood Palliative Care Unit.  It was not clear on the evidence whether this was a conversation to change a pre-existing roster or a conversation about setting up a roster; however, in my view the difference is not material.  On Iris's and Josephine's evidence, Josephine's then boyfriend, a Mr M, answered the telephone.

12. On Iris's evidence, Mr M wanted to know if Iris had signed the form of Transfer from Iris to Ronald, and Ronald said words to the effect 'I have to defend and protect my wife', twice, and then Mr M said to Ronald 'You are a weak piece of shit, we are going to say to the Jewish community that you have raped her', and '[h]e said', '[f]uck you and the Jewish community'.  On Iris's evidence Ronald did not at any point say to Mr M 'I suppose you think that I am a weak piece of shit'; and Josephine did not participate in the conversation.

13. Josephine's evidence of the conversation did not include any question by Mr M of Ronald as to whether or not he had signed the form of Transfer from Iris to Ronald.  On Josephine's evidence Ronald said to Mr M 'I suppose you think that I am a piece of shit', after which Mr M said 'Yes you are; you are a weak piece of shit', at which point she took over the phone from Mr M and spoke with Ronald about the roster.  During that conversation Josephine said she was not happy with the roster arrangement as she was not confident of driving at night, and Ronald said 'I have to defend and protect my wife.  I cannot let you upset her'.  I return to these differences between the accounts of the conversation.

14. Also on 10 May 2007, whether before or after this telephone call, Mr Lenhoff telephoned Ronald.  Mr Lenhoff asked Ronald if he wanted Mr Lenhoff to go to the Property to retrieve the title, to which Ronald said he had planned to go himself that day, but had been unable to do so.  He added that he intended to go to the Property with Iris to get the title the following day, and he would call Mr Lenhoff when Ronald returned to the Hollywood Palliative Care Unit.

15. On 11 May 2007, apparently in the morning, Ronald and Iris went to the Property to look for the duplicate certificate of title to the Property, but were unable to find it.  On Iris's evidence, before she and Ronald did this, she had called Mrs Tudori to seek her advice concerning a person Ronald had said to her was a lawyer who would accompany them on the visit.  Mrs Tudori had spoken first with her and then with Ronald on the telephone in Ronald's room in the Hollywood Pallliative Care Unit, and Mrs Tudori had told Iris such an arrangement was 'harassment'; Iris heard her repeat that to Ronald; and there is no evidence any other person accompanied Iris and Ronald on the visit.  However, the evidence of Mrs Tudori as to this conversation included no evidence of her having said to Iris or Ronald what Iris's evidence was she had said.

16. On 12 May 2007 Ronald telephoned Mr Lenhoff and said he was going to the Property the following day to get the title.  There is no evidence such a visit actually took place.

17. Also on 12 May 2007 Mr Russell handed to Iris a letter dated 11 May 2007 signed by Mr Aldus from Birman & Ride (Birman & Ride's letter of 11 May 2007) requesting that, if she had access to the certificate of title to the Property, she 'deliver it to either Birman & Ride of [sic] Mr David Lenhoff immediately.  Otherwise, please contact me urgently to assist us in retrieving the certificate of title'.

18. On 13 May 2007 Mr Lenhoff visited Ronald at the Hollywood Palliative Care Unit and asked him if he still wished to transfer his interest in the Property to the plaintiffs.  In his testimony Mr Lenhoff said he had no doubt on that account, but that he 'would have checked with [Ronald] because it was quite a big thing he was trying to do'.  Ronald indicated he did wish to transfer his interest in the Property to his children.

19. On 15 May 2007 Mr Lenhoff posted to Iris by ordinary post a letter of that date.  In that letter (Mr Lenhoff's letter of 15 May 2007) Mr Lenhoff referred to instructions he said he had received from Ronald 'on numerous occasions' as to Ronald's wishes to transfer the Property to the plaintiffs, and Mr Lenhoff's requirement for the duplicate certificate of title to the Property 'to give effect to my client's instructions'. 

20. Mr Lenhoff's letter of 15 May 2007 also said that the duplicate of certificate of title was

    currently at the Property and, for reasons well known to you, my client is unable to retrieve it.  You are the only other person who has access to the premises on the Property.

21. In that letter, Mr Lenhoff requested that Iris telephone him 'urgently' to

    make arrangements for me to collect the certificate of title so that the necessary steps can be taken to give effect to my client's wishes to convey his joint interest in the Property to his children.

22. On the evening of 15 May 2007 Mr Lenhoff went to the Hollywood Palliative Care Unit to visit Ronald.  Iris was there with him; he was asleep.   After Iris refused to take a copy of Mr Lenhoff's letter of 15 May 2007 and asked Mr Lenhoff to leave it in Ronald's room, Mr Lenhoff left it there.  Iris's evidence was that she did not see the letter.

23. Iris's evidence was that subsequent to this exchange she again searched the Property for the duplicate certificate of title.  Her affidavit evidence was that this search occurred '[a]fter receiving the letter of demand for the duplicate Certificate of Title on 15^th May 2007'.  However, in her cross‑examination she testified that by 'letter of demand' she had meant to refer to the form for a Transfer from Iris to Ronald.  The search at the Property on her evidence occurred before 17 May 2007, as will shortly become clear.  In that search Iris discovered the duplicate certificate of title to the Property, in her 'personal file' in the bedroom she had shared with Ronald.  On her evidence she had not put the duplicate certificate of title there and believed that Ronald must have put it there.

24. On 16 May 2007 Mr Lenhoff delivered to the Hollywood Palliative Care Unit documents being the Application for a New Duplicate Certificate of Title, the Application to Dispense with the Duplicate Certificate of Title and, without handwritten amendments, the Statutory Declaration.  All of these documents had been prepared by Birman & Ride.  Mr Lenhoff told Ronald when he delivered the documents that, as the children did not have the title, their lawyer had asked that Ronald sign the documents to assist with the registration process.  Mr Lenhoff had also told Ronald to read the documents carefully and sign them if he was satisfied with them.  Ronald told Mr Lenhoff that the Statutory Declaration par 8 was incorrect and Ronald wanted it amended.  On Mr Lenhoff's testimony in cross-examination, Ronald made handwritten changes to par 8, which he and Mr Lenhoff then initialled.  After handwritten amendments to par 8 had been made Ronald signed each of the documents and Mr Lenhoff witnessed his signature.  From what on 16 May 2007 Mr Lenhoff told Ronald, that as to those documents, as the children did not have the title, their lawyer had asked that Ronald sign the documents to assist with the registration process, and from Birman & Ride having on 23 May 2007 lodged with the Registrar of Titles the Applications and the Statutory Declaration, I would infer that following the execution of those documents Mr Lenhoff within Ronald's authority delivered them to Birman & Ride.

25. Paragraph 8 of the Statutory Declaration as delivered to Ronald read, in respect of what is referred to as Ronald's return to the Property on 11 May 2007 to search without success for the duplicate certificate of title, 'I asked the other registered proprietor of the land where the duplicate Certificate of Title was and she did not tell me.'  The amendment was to cross out 'tell me' and replace it with 'know and she was looking for it too.  She accused me of giving it to someone.'

26. On 17 May 2007 Iris delivered the duplicate certificate of title to the Property to her solicitors Nielsen & Co, and by letter of that date (Nielsen & Co's letter of 17 May 2007) from those solicitors to the Registrar of Titles they informed the latter that Elliot Nielsen of that firm held that duplicate certificate of title for safekeeping. 

27. Nielsen & Co's letter of 17 May 2007 went on to say that Ronald 'may have been prevailed upon by others to make an application for a replacement duplicate certificate of title, and utilise it in a dealing to the detriment' of Iris, adding that the duplicate certificate of title was 'not lost', and that

    those who may wish to obtain a duplicate certificate of title as a replacement are well aware that it is not lost, but properly and lawfully in the possession of [Iris], and her solicitor.

    In the event that any application for a lost certificate of title has been made, I ask that you inform this office of any such application, and deal with such application in the light of this information.

28. It is not in contest that the Registrar of Titles, as a result of receiving Nielsen & Co's letter of 17 May 2007, placed the certificate of title to the Property in Registrar's Packet K 200572, the purpose of which, as described in the letter dated 23 May 2007 of the Registrar to Elliot Nielsen of Nielsen & Co (the letter from the Registrar of Titles of 23 May 2007), was to give notice to persons searching the title that the Registrar of Titles was to monitor dealings in relation to the Property 'in order to prevent improper dealings due to correspondence received'.

29. On 18 May 2007 Birman & Ride lodged the original Transfer Form of 7 May 2007 at the Office of State Revenue for assessment of stamp duty.

30. It is common ground that on 23 May 2007 Birman & Ride lodged with the Registrar of Titles three sets of documents.

31. One such set of documents, which became Caveat K195526 (the plaintiffs' Caveat), showed on the Caveat Form C 1 under the Transfer of Land Act, dated 17 May 2007, the plaintiffs as Caveator and the estate or interest being claimed as '[a]n equitable interest as owner of [the Property]' by virtue of the Transfer Form of 7 May 2007.  The letter of the Registrar of Titles of 23 May 2007 drew the attention of Mr Nielsen to the plaintiffs' Caveat.

32. Another such set of documents, which became Application K202077, comprised the Application for a New Duplicate Certificate of Title and the Statutory Declaration.  The Application for a New Duplicate Certificate of Title stated as the reasons for the application that 'the current duplicate Certificate of Title has been lost'.

33. The third set of documents, which became Application K202078, comprised the Application to Dispense with the Duplicate Certificate of Title.

34. On 26 May 2007 Iris signed a Caveat Form C 1 under the Transfer of Land Act, dated that date, which it appeared to be common ground was lodged on 28 May 2007 (the second defendant's Caveat).  The second defendant's Caveat showed her as Caveator and the estate or interest being claimed 'as joint tenant', by virtue of the matters set out 'in the Statutory Declaration of the Caveator declared the 26^th May 2007'.  That statutory declaration (the second defendant's Statutory Declaration) referred among other things to a conversation Iris declared she had with Ronald at about 7 pm on 28 April 2007 in Ronald's room at the Hollywood Palliative Care Unit.  In that conversation Iris said Ronald told the second defendant Josephine was blackmailing him over a complaint Josephine had made against him approximately 30 years earlier that Ronald had sexually interfered with Josephine.  The second defendant's Statutory Declaration also referred to a telephone conversation on the same date, 28 April 2007, between Josephine and Ronald in which the second defendant heard Josephine use words to the effect that if Ronald did not do what Josephine wanted she would expose him to the whole Jewish community as a rapist.  The second defendant's Statutory Declaration added that Ronald had stated to the second defendant that 'because of this' he wanted to transfer his joint tenancy in the Property to his three children, including Josephine.  The second defendant's Statutory Declaration is stated to be in support of an absolute caveat over the interest of Ronald in respect of the Property to prevent 'improper dealings'.  The contents of the second defendant's Statutory Declaration are for the most part reproduced in a further statutory declaration of 13 July 2007 which was lodged under the Transfer of Land Act in response to requisitions of the Registrar of Titles for the purposes of the second defendant's Caveat.

35. As I have previously indicated, on 27 May 2007 Ronald died.

36. I turn now to describe the present proceedings and the evidence before me.

The present proceedings and the evidence before me

1. The present proceedings were brought by originating summons filed on 5 July 2007.

2. There were some difficulties encountered in the fixing of a date of appointment to hear the originating summons, and on 19 April 2010 I heard and dismissed an application by the second defendant to vacate the listed date of the appointment to hear the originating summons, that date being 23 April 2010.

3. On 23 April 2010 the parties appeared before me.  There was substantial argument devoted to whether or not the plaintiffs had been taken by surprise by the second defendant taking the position that the hearing should be to consider a wider range of issues than the plaintiffs had come prepared to address.  The plaintiffs' position was that those issues were confined to whether or not Ronald had made a gift which equity would recognise, in the sense of making its remedies available to perfect, to the children of his interest in the Property (the issue of perfect gift).  The second defendant's position was that the issues between the parties also extended to whether or not Ronald had capacity to make that gift (the issue of capacity); and whether or not the gift should not be recognised on one or more of the bases of duress (the issue of duress) or undue influence (the issue of undue influence).  During the hearing the second defendant indicated through her counsel she was content to have the hearing on the originating summons on the issue of perfect gift, and not on the issues of capacity, duress and undue influence.  The parties then made submissions as to the evidence properly before me on the issue of perfect gift, and I made rulings on the parties' submissions that had the effect of defining that body of evidence.  I also made provision for further submissions on the issue of perfect gift to be made subsequently to the hearing, including oral submissions.

4. On 19 May 2010 further matter to correct what had been in the affidavit of counsel for the plaintiff upon which I had relied at the hearing of 23 April 2010 was drawn to my attention.  This correction persuaded me that I should adjourn the hearing to allow the parties a limited time to file further affidavits with respect to the further issues I identified in the written submissions for the second defendant filed for the purpose of the hearing on 23 April 2010, and with leave to identify deponents for the purposes of cross‑examination of them.

1. On 13 July 2010 at a directions hearing before me the issues for the resumed hearing on the originating summons were identified in orders for a resumption of the hearing of the originating summons of that date (the Orders of 13 July 2010) as to the issues of duress, undue influence and capacity, as well as whether the gift should not be recognised on the basis of an unconscionable dealing with Ronald (the issue of unconscionability).  Provision was made for closing addresses to be with respect to those issues as well as the issue of perfected gift.  In addition, the affidavit evidence was also identified subject to objections to be dealt with.

2. On 20 August 2010 there was a hearing to settle the revised dates for the resumed hearing on the originating summons.

3. On 16 September 2010 the second day of hearing of the issues arising out of the originating summons took place, with counsel for the second defendant opening.  The affidavit evidence for the second defendant was dealt with by confirming the parts of it previously accepted to be in evidence and, after the determination of objections, by the admission into evidence of further paragraphs from those affidavits.  In some cases leave was granted to ask questions in examination in chief on certain matters.

4. On 17 September 2010 the third day of hearing of the issues arising out of the originating summons took place, with further affidavit evidence for the second defendant dealt with as on the second day of hearing of the issues arising out of the originating summons, as well as the admission of evidence from further affidavits for her, and the taking of testimony from deponents of some of the affidavits so in evidence.

5. On 24 September 2010 the fourth day of hearing of the issues arising out of the originating summons took place, with testimony from one of the deponents of affidavits in evidence for the second defendant, the admission into evidence for the second defendant of affidavits of two other deponents and testimony from deponents for the plaintiff and admission into evidence of further affidavit evidence for the plaintiff.

6. On 28 September 2010 counsel made closing oral submissions having lodged written submissions and other materials for the hearing and referring also to written submissions and other materials previously lodged for earlier hearing days.

7. Thus, the evidence before me, apart from evidence in the form of a copy of the certificate of title to the Property showing registration date 14 March 2007 (exhibit 1) and a Landgate sale inquiry document as at 22 April 2010 (exhibit 2), was the following.

8. There was matter in affidavits for the second defendant, and in the cases of some of the deponents testimonial evidence, as follows:

   •Affidavits of Iris, sworn 8 October 2007 as to certain parts and certain annexures only (exhibit 3) and 4 September 2009 as to certain parts and one annexure only (exhibit 11), as well as testimony from Iris;

   •An affidavit of Mr Cohen, sworn 4 September 2009 (exhibit  4), as to certain parts only, as well as testimony from Mr Cohen;

   •An affidavit of Mr Fletcher, sworn 24 November 2009 (exhibit 9), as to certain parts only;

   •An affidavit of Mrs Tudori, sworn 8 October 2007 (exhibit 10), as to certain parts only;

   •An affidavit of Anne Fergusson-Stewart, sworn 24 November 2009 (exhibit 12), as to a single paragraph only: I consider no further reference to her evidence is necessary in these reasons; and

   •An affidavit of Dr Chong, sworn 26 November 2009 (exhibit 13), as to certain parts only.

9. There was matter in affidavits for the plaintiffs, and in the cases of some of the deponents testimonial evidence, as follows:

   •Affidavits of Mr Aldus, sworn 5 July 2007 and its annexures (exhibit 5) and 31 May 2010 (exhibit 16);

   •Affidavits of Simon, sworn 4 July 2007 and its annexures (exhibit 6) and 31 May 2010 (exhibit 14), as well as testimony from Simon;

   •An affidavit of Mr Lenhoff, sworn 5 July 2007 and its annexures (exhibit 7), as well as testimony from Mr Lenhoff;

   •An affidavit of Mr Russell, sworn 5 July 2007 and its annexures (exhibit 8); and

   •An affidavit of Josephine, sworn 31 May 2010 as amended (exhibit 15) as well as testimony from Josephine.

10. I should note that at a number of points in Iris' testimony in the hearing it was evident that she had some difficulty arising out of the fact that English was not her first language.  However, I formed the view that it was not necessary for me of my own motion to appoint an interpreter for her; nor did her counsel seek to persuade me otherwise.

The issues

1. As I have indicated, the issues in this case as they developed over the course of the proceedings before me are five.  They are:

   (1)The issue of perfect gift;

   (2)The issue of capacity;

   (3)The issue of duress;

   (4)The issue of undue influence; and

   (5)The issue of unconscionable dealing.

2. I deal with each of these issues separately, considering first the applicable principles and then applying them to the facts as I find them to be.

3. The final section of my reasons is my conclusion and call for orders.  In that section I deal separately with a matter as to costs that had been raised with me during the course of the hearing on 19 May 2010.

The issue of perfect gift: applicable principles

1. The principles I describe are ones on which there appeared to be no issue taken by either party, except as indicated.

2. For the plaintiffs to have interests in the Property, as tenants in common in equal shares being equitable owners of an undivided half interest in the Property, with the second defendant having an interest in the Property as tenant in common with them of the other undivided half interest in the Property, and with the parties entitled to be registered as the proprietors of such interests under the Transfer of Land Act, there had to have been an effective alienation in equity to the plaintiffs of Ronald's interest in the Property.  The burden was on the plaintiffs to show such an alienation.

3. Such an alienation would work a severance of the joint tenancy in the Property of Ronald and Iris, and would not require consideration or the conferral of legal ownership on the plaintiffs.  It would be sufficient if there was a voluntary alienation which equity would recognise as a perfect gift.  See Corin v Patton [1990] HCA 12; (1990) 169 CLR 540, 546 ‑ 550 (Mason CJ and McHugh J) and 572 ‑ 576 (Deane J); and Bradbrook et al, Australian Real Property Law (5^th ed 2011) [12.360] ‑ [12.365].

4. For there to have been a perfect gift, the donor must have done everything which it was necessary for him to have done to effect a transfer of legal title.  See Bradbrook et al [12.365] quoting from Corin (559) (Mason CJ and McHugh J) and (582) (Deane J, discussing rule in detail).  If the donor's conduct has failed to meet that standard, then the gift is imperfect and equity will not make its remedies available to perfect the gift, remedies which include recognition of an equitable interest in the donee.  See Corin (557) (Mason CJ and McHugh J).

5. Further, for there to have been a perfect gift, the donor must have done what the donor did with the intention of parting with the donor's interest so that as against the donor the donee is entitled to obtain the legal title to the donor's interest.  See Public Trustee v Jones [2007] SASC 390 [53] ‑ [54] (Layton J), referring to Cope v Keene (1968) 118 CLR 1, 6 ‑ 7 (Kitto J, McTiernan J agreeing).

6. For the donor to have done everything which it is necessary for him to have done to effect a transfer of legal title requires the donor to have placed the effecting of the transfer within the control of the donee and beyond the control, recall, intervention or need for further assistance of the donor.  See Corin (582 ‑ 583) (Deane J), (559) (Mason CJ and McHugh J).

7. The fact the donor has died after doing all that it is necessary for him to have done to effect a transfer of legal title does not affect the fact that a severance has been worked in equity.  See Bradbrook et al [12.365] n188, citing Watt v Lord [2005] NSWSC 53; (2005) 62 NSWLR 495 (which states that this proposition appears to be the 'better view').

8. However, where a certificate of title has been issued, and is held by or for the donor and the non-assigning joint tenant, the donor has not done all that is necessary for him to have done to effect a transfer of legal title simply by executing the transfer of his interest and delivering it to the donee/transferee while also requiring the non-assigning joint tenant to deliver the certificate of title to the transferee, and notwithstanding that the non-assigning joint tenant is compellable for this purpose.  The incompleteness lies in the revocability of the requirement to deliver.  See Costin v Costin (1997) 7 BPR 15,167, 15,168 (Sheller JA) and 15,170 (NSW CA: Brownie JA, Powell JA agreeing); and Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 23 ACSR 647, 655 ‑ 656 (NSW SC: Santow J); see also Bradbrook et al [12.365] and [12.370]. The gift is not perfect until the non-assigning joint tenant produces the certificate of title to the donee/transferee: Motor Auction (656). 

The issue of perfect gift: application of the principles

1. Here I consider I should infer Ronald intended to make a gift of his interest in the Property, beginning when he signed the Transfer Form of 7 May 2007 and delivered it to the solicitors for the plaintiffs, Birman & Ride, and continuing thereafter.  I so infer from that conduct and the evidence of his intentions in Ronald's conversation with the solicitors from Birman & Ride of 7 May 2007, his subsequent attempts to obtain the duplicate certificate of title, Mr Lenhoff's conversation with him of 13 May 2007, Mr Lenhoff's letter of 15 May 2007 and the Applications.

2. Counsel for the second defendant put to me that on the unchallenged evidence of Iris as to her discovery of the duplicate certificate of title it was possible Ronald knew the whereabouts of the duplicate certificate of title and thus he 'knowingly failed to perfect the gift'.  I took this to be a submission that I should conclude the plaintiffs had failed to show an intention by Ronald to part with his interest in the Property.  However, I consider that in the face of the other evidence to which I have referred Iris's evidence does not lead me to the conclusion described.

3. Here there was a requirement to deliver the duplicate certificate of title to be found in the direction to produce it in Mr Lenhoff's letter of 15 May 2007, which I accept, on the evidence that Mr Lenhoff was Ronald's solicitor, was sent to Iris within Ronald's authority.  I recognise that Mr Lenhoff was chosen by Birman & Ride, that he had previously indicated to Ronald at their meeting of 9 May 2007 that the children's lawyers needed the title to the Property to register the transfer to the children pursuant to the Transfer Form of 7 May 2007 and that Birman & Ride's letter of 11 May 2007 in its call for delivery of the duplicate certificate of title referred to delivery to either that firm or Mr Lenhoff's firm.  However, I do not consider that this is sufficient to indicate that Mr Lenhoff was not acting within his client's authority.

4. However, Ronald's delivery of the executed Transfer Form of 7 May 2007 and the sending to Iris of the direction to produce the duplicate certificate of title in Mr Lenhoff's letter of 15 May 2007 would not suffice to make the alienation of Ronald's interest in the Property effective in equity.  That is because Ronald's direction to produce should be taken as revocable, and because of the failure by Iris as joint tenant to make the duplicate certificate of title available to Ronald before his death: see Costin (15,168 and 15,170); and Motor Auction (656) (on Costin).

5. Counsel for the plaintiffs put to me that the present case is distinguishable from Costin because, as I understood his submission, here there was not only the direction to produce in Mr Lenhoff's letter of 15 May 2007 but also the facts that Ronald had sought to locate the duplicate certificate of title, enlisting the aid of Iris for the purpose; and, when the duplicate certificate of title could not be located, Ronald had completed the Applications.  This showed a level of action by the donor to effectuate his gift greater than that in Costin.  Further, I understood the submission for the plaintiffs to be that the present case was distinguishable from Costin on the basis that in that case the donor had, subsequently to the issue of the direction to produce, executed a further transfer of the land in favour of another and that transfer was registered.  This was taken in Costin to have shown a change of mind:  (15,168 ‑ 15,169) (Brownie JA).  Here there was (as I accept) no evidence of a change of mind.

6. However, I do not consider that either difference distinguishes this case from Costin for my purposes. 

7. From Costin it is not the level of action by the donor that is determinative, but its quality, as answering the description in Corin (559) (Mason CJ and McHugh J) and (582) (Deane J).  If the direction to produce is revocable, as on Costin (15,168 and 15,170) and Motor Auction (656) I consider the direction here must be seen to be, it is not binding on the donor and the gift is incomplete, unless the duplicate certificate of title is in fact produced to the donee/transferee.  See for this analysis Costin (15,170) (Brownie JA).

8. Further, it is not sufficient that there may be an opportunity for the donee to secure the registration of the transfer without production of the certificate of title of the sort in Conveyancing Act 1919 (NSW) s 36(6)(b)(ii) and s 38, referred to in this connection in Costin (15,169) (Brownie JA).  I note that there is a provision for registration of a dealing without the production of the certificate of title in Transfer of Land Act s 74 read with s 52 and s 56. As events have indicated, these provisions were not taken by the Registrar to confer a right to registration at least in the circumstances of this case, and it was not put to me the Registrar was in error in that respect.

9. In my view, then, notwithstanding Transfer of Land Act s 74 read with s 52 and s 56 and the Applications, in this case so long as the duplicate certificate of title had not been produced, and Ronald had control of the duplicate certificate of title (through the power of revocation of the direction to Iris to produce), Ronald retained the power to thwart the claimed gift to the children of Ronald's interest in the Property within Corin (560).

10. It would follow that the claimed gift to the children of Ronald's interest in the Property should be considered to be an imperfect one which equity would not make its remedies available to perfect.

11. However, it might be put against arriving at any such conclusion, as counsel for the plaintiff appeared to do, that it would prevent effect being given to the clearly established intention of a donor to make a gift, an intention frustrated by actions of another who stood to lose from the gift and who was acting at a time when it was evident the donor had little time left to live.  I accept the evidence establishes all of these matters in this case.  I should add that on the evidence it is not clear that Ronald was guilty of procrastination in relation to the making of his intended gift, although no argument was directed to me on that point.  Compare the observation as to the facts in Rutledge v Sheridan [2010] QSC 257 [40] (Daubney J).

12. However, a clearly established intention to make a gift is not determinative of whether a gift has been perfected: see Costin.  Nor should the result be any different simply because the accomplishment of such an intention is prevented by another who might be said to have an interest in that intention not being accomplished, and indeed might have been compelled by the intending donor to permit its accomplishment: see Motor Auction.  And there is no indication in the authorities I have found that the result should be different if such an intention is established in the context of the established absence of procrastination by the donor.

13. At the same time, does it make a difference that Ronald died with a will appointing one (only) of the donees, Simon, the executor and trustee under Ronald's last will?  For the plaintiffs it is put that there is such a difference, on the rule in Strong v Bird (1874) LR 18 Eq 315. I turn to the statement and conditions for the application of that rule, and its application in this case.

The issue of perfect gift: whether the rule in Strong v Bird applies here

1. There is a 'clearly established' exception to the maxim equity will not make its remedies available to perfect an imperfect gift, including its recognition of an interest created by the gift in the donee, in the rule in Strong v Bird:  see Corin (557) (Mason CJ, McHugh J).  It is common ground that the burden of proof that the rule applies is on the plaintiffs.

2. That rule may be stated as follows.  On the death of an intending donor who has left a will appointing the intended donee the or an executor of the donor's estate, an incomplete gift is treated as completed by the vesting of the legal estate in the intended donee.  For this statement, see In re Stewart; Stewart v McLaughlin [1908] 2 Ch 251, 254 (Neville J), cited with apparent approval in Matthews v Matthews [1913] HCA 49; (1913) 17 CLR 8, 15 (Barton ACJ); and see 33 (Isaacs and Powers JJ).

3. The rule applies provided that four conditions (one of which, as will be seen, I have expressed as part of the statement of the rule itself) are met.

4. Those four conditions are:

   (1)the intending donor made a purported immediate gift of specific property to the intended donee which

   (2)failed to take effect by way of present gift due to non-compliance with legal requisites for complete divesting of legal title from the intending donor in favour of the intended donee, but where

   (3)the intending donor still had when he died the intention that the property should be treated as having been effectually given to the intended donee and

   (4)the intending donor left a will appointing the intended donee as the executor or one of the executors of the testator.

5. See Cope (8) (Kitto J, McTiernan J agreeing); and Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4^th ed 2002) [29‑025].

6. It has been said that the rule is capable of application where only one of several intended donees is appointed executor of the intending donor's estate: Blackett v Darcy (2005) 62 NSWLR 392 [34] (Young CJ in Eq); and see Ford HAJ and Lee WA: Principles of the Law of Trusts, vol 1 (Update 74) [3‑340] (no settled rule; citing Blackett).  Here of course one (only) of the intended donees (Simon) was appointed an executor under the Will of 9 May 2007, Ronald's last will.

7. It has been held that the rule is capable of application where there is a purported immediate gift of specific property in the form of real property: see Benjamin v Leicher (1998) 45 NSWLR 389, 401 ‑ 402 (Cohen J). No reason appears to me why this does not apply to land under a Torrens statute such as the Transfer of Land Act, in view at least of s 188 providing for the transfer of the testator's land to an executor or other personal representative, backdated to death.

8. It seems to me that the four conditions for the rule in Strong v Bird to apply have been met here.  In particular, the intention to make and steps towards making an immediate gift (conditions (1) and (2)), which intention continued until death (condition (3)), would appear to be met on the facts of the Transfer Form of 7 May 2007 delivered to Birman & Ride and the completion by Ronald on 16 May 2007 of the Application for a New Duplicate Certificate of Title, the Application to Dispense with the Duplicate Certificate of Title and, with handwritten amendments, the Statutory Declaration, against the background of the conversation between Mr Lenhoff and Ronald on 13 May 2007 in which Ronald confirmed he still wished to transfer his interest in the Property to the children, and the absence of any countervailing evidence in respect of such an intention.

1. On how to make an allowance if one is considered appropriate, I note from David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233 [10] (Maxwell P, Redlich JA & Forrest AJA) the following (references in footnotes inserted; emphasis added):

   The contentions of the parties raise a number of questions relevant to costs orders on appeal. The principles relevant to these questions can be summarised as follows:

   1.The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim. [Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-8 (McHugh J); 124 (Kirby J)].

   2.The Rules of Court permit significant flexibility in determining questions of costs. In particular, the court is entitled to examine the realities of the case and will attempt to do 'substantial justice' as between the parties on matters of costs:  Spotless Group Ltd v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd ('Spotless') [2008] VSCA 115 , [14].

   3.Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, [McFadzean v Construction Mining and Energy Union (2007) 20 VR 250  ('McFadzean') [157]-[158]], a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount [Spotless [15]; Hughes v Western Australian Cricket Assn Inc (1986) 8 ATPR 40-748, 48, 136; Pricom Pty Ltd v Sgarioto (Unreported, Supreme Court of Victoria, Eames J, 24 April 1995); McFadzean [2007] VSCA 289, [152]].

   4.A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

   5.Where a court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,' [Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114, [5]] rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

   See also Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 [28] (Owen J; White & Parker JJ agreeing on this point).

2. For the second defendant it was contended that she was 'wholly successful'.  I disagree.

3. The further issues were discrete and severable from the ones on which she succeeded, even although they went not only to impeach the gift, assuming it was perfected, but also to an element of the alternative basis that the plaintiffs put forward for their contention that the gift should be upheld as a perfected gift.  In that last respect, had the second defendant had to rely on the failure of that element for the perfect gift issue to be resolved in her favour, her case would have failed.

4. Further, these discrete issues added to the cost of the proceedings in a significant and a readily discernible way.  I accept that a substantial proportion of the hearing days, including most of the September hearing days, were concerned with the further issues, even if there were elements of the evidence relating to the perfect gift issue which were necessarily involved in those hearings and which were addressed in the second defendant's written submissions provided to the court at the commencement of the September hearing days, and also addressed in closing submissions, directly and by reference to his written submissions by counsel for the plaintiff, and by reference to his written submissions by counsel for the second defendant.

5. See Amaca [7], quoted from in Bowen [8].

6. At the same time, I consider that the general approach referred to in Chen [10](3) is the one I should follow.

7. I have noted the submissions for the plaintiff that evidence and legal argument relating to the further issues are 'easily distinguishable' from those relating to the perfect gift issue, and 'capable of simple distillation by a taxing officer'.  If such a state of affairs were evident to me, this would be a factor strongly weighing in favour of not making a percentage reduction but of making separate costs orders:  see Westgold [28]. However, that state of affairs is not evident to me. There is evidence other than that referred to in the plaintiffs' original submissions which appears to me to relate to both sets of issues, in ways that do not appear to me to be easy to separate out. See the second defendant's affidavit of 8 October 2007 (exhibit 3).

8. The second defendant contends for a 10% reduction, having regard to the way in which the further issues were related to the perfect gift issue.  I disagree, given the substantial effect on hearing time I have previously referred to.

9. I consider, as a matter of impression and discretion (see J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301, 302 ‑ 303 (French J) (FCA)) that the second defendant should have costs of the action, reduced by 60%. I call this the general costs order.

10. I turn now to the second matter.

Special costs orders

1. It appeared not to be in contest that the application by the second defendant is under Legal Profession Act 2008 (WA) s 280(2). However, I should note that the position appears to be that Legal Practice Act 2003 (WA) s 215 applies (see Legal Profession Act s 616(1) read with s 601 'commencement day'). At the same time there appears to be no material difference between the two provisions.

2. There also appeared to be no contest as to the applicable principles.

3. The approach to the making of special costs orders under the provisions referred to is conveniently described in Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S), particularly [11], [16] ‑ [17] and [19]. That approach requires me to make two determinations. One is whether there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination (the first determination). The other is whether the inadequacy arises because of the unusual difficulty of the matter; or because of its complexity; or because of its importance (the second determination). See also on the second determination SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [106] (Roberts‑Smith J).

4. In respect of the first determination, I note that the second defendant did not apply for a variation of the programming orders for this determination as to costs to permit the parties to adduce affidavit evidence as to inadequacy.  At the same time, I note that the second defendant did indicate she would file affidavit evidence in support if the court determined it required such information.  I took this as an application for leave to permit the parties to adduce such evidence, if the court considered itself unable to make a determination without such an affidavit.  For their part, the plaintiffs did not call on me to make such an order, and took a position which I took to be opposed to my making such an order on the second defendant's application.

5. I do not consider I should make an order permitting affidavit evidence as to inadequacy to be adduced.

6. It seems to me that I can proceed to make the first determination, as well as the second, as a matter of impression rather than detailed evaluation.  See EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ). I consider I can do so as the second defendant puts a case for inadequacy resting on the time from commencement of the proceedings by originating summons to the conclusion of the September hearings, as well as the number of days of hearings, particularly those representing the September hearings in which counsel for the second defendant was directly involved. It is not evident to me that I require affidavit evidence to evaluate that case.

7. As a matter of impression I am unable to agree that the first determination should be made as the second defendant contends.  My focus must be on the one issue on which the second defendant succeeded, the perfect gift issue, and then only without regard to the element of the second defendant's case for the non-recognition of the will of 9 May 2007.  Inadequacy arising otherwise should be set aside.  As a matter of impression, I do not consider that the perfect gift issue so understood should be seen as one capable of giving rise to inadequacy.  The time since the filing of the originating summons included time spent between 8 October 2007, when the second defendant's affidavit of that date was filed, and 13 August 2009, the date of a case management hearing before Registrar Johnston, over which no filings occurred and attempts were made to settle the matter.  See 13 August 2009 ts 2 ‑ 3.  To the extent of the period over which counsel was involved in preparing for and appearing at the September hearings, it is not evident to me there were substantial costs not provided for by the relevant scale that were not due to the further issues.  As I have indicated, the further issues occupied a substantial portion of the September hearing days.

8. This determination makes it strictly unnecessary for me to make the second determination.  However, I should indicate my view, on the submissions put to me by the second defendant and put against those submissions put by the plaintiff.

9. The second defendant's case was put in terms both of unusual difficulty and of importance.

10. The case in terms of unusual difficulty was put in terms of the test from Como v Helmers [2011] WASC 179 (S) [18] (Corboy J), that the matter was 'more difficult than would ordinarily be expected in an application of the kind under consideration' (citing authority).

11. However, again confining my attention to the perfect gift issue, I cannot agree the matter was of that character.  True it is that the legal issues involved were of some nicety and difficulty in their application:  see Stone [113] ‑ [120], [125] ‑ [129], [131] ‑ [132], [137] and [142].  However, I do not consider those features made the matter one within the test in Como.  Legal issues of some nicety that are difficult to apply not infrequently present themselves on originating summonses in this court.  There was little difference between the parties as to the principles applicable; the differences lay in their application.  See Stone [125] and [142].  The evidence for the purposes of that application was not significantly contested:  see Stone [68], [74], [78] ‑ [80] and [83] ‑ [84].  Further, I do not consider that the perfect gift issue was such that those providing legal assistance to the second defendant would have had difficulty in arriving at an understanding of the principles involved or the difficulties in their application greater than that ordinarily to be expected in applications of the kind under consideration.

12. As to the case of the second defendant resting on importance, this importance was said to rest on the risk to the second defendant of the loss of the home she was occupying.  Importance for this purpose can include importance to a party herself or himself:  see Heartlink [19]. However, I consider I should also bear in mind that the plaintiffs' application in the originating summons was not for possession or for the sale of the residential property. Further, the plaintiffs' application was for recognition of a part interest only in the residential property.

13. I consider the risk that following success by the plaintiffs they would apply for sale of the residential property to be insufficient for the purposes of the second determination.

14. Accordingly, I would not make the special costs order sought.

Costs orders for the hearings of 23 April 2010 and 19 May 2010

1. I describe the character of what occurred at those hearings and the costs order I made at the later hearing in Stone [98] ‑ [99] and [251].

2. The second defendant's case for the order in the second defendant's minute for its costs of those hearings on an indemnity basis was that the second defendant at the hearing on 23 April 2010 decided she would not proceed with the issues of undue influence, duress and capacity on the basis of matters that importantly included the affidavit of the solicitor for the plaintiffs of 23 April 2010.  That affidavit was corrected in material represented by a further affidavit of that solicitor that I considered at the hearing on 19 May 2010.  That correction persuaded me in effect to permit those three issues to be further addressed in evidence.

3. The plaintiffs' case was for their order that the parties each bear their own costs associated with the affidavit of the solicitor for the plaintiffs of 23 April 2010, the hearings of 23 April 2010 and 19 May 2010, and a further hearing, on 13 July 2010, at which among other things the issues for the resumed hearing of the originating summons were identified to include the further issues.  The plaintiffs' case for that order rested on the fact it was the solicitor for the plaintiffs himself who drew the error to the court's attention; that the error was contributed to by the way in which the second defendant's acquiescence in the listed hearing's duration of three hours led him, in my view not unreasonably, to conclude the claim on the further issues would not be pursued; and the failure on the further issues.

4. I accept the first and second aspects of the plaintiffs' case.  In particular, having regard to them, I do not consider a case for indemnity costs has been made out.  For that purpose, I apply the considerations in relation to such orders from Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] (Pullin JA & Kenneth Martin J).

5. At the same time, I note the matters of perfect gift addressed at the hearings on 23 April 2010 and 13 July 2010:  see Stone [98] (last two sentences); and [100] (last two sentences).  In view of that, and in view of the difficulty more generally in distinguishing between the matters in the hearings otherwise than as allowed for by the general costs order, I would not make any special provision for the hearings of 23 April 2010, 19 May 2010 or 13 July 2010, as the second defendant's minute calls for, as the plaintiff's minute calls for or otherwise.

Costs of the transcript

1. The second defendant's minute, as I have indicated, seeks an order for such costs; the plaintiff's minute makes no provision for it.  No submissions are made by either party for or against the order.  In those circumstances I consider the matter is left to me to determine, as an application for a special costs order requiring an allowance for that cost.

2. So approached, the matter is not one for which I consider I am able to conclude as a matter of impression that there was a need for the transcript from the nature of the perfect gift issue which would justify such an order.  It may be that the cost can be shown to have been unreasonably incurred; otherwise, it seems to me the cost would be recoverable, as a disbursement.

3. I turn to the next matter.

An exception for costs incurred from 23 April 2010 in relation to the abandonment of the claim for orders against the first defendant

1. The claim, under Transfer of Land Act s 203, is as I have indicated referred to in Stone [7]. That reference is brief, and there is no indication there of when otherwise than during the proceedings before me the claim was abandoned. The second defendant does not take issue with the abandonment being dated as described.

2. In my view no exception should be made as the plaintiff's minute calls for.  To the extent the costs incurred after 23 April 2010 were shown to be solely attributable to the claim so abandoned, I do not consider the costs would be recoverable on a taxation in any event.  However, there was a close connection between the perfect gift issue and the orders so sought, given that the claim was to give effect by that means to the declarations the plaintiff sought which rested on the resolution of the perfect gift issue in their favour.  I consider that to the extent it is impossible to disaggregate the costs solely attributable to the claim against the first defendant from costs otherwise attributable, there should be not be any question of the second defendant, who was successful in the proceedings, suffering any abatement of her costs other than as allowed for in the general costs order.

3. Accordingly I would not make the exception the plaintiffs' minute provides for in relation to the costs incurred after 23 April 2010 resulting from the plaintiffs' abandonment of any claim for relief against the first defendant.

4. I turn to the next matter.

Whether there should be no liability of the plaintiff for any of the second defendant's costs from 28 May 2010

1. The potentially relevant provision in the RSC is O 66 r 8A, which reads:

   8A.Costs where practitioner acts pro bono

   (1)In an action or matter in which a practitioner provides free legal services to a party, the party shall be entitled to recover costs in the same manner and to the same extent as if the services were provided for reward.

   (2)If an order is made for the payment of the party's costs, the practitioner may recover the amount ordered to be paid in respect of -

   (a)fees for the practitioner's services; and

   (b)disbursements incurred by the practitioner on behalf of the party.

2. I did not take it to be contest that an ordinary litigant in person cannot recover compensation for the time they spent in preparing and conducting their own case; however, such a person might be allowed their out of pocket expenses reasonably incurred, their reasonable expenses of preparing written submissions and their reasonable expenses necessarily and reasonably incurred in relation to the litigation of travelling or parking.  See Civil Procedure in Western Australia [66.19.5] (Service 132). Whether when the litigant in person has free legal services provided to them by a legal practitioner within O 66 r 8A any of the expenses of the litigant in person would nonetheless have been reasonably incurred or necessarily and reasonably incurred, as the case may be, seems to me to be a matter for the taxing officer, not for me. No special costs order was sought in that regard here. Had one been sought, I do not consider it likely I would have granted it.

3. The plaintiffs' minute provides that the second defendant should not recover any of her costs, although I would understand the order as not affecting the possible recovery by the second defendant of the costs, Civil Procedure in Western Australia [66.19.5] above refers to.  This is because the plaintiffs' case for its order is put in terms that no costs should be allowed in respect of the second defendant's time, the voluntary clerical assistance she received or the costs of counsel, Dr Hockley, who appeared for her at the September hearings and earlier provided services intended for her benefit.

4. In that last respect, it appears not to be in contest that Dr Hockley earlier provided professional advice to the individual who appeared for the second defendant at the hearing on 13 July 2010 as a McKenzie friend.  Dr Hockley on 20 August 2010 informed the court at a hearing then that he acted pro bono for the organisation from which the McKenzie friend came, and that he had provided advice to that organisation to assist that individual and the second defendant.  I also note, as counsel for the plaintiffs reminded me, that the transcript for that hearing shows Dr Hockley as appearing as 'amicus curiae for the second defendant'.

1. Counsel for the plaintiffs put to me that it was inconsistent with the position Dr Hockley occupied at the times of the hearings on 13 July 2010 and 20 August 2010 that that counsel at the first of the September hearings informed the court he appeared pro bono as counsel for the second defendant.  I took it I should not accept at face value that latter characterisation of Dr Hockley's position.  In any event the plaintiffs' case for the order they sought, at least as to Dr Hockley, was that by the time Dr Hockley first became involved, about 13 July 2010, the proceedings in the matter predominantly related to the further issues.

2. I would not make the order I understood the plaintiffs to be seeking.  In my view it was clear from the 13 July 2010 hearing that Dr Hockley was assisting the second defendant, initially indirectly, then directly.  This was sufficient in my view to bring his costs within RSC O 66 r 8A. Further, in view of the basis on which I concluded that the general costs order should be made, I am not persuaded considerations of the contributions the further issues made to the hearings from at least 13 July 2010 are not appropriately allowed for by that order. Finally, that general costs order in my view leaves room for a case to be put to the taxing officer for recovery of the costs of the second defendant as a litigant in person in accordance with the principles I have referred to.

3. I turn to the next matter.

Whether costs orders relating to case management hearings already made should be vacated with or without particular exceptions

1. I leave aside the exceptions made in the plaintiffs' minute to the order they seek, which as I consider were costs orders made in any event with which the plaintiffs have indicated no difficulty.

2. No submissions were directed to why I should make, as the plaintiffs' minute calls for me to make, no order as to the costs of those hearings for some of which (category 1) costs were ordered to be in the cause, in some cases fixed at particular amounts; for some of which (category 2) costs were reserved; and for the rest of which (category 3) no order for costs was sought or made.

3. It was not evident to me why for hearings in categories 1 and 2 costs should not (subject to the amount being fixed, in those cases) be as provided in the general costs order.  As I have indicated, from an early stage both perfect gift and some at least of the further issues were, at least so far as the second defendant was concerned, involved in the proceedings.  I do not see why allowance for that state of affairs made by the general costs order is not appropriate to the case management hearings in the present categories, let alone why the second defendant should be denied any of her costs of the hearings.

4. As to category 3, I do not see why I should make an order in relation to costs where the officer conducting the hearing did not himself or herself make one, including reserving costs.

5. Thus, I would not make the order of the present kind the plaintiffs seek.  This I would understand as not affecting the costs orders the subject of the exceptions to that order the plaintiffs' minute specifies.

6. I turn now to the two matters raised in the submissions of the plaintiff which are not addressed, at least clearly, in their minute.

Further two matters

1. One is for the second defendant to pay the plaintiffs' costs of objecting and then arguing the objections to the admission of certain affidavit evidence, where that argument occurred on 16 and 17 September 2010.  The other is that the second defendant should pay the plaintiffs' costs of preparing the plaintiffs' original submissions and the plaintiffs' reply submissions.

2. As to the first, the plaintiffs' case is that the argument resulted in consent or rulings that what in sum was a large proportion of the affidavit evidence for the second defendant was inadmissible.

3. It is indeed the case that most, and in some cases nearly all, of most the affidavits filed for the second defendant relied upon at the hearings was either as a matter of consent or as a matter of ruling found to be inadmissible. 

4. However, in some cases, the matter was the subject of leave to ask questions of the deponent.  Further, there were substantial portions of what was the largest affidavit for the second defendant, hers of 8 October 2007, that remained, while no affidavit for her that she sought to rely upon at the hearings suffered the fate that all of it was ruled inadmissible. 

5. On those bases I do not consider I should make the order sought by the plaintiffs' minute.

6. As to the second further order, that the second defendant pay the costs of the plaintiffs' original submissions and the plaintiffs' reply submissions, I note that neither the plaintiffs nor the second defendant secured all or even most of the orders they respectively sought, at least in terms.  I consider the results of their costs applications were mixed.

7. I therefore consider that it not appropriate to make any costs order in respect of either party's costs submissions.

Conclusion and orders

1. I have concluded that the only order for costs I should make is that the second defendant have 40% of her costs of the action not otherwise provided for in orders previously made, including reserved costs, to be taxed if not agreed, subject to any orders for fixed costs previously made; and there should be no order as to the costs of the parties' submissions as to costs.

2. I will hear from the parties as to the detailed terms of these orders.