Van Rensburg v Adilinis; Van Rensburg v Raft

[2024] NSWSC 1146

Supreme Court

New South Wales

Medium Neutral Citation:

Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146

Hearing dates:

17 – 21 and 24 June 2024; further written submissions 25 June 2024

Date of orders:

9 September 2024

Decision date:

09 September 2024

Jurisdiction:

Equity

Before:

Pike J

Decision:

(1)   In proceedings 2021/00275570 the statement of claim be dismissed.

(2)   In proceedings 2023/00157906 the summons be dismissed.

(3)   In proceedings 2021/00275570 and 2023/00157906:

(a)   direct the parties to confer and seek to agree orders as to costs;

(b)   direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 20 September 2024;

(c)   in the event there is no agreement as to costs, direct the parties to provide to my Associate by no later than 5pm on 20 September 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages; and

(d)   direct the parties to provide to my Associate by no later than 27 September 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.

Catchwords:

EQUITY – estoppel – equitable proprietary estoppel by encouragement – whether alleged representations were made – finding that alleged representations were not made – whether representations had the requisite degree of precision – finding that representations were too ambiguous –where representations could not have allowed plaintiff to form an assumption of proprietary interest – whether plaintiff suffered detriment – where plaintiff would be in the same position had the representations not been made – where detriment suffered would be out of proportion to representation made – plaintiff’s claim dismissed

FAMILY LAW – claim by carer against estate of deceased under Property (Relationships) Act 1984 (NSW) – whether parties were in a “close personal relationship” – whether parties were in a “domestic relationship” – whether plaintiff provided domestic support and personal care to the deceased for “fee and reward” – where domestic support and personal care was provided for fee or reward and did not arise out of a close personal relationship between the parties – where plaintiff received free board and lodging from deceased as well as something to do – where not just and equitable to exercise Court’s discretion to make orders under s 20 – plaintiff’s claim dismissed

SUCCESSION – family provision claim – claim by carer under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – where plaintiff lived with deceased and provided domestic support and personal care – where period of support and care provided by plaintiff to deceased in dispute – where plaintiff was not living with deceased at the time of her death – plaintiff is not an eligible person under s 57(1)(f) – where domestic support and personal care was provided for fee or reward – where there are no factors warranting – where there are no social, domestic or moral obligation on deceased to make provision for plaintiff – plaintiff’s claim dismissed

Legislation Cited:

Property (Relationships) Act 1984 (NSW) ss 3, 5, 14 and 20

Succession Act2006 (NSW) ss 3, 57 and 59

Cases Cited:

Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727

Burgess v Moss (2010) 43 Fam LR 260; [2010] NSWCA 139

Carter v Brine [2015] SASC 204

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

Dable v Peisley [2009] NSWSC 772

Delaforce v Simpson-Cook (2010) 78 NSWLR 483

Dighton v Norwood [2024] NSWSC 318

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247

ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461

Evans v Marmont (1997) 42 NSWLR 70

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Hayes v Marquis [2008] NSWCA 10

Kardos v Sarbutt [2006] NSWCA 11

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174

Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270

Layton v Martin [1986] 2 FLR 227

Lewis v Stewart (by his tutor Mayhew) [2018] NSWSC 1186

Mallet v Mallet (1984) 156 CLR 605

Q (a pseudonym) v E Co(a pseudonym) [2020] NSWCA 220

Sadiq v NSW Trustee and Guardian [2015] NSWSC 716

Saliba v Tarmo [2009] NSWSC 581

Saravinovski v Saravinovska [2017] NSWCA 85

Sharpless v McKibbin [2007] NSWSC 1498

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

Skarica v Toska [2014] NSWSC 34

Spata v Tumino (2018) 95 NSWLR 706

Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18

Trentelman v Owners Strata Plan No 76700 (2021) 106 NSWLR 227

Waltons Stores (Interstate) v Maher (1988) 164 CLR 387

Warner v Hung, Re Bellpac Pty Ltd (recs and mgrsapptd)(in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Nil

Category:

Principal judgment

Parties:

In proceedings 2021/00275570
Stephanus Van Rensburg (Plaintiff)
John Adilinis (First Defendant)
Stephen Leeds Cutler (Second Defendant)
Stephen Raft (Third Defendant)

In proceedings 2023/00157906
Stephanus Van Rensburg (Plaintiff)
Stephen Raft (First Defendant)
Stephen Leeds Cutler (Second Defendant)

Representation:

Counsel:
C Wilson (Plaintiff in both proceedings)
E Windsor with M Adams-Nash (Defendants in both proceedings)

Solicitors:
Avoca Beach Law (Plaintiff in both proceedings)
Cutlers The Law Firm (Defendants in both proceedings)

File Number(s):

2021/00275570
2023/00157906

Publication restriction:

Nil

JUDGMENT

Introduction

1. The late Lola Raft (Lola/Mrs Raft) and the late John Adilinis (John/Mr Adilinis) were brother and sister. For a number of years, they operated a food outlet on the Central Coast of New South Wales known as the Golden Gate Café at 195 The Entrance Road, The Entrance (café).

2. The plaintiff in these two proceedings (Mr Van Rensburg) did some work in the café, lived in the residence behind the café (Residence), and provided some care to Lola and John – exactly how much work and how much care was in dispute in the proceedings.

3. In proceedings 2021/00275570 (the first proceedings), Mr Van Rensburg relies on three claims:

1. A claim based on a proprietary estoppel by encouragement against both John’s estate and Lola’s estate entitling Mr Van Rensburg to reside in the Residence or another suitable property for the remainder of his life;

2. A claim under the Property (Relationships) Act 1984 (NSW) (the PRA) against John’s estate; and

3. A family provision claim under the Succession Act2006 (NSW) (the Act) against Lola’s estate.

4. In proceedings 2023/00157906 (the second proceedings) Mr Van Rensburg brings a family provision claim against John’s estate. This claim was abandoned in closing address. Accordingly, only the first proceedings remain relevant.

5. The proceedings were heard together with evidence in one proceeding being evidence in the other, over the period 17 to 21 and 24 June 2024. Further written submissions were made by counsel for the defendants dated 25 June 2024. Mr C Wilson appeared for Mr Van Rensburg. Ms E Windsor and Ms M Adams-Nash appeared for the defendants.

6. For the reasons set out below, all of the claims advanced by Mr Van Rensburg fail. I will give the parties an opportunity to agree orders as to costs, and failing agreement, I will determine the issue of costs on the papers.

Introduction to fact finding and the credibility of Mr Van Rensburg and the Rafts

7. The relevant events in the proceedings largely span the period from about 2013 to 2021. This is the disputed period from when Mr Van Rensburg says that he reacquainted himself with Lola and John until he was evicted from the Residence.

8. At the forefront of Mr Van Rensburg’s proprietary estoppel claim are a series of oral representations allegedly made during the period March/April 2014 to April 2015. I consider below whether any of the representations were made. In so doing, I bear in mind the well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 to the effect that:

1. It is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading or were clear and unequivocal so as to found an equitable estoppel;

2. Human memory of what was said in conversation is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often sub-consciously, constructed;

3. Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court must feel an actual persuasion of its occurrence or existence; and

4. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action in the absence of some reliable contemporaneous record or other satisfactory corroboration.

9. As a corollary, I proceed on the basis that contemporaneous records (to the extent they exist) are likely to provide the most reliable evidence of what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: see ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461 at [25]-[30] per Bell P (Bathurst CJ and Leeming JA agreeing). Inherent probabilities in the circumstances are also a strong guide.

10. Mere mechanical comparison of probabilities, independent of any belief, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references: see Emmett J in Warner v Hung, Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48].

11. As Legatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22], it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

12. The representations relied on by Mr Van Rensburg were allegedly made by Lola and John, both of whom are now deceased. An affidavit sworn by John before he died was also admitted into evidence, although there is an issue as to John’s state of mind at the time and accordingly the weight to be attributed to his affidavit evidence. In considering what findings to make in relation to the alleged representations and associated matters, I bear in mind what Ward J (as the learned President then was) said in Dable v Peisley [2009] NSWSC 772 (Dable v Peisley) at [130]-[131]:

[130] The difficulties facing the court where a claim is based on an assurance made by a deceased have been noted in many cases. In Weeks v Hrubala [2008] NSWSC 162 (at [20]), Young CJ in Eq stated:

In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration.

[131] In Vukic and Saliba, their Honours both emphasised that the court must closely scrutinise claims against an estate in circumstances where the only person who can contest the issue is deceased.

13. The principal witness in Mr Van Rensburg’s case was Mr Van Rensburg himself. He also called five supporting witnesses. Against their evidence was evidence given by four members of the Raft family (the Rafts). I deal later in these reasons with what can be taken from the evidence of the supporting witnesses. I make the following general observations about Mr Van Rensburg and the Rafts.

Mr Van Rensburg

14. The principal witness in the case was the plaintiff, Mr Van Rensburg. He prepared four affidavits in total and was cross-examined for a little over a day.

15. I approach his evidence with considerable caution. He gave his evidence in quite an argumentative way. At times he gave evidence in a non-responsive way, going out of his way to say things disparaging of the defendants and in particular Stephen Raft (Stephen), Lola’s eldest son, now sole heir and the third defendant in the first proceedings.

16. His evidence in cross-examination was at times confusing. One example was the period of time he apparently held the belief that he could live in the Fairview Avenue Unit rent free (as defined below) – ranging from several weeks to several months. He also sought to give at times unresponsive answers to questions, obviously aimed at seeking to bolster his case. One example was seeking to suggest that John and Lola had requested Mr Van Rensburg to look after them at the time of first representation (as defined below).

17. On occasions, however, Mr Van Rensburg gave quite frank answers against his interest. One example concerned the photographs of Lola’s room showing dog faeces under the bed. Mr Van Rensburg admitted that since he suffered a shoulder injury, he was unable to bend down to clean under the bed.

18. On occasion he gave what emerged as false answers in an attempt to deflect the questioner on topics that he said he did not believe were relevant. One example was the inheritance he received out of his parents’ estate. He initially gave quite non-responsive answers but, after some prompting in cross-examination, ultimately admitted to having received $80,000.

19. Another was evidence he gave as to not owning a mobile phone as at December 2020 when a mobile phone was found in John’s pocket while he was going to see his solicitors to sign a letter evicting Mr Van Rensburg.

20. Counsel for Mr Van Rensburg did not dispute that these were both lies told by Mr Van Rensburg. The issue is what flows from this. Mr Van Rensburg’s counsel contended that telling lies on some matters does not mean Mr Van Rensburg was telling lies on all matters.

21. As the Full Court of the Federal Court observed in CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94], it has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law. A finding that a witness has lied may, however, affect the degree of satisfaction of the evidence or otherwise of a fact in issue to which evidence of the witness was directed: Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [272].

22. I am quite troubled by Mr Van Rensburg’s willingness to lie. His presentation in the witness box and in particular this willingness to lie causes me further reason to adopt the orthodox approach of principally relying on contemporaneous documentation. In the absence of contemporaneous documentation, I do not rely on Mr Van Rensburg’s oral evidence unless it is against his interest, corroborated, or consistent with inherent likelihoods.

The Rafts

23. Stephen was a cautious witness. On a number of matters his recollection was not very good. This is perhaps unsurprising given the effluxion of time. Some of the matters were, however, matters which I would have expected him to remember, including when it was that he had a stroke and when his brother had, quite recently, passed away. This causes me to approach with caution any evidence which relies only on Stephen’s recollection.

24. It also emerged in cross-examination that in relation to aspects of his affidavit evidence, he admitted he was not personally involved but other family members in fact were, including his wife Linda, and as such, his evidence was second hand and not, as a reader of his affidavit would have thought, first-hand. Again, I am cautious about simply accepting his oral evidence and place greater reliance on the contemporaneous documents.

25. Linda Raft (Linda), Stephen’s wife, gave her evidence in a straightforward manner, making concessions where appropriate including in relation to matters where she did not know, for example, what level of care Lola required in 2020. I accept her evidence. She came across as having a good recollection.

26. The final two witnesses to give evidence were Therese Raft (Therese) and Victoria Raft (Victoria), Stephen and Linda’s two daughters. Each gave evidence in a clear and coherent way. Each was doing their best to assist the Court and I accept their evidence. Again, they came across as having good recollections.

Largely uncontroversial background facts

27. Most of the background facts were not in dispute. I summarise them below.

28. The central factual issues were:

1. Were the alleged representations in fact made?

2. What work did Mr Van Rensburg do in the café and over what period?

3. When did Mr Van Rensburg start living with John and Lola?

4. What care did Mr Van Rensburg provide to each of John and Lola?

29. I deal with these factual issues later in these reasons.

30. The background begins in about 1949/1950 when Lola (who was born in November 1927), together with her husband (Dennis) commenced operating the café. The café appears to have been more akin to an old-fashioned milk bar. Dennis had migrated to Australia in or around 1937, and Lola in about 1946. The land and building on which the café was conducted was purchased by Dennis and another man in about May 1949.

31. John (who was born in September 1931) joined the partnership in 1951.

32. At the rear of the café building was the Residence. The Residence and the café were separated by a wall and lockable door. The café included a commercial kitchen, cool room, bathroom and public dining area. The Residence consisted of three separate bedrooms, a lounge room, a walk-in robe and a bathroom. A laundry for the Residence was located in a separate building. There was no kitchen in the Residence.

33. Lola and Dennis married in 1950. They had two children. Stephen, born in 1956 and Paul Raft (Paul), born in 1963. Working in the café was a family affair, including members of the extended family.

34. Stephen married Linda in 1983. They had three children, Therese, Dennis Jnr and Victoria. Paul married Carol. Paul had two children – Brianna and Ashleigh.

35. By all accounts the café was extremely successful although it did not appear to be in dispute that trade declined significantly in the years leading up to its closure some time after the second COVID lockdown. The trading records for the café for the period 2012 to 2021 were in evidence and showed a significant decline in takings over this period and that the café only ever made modest profits over this period.

36. Between around the early 1960s and around the mid 1970s, Dennis and Lola bought numerous properties along The Entrance Road, and on Fairview Avenue in The Entrance. One property which assumed some significance in the proceedings was a flat on Fairview Avenue which was above the shop that was adjacent to the café (Fairview Avenue Unit).

37. John also purchased property in the area. One such property was at 2/210 The Entrance Road, Long Jetty. Mr Van Rensburg moved into this property in September 2014, paying $190 per week in rent. He continues to rent the property to this day, now from new owners, the property having been sold by John in about late 2021.

38. Mr Van Rensburg first became acquainted with the café in about 1984. He was living at Gosford at the time and would attend the café with his then girlfriend, who lived in the area. They would go to the café approximately three times a week. This lasted for approximately two to three years.

29. Mr Van Rensburg met John during this period. He was aware of Lola but did not speak to her much. Lola’s husband Dennis was in the kitchen and Mr Van Rensburg did not have much to do with him.

30. It was in or about February 2013 that Mr Van Rensburg says that he “reconnected” with John and Lola when he went back to the café.

31. He gave evidence that he was not working at the time, apparently still getting over the death of his father and mother who had recently died in 2010 and 2012 respectively. He was on a Newstart allowance at the time and either had received, or was about to receive, an inheritance from his parents’ estate which, after some prompting, he said was about $80,000.

32. It is not in dispute that Mr Van Rensburg lived with John and Lola from about September 2017 until August 2021 (Lola having left in November 2020). He says, however, that he moved in much earlier in late 2014. I deal with this dispute below as it is tied up with the issue of whether any of the representations were made.

33. It also does not appear to be in dispute that Mr Van Rensburg provided some care to John and Lola, although the extent of this care was significantly in dispute. I deal with it below.

34. Lola was admitted to hospital on 6 November 2020. She was discharged into the care of Stephen and Linda, where she remained for several months. She was then moved to respite care and died in May 2021.

35. Mr Van Rensburg vacated the residence in August 2021, having been given a notice to vacate in July 2021. He was given an earlier notice to vacate in December 2020.

36. Mr Van Rensburg was asked to vacate his rented accommodation at 2/210 The Entrance Road in about April 2021. This was principally being driven by Stephen, but John advocated for Mr Van Rensburg to be given a new lease, which was agreed to. John subsequently sold the property but Mr Van Rensburg continues to occupy it.

37. The first proceedings were commenced on 27 September 2021.

38. John subsequently went to live with Stephen and Linda. He died on 17 January 2023. The second proceedings were commenced on 17 May 2023.

Lola’s Will and estate

49. Lola left a will made 20 September 2019 (Lola’s Will). Probate was granted on 6 September 2021.

50. The executors of Lola’s Will were:

1. Stephen Raft;

2. John Adilinis; and

3. Stephen Leeds Cutler.

51. After John’s death, Stephen and Stephen Leeds Cutler remain as the executors of Lola’s estate.

52. Lola’s Will provides the following specific gifts:

1. John Adilinis – interest in the business at 195 The Entrance Road, The Entrance (clause (3)(a));

2. Dennis Jnr – interest in property at 20 Gosford Avenue, The Entrance (clause (3)(b));

3. Therese – interest in 18 Gosford Avenue, The Entrance (clause (3)(c));

4. Victoria – interest in 5-7 Warrigal Street, The Entrance (clause (3)(d));

5. Dennis Jnr, Victoria and Therese, in equal shares as joint tenants – interest in 210 The Entrance Road, The Entrance (clause (3)(e));

6. Stephen – $50,000 (clause (3)(f));

7. Paul – $50,000 (clause (3)(f)); and

8. Therese and Victoria – Jewellery (clause (3)(g)).

53. Lola’s Will provides that half of the residue from her estate goes to Stephen (Lola’s Will clause (3)(h)). Lola’s Will also provides that the other half of the residue from her estate was to be held on trust for her son Paul. On Paul’s death the half of the residue held on trust for Paul (subject to life estate of property known as 122 Eastern Road Tumbi Umbi for Carol) was to pass to Stephen (Lola’s Will clause (3)(i)(iv)(D)).

54. Paul died in May 2023. On Paul’s death, Stephen became the beneficiary of the whole of the residue of Lola’s Estate.

55. Lola’s prior will made 19 June 2012 was to similar effect as her September 2019 will.

56. Stephen, in his affidavit dated 7 July 2023, estimates the value of Lola’s estate at $7,289,704.07. She owned a number of properties with John, either as joint tenants or tenants in common. One of the properties located at Eastern Road, Tumbi Umbi, is subject to a life estate in favour of Carol Raft (the widow of Paul).

57. In addition to owning properties, Lola owned two shares in Raftlinis Investments Pty Ltd (Raftlinis), the major asset of which appears to be a property at The Entrance Road, The Entrance. Raftlinis has an income of about $140,000 per annum and Lola’s two shares are valued at $1,304,650.58.

John’s Will and estate

58. John left a will made 24 August 2021 (John’s Will). No party raised any issue as to John’s testamentary capacity as at August 2021. Probate was granted on 10 July 2023. In any event, his prior will made in September 2019 was to a similar effect as the August 2021 will.

59. The executors of John’s estate are Stephen and Stephen Leeds Cutler.

60. John’s Will provides the following specific gifts:

1. Dennis Jnr – interest property at 20 Gosford Avenue, The Entrance (clause (3)(a));

2. Therese – interest in 18 Gosford Avenue, The Entrance (clause (3)(b));

3. Victoria – interest in 5-7 Warrigal Street, The Entrance (clause (3)(c)); and

4. Dennis Jnr, Victoria and Therese, in equal shares as joint tenants – interest in 210 The Entrance Road, The Entrance (clause (3)(d)).

61. John’s Will provides that half of the residue from his estate goes to Stephen (John’s Will clause (3)(e)).

62. John’s Will also provides that the other half of the residue from his estate was to be held on trust for Paul. On Paul’s death, the half of the residue held on trust for Paul (subject to life estate of property known as 122 Eastern Road Tumbi Umbi for Carol (John’s Will clause (3)(f)(iv)(A))) was to pass to Stephen (John’s Will clause (3)(f)(iv)(B)).

63. On Paul’s death, Stephen became the beneficiary of the whole of the residue of John’s estate.

64. Stephen, in his affidavit dated 7 July 2023, estimated that John’s gross distributable estate is $5,762,796.21, comprising property – either owned individually or jointly with Lola – and one share in Raftlinis.

65. As the residuary beneficiary of both Lola and John’s estate, Stephen has inherited assets with a value significantly in excess of $10 million.

Mr Van Rensburg

66. Mr Van Rensburg was born in 1967. He has three children: a son and two daughters.

67. Prior to coming to work at the café, Mr Van Rensburg had held a number of jobs. His evidence regarding his work history prior to 2011 was, at times, unclear. As best as I can ascertain, Mr Van Rensburg’s work history is as follows:

1. From 1984, Mr Van Rensburg held various jobs, including working at the abattoirs in West Gosford for approximately a year and a half, at Pizza Hut, at Coles in Turramurra, as a fruit packer in Woy Woy, and as a coffin-maker.

2. From 1988 to around 1992 or 1993, he worked at Gosford Hospital in the laundry, and later worked in the operating theatres as an assistant.

3. From around 1994 to around 2000, Mr Van Rensburg then worked as a senior operations assistant in the operating theatres in Wyong Hospital.

4. From around 2000, and for “a few years”, he then worked at Woy Woy Hospital, in both the general and rehabilitation hospitals.

5. In around 2000 to around 2004, Mr Van Rensburg worked in forensic medicine at the Central Sydney Area Health Service in Glebe, Sydney.

6. Between around 2004 to around 2008, Mr Van Rensburg was “moonlighting” at various hospitals in several positions. He started at Brisbane Waters Private Hospital, where, from 2004 to 2006, he worked as a cleaner and wardsman. Mr Van Rensburg also worked again at Wyong Hospital for a period of time as a senior operations assistant, while he was “moonlighting” at North Gosford Private Hospital. Mr Van Rensburg commenced working at North Gosford Private Hospital in around 2008, working morning, afternoon, and night shifts as a clerk and a wardsman, and in the theatres.

7. Mr Van Rensburg would “leave and go back” to work at North Gosford Private Hospital until the end of 2010 or 2011, when he ceased working to care for his parents who were not well.

68. Overall, from 1988 to the end of 2010 or 2011, Mr Van Rensburg worked at numerous hospitals in various positions, being a wardsman for about five or six years during this period.

69. He gave evidence that his position in life as at May 2023 was as follows:

1. He has assets totalling approximately $102,000, of which around $97,000 is in his superannuation fund;

2. His sole source of income is a Newstart allowance of $1,360 per month;

3. His monthly expenses total $2,995;

4. He suffers from high cholesterol, high blood pressure, severe diabetes, nerve damage to his feet and hands caused by diabetes, anxiety and damage to his shoulders. He takes medication for his anxiety, cholesterol and high blood pressure. He also suffers from depression which has had an impact on his life;

5. He has not worked since 2011 and any employment is limited due to his physical incapacity. He cannot stand or sit for extended periods.

Mr Van Rensburg’s case

70. I set out below an overview of the factual case advanced by Mr Van Rensburg relevant to the claims he advances.

71. It begins in about 2013 when Mr Van Rensburg reacquainted himself with the café, with Mr Van Rensburg assisting Lola with the filling of lolly bags at the café. He did this most days for about an hour.

72. In about May 2013 Lola fractured her hip and was admitted to hospital. After that time, the work he did in the shop increased.

73. During the period from March/April 2014 to April 2015, five representations were made to him by John and Lola on which he relied.

74. His affidavit evidence in relation to the representations and what he did in reliance on them, was as follows:

1. First representation

In approximately March or April 2014, John and Lola offered me accommodation in one of their properties at Fairview Avenue, The Entrance. John, Lola and I were in the shop located at 195 the Entrance Road, The Entrance (hereafter referred to as the “Shop”) when we had a conversation to the following effect:

John:	We have an upstairs unit at our property in Fairview Avenue. You can live there if you want to.
Lola:	Go up and have a look, you can have it to live in if you want.
Me:	That would be great thanks.

John was referring to the property next to the Shop. That property is known as 195 The Entrance Road, The Entrance. It is on the corner of The Entrance Road and Fairview Avenue, The Entrance [Fairview Avenue Unit]. There is a shop on the ground level and two units above the shop.

After this conversation I had a look at the Fairview Avenue Unit and thought I would like to live there. I spoke with John and Lola and said to them words to the effect: “Thanks I would like to live here.”

In anticipation of moving into the Fairview Avenue Unit I cleaned it out and prepared the internal walls for painting and applied the undercoat to some of the walls. I did not have an opportunity to complete the painting and professional painters were brought in to complete the works. The unit looked like it had been left vacant for many years and it was very messy, it was covered with dust, there was debris all over the floors, there were living and dead cockroaches throughout the unit, paint was peeling from the ceilings, cracks in the walls. There was a partition separating the entryway from the rest of the unit closest to Fairview Avenue. This looked like it had previously been used as an office. The drains in the kitchen and bathroom were blocked up. A plumber replaced some of the piping. A builder was engaged to remove the partition and created an open lounge, dining and kitchen area. The partition was in poor order and repair, as was the rest of the unit. In the front room I repaired the holes in the walls. I used gap sealer to repair the holes and gaps. I then sanded down the walls, painted the walls with primer. I spent about twenty hours undertaking this work over a two-week period. I was not paid for this work.

I never discussed paying rent for the Fairview Avenue Unit. It was my understanding that I would live in the Fairview Avenue Unit for free, that I was not required to pay rent and that John and Lola thought that it would be to their benefit if I was living next door to the Shop, especially as I was working in the Shop every day.

2. Second representation

In late 2014 I had a conversation in the Shop with John and Lola about the residence behind the Shop [Residence] in words to the following effect:

John:	We would like you to move in, you will live out the back, you will look after us. We feel very unsafe in the shop. We worry someone will break in and kill us.
Lola:	Instead of living in the house, come and live with us, come and stay with us.
Me:	If that is what you want then I would be okay with that.

In about December 2014 after the above conversation, I moved into the third bedroom in the Residence behind the Shop. The bedroom I moved into was not large enough to hold all of my things so I kept my furniture and other property at the property at 2/210 The Entrance Road. I continued to pay rent on the property at 2/210 The Entrance Road. I did not pay rent for living in the Residence behind the Shop.

Before I moved into the Residence I ate at the Shop every day. I paid for those meals. After I moved into the Residence I stopped paying for my food.

When I moved into the Residence I started cooking the evening meal for John, Lola and myself. I also took over the role of cleaning the Residence.

On the first night after I moved into the Residence Lola had an incident while in the bathroom. John came to me and said: “Stephen, Stephen. Lola has collapsed in the bathroom.” After I heard this I went into the bathroom and saw Lola on the floor behind the bathroom door. I picked her up and put her into her bed.

3. Third representation

A short time after I moved into the Residence behind the Shop I was in the back yard. Stephen Raft, Lola’s son, was there also and said to me: “I don’t want you staying here, get out.” He said this in a threatening and aggressive manner. I felt intimidated, threatened and harassed by Stephen Raft. I did not say anything back. I knew who he was because I had taken Lola and John to a Dennis Raft’s wedding (Dennis is Stephen Raft’s son) at Stephen Raft’s home at Erina.

On a number of other occasions Stephen Raft said to me words to the effect, “I don’t want you here, I want you to leave.” Every time Stephen Raft approached me I spoke to John and Lola and told them exactly what was said. Each time both John and Lola would say words to the effect: “Ignore him, just walk away, don’t engage with him.”

In about March 2015, after about the third or fourth time that Stephen Raft told me to get out, I spoke to John and Lola. Lola was laying in her bed in the Residence, I was sitting on the end of her bed and John was standing in the room. The conversation was a follows:

Me:	Stephen has told me to get out again. I know you told me to ignore him and walk away, I have done that, but he scares and intimidates me, I can’t handle it.
John:	We want you to live here, we have asked you to live here to help us.
Lola:	Please don’t go Stephen, please stay.
Me:	Stephen obviously doesn’t want me here and I can’t handle it.
John:	You can stay here, you will always have a place.
Me:	Look, I am not earning any money, I am not safe.
John:	We will look after you. You will always have a place to live, we want you to live with us.
Lola:	Yes, you will always be welcome here, you will always have a home. We will look after you, we need you to help us.

4. Fourth representation

In about March 2015 I had a conversation in Lola’s bedroom in the Residence with John and Lola in words to the following effect:

Me:	I should move out. Stephen wants me out. He is harassing me.
Lola:	Stephen and Linda are just trying to get rid of us from the shop and you are stopping the shop from closing, we need you. Linda said she wants to put John and me in a nursing home. Just ignore them, if they come into the shop walk out of the shop.
John:	Ignore them, walk away, don’t engage them. You look after us and we will look after you. We will make sure that you are secure financially and you will always have a home for as long as you live. You will be given a home and looked after when we die. We just need someone to look after us and we trust you.
Lola:	We want you to stay. Help John, you are a good companion for him, you work well together.

5. Fifth representation

On about April 2015 Stephen Raft approached me at the Shop, I was sitting on a seat outside the Shop Stephen approached me and in an aggressive way said to me words to the effect: “I don’t want you and I don’t want your stuff here, get out.” I felt scared and intimidated. I did not respond.

Later that evening about 10:00 pm I had a conversation with John and Lola. We were in Lola’s bedroom in the Residence. She was lying in bed, I was sitting on the edge of the bed and John was standing. We had a conversation in words to the following effect:

Me:	I am leaving. I am sick of being harassed by Stephen, he told me to go again, he was very aggressive and threatening.
Lola:	Please don’t go. You will always have a home, we will look after you financially. We are scared, we don’t want you to leave. Just ignore them, go for a walk.
John:	Stephen, you will always have a house, I will make sure you have somewhere to live for the rest of your life and you will have enough money for the rest of your life. You are our family. The three of us.
Lola:	Yes, you are our family, you will always have a family, a place to live and enough money to live on for the rest of your life.
Me:	Okay I will stay.

On other occasions John and Lola both said to me words to the effect: “you will be given a home and looked after when we die.”

75. Mr Van Rensburg says that after the second representation and in about December 2014, he moved into the third bedroom in the Residence. He says that the bedroom was not big enough for all of his things, so he kept his furniture and other property at 2/210 The Entrance Road for which he continued to pay rent. He paid no rent for living in the Residence. After he moved in, he ate every day at the café and stopped paying for food.

76. He started cooking the evening meal for John, Lola and himself and took over the role of cleaning the Residence.

77. He also says that after John and Lola told him that he could stay with them, that they would look after him, and that he would always have a place to live (the third representation), he increased the work he did in the shop and from that time, he worked in the café from 9 am to 9 pm, seven days a week, being the times that the café was open.

78. Mr Van Rensburg also gave some evidence tying his moving into the Residence to the receipt of a Certificate III in Aged Care at Gosford TAFE, which he received in December 2014. It was at this time that he moved in.

79. Prior to then, and after Lola came out of hospital and was being visited by community nurses, when Mr Van Rensburg was apparently spending one to two nights a week staying in the Residence, he says Lola and he had a conversation to the following effect:

Lola:	Stephen you can do this?
Stephen:	Yes, I could do that.
Lola:	There is a TAFE course, you could do that then you could look after me.

80. This appears to have been the genesis for Mr Van Rensburg doing the course – namely to look after Lola – although in cross-examination, Mr Van Rensburg gave evidence that Lola’s suggestion that Mr Van Rensburg do the course was not in the context of Mr Van Rensburg looking after her. This was one of a number of troubling aspects of Mr Van Rensburg’s evidence. His own affidavit evidence links the two.

81. A central aspect of Mr Van Rensburg’s case was that John and Lola wanted him to stay with them at the Residence as they were concerned that Stephen and Linda would move them into a nursing home, which they did not want. Mr Van Rensburg gave evidence that this was a source of contention or friction between John and Lola on the one hand and Stephen and his family on the other. The Rafts disputed that there was any such friction.

The care provided for Lola

82. Mr Van Rensburg says from December 2014 when he moved into the Residence until Lola was admitted to hospital on 6 November 2020, he provided care for Lola. When the care commenced, Lola was 87 years old. A brief overview of the care suffices for present purposes:

1. He would get Lola up in the morning, wash her face and under her arms, shower her, dry her, take her to the toilet, clean her bottom, put powder on her sores, dress her and do her hair;

2. From January 2020, Lola refused to shower and so she was washed down by Mr Van Rensburg;

3. As Lola had urinary incontinence, Mr Van Rensburg would occasionally be required to assist in obtaining urine samples from Lola for testing;

4. From about 2016 Lola developed faecal incontinence. This required Mr Van Rensburg to clean Lola on occasions or to clean her bed sheets. Mr Van Rensburg estimates that Lola became incontinent in bed on about 50 occasions during the time he cared for her. On occasions when Lola was constipated, he would help her with an enema;

5. He would dress her sores on her buttocks;

6. He would do her nails;

7. From December 2014, he prepared three meals a day for Lola;

8. After breakfast he would take Lola into the shop, sit her down, put a stool under her feet, put a jumper over her shoulders and put her earrings on;

9. On occasions he took Lola to doctor’s appointments.

83. The work Mr Van Rensburg was able to perform apparently reduced from early 2019 onwards when he hurt his left shoulder when catching Lola as she fell. This restricted Mr Van Rensburg’s ability to lift his left arm.

84. Mr Van Rensburg says he was not paid for this work.

The care provided for John

85. Mr Van Rensburg says he provided care for John. This started when John was about 82 years old. Again, the following overview suffices:

1. He would apply an ultrasound machine to John’s shoulders most nights, save for periods when John had minimal pain in his shoulders and did not need therapy. This continued until August 2021;

2. He gave John laxatives and a probiotic to deal with constipation;

3. He would take John to medical appointments to deal with ulcers on his legs and, in between treatments, he would dress the wounds every two to three days. He would also wash and soak John’s feet every second day and apply moisturiser;

4. He would also cook for John.

86. Again, Mr Van Rensburg says that he was not paid for this work.

Work in and around the café

87. Mr Van Rensburg gave evidence of doing work in and around the café. Apart from one day in 2014 – when it was his birthday – Mr Van Rensburg claims that he worked all day every day, i.e. seven days a week in the café. The following summary suffices:

1. The work was originally helping Lola fill lolly bags;

2. After he moved into the Residence, the work increased so that he pretty much worked in the café all of the time that it was open which was generally seven days a week from 9 am until 9 pm;

3. John would run the front of the café and Mr Van Rensburg would run the kitchen cooking the meals;

4. During the day he would check stock levels, order stock as necessary, clear and clean tables, clean the kitchen, take orders and sweep the floor;

5. At the end of the day he would clean the café thoroughly;

6. Every two weeks he would travel to Bateau Bay Shopping Centre to get supplies. He would separately go to Bateau Bay to do the banking;

7. Periodically he did other cleaning and maintenance around the café;

8. He would change the oil in the deep fat fryer for the café;

9. He would attend to any matters required to be done by the food inspector;

10. Once a month he treated the café for vermin;

11. In about 2019 and in 2020 he did some maintenance work on the café including painting skirting boards and replacing tiles.

88. Apart from working in the café he also ran errands for both John and Lola.

89. Mr Van Rensburg claims he was not paid for any of this work.

The factual case advanced for the Raft’s

90. There was a degree of similarity in the affidavit evidence adduced for the defendants – principally from Stephen, Linda, Therese and Victoria. An affidavit of John made 23 November 2021 (John’s affidavit) was also filed, which I deal with below.

91. The defendants denied the first, second, fourth and fifth representations. The third representation was not admitted. This position appears to be based on instructions provided by John, which are reflected in John’s affidavit.

92. The factual case advanced may be summarised as follows:

1. They observed Mr Van Rensburg hanging around the café from about 2013. He appeared to be purely a customer at the time and one of the many strangers that had hung around the café over the years;

2. Mr Van Rensburg did not carry out any work at the Fairview Avenue Unit. This work was carried out by a builder and was completed in August 2014. There was a proposal for Mr Van Rensburg to rent this property but this was withdrawn because it was reported that Mr Van Rensburg was untidy and had a dog;

3. Coinciding with members of the Raft family reducing their work in the café, they observed Mr Van Rensburg in or about 2015 doing some tasks such as running some errands and helping in the kitchen;

4. There was no evidence that Mr Van Rensburg was living in the third bedroom of the Residence as at 2015, 2016 or up to September 2017 – this evidence principally came from Therese who breastfed her child in the Residence during this time. No threats were made to Mr Van Rensburg to leave the Residence prior to the latter part of 2017 because he was not living there at the time;

5. Mr Van Rensburg continued to be seen in the café or, more often than not, sitting outside on the bench;

6. It was not until the latter part of 2017 that Stephen discovered that Mr Van Rensburg was staying at the Residence. At this time, Stephen was attending the café/Residence on a near daily basis to attend to awning renovations. Stephen asked Mr Van Rensburg to leave and he refused;

7. Stephen asked John why Mr Van Rensburg was staying at the Residence and he was told by John that he had just started staying there and it was not all the time:

He only sometimes helps out, he doesn’t work here, he’s not an employee. He’s never asked for any money and there was never any talk of paying him. He has an inheritance and is quite wealthy, so he doesn’t need the money.

Stephen also said to John:

If he’s going to be staying here, he needs to be on an employment contract and we’ll pay him.

8. Therese gave evidence that when she asked Lola in 2019 why Mr Van Rensburg was sleeping in the Residence when he has a place to live, Lola said to her “he only does this sometimes. Just when he’s tired”.

9. Lola was able to look after herself up until the COVID pandemic began in 2020. The family visited her regularly prior to lockdown. Linda visited her in March 2020 and she appeared in good health. Throughout the period from 2010 to 2020, Linda would visit Lola at least once a week to change the sheets on her bed. In 2015, Therese was on maternity leave and would visit the café and Residence at least weekly breastfeeding her child in the Residence. She continued to visit regularly thereafter, including into Lola’s room. Due to a combination of matters, including Linda having knee surgery, no family members visited Lola for several months from about March 2020 to about July/August 2020. When they again visited Lola, they noticed a change for the worse in her condition. She appeared dazed and confused. Evidence was given of one occasion where Lola could not get out of bed and was calling out for Mr Van Rensburg but Therese helped her out of bed, got her dressed and gave her some water.

10. There was no friction between John and Lola, on the one hand and Stephen and his family on the other in relation to where John and Lola would live after they left the Residence. There had been a number of discussions with John and Lola over the years with John and Lola initially being receptive to the idea of moving and then changing their minds. There never was a plan to move John and Lola into a nursing home. To the contrary, a home had been purpose built in Gosford Avenue, with Lola’s input where it was planned that Lola and John would move to when they were unable to live in the Residence;

11. No members of the Raft family were made aware that Lola was admitted to hospital on 6 November 2020. Mr Van Rensburg was nominated as her next of kin. It was only when Linda went to visit her mother-in-law, after returning from visiting her own mother elsewhere in NSW, a few days after Lola’s admission that she became aware that Lola had been admitted to hospital. Apparently John did not want them told;

12. Lola came to live with Stephen and Linda after she was released from hospital in early December 2020 where she received increased care;

13. On 19 and 20 June 2021, the Raft family commenced cleaning out Lola’s belongings and the rooms at the Residence. Lola’s room was not in a good state, including dog faeces being found under Lola’s bed;

14. Victoria moved into the Residence to live with John from 7 July 2021 onwards, the same day the notice of eviction was served on Mr Van Rensburg;

15. John subsequently came to live with Stephen and Linda.

Evidence corroborating Mr Van Rensburg’s case

93. Mr Van Rensburg adduced evidence from Mr Mark Stevenage, Ms Thelma Couch, Mr James Sherar and Ms Linda Thomas, each of whom gave evidence of what they observed when they visited the café and also what Mr Van Rensburg told them he was doing, particularly as to the care he was providing for Lola. Each was cross-examined. I set out below my general observations and findings in relation to their evidence.

94. Mr Stevenage visited the café at least once every one to two months between 2013 to 2019. Each time he visited it was always John and Mr Van Rensburg working – John would take the order and Mr Van Rensburg would make it and he (Mr Stevenage) would chat to Lola. Mr Stevenage saw Mr Van Rensburg cooking, serving, cleaning the café, stocking the fridge with drinks and buying stock from the supermarket.

95. He said Lola told him she was very grateful for the things Mr Van Rensburg did for her, John and the café. When pressed in cross-examination as to what Lola told him Mr Van Rensburg did for her, he could not recall any detail. His response when pressed to recall any detail was “not specific no. Just, it’s very general.” After 2018, Mr Van Rensburg told Mr Stevenage that he was too busy at the shop and caring for Lola and John to come out for dinner as he previously had done.

96. Mr Stevenage did not observe Mr Van Rensburg providing any care for Lola but was told by Mr Van Rensburg what he did. Again, however, he could not orally provide much detail. Mr Van Rensburg also apparently told Mr Stevenage on numerous occasions that “John and Lola promised me that I will always have somewhere to stay” and “I will always have a place to live”.

97. I generally accept Mr Stevenage’s evidence. It supports Mr Van Rensburg’s evidence as to his working in the shop. Insofar as Mr Van Rensburg was telling Mr Stevenage certain matters it does not advance things too far. Those issues – statements made by Lola, care provided to Lola and promises that Mr Van Rensburg would always have a place to live – depend principally on whether I accept Mr Van Rensburg’s evidence. Mr Stevenage was not able to provide any real detail of what Lola told him.

98. Ms Couch was a regular visitor to the café and observed Mr Van Rensburg working there from apparently as early as 2013. She had known Mr Van Rensburg since 2001 and admitted that she and Mr Van Rensburg were pretty good friends and that she wanted to help her friend. She also provided some limited evidence of Mr Van Rensburg caring for Lola and running errands and deposed to one conversation with Mr Van Rensburg where he said he was living at the Residence because John and Lola were not able to look after themselves.

99. I accept Ms Couch’s evidence. It generally corroborates Mr Van Rensburg’s evidence, principally in relation to working in the café. Again, insofar as she recounted what Mr Van Rensburg said to her, proof of those underlying matters depends on whether I accept Mr Van Rensburg’s evidence. Also, her evidence was quite light on detail.

100. Mr Sherar attended the café from late 2013 or early 2014 a couple of times a week. He had known Mr Van Rensburg since 2009 and agreed that they were “good friends”. He said that he remembers becoming aware “sometime in 2014 that Stephen was living there as well as working in the shop”. He is certain that he was aware of this by Christmas that year, and deposed to a brief conversation with Lola where she apparently told him that Mr Van Rensburg was living at the Residence. He observed Mr Van Rensburg take Lola to the bathroom whenever she needed to go, dress her, take her meals and give her medication. On occasion he also saw Mr Van Rensburg driving John and Lola which he understood was to medical appointments.

101. Mr Sherar’s evidence was heavily challenged in cross-examination.

102. His evidence was quite confusing at times. He initially said that he visited the café when he was not working and that he was working up to 96 hours a fortnight. It then emerged that this was from 2017 onwards, and that prior to this time, he was between jobs and doing lawn maintenance work for his brother, or studying, which he said was full time. It then emerged that this course lasted only a few weeks.

103. Mr Sherar was also pressed, in cross-examination – and re-examination – to provide specific examples of what he observed, or what he recalls, for example, what Lola asked to be done. His responses were quite general.

104. The confusing answers given by Mr Sherar and his lack of ability to recall detail when pressed gives me some concerns as to the reliability and utility of his evidence.

105. Ms Thomas gave evidence of being a regular visitor to the café and seeing Mr Van Rensburg working in the café for some time – commencing between “seven and ten years ago” from November 2022 when she made her affidavit. She also saw Mr Van Rensburg “taking personal care of Lola and making sure she was comfortable” and said that she knew that Mr Van Rensburg was living at the premises but she cannot recall when that occurred.

106. In cross-examination, Ms Thomas agreed that she did not see any evidence of Mr Van Rensburg living in the Residence but she volunteered that Mr Van Rensburg, John and Lola told her he was living there in cross-examination. Whilst she deposed to John and Lola treating Mr Van Rensburg as family, she was unable to provide any examples of this.

107. Again, Ms Thomas’ evidence provides some support for Mr Van Rensburg’s case, particularly his working in the café and providing some support for Lola. Her evidence was, however, quite general which is perhaps understandable to an extent, particularly given the effluxion of time.

The conversation with Mr Carson

108. On or about 15 December 2020 Mr Van Rensburg received a notice to vacate the Residence and to vacate the premises after the café had closed each day. In effect, he was permitted to work at the café but not live at the Residence. The notice was by letter, on the letterhead of Cutlers The Law Firm acting for Stephen as attorney for Lola.

109. This caused Mr Van Rensburg to consult a solicitor, Mr Graham Carson.

110. On 17 December 2020, Mr Carson attended the café where he met with Mr Van Rensburg who gave him a copy of the letter dated 15 December 2020. Mr Carson then had a conversation with Mr Adilinis without Mr Van Rensburg being present. According to Mr Carson’s affidavit evidence, the conversation was as follows:

Adilinis:

I give Stephen permission to stay here in the shop with me as long as I am here. I will transfer the accommodation and shop to Stephen.

Me:

Does the accommodation have council approval?

Adilinis:

The accommodation is approved accommodation. It is approved accommodation since 1933. The shop was built in 1933 with approved accommodation by Wyong Shire Council in 1933. Stephen Cutler is a tenant of mine as well. He acts for me and my nephew. and

Stephen is like family, he does everything for us. He stays here because I can’t do anything without him. It is between me and my nephew. Mr Cutler is a good man, a good lawyer, he does all my leases and all my legal work.

Me:

They are trying to get Stephen out, are you prepared to put what you told me in writing?

Adilinis:

I am not prepared to put it in writing. Nobody knows he is here, if they ask, I say he is staying down the road. I own the shop, we have a verbal agreement. Dennis Raft, Lola’s husband, Lola and me, we owned the shop, all three of us. My sister was married to Dennis Raft. I have been partners with Dennis since the 1960’s. They will not succeed in stopping Stephen living here. But I want to keep everything verbal, nothing in writing. I don’t want any trouble with my nephew, Stephen Raft. and

Stephen has been helping me and my sister, Lola, since 2014, he has stayed here full time and been a carer for both of us. I can’t survive without Stephen [Van Rensburg]. I guarantee that Stephen can live at the shop as long as I am living here. I promise that no one will kick Stephen out.

Me:

But they can if you don’t put it in writing.

Adilinis:

I will make sure no one kicks him out.

111. Mr Carson formed the view that at the time of this meeting John was competent and understood what he was saying.

112. Mr Carson was Mr Van Rensburg's former solicitor in these proceedings, but he ceased to act when it became clear that he would be a witness in the proceedings as to the discussion that he had with John at the café on 17 December 2020. Mr Carson had known Mr Van Rensburg for a number of years and clearly had a favourable view of Mr Van Rensburg. He was initially cross-examined for a little less than an hour. He gave evidence that he typed a file note while he was at the café. The file note was called for, a redacted version subsequently produced, and Mr Carson was then recalled for further cross-examination on day four of the hearing.

113. The effect of this further cross-examination was the absence of any mention in his file note (as produced) of John saying to Mr Carson (as Mr Carson had deposed to in his affidavit) that he would "transfer the accommodation and shop to Stephen." It was suggested to Mr Carson that these words were not said, which suggestion he denied by reason of what he said were matters set out in the redacted part of the file note, which apparently recounted advice he provided to Mr Van Rensburg which apparently included a greater recount of what John had said to him.

114. I largely accept Mr Carson's evidence. He was doing his best to assist the Court.

115. There were, however, aspects of his evidence which demonstrated unreliability of human memory. One aspect was that Mr Carson contended in cross-examination that he likely would have corresponded with the solicitors for the Raft family about the request that Mr Van Rensburg vacate the Residence. There was, however, no evidence that there was any such correspondence. He also said that his practice was that he typed as things were said in a conversation – almost real time. The redacted file note suggests that this is not entirely what happened in this instance, as part of what John allegedly said to Mr Carson is not recorded in the first section of the file note but is apparently recorded in the redacted section.

116. None of this, however, significantly alters the reliability of the file note and thus the essence of Mr Carson's evidence – being what John told him on 17 December 2020.

117. It was suggested to Mr Carson that he contravened the Solicitors' Conduct Rules in continuing to speak to John on 17 December 2020 after John told him that Stephen Leeds Cutler did all of his legal work. It was not clear to me where this attack went even if it were true and thus it is not strictly necessary to say any more about the contention. Mr Carson denied any suggestion he breached the rules and gave detailed reasons as to why. He was right to deny the suggestion. He did not breach the rules for the reasons he gave. Indeed, given what John told Mr Carson, it was clear that Mr Cutler would have had a conflict in acting for John if he had sought to retain him.

111. Notwithstanding the view that Mr Carson formed that John was competent and understood what he was saying, the opinion of Professor Rosenfeld from a little over a year later, discussed below, was that John has been suffering with significant impairment for a number of years.

112. Some of the statements attributed to John by Mr Carson on 17 December 2020 also cast some doubt on John’s mental competence. For example, John said that no one knows that Mr Van Rensburg was living there – yet the very reason why Mr Carson came to the café at the request of Mr Van Rensburg was in response to a notice that Mr Van Rensburg vacate the Residence – i.e. cease living there. John also reportedly said that he would transfer the Residence and café to Mr Van Rensburg, yet John was not the sole owner and therefore would not achieve what he purportedly promised.

113. There is also a significant issue as to the relevance of what was said to the issues in the proceedings or perhaps the weight to be attached to what was said, being some five to six years after the alleged representations, particularly in light of the matters set out immediately above which cast some doubt on John’s competence at the time.

The evidence of Mr Adilinis and the report of Professor Rosenfeld

121. The defendants relied on John’s affidavit. Consistent with the authorities referred to above, the weight to be given to this evidence must obviously have regard to the fact that it was not able to be tested. There is also an issue as to John’s capacity as at the date of making the affidavit. John was examined by Adjunct Professor Tuly Rosenfeld (Professor Rosenfeld), a geriatrician, on 1 February 2022, who produced a report dated 2 March 2022. There was no objection to Professor Rosenfeld’s report being received into evidence and he was not cross-examined.

122. John’s affidavit evidence may relevantly be summarised as follows:

1. After Stephen suffered a stroke, Mr Van Rensburg offered to assist with menial tasks in relation to the café, such as grocery shopping. This help was accepted, not requested;

2. In or around 2017, Mr Van Rensburg’s car broke down and he commenced staying at the Residence due to his inability to drive back to his rental property. Neither John nor Lola requested Mr Van Rensburg to stay and it was understood to be a temporary arrangement whilst his car was being fixed;

3. After Lola died, John became increasingly concerned with the control that Mr Van Rensburg had over the Residence and accordingly took steps with Stephen to get him to leave;

4. Neither Lola nor John offered Mr Van Rensburg accommodation at the Fairview Avenue Unit, and Mr Van Rensburg did not do any work there;

5. John denies the second, fourth and fifth representations and does not recall the third;

6. Mr Van Rensburg did not move into the Residence in about December 2014, it was not until 2017;

7. John denies any suggestion that he asked Mr Van Rensburg to stay at the Residence;

8. John never saw Mr Van Rensburg wash or shower Lola. Mr Van Rensburg did not prepare three meals a day for Lola as she did not eat a lunchtime meal and ate very little for breakfast and dinner. Mr Van Rensburg cooked dinner for John;

9. In relation to the alleged care provided for John, there was only one ultrasound machine which was used only occasionally, Mr Van Rensburg never took John to Gosford Hospital, he took him occasionally to Long Jetty Clinic, he changed John’s socks, and occasionally washed his feet.

123. Professor Rosenfeld’s report was initially obtained for the purposes of appointing a tutor to represent John in these proceedings. Significantly, his letter of instruction is dated 7 December 2021, shortly after the affidavit was made. The letter to Professor Rosenfeld states, inter alia:

However, in relation to gathering a statement from John in relation to the claims, we note that we had only been able to get enough for a ‘partial’ Affidavit due to John not being able to consistently confirm or deny some aspects of the claim.

124. The solicitors for the defendants had earlier written to Dr Lee, John’s longstanding general practitioner, on 2 November 2021. The letter stated, inter alia:

It is believed that there may be signs of Mr Adilinis having issues with capacity, no doubt as a result of his advanced age.

125. The letter was sent in the context of an application to appoint Victoria as John’s guardian and financial manager. Dr Lee was asked to comment on the proposal. By letter dated 10 December 2021, Dr Lee wrote to Cutlers The Law Firm setting out his opinion on John, including that he was “not capable of looking after his own affairs”. Dr Lee wrote a similar letter to Professor Rosenfeld, also dated 10 December 2021.

126. Professor Rosenfeld concluded at 10.1.1 of his report:

Having interviewed and observed Mr Adilinis and reviewed the clinical information I have been provided it is evident Mr Adilinis suffers with very significant cognitive impairment associated with dementia of at least moderate severity with significant impairments in cognitive function.

127. At 10.1.8, he concluded that John “suffers with at least moderately severe cognitive impairments associated with dementia, poor insight and understanding. These impairments have been present and have likely progressed over a period of years.”

128. At 10.1.10, he further opined that John “has been suffering with significant impairment…more likely than not for at least the last 5-10 years.”

129. In light of this report, and particularly the temporal closeness between the referral letter and the affidavit of John, I am cautious in placing any independent reliance on John’s affidavit.

The evidence of Dr Lee

130. Some valuable insight into John and Lola’s medical conditions can be gleaned from the documentary records produced by Dr Lee, who was apparently John and Lola’s longstanding general practitioner. According to Mr Van Rensburg, Dr Lee visited the Residence at least on a monthly basis to see Lola, and also saw John.

Lola

131. According to oral evidence of Linda, Dr Lee first started seeing Lola as a patient in around 2004.

132. The earliest medical record in evidence of Dr Lee treating Lola is, however, from 2019.

133. The first medical report in evidence, written by Dr Lee and concerning Lola, is dated 18 January 2019. The “surgery consultation” was recorded as a “home visit” and noted a low BP (blood pressure) and low intake of fluids.

134. The next report is dated two days later, on 22 January 2019, where Dr Lee noted Lola’s movement and mobilisation had increased, she was “much improved”, and that her blood would be rechecked.

135. A week later, on 29 January 2019, Dr Lee noted that Lola had “not felt well” over the past two days, felt exhausted, and had limited mobility. Dr Lee refers to Lola’s “carer” in this note.

136. On 31 January 2019, Dr Lee again visited Lola and noted that Lola had “had a stumble”, was “feeling weak and [has] gone back to bed, frail and pale” and that, according to Lola’s “Daughter in Law”, Lola had been coughing.

137. On 14 February 2019, Dr Lee saw Lola and drafted a “GP Management Plan”. In this, Dr Lee noted, among other conditions, Lola’s arthritis, iron deficiency, and osteoporosis. Lola’s social history in this report is recorded as living with “her brother” (John) in the shop premises. Under “Care Needs”, Dr Lee noted that “Lola is increasingly frail with severe kypho-scoliosis” and “requires assistance and supervision from Steve, her carer (not her son).” Dr Lee also noted a “fraught” family dynamic, that Paul was bed ridden and had not been mentioned by Lola “for quite some time now”, that “Steven is able bodied and does visit but there is [sic] strong differences to what should happen” and, with Linda, is “very vocal” about wanting John and Lola to retire and “perhaps…go into care”. Dr Lee determined that Lola was “medically…capable of deciding for herself. Irrespective of perceived non ideal situation she has her right to continue to stay with Johnny in the café.” I observe here that, as with each of these entries, it is not clear who is the informant, whether John, Lola or Mr Van Rensburg or a combination.

138. On 19 November 2019, there was a GP Management Plan Review. Dr Lee noted that Lola was very frail and further, that “she is severely kyphotic and is not mobilising but remains determined to stay in shop with Johnny with help from informal carer, Steve.”

139. On 12 February 2020, Dr Lee visited Lola at home and noted no significant changes, that her pain was under control and her chest was clear.

140. On 10 March 2020, Dr Lee saw Lola again and noted that she was nauseous but was eating, had a “cough” with “purulent phlegm on tissue” and “systolic murmur chest” and “reduced AE”.

141. On 4 April 2020, Dr Lee noted that Lola was “increasingly frail” with “severe kyphoscoliosis”, “no longer ambulating independently” and needed “help from Steve (carer)…including transfer and toileting”. Dr Lee noted that Lola was refusing services and “having a sponge wash every few days”. A discussion was had with “Steve” regarding the “management of medical crisis, including death”. This entry appears to record a marked deterioration in Lola’s condition. It is the first reference to Lola no longer ambulating independently and needing help with toileting. This is also consistent with the evidence given by members of the Raft family of noticing a marked deterioration in Lola when they were able to visit her in about August 2020.

142. On 6 April 2020, Dr Lee visited Lola at home and noted that she was “very frail”, “not feeling well” and had “a cough and sore throat”.

143. On 5 May 2020, Dr Lee held a telephone consultation with Lola and noted that he would “attend to give [an] influenza vaccine when available”.

144. On 8 May 2020, Dr Lee visited Lola at her home to give her the influenza vaccine, and noted that, due to her general debility, she was spending more time in bed, but had “better colour” and seemed “more comfortable”, with a clear chest.

145. On 2 June 2020, Dr Lee visited Lola at home and noted that she had “generally deteriorated” with “pain in [her] tummy” and was “not as [alert] or aware”. Later in the same month, on 25 June 2020, Dr Lee again saw Lola at her home, and noted she was “frail but not distressed” and was relying “on [her] carer for most ADLs [Activities of Daily Living]”, but according to Lola, had no pain and no abdominal pain, despite not being interested in food.

146. There was no evidence of any consultations after 25 June 2020.

John

147. Dr Lee had been treating John since 2007, although on one version of Dr Lee’s letters which were dated 10 December 2021, Dr Lee states that he has been treating John since 2017. I believe that this is a typographical error, since the earliest consultation report of Dr Lee treating John is dated 2016.

148. On 24 November 2016, Dr Lee recorded notes regarding John’s conditions, including his cataracts, glaucoma, osteoarthritis, osteoporosis, and leg ulcer. Dr Lee noted that “John and his sister” remain at the café as their “occupational therapy”. “Stephen” (Mr Van Rensburg) was mentioned, with Dr Lee saying that John and Lola “now have help from Stephen, who stays overnight” (my emphasis).

149. On 9 January 2020, Dr Lee saw John for osteoporosis, to discuss his blood test results, and to renew a prescription. Dr Lee noted John had increased his dosage of vitamin D capsules and was having regular greens.

150. On 4 April 2020, Dr Lee held a telephone consultation with John’s “carer Steve”. On this day, Dr Lee drafted a GP Management Plan with John’s consent, and noted his medical history concerning an ulcer on his left leg, cataracts, vitamin D deficiency, glaucoma, osteoporosis and osteoarthritis. Under “Care Needs”, Dr Lee noted that John was “increasingly frail with increasing kyphosis” and that, despite the risk of COVID 19, John insisted that the café stayed open, with “Steve (carer)” helping John with the “processes to minimise risks for him and the community at large”. John also declined the influenza vaccine.

151. On 12 February 2021, Dr Lee had a conversation with John, who he noted was “coping with the help of Steve, a carer” and was still opening the café. Dr Lee also noted that Lola was living with Stephen and Linda.

152. On 15 June 2021, Dr Panicker spoke with a “carer” to renew a script, but that John was otherwise well with “no other concerns”.

153. On 10 December 2021, Dr Lee wrote a letter to Cutlers The Law Firm, in which Dr Lee observed that “for at least the previous two years, there [have] been signs of decline in [John’s] cognition and physical health”, including “obvious signs of self-neglect”, such as a “lack of personal hygiene”, stained and unwashed clothes “with signs of incontinence”. Dr Lee noted that a limited cognitive assessment which took place on 9 December 2021 “showed significant cognitive impairment”. It was Dr Lee’s opinion that John was “not capable of looking after his own affairs”. Also on 10 December 2021, Dr Lee sent a similar letter to Dr Rosenfeld of Rosenfeld Consulting, except this letter also contains a summary of John’s medical history.

Stephen’s letter dated 18 November 2020

154. On 18 November 2020, whilst Lola was a patient at Wyong Hospital, Stephen wrote a letter to the Hospital about his plans for Lola’s future care. The letter provides somewhat of a contemporaneous record, unaffected by the existence of litigation. I set it out in full:

To Whom It May Concern,

I’m writing in relation to the care of my mother, Lola Raft, currently staying in the rehabilitation ward of Wyong Public Hospital. As her son and next of kin, I am formerly [sic] requesting a meeting between your social worker and our family on the appropriate next steps for the care of my mother. I am the most appropriate decision maker as my younger brother is incapacitated with complications from Multiple Sclerosis and my father died over 20 years ago. I have Power of Attorney for both my mother and her brother (my uncle). The family meeting would be with my wife and two daughters who are all very close to my mother, and we will extend an invitation to her brother.

My mother lives with her brother in the back of a shop, the Golden Gate Café, at The Entrance. The shop has been standing, largely untouched for more than 6 decades and the residential accommodation is effectively an asbestos lean-to. There is one air-conditioner in the back of the building and there is no insulation. It is poorly laid out and not easily accessible with a walker or wheelchair. It is an inappropriate and unsafe space for my mother to return to once she has been discharged.

I understand that a man named Steven Van Rensburg has introduced himself as my mother’s carer and you have been engaging with this person as such. However, he is not her carer. He assists in the shop as a cook and sometimes provides assistance to my mother when she needs to move around. He does not have her best interests at heart. He is not family and he is not to be included in the family meeting I have requested with the social worker.

We met with my mother’s doctor, Dr Lee, on Tuesday, 17 November and he said he requested that Steve inform us of her condition when she was first admitted to hospital as he didn’t know if she would survive. Steve did not contact us. We found out about my mother’s hospitalisation when we went to visit her and she wasn’t home. This is not the action of a carer with my mother’s best interests at heart.

Since we’ve found out we have been to visit her every day and we are committed to her welfare. We have found it difficult to get answers from the hospital as we haven’t been appropriately listed as next of kin – however, as I have stated, I am in the best position to provide support and care to my mother. Steve is not her carer and does not have her best interests at heart.

We have concerns about her current living arrangements. There have been many instances, particularly over the last 6 months, where we have found mother still in bed in the early afternoons. I help with the shop and I am frequently down at the Entrance, but often can’t speak to my mother because she’s usually asleep. We have come to visit and found her calling out for help to go to the bathroom and Steve, who purports to be her carer, has been out for hours. We have concerns she is not eating or drinking as well as she should, leaving her dehydrated and even more prone to confusion than she already is. It is clear that my mother’s condition now requires specialist care. My mother does not have access to the even the minimum assistance she requires. Again, Steve is not her carer and does not have her best interests at heart.

I formally request you do not release my mother into the care of this man. I am prepared to take this to the NSW Civil and Administrative Tribunal to ensure we have time to make the best possible arrangements for my mother with the proper care.

Our preference would be for my mother to move in with my family and I in Erina Heights. We have a single level, three bedroom air conditioned house that would can [sic] easily accommodate my mother’s mobility requirements and we would arrange for daily care for my mother. We acknowledge this may not be my mother’s preference and if she really does want to move back to the shop and her brother, then we would like to arrange for my mother to be placed in short term rehabilitation facility for a few months while we make some additional changes to the shop and arrange for a dedicated carer. At the very least we do not want her in the shop during the summer months when the heat is unbearable. We believe she would be back in hospital within months, if not weeks, of being released without additional arrangements.

Please let us know the earliest time we can arrange a family meeting with the social worker. Both my daughters live in Sydney and are happy to move work around to come up if need be. We will arrange for my mother’s brother to attend. Steve will not be invited as he is not family, he is not my mother’s carer and his actions during her hospitalisation is proof he does not have her best interests at heart.

I look forward to working with you on next steps.

Regards,

Stephen Raft

155. The Hospital discharge notes, dated 2 December 2020 also record certain contemporaneous matters although it is not clear who is the source of certain matters recorded. For example, under the heading “Social History” it is recorded:

Lives in a small apartment and full time carer

Mobilises with 4WW

Needs assistance with showering and feeding

Carer does cooking and cleaning

Resolution of the factual disputes

156. As set out above, there were four central factual disputes in the present case:

1. Were the alleged misrepresentations in fact made?

2. What work did Mr Van Rensburg do in the café?

3. When did Mr Van Rensburg start living with John and Lola?

4. What care did Mr Van Rensburg provide to each of John and Lola?

157. I determine each of these disputes below having regard to the evidence which I have summarised above.

158. Because of the circumstances in which Mr Van Rensburg contends that the second to fifth representations were made – at a time when Mr Van Rensburg contends that he was in fact living at the Residence in circumstances where Mr Van Rensburg had been threatened by Stephen, was asked to leave the Residence and was proposing to do so – it is convenient to deal first with the issue of when Mr Van Rensburg first commenced living at the Residence.

When did Mr Van Rensburg start living at the Residence with John and Lola?

159. The competing contentions are December 2014 (Mr Van Rensburg) and about September 2017 (the defendants).

160. The starting point is that there are no clear objective matters supporting either party’s case.

161. On Mr Van Rensburg’s case he moved in at the request of John and Lola in late 2014 after the second representation. Ordinary human behaviour would perhaps expect, if Mr Van Rensburg was moving in on a full time basis with security of tenure, which Mr Van Rensburg contends he received from John and Lola through the third to fifth representations in March and April 2015, and he was not working and was in receipt of a Newstart Allowance, that Mr Van Rensburg would have ceased renting the property at 2/210 The Entrance Road and moved everything into the Residence with the termination of his rental providing firm evidence as to the date on which he moved. Mr Van Rensburg did not do this. He continued to pay rent on the property whilst apparently living at the Residence and continues to pay rent to this day. This conduct in itself is relevant more generally on whether any of the third to fifth representations were ever made as it tends against Mr Van Rensburg ever having a belief John and Lola would provide him with accommodation for life. For present purposes, it simply highlights the lack of any objective material supporting when it is that Mr Van Rensburg moved into the Residence.

306. Assuming a domestic relationship exists, s 14 of the PRA provides that a party to a domestic relationship may apply to, relevantly, the Supreme Court for an order under Part 3 of the PRA for the adjustment of interests with respect to the property of the parties to the relationship.

307. “Property” is defined in s 3(1) to include real and personal property.

308. Section 20(1) of the PRA provides:

20 Application for adjustment

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to—

(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely—

(i) a child of the parties,

(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

309. The starting point in relation to s 20 is what was said by Gleeson CJ and McLelland CJ in Eq (Meagher JA to like effect) in Evans v Marmont (1997) 42 NSWLR 70 at 78-79:

Most importantly, s 20 specifies in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner.

310. In Kardos v Sarbutt [2006] NSWCA 11, Brereton J (with whom Basten JA and Hunt AJA agreed) stated at [29]-[38]:

[29] The exercise of jurisdiction under s 20 involves three main steps. The first is the identification and valuation of the property of the parties, which determines the “divisible pool of property” – that is, “the property of the parties to the relationship or either of them” referred to in s 20 which may be the subject of an adjustive property order under that section. The second is the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20, and typically though not invariably results in an apportionment between the parties on a percentage basis of the overall contributions of the types referred to in s 20 of each of them, made to the date of hearing. The third is the determination of what order is required sufficiently to recognise and compensate the applicant’s contributions, and typically results in an order which leaves the applicant with that percentage identified in the second step of the divisible property identified in the first step. This is a simplification of the four step approach first formulated by Powell J in D v McA (1986) 11 Fam LR 214; (1986) DFC 95-030 [see also Roy v Sturgeon (1986) 11 NSWLR 454; (1986) 11 Fam LR 271; (1986) DFC 95-031; Wilcock v Sain (1986) 11 Fam LR 302; (1986) DFC 95-040; Evans v Marmont (1997) 42 NSWLR 70; (1997) 21 Fam LR 760; (1997) DFC 94-184; Jones v Grech (2001) 27 Fam LR 711; (2001) DFC 95-234; [2001] NSWCA 208].

[30] As to the first step, the exercise of the identification and valuation of the property of the parties is undertaken typically, though not invariably, as at the date of trial [see Parker v Parker (1993) 16 Fam LR 863; (1993) DFC 95-139; Wells v Wells (1977) 29 FLR 383; (1977) 4 Fam LR 57; (1977) FLC 90-285], though sometimes as at the date of separation [Cozanitis v Cozanitis (1979) 34 FLR 523n; (1978) 4 Fam LR 709; (1979) FLC 90-643]. The starting point is that ordinarily property is valued as at the date of trial [Williams & Williams (1984) 9 Fam LR 798; (1984) FLC 91-541; Hauff & Hauff (1986) 10 Fam LR 1076; (1986) FLC 91-747]. The primary reason for this is that the jurisdiction under s 20 is to adjust interests with respect to “the property of the parties to the relationship or either of them” and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available. Thus in Woodland & Todd (2005) 33 Fam LR 177; (2005) FLC 93-217; [2005] FamCA 161, in which the property of the parties – which had been worth $873,000 when the husband and wife divided it between them in 1997 under an informal agreement which did not deprive the court of jurisdiction - had increased in value to $2.5 million when the matter came to trial years later, the Full Court of the Family Court held that the primary judge had erred in treating the case as concerning an asset pool as at the date of the informal agreement in 1997, and was required to address an asset pool that existed at the time of the hearing, not at the time of the prior agreement.

[31] Although usually the preferable approach is to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation. Thus the Full Court of the Family Court has said (in respect of proceedings under the Family Law Act, s 79, which for present purposes are akin to proceedings under the Property (Relationships) Act, s 20) that although ordinarily the parties’ property is to be valued at the date of trial, in a particular case there may be reasons to justify another date, which might be the date of separation [Omacini & Omacini (2005) 33 Fam LR 134; (2005) FLC 93-218; [2005] FamCA 195].

[32] As to the second step, a number of principles have been established relating to the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20.

[33] First, where there is a division of roles in the relationship between the homemaker and parent on one hand and the breadwinner on the other, contributions of a de facto partner as a homemaker and parent are not to be regarded as inferior in any way to the financial contributions made by the other partner [Black v Black (1991) 15 Fam LR 109; (1991) DFC 95-113; Evans v Marmont]. The approach endorsed by the High Court to the evaluation of contributions under the Family Law Act 1975 (Cth) in Mallet v Mallet (1984) 156 CLR 605 is applicable to the evaluation of contributions under the Property (Relationships) Act [Jones v Grech, [33]-[35] (Davies AJA)]:-

In Mallet v Mallet (1984) 156 CLR 605 at 635-636, Wilson J, after referring to a number of judgments of the Family Court of Australia in which that Court had adopted the notion of “equality is equity” as a convenient starting point to s79(4)(b) of the Family Law Act , 1975 (Cth), went on to say:-

"In the earliest of these cases, Rolfe [(1977) 5 Fam LR 146 at 148] ..., Evatt CJ referred to s79(4)(b), saying: 'The purpose of s 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.’

With all respect, I agree with her Honour’s exposition of the purpose of the paragraph subject to one reservation. The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. … Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall ‘take into account’ any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application.”

The general thrust of his Honour’s exposition found support in the observations of other members of the Court: Mason J at p623-p625, Deane J at p639-p641 and Dawson J at p645-p646. One point that their Honours made in relation to matrimonial relationships was that the relationship ordinarily involves “a practical union of both lives and property” and that the acquisition of assets, such as a matrimonial home, can be seen as representing “the fruits of a totality of efforts of wage earning, homemaking and mutual support” (per Deane J at p640-p641). At p625, Mason J pointed out that there may be an equality of contribution if “the efforts of the wife in her role were the equal of the husband in his”. However, the facts of the particular case must always be examined. The passage from the reasons of Wilson J set out above shows how this examination may be made.

The same general considerations apply to a de facto relationship, for that is a relationship of living together as husband and wife on a bona fide domestic basis. Such a relationship also ordinarily involves a practical union of lives and property. The two factors specified in s 20(1), financial and non-financial contributions and contributions made in the capacity of homemaker or parent, reflect the considerations to which their Honours gave weight in Mallet v Mallet.

[34] It is to be observed that, insofar as it was said in Mallet that the Family Law Act requires that the contribution of a wife as homemaker and parent be seen as an indirect contribution to the acquisition, conservation, or improvement of the property of the parties, that is no longer necessary since the 1983 amendments to the Family Law Act; nor has it ever been necessary for the purposes of the Property (Relationships) Act, s 20(1)(b), which does not require that the contributions there referred to be contributions to the acquisition, conservation, or improvement of property.

[35] Secondly, contributions made before cohabitation commences are relevant contributions for the purposes of s 20 [McDonald v Stelzer (2000) 27 Fam LR 304; (2001) DFC 95-233; [2000] NSWCA 302, [28]-[32] (Sheller JA), [34]-[36], [39] (Priestley JA); Jones v Grech, [24] (Davies AJA), [81]-[82] (Ipp AJA)], as are contributions made after separation and before trial [Foster v Evans (1997) DFC 95-193, 77,681; see also Jones v Grech, [79] (Ipp AJA)].

[36] Thirdly, in proceedings under s 20, the court is not required to undertake a reductionist process analogous to the taking of partnership accounts by examining every alleged “contribution” of the kinds described in the section with a view to putting a monetary value on each in order to reach an accounting balance one way or the other, then to be eliminated by the requisite financial adjustment; rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind [Davey v Lee (1990) 13 Fam LR 688; (1990) DFC 95-084 (McLelland J)].

[37] Some contributions are readily capable of evaluation in monetary terms. Others - such as those made in the capacity of homemaker and parent - are not. Because some assets depreciate in value, and because parties incur living expenses, the pool of property available for division will usually be less than the sum of the financial contributions, and more so when allowance is made for the value of the non-financial contributions. This means that the type of accounting approach which McLelland J discouraged in Davey v Lee runs the risk that, by focussing on the valuing of individual contributions item by item, not only will the overall picture be lost, but serious injustice can be done, particularly by devaluing those contributions which are not readily capable of evaluation in monetary terms. On the other hand, the “fruits of a totality of efforts of wage earning, homemaking and mutual support” referred to by Deane J in Mallet do not usually encompass property which each party had before the relationship, or which either party introduced not by way of their mutual efforts at wage earning, homemaking and mutual support, but independently through gift or inheritance from third parties.

[38] As to the third step - the determination of what order is required in order sufficiently to recognise and compensate the applicant’s contributions - the court is concerned with what is just and equitable having regard to, and only to, the respective contributions of the parties of the type referred to in s 20, and there is no warrant for regard to other factors such as the respective means and needs of the parties, which are made relevant to equivalent applications under the Family Law Act by s 79(4)(e) of that Act, an equivalent of which is conspicuously absent from the Property (Relationships) Act, and the omission of which was deliberate, as appears from the Law Reform Commission’s report of June 1983: Report on De Facto Relationships, No 36 of 1983, to which the draft Bill was an appendix, and from which the policy underlying the legislation appears [Wallace v Stanford (1995) 37 NSWLR 1; (1995) 19 Fam LR 430; Evans v Marmont, 81].

311. In Sharpless v McKibbin [2007] NSWSC 1498 (Sharpless v McKibbin), after referring to what Wilson J had said in Mallet v Mallet (1984) 156 CLR 605, Brereton J stated at [70]-[71]:

[70] However, that approach has evolved in the context of marriages and quasi-marriages involving a social and economic partnership between domestic partners or, as it was put in Mallet, “a practical union of lives and property”. It is applicable where there is an allocation of roles in the relationship between the homemaker and parent on one hand and the breadwinner on the other, so that one (by assuming the domestic responsibilities) may be said to have freed the other to generate income, so that the income is the product of their joint endeavours in different fields.

[71] The inclusion within the Act of “close personal relationships” has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a “close personal relationship” not amounting to a de facto relationship. “Close personal relationships” within the definition cover a wide range of relationships, and typically do not involve “a practical union of lives and property”. In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed.

312. Brereton J built on what he said at [71] in Sharpless v McKibbin when sitting as a member of the Court of Appeal in Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260. At [11], his Honour (with the agreement of Beazley and Tobias JJA) stated:

[11] The point of that passage was that the contributions in a de facto relationship occur in the context that the parties are by definition living together as a couple, whereas contributions in a close personal relationship do not necessarily have that feature. In the case of a de facto relationship there will usually, if not inevitably, be a social and economic partnership, whereas in a close personal relationship there will not necessarily be so. Sharpless was a case in which after the de facto relationship had ceased there was no such social and economic partnership. But the range of close personal relationships is wide, from those that are quasi marriages, to those that bear no similarity to a marriage at all (for example, where the relationship might be one much more akin to one between a parent and a daughter-housekeeper, in which the approach typically adopted in a de facto relationship case might not be appropriate). In each such case, the approach to the assessment of the respective contributions of the parties will depend on the facts, and in particular the specific contributions in that case. Sharpless does not state that a close personal relationship could never involve those characteristics of a social and economic partnership which make what was described in that case as the approach in Mallet v Mallett (1984) 156 CLR 605 an appropriate one.

Determination of the PRA Claim

313. The first issue is whether there was a close personal relationship between Mr Van Rensburg and John.

314. As set out above, in relation to John, I have found that from about September 2017 until early August 2021, Mr Van Rensburg lived at the Residence and provided John with some domestic support and personal care. That domestic support and care included occasionally applying the ultrasound machine to John’s shoulders, taking him to medical appointments when needed, assisting John in changing the dressings on John’s legs, washing his feet and changing his socks. Mr Van Rensburg was also responsible for cooking the meals.

315. John and Mr Van Rensburg were living together for a little less than four years, and Mr Van Rensburg was providing John with domestic support and personal care.

316. The issue that then arises is why was Mr Van Rensburg doing this – was it for fee or reward?

317. Given that I have rejected the proprietary estoppel claim including on the basis that I am not satisfied that any of the third to fifth representations were in fact made, the promise of reward embedded in the alleged representations – having a place to live and otherwise supported financially for life – is to be ignored for this purpose. Had I been satisfied that the representations were in fact made, it would have been clear that the domestic support and personal care was being provided for fee or reward.

313. Once the alleged representations are ignored, the position is one where Mr Van Rensburg started visiting the café in late 2013/early 2014 when he had nothing else to do, he then started performing some tasks helping out in the café and his involvement grew from there whereby he was “working” almost full time in the café and from September 2017, he was living in the Residence and providing some care for Lola and, to a lesser extent, John. It seems quite clear that at least for the period whilst he was living in the Residence he was living rent free and was also being provided with free food.

314. In these circumstances, was he providing the domestic support and personal care for fee or reward? Whilst the question is ultimately a factual one, unlike the situation that existed in Saravinovski v Saravinovska (discussed above) it is difficult to explain the care which Mr Van Rensburg provided as being an incident of any close personal relationship which Mr Van Rensburg had with John such that the free board and lodging is merely an incident of that relationship.

315. Mr Van Rensburg effectively moved into the Residence, not as a result of any request by John and/or Lola or out of any close affection for them, but more because it was convenient for him to do so. Working in the café provided a form of therapy for all concerned – it certainly gave Mr Van Rensburg something to do. It also provided him with free food. In this regard, I reject Mr Van Rensburg’s contention that the three of them were like family or that Mr Van Rensburg had any particularly close affection for John and/or Lola.

316. Whilst I am not satisfied that any of the third to fifth representations were in fact made, I am comfortably satisfied that Mr Van Rensburg saw the prospect of, and hoped for, some personal gain out of what he was doing for and with John and Lola, in addition to the free board and lodging he was receiving. If nothing further eventuated, Mr Van Rensburg was content with the free board and lodging and something to do.

317. Mr Van Rensburg was aware that John and Lola were obviously quite elderly and vulnerable. They were quite powerless to refuse his offers of help.

318. The domestic support and personal care provided by Mr Van Rensburg for John was provided for fee or reward. There was thus no close personal relationship for the purposes of the PRA.

319. If I am wrong in this conclusion, I turn now to consider what, in the exercise of my discretion, order – if any – should be made under s 20 of the PRA.

320. The factual background against which this should be assessed is, as set out above, that John and Mr Van Rensburg lived together for a little under four years and Mr Van Rensburg provided certain support and care for John including ultra-sounding his shoulders, assisting with the changing of dressings on his legs, taking him to medical appointments and cooking him meals. In return, Mr Van Rensburg received free board and lodging as well as the company of John and Lola, all at a time when it appears he was very much at a loose end. The work which Mr Van Rensburg carried out in the café enabled the business to remain open and trading, although it was certainly not trading at a profit during this time.

321. The nature of the relationship is such that only limited assistance is obtained from the authorities discussed above in the context of de facto relationships where a three-step approach is set out. The question is what is just and equitable having regard to the contributions of Mr Van Rensburg in the respects mentioned in s 20(1)(a) and (b).

322. In circumstances where it was clear that Mr Van Rensburg’s contributions, such as they were, had no impact on the acquisition, conservation or improvement of any of the property of John, counsel for Mr Van Rensburg focussed on Mr Van Rensburg’s contribution to John’s welfare (s 20(1)(b)).

323. Whilst the domestic support and personal care which Mr Van Rensburg provided had some impact on John’s welfare, I would not assess that impact as substantial and certainly not so substantial as to conclude, in all of the circumstances, that it is just and equitable to adjust property interests.

324. The close personal relationship lasted a little under four years. Whilst John received some benefit from the care and support provided by Mr Van Rensburg, and that this to some extent contributed to the overall arrangement which included the café remaining open and John’s overall welfare including because he was being fed, Mr Van Rensburg also benefitted in that he was receiving free board and lodging, not to mention the fact that “working” in and around the café gave Mr Van Rensburg something to do when he was otherwise at a loose end.

325. Having regard to all of the circumstances, had I been satisfied that there was a close personal relationship for the purposes of the PRA, I would not have been satisfied that it is just and equitable to make any orders under s 20 of the PRA.

Succession Act claim

Relevant principles

331. The principles relevant to Mr Van Rensburg’s claim on Lola’s estate under the Act were not in dispute. I recently summarised the principles in Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 (Bradley v Irvine) at [167]-[174] and Dighton v Norwood [2024] NSWSC 318 at [87]-[107].

332. As Mr Van Rensburg was not a natural child of Lola, for the Court to have jurisdiction he needed to establish:

1. he was an eligible person by reason of s 57(f) of the Act – being a person with whom Lola was living in a close personal relationship at the time of Lola’s death; and

2. there are factors warranting the making of an application for provision – s 59(1)(b) of the Act;

333. As to (a), “close personal relationship” is defined in s 3(3) of the Act as “a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.” Under s 3(4), it is a disentitling circumstance if the domestic support and personal care is provided for fee or reward.

334. An important issue in the present case is whether Lola was living with Mr Van Rensburg at the time of Lola’s death. Mr Van Rensburg’s contention was that, notwithstanding that at the time of her death, Lola had been living in respite care, having lived with Stephen and Linda for a period after she was discharged from hospital, for the purposes of the Act, she was living with him at the time of her death.

335. Reliance was placed on Skarica v Toska [2014] NSWSC 34 (Skarica v Toska) at [42] per Lindsay J and Hayes v Marquis [2008] NSWCA 10 (Hayes v Marquis) at [76]-[79] per McColl JA as cited in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 (Sadiq v NSW Trustee and Guardian) at [247].

336. In Skarica v Toska, Lindsay J found that the plaintiff and the deceased were living together at the time of the deceased’s death (18 March 2012) even though in late 2011 the deceased was hospitalised and on 16 February 2012, she was transferred to a nursing home where she died about one month later. At [42], Lindsay J stated:

[42] They were, relevantly, "living together" at the Surry hills property at the time of her death despite her hospitalisation and subsequent, transitional transfer to a nursing home as death approached. It was undoubtedly her home. She shared ownership of it with the plaintiff. He "stayed there", although not continuously. Whether or not his pre-emptive move there (and the associated surrender of his Housing Commission tenancy) was motivated, in part, by a perception that the move would strengthen his subsequent claim to be an "eligible person" within the meaning of s 57(1)(b) or s 57(1)(f) of the Succession Act, the fact remains that at the time of her death, he was living at the same residence as the deceased called "home".

337. Neither Hayes v Marquis or Sadiq v NSW Trustee and Guardian address the relevant question of whether Lola and Mr Van Rensburg lived together at the time of death. The observations of McColl JA in Hayes v Marquis at [76]-[79] more concern the concepts of “living together” for the purposes of the Act.

338. In relation to the need for “factors warranting”, I recently summarised the law in Bradley v Irvine at [171]-[174]. There must be circumstances which, when added to the facts that make the plaintiff a natural object of testamentary recognition.

Determination of the claim under the Act

339. The relevant issues are as follows:

1. Were Lola and Mr Van Rensburg living together at the time of Lola’s death?

2. Was the domestic support and personal care provided by Mr Van Rensburg for fee or reward?

3. Are there factors which warrant the making of an application?

4. Was adequate provision made for Mr Van Rensburg in Lola’s will?

5. What order for provision should be made?

340. I deal with each of these issues in turn.

341. As to the first issue, I conclude that at the time of Lola’s death she was not living with Mr Van Rensburg at the Residence. She was living with Stephen and Linda at their house.

342. The relevant facts were not in dispute.

343. Lola was admitted to hospital in early November 2020. She was in extremely poor health at the time. She weighed 42 kilograms. There was dirt under her fingernails and in her belly button.

344. Stephen wrote a letter to Wyong Hospital dated 18 November 2020 whilst she was in the hospital. He expressed the view that the Residence was “an inappropriate and unsafe space for [his] mother to return to once she has been discharged”. He also set out his concerns as to Mr Van Rensburg’s care of Lola and expressed his preference for Lola to move in with his family at Erina Heights.

345. This preference was honoured and on 2 December 2020, Lola was discharged into the care of Stephen and Linda to live with them at their home. This does not appear to have been a short term or temporary decision, such that Lola would at some stage return to live at the Residence. Nor does it appear that Lola was in such poor health at the time of discharge that her death was thought to be imminent.

346. The circumstances are properly characterised as a decision having been made that after discharge she would live with Stephen and Linda such that her home would be with them at Erina Heights.

347. Lola remained living at Erina Heights with Stephen and Linda until March 2021 with the assistance of some nursing care for one hour a day, two to three days a week. In March 2021, she went into respite care while Stephen recovered from kidney stones and because her care needs were not able to be met by Stephen and Linda. She passed away on 17 May 2021.

348. The facts of the present case are distinguishable from those in Skarica v Toska where the deceased was hospitalised and then went into a nursing home. The significant difference in the present case is the decision for Lola to live with Stephen and Linda. That was her home from then on.

349. The fact that Lola and Mr Van Rensburg were not living together at the time of Lola’s death means that Mr Van Rensburg is not an eligible person under s 57(1)(f) of the Act.

350. Against the possibility that I am wrong in this conclusion, I consider the remaining issues in relation to Mr Van Rensburg’s claim on Lola’s estate under the Act.

351. The next issue is whether the domestic support and personal care was provided by Mr Van Rensburg for fee or reward. The position in this regard is relevantly indistinguishable from the position in relation to John. For the reasons set out above I am satisfied that the domestic support and personal care was provided for fee or reward.

352. The next issue is whether there are factors warranting the making of the application.

353. Are there circumstances which, when added to the facts that make Mr Van Rensburg an eligible person, make Mr Van Rensburg a natural object of testamentary recognition? The factors relied on must be such as to demonstrate a social, domestic or moral obligation on Lola to make some provision for Mr Van Rensburg: see Spata v Tumino (2018) 95 NSWLR 706 at [97] per Payne JA.

354. Again, this issue must be considered against the factual findings I have made above, including that I am not satisfied that any of the representations were made and that between 2014 to November 2020 Mr Van Rensburg provided some care for Lola, living in the Residence from September 2017 onwards.

355. I am not satisfied that there are any factors warranting the making of the application.

356. Putting to one side the alleged representations which I am not satisfied were made, there is nothing in the circumstances to make Mr Van Rensburg the natural object of Lola’s testamentary recognition.

357. It is of some significance that Lola made her last will on 20 September 2019. This was at a time when Mr Van Rensburg had been living at the Residence for about two years (on the Raft’s case or five years on Mr Van Rensburg’s case). No provision was made for Linda. Lola did, however, grant a life interest in one of her properties to Carol. Lola did not see any need to make any provision for Mr Van Rensburg in her will. Further, there is no evidence that Mr Van Rensburg ever made any effort to see Lola after she was discharged from hospital in November 2020, perhaps reflecting the closeness, or lack of closeness, in their relationship.

358. On the findings that I have made above, Mr Van Rensburg was providing some care for Lola at this time, and such care was increasing as Lola’s needs increased. The care which Mr Van Rensburg was to provide certainly increased in the early part of 2020 as Lola’s condition deteriorated and COVID prevented other family members visiting.

359. Further, given Lola’s condition when she was admitted to hospital in November 2020, it would appear that the care that Mr Van Rensburg was providing was either not that much or certainly what he did was not overly effective.

360. The relationship between Lola and Mr Van Rensburg evolved over time, beginning when Mr Van Rensburg began hanging out at the café in early 2013 at a time when he had very little else to do. This was also at a time when both Lola and John were quite elderly and vulnerable. The expansion in the role which Mr Van Rensburg played in Lola and John’s lives was not, on my findings, as a result of a request from Lola and John, but rather, just occurred over time with Mr Van Rensburg doing more over time, both working in the café, then providing some care for Lola and to a lesser extent John, then moving into the Residence. Mr Van Rensburg was benefitting from the relationship, not only in that it gave him something to do, but also because he received free board and lodging. Whilst Mr Van Rensburg no doubt hoped for greater financial reward, nothing was done by Lola and/or John to lead Mr Van Rensburg into believing he would receive any greater reward. This all occurred during a period when John and Lola were elderly and quite vulnerable.

361. There is nothing in the circumstances to create any social, domestic or moral obligation on Lola to make provision for Mr Van Rensburg.

362. I am conscious that some of the witnesses called in support of Mr Van Rensburg’s case referred to the relationship between Mr Van Rensburg and Lola and John as being “like family” or words to that effect – see in particular the evidence of Ms Thomas. Very little detail was given as to what conduct grounded such a conclusion, beyond such statements such as the way they spoke to each other or the way they treated each other.

363. I do not find this evidence as overly persuasive in circumstances where the events occurred many years ago, the evidence was being given by people who were periodic visitors to the café, and Lola and John were quite elderly and vulnerable and were no doubt happy to be assisted by whatever Mr Van Rensburg chose to do for them.

364. In circumstances where I am not satisfied that there are factors warranting the application, I am also not satisfied, essentially for the same reasons as rejecting the factors warranting contention, that a just and wise testator in the position of Lola, looked at in the light of the facts as they now exist, would have made provision for Mr Van Rensburg.

365. Had it been necessary to consider, contrary to all of the findings I have made above in relation to the claim under the Act on Lola’s estate, what order for further provision should be made in favour of Mr Van Rensburg, I would have determined that some further provision should be made. Lola’s estate is large. Mr Van Rensburg obviously has quite considerable needs. He lives in rented accommodation and has only modest superannuation. His future employment prospects are quite guarded, although he is likely to continue on his existing Newstart allowance and then will likely receive the aged pension.

366. Given his relatively short relationship with Lola, and the fact that the care he provided for Lola only increased in the latter period of their relationship – principally in the calendar year 2020 – a provision in the order of up to $750,000 would have been appropriate. This could be used by Mr Van Rensburg to purchase a home unit together with a sum to supplement any social security or other earnings.

Conclusion and orders

367. For the reasons set out above, none of the claims advanced by Mr Van Rensburg succeed. Both proceedings should be dismissed.

368. I will hear the parties on costs and will thereafter determine any dispute on the papers.

369. The orders of the Court are:

1. In proceedings 2021/00275570 the statement of claim be dismissed.

2. In proceedings 2023/00157906 the summons be dismissed.

3. In proceedings 2021/00275570 and 2023/00157906:

1. direct the parties to confer and seek to agree orders as to costs;

2. direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 20 September 2024;

3. in the event there is no agreement as to costs, direct the parties to provide to my Associate by no later than 5pm on 20 September 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages; and

4. direct the parties to provide to my Associate by no later than 27 September 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.

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Decision last updated: 09 September 2024