Walters v Perton

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 02159

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued in her capacity as the Executor of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant

- and –

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2018 00225

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as Executrix of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant
- and –
JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust)	Plaintiff by Counterclaim
v
LYNNE MARGARET WALTERS	Defendant by Counterclaim

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	9-14 February 2022, 4 April 2022 (final submissions), 2 May 2022 (pleading amendment), 10 November 2022 (application to reopen)
DATE OF JUDGMENT:	9 February 2023
DATE OF REVISION:	20 February 2023 (as to the position of paragraph 272 only)
CASE MAY BE CITED AS:	Walters v Perton
MEDIUM NEUTRAL CITATION:	[2023] VSC 37

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ADMINISTRATION AND PROBATE – Testators Family Maintenance – Application for further provision – Whether failure to make adequate provision – Administration and Probate Act 1958 (Vic) Part IV – Mandatory and discretionary considerations – Proper maintenance and support of an eligible person – Executor is adult daughter of deceased – Application made by de-facto partner of deceased – No competing needs of beneficiaries or other eligible person – Will did not make adequate provision – Further evidence required as to quantum – Christu v Christu [2021] VSC 162.

TRUSTS, EQUITY AND PROBATE – Declaratory and injunctive relief – Standing to apply for declarations as to assets in the estate – Common intention constructive trust – Proprietary estoppel – Whether plaintiff had beneficial interest in property in which she resided with deceased – Interest in land where title held by trustee of discretionary trust – Property encumbrance – Effect of death on continuing guarantee – Whether deceased’s estate has beneficial interest in same property due to deceased’s monetary contributions – Legal and beneficial interest of the property resides with the trustee – Whether guarantee of deceased to secure third party borrowings secured by mortgage over property encumbers asset in estate – Whether company shares purportedly cancelled before death form part of the estate – Company shares do not form part of the estate – Plaintiff has standing to seek declarations – Corporations Act 2001 (Cth) ss 256, 1332 - Wood & Jack v McLean & Jack (2010) 31 VR 12 – Mataska v Browne [2013] VSC 62.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Garratt KC	Nedovic Lawyers
For the Defendant	D Farrands KC L Mills	Darrer Muir Fleiter

TABLE OF CONTENTS

A.. OVERVIEW................................................................................................................................... 1

B.. THE PRESENT PROCEEDINGS AND ISSUES ARISING................................................. 4

B.1... Issues regarding the Eaglemont property........................................................................ 5
B.2... Issues concerning the MCS shares.................................................................................... 6
B.3 .. Issues regarding the Bell St property................................................................................ 7
B.4... The question of Lynne’s standing to seek declarations as to the assets and liabilities of the estate...................................................................................................................................... 7

C.. THE EVIDENCE........................................................................................................................... 8

C.1 .. Background.......................................................................................................................... 8
C.2.The Eaglemont property.................................................................................................. 10
(i)....... The relocation agreement..................................................................................... 11
(ii)...... Proceeds of sale of Parnell house........................................................................ 12
(iii)..... Establishment of the PEI Trust and transfer of the Eaglemont property...... 15
(iv)..... PEI Trust purchase and sale of property in Port Melbourne.......................... 17
(v)...... Events after settlement of the Eaglemont property.......................................... 17
(v)...... Relevant events after Don’s death....................................................................... 22
(vi)..... Disclosure of the gift to Jane................................................................................ 24
(vii).... Further encumbrances on the Eaglemont property......................................... 26

C.3... MCS shares......................................................................................................................... 27
(i)....... Retirement from MCS........................................................................................... 27
(ii)...... Cancellation of Don’s shareholding.................................................................... 28

C.4... Bell St property.................................................................................................................. 31
(i)....... The situation at the time of Don’s death............................................................ 31
(ii)...... Events after Don’s death....................................................................................... 31

C.5... The witnesses..................................................................................................................... 34

D.. THE ISSUES DECIDED........................................................................................................... 38

D.1 .. Does Lynne have standing?............................................................................................. 38
(i) ...... Analysis................................................................................................................... 39

D.2The Eaglemont property................................................................................................... 47
(i)....... Relevant legal principles...................................................................................... 47
(ii)...... Submissions of the parties.................................................................................... 49
(iii)..... Analysis................................................................................................................... 51

D.3... MCS shares......................................................................................................................... 63
(i)....... Relevant provisions of the Corporations Act.................................................... 63
(ii)...... Submissions of the parties.................................................................................... 65
(iii)..... Analysis................................................................................................................... 68

D.4... Bell St property.................................................................................................................. 70
(i)....... Submissions of the Parties.................................................................................... 70
(ii)...... Analysis................................................................................................................... 72

D.5... Summary of conclusions in the TEP proceeding.......................................................... 76

E... THE PART IV PROCEEDING................................................................................................ 77

(i)....... Inventory of the Warring estate........................................................................... 77
(ii)...... Legal principles...................................................................................................... 80
(iii)..... Application to re-open case.................................................................................. 83
(iv)..... Adequate provision?............................................................................................. 83
(v) ..... Mandatory factors................................................................................................. 84
(vi)..... Discretionary factors............................................................................................. 86
(vii) ... What provision should be ordered?................................................................... 89
(viii) .. Diminution by incurring legal costs................................................................... 94
(ix) .... Open offers............................................................................................................. 97

F. . CONCLUSION........................................................................................................................... 98

HER HONOUR:

Lynne Walters (Lynne) brings a claim for further provision from the estate of her partner, Donald Graeme Warring (the deceased or Don) under Part IV of the Administration and Probate Act 1958 (Vic) (Administration and Probate Act).[1] There are disputes as to some of the specific assets and liabilities of the estate. This has led Lynne to commence a second proceeding seeking, amongst other things, declaratory relief as to those assets. Both matters have been heard together.
[1]These reasons refer to family members using first names as the parties have done in conducting the proceeding. No disrespect is intended.
A. OVERVIEW
Don had been born 21 December 1936 and was 80 years old. He died on 4 February 2017 unexpectedly following a fall. He executed a will dated 20 October 2015 (the will). The executor named in the will and trustee of his estate is his adult daughter Jane Perton (Jane).
From 1979 Don conducted a telecommunications business called Mobile Communications Systems. The business operated from premises Don owned in Bell St, Heidelberg Heights.
Don met Lynne in 1996 and shortly thereafter they commenced living together in a domestic relationship that persisted for more than 20 years until Don’s death. They were living in New Zealand but relocated to Melbourne in September 2002. In Melbourne, Don organised the purchase of a house in Odenwald Rd, Eaglemont (the Eaglemont property) intended to be their family home. Don and Lynne lived there from purchase until Don’s death. The registered proprietor of the Eaglemont property is and was the Port Eagle Investment Trust (PEI Trust).
Jane applied for probate of the will swearing an affidavit of executor in support on 17 March 2017. On 28 March 2017, Don’s will was admitted to probate.
Relevantly, the will provided for the following dispositions:
4.I DIRECT AND DECLARE as follows
(a)As at the date of this my Will JANE is the Trustee of the PORT EAGLE INVESTMENT TRUST (“PEI TRUST”) as constituted by a Deed of Settlement dated 25 November 2002 and made between Shivani Thamotherampillai as Settlor and JANE as Trustee:
(b)As at the date of this my Will the PEI TRUST is the owner of the property known as 17 Odenwald Road, Eaglemont, being the land in Certificate of Title Volume 10515 Folio 218 (“EAGLEMONT PROPERTY”); and
(c)It is my express wish and desire that following my death JANE or the Trustee for the time being of the PEI TRUST should sign all such documents and do all such things as are reasonably necessary in order for:
(i)LYNNE WALTERS (“LYNNE”) to use and occupy the EAGLEMONT PROPERTY on a rent free basis for a period expiring on the expiration of 6 months from the date of my death; and
(i)The PEI TRUST to vest and for the EAGLEMONT PROPERTY and any other assets of the PEI TRUST (or the proceeds from the sale of the EAGLEMONT PROPERTY and any other assets to vest:
A.       as to the sum of $200,000 in favour of LYNNE;
B.as to the sum of $25,000 in favour of my former wife JOY LORRAINE WARRING (“JOY”); and
C.as to the balance in favour of such of CAROLYN and my son GRAEME JOHN WARRING (“GRAEME”) as shall survive me and if more than one in equal shares for their own use and benefit absolutely.
AND SHOULD for any reason it not be possible for MY TRUSTEE to make the payment of $200,000 to LYNNE and $25,000 to JOY as referred to in clauses 4(c)(ii) A and B hereof it is my express wish and expectation that CAROLYN and GRAEME should jointly fund those payments to LYNNE and JOY.
5.I DECLARE that if as at the date of my death I am still the registered proprietor of the property known as 80 Bell Street, Heidelberg Heights, Victoria being the land in Certificate of Title Volume 10357 Folio 769 (“HEIDELBERG HEIGHTS PROPERTY”) and if JANE shall survive me I GIVE the HEIDELBERG HEIGHTS PROPERTY unto JANE for her own use and benefit absolutely.
6.        I DIRECT AND DECLARE as follows:
(a)as at the date of this my Will WARRING PTY LTD CAN 081 958 572 (“WARRING PTY LTD”) is the Trustee of THE WARRING FAMILY TRUST (“TWF TRUST”) as constituted by a Deed of Settlement dated 28 March 1988 and made between Shivani Thamotherampillai as Settlor and WARRING PTY LTD as Trustee.
(b)as at the date of this my Will the TWF TRUST is the owner of the property known as 6 Merimbula Road, Ferny Creek, Victoria being the land in Certificate of Title Volume 7930 Folio 058 (“FERNY CREEK PROPERTY”); and
(c)it is my express wish and desire that following my death WARRING PTY LTD or the Trustee for the time being of the TWF TRUST should sign all such documents and do all such things as are reasonably necessary in order for the TWF TRUST to vest and for the FERNY CREEK PROPERTY and any other assets of the TWF TRUST (or the proceeds from the sale of the FERNY CREEK PROPERTY and any other such assets) to vest in favour of JANE for her own use and benefit absolutely.
7.I GIVE DEVISE AND BEQUETH the rest and residue of my Estate both real and personal of whatsoever nature and wheresoever situate unto my Trustee upon trust with power to sell, call in and convert into money such parts thereof as shall not consist of money and to postpone such sale, calling in and conversion until such time and in such manner as my Trustee in her absolute discretion deem fit and to stand possessed of the monies to be produced by such sale, calling in and conversion together with my ready money upon the following trusts: -
(a)to pay thereout my debts, funeral and testamentary expenses and the State and Federal duties (if any) payable upon the whole of the dutiable Estate;
(b)during the period commencing from the date of my death and ending upon the first to occur of 6 months from the date of my death and the date that Probate is granted to my Trustee to pay unto LYNNE all income derived from my residuary estate;
(c)upon the expiration of the period referred to in clause 7(b) hereof:-
(i)to pay thereout the sum of $10,000.00 unto LYNNE to assist her in meeting the costs of moving from the EAGLEMONT PROPERTY;
(ii)       to divide the residue into 3 equal parts or shares;
(iii)should JANE survive me to pay one such equal part or share unto JANE for her own use and benefit absolutely;
(iv)should my daughter CAROLYN survive me to pay one such equal part or share unto CAROLYN for her own use and benefit absolutely; and
(v)should my son GRAEME survive me to pay the remaining one such equal part or share unto GRAEME for his own use and benefit absolutely.
B.       THE PRESENT PROCEEDINGS AND ISSUES ARISING
On 2 May 2017 Lynne gave notice of her intention to commence a claim under Part IV of the Administration and Probate Act seeking orders that provision be made out of Don’s estate for her proper maintenance and support. She formally commenced that claim against Jane as executor of Don’s estate by filing a proceeding on 5 June 2017 (the Part IV proceeding).
By writ and statement of claim dated 16 June 2017, Jane, as trustee of the PEI Trust, sought possession of the Eaglemont property (the possession proceeding).[2] The six month period provided for in the will had not expired but a letter demanding vacation of the property on terms that had been sent by Jane’s solicitors on 29 May 2017. Jane was granted possession by Derham AsJ on 31 October 2017 on a summary judgment application. While the possession proceeding is not directly relevant to the substantive legal questions in the two proceedings presently before the Court, it does have relevance to some issues and has been the subject of submissions by the parties in ways that will become clear in due course. The only outstanding issue in the possession proceeding is whether a stay order on the payment of costs of Jane by Lynne should be lifted or the previous costs order otherwise varied.
[2]S CI 2017 02326.
In summary, Lynne contends that the express wish and desire that she be permitted to remain living at the Eaglemont property rent free for six months and receive $200,000 from the sale of the Eaglemont house is not binding on the executor and in any event is not adequate provision for her. Lynne says further that the bequest of $10,000 for relocation expenses is inadequate and payable only if there is a residuary estate. Jane contends that Don did make adequate provision for proper maintenance and support in the will and that as executor she would act in accordance with those wishes.[3] In the event that adequate provision has not been made in the will, the parties addressed submissions as to the various relevant mandatory and discretionary considerations in ss 91A(1) and 91A(2) of the Administration and Probate Act.
[3]Defendant, ‘Defendant’s Submissions in Proceeding No S CI 2017 02159 and S ECI 2018 00225’, Submissions in Walters v Perton, S ECI 2018 00225, 7 February 2022, [35].
In 2018 Lynne commenced a second proceeding against Jane both in her capacity as trustee of the PEI Trust and as executor and trustee of the Warring estate. That proceeding sought declaratory and injunctive relief and consequential orders (the TEP proceeding). The injunctive relief seeks to restrain Jane from encumbering or dealing with the Eaglemont property or the Bell St property pending full administration of the estate. As is detailed below Jane has further encumbered both properties since Don’s death. Lynne also seeks orders under s 34 of the Administration and Probate Act removing Jane as executor and appointing an independent administrator and trustee in her stead. The issues of injunctive relief and removal of Jane as executor are not yet addressed and the position of the parties will be considered in light of these reasons.
Specifically, declaratory relief is sought in respect of three distinct assets:
(a)the Eaglemont property;
(b)the property described in the will as the Heidelberg Heights property (in these reasons described as the Bell St property); and
(c)53,401 shares Don owned in Mobile Communication Systems Pty Ltd (MCS) - the company he established in 1985 for the purpose of conducting his telecommunications business. Those shares are recorded by ASIC as having been cancelled in June 2015.
B.1 Issues regarding the Eaglemont property

With respect to the Eaglemont property, Lynne alleges that she has a beneficial interest, either alone by right of survivorship on the death of Don, or jointly with his estate by reason of the imposition of a constructive trust. Alternatively she contends that the estate has a beneficial interest in the property by reason of Don’s financial contributions to the purchase price which create a resulting trust. Jane contends that the registered owner of the property is the PEI Trust, which holds both the legal and beneficial interest and the property therefore does not form part of the Warring estate. She denies that Don made any financial contributions to the purchase and denies that any contribution to the purchase price could give rise to a beneficial interest in a property held by a discretionary trust. Lynne sought to raise the issues of beneficial ownership in the possession proceeding by an amended defence in similar terms to the pleading in the TEP proceeding but, as explained by Derham AsJ, the amendments were ultimately not pressed.[4]
[4]Perton v Walters [2018] VSC 445, [18] (‘Perton v Walters’).
Whether the estate has a beneficial interest will inform the size of the estate, which is a relevant discretionary consideration in making any order for family provision.[5] Whether Lynne has a beneficial interest in the Eaglemont property will also inform the need for any order for family provision and will impact Lynne’s financial resources and needs and therefore the quantum of any provision.[6]
[5]Administration and Probate Act 1958 (Vic) s 91A(2)(c) (‘Administration and Probate Act’).
[6]Ibid s 91A(2)(d).
In the TEP proceeding Jane brings a counterclaim seeking an order pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (Transfer of Land Act) to remove the caveat Lynne lodged over the Eaglemont property, and for payment of compensation pursuant to s 118 of the Transfer of Land Act.
B.2 Issues concerning the MCS shares
With respect to the MCS shares, it is common ground that Don held 53,401 ordinary shares in MCS as at June 2015. Lynne alleges that the filing with ASIC on 29 June 2015 showing the cancellation of all Don’s shares in the company was not effective to cancel those shares. She alleges that the filed document referenced the redemption of preference shares in accordance with s 254J of the Corporations Act 2001 (Cth) (Corporations Act) and did not comply with the relevant statutory procedures. In particular she says that s 256B for the reduction of share capital was not complied with and as a consequence the cancellation was not valid. Lynne submits that the shares therefore remain an asset of the estate. Jane contends that Don intended to cancel his shares and that the error in the filed documents was an irregularity of a procedural nature. She seeks relief, if necessary, pursuant to s 1322(4)(a) of the Corporations Act that a declaration be made that the cancellation of Don’s shares is not invalid by reason of any non-compliance with the Corporations Act.
The parties agreed at the trial’s commencement that if the MCS shares do form part of the estate then they were not in a position to quantify the value of that asset.
B.3 Issues regarding the Bell St property
It is common ground that the Bell St property formed part of the Warring estate. Lynne seeks a declaration that the property was at the time of death and is since that time unencumbered by any liability of Don’s. Jane contends that at the time of Don’s death the property was encumbered by a mortgage given by Don as guarantor of borrowings advanced to MCS. At the time of Don’s death the amount of the mortgage exceeded the value of the property.
Jane’s transfers of the Bell St property to herself as executor and thereafter to herself in her own right were registered on 3 May 2017, within six months of the grant of probate. Lynne contends that as executor Jane was not at liberty to make this partial distribution of the estate within the six month period (the six month rule) and that any such distribution does not defeat the jurisdiction of the Court to make an order that it is otherwise satisfied should be made in the circumstances.[7] Jane submits that the principle contained in the six month rule is not an absolute and submits that the Court should exercise its discretion to exclude the Bell St property from the estate for the purpose of deciding the Part IV proceeding because the transfer was compelled urgently by the demand of the bank holding the mortgage and Don’s guarantee.
B.4The question of Lynne’s standing to seek declarations as to the assets and liabilities of the estate
[7]Re Jones; Noonan v Jones [1978] VR 272.
As a preliminary point Jane takes issue with Lynne’s standing to bring a claim to identify additional assets of the estate, in particular the Eaglemont property and the MCS shares. Jane submits that, as a Part IV claimant seeking relief in the administration of the estate, Lynne lacks standing to seek relief that clarifies the content of the estate.
C. THE EVIDENCE
The parties prepared an agreed chronology. It identified facts that were agreed and those in dispute. Affidavits were relied on from:
(i)Lynne;[8]
(ii)Jane;[9]
(iii)Peter Nedovic (Nedovic)[10] who is Lynne’s solicitor;
(iv)Graham Haydar[11](Haydar), an accountant engaged by Jane/MCS; and
(v)Amanda Noga sworn 2 February 2022. Amanda is Lynne’s niece.
All witnesses except Amanda were cross examined.
Lynne objected to aspects of Jane’s affidavits. The parties provided a schedule of objections and responses. Insofar as those objections were not disputed I have deleted those parts of the relevant affidavit. I have attached a schedule of those parts of the affidavits. For those objections that remained in dispute I have included a schedule dealing with the outcome of those objections at the end of these reasons. I have deleted the parts of the affidavits where I have upheld the objections.
[8]Exhibit 1 as tendered by the plaintiff at trial comprised the affidavits of Lynne Margaret Walters sworn on 1 April 2019, 3 May 2019, 31 July 2017, 4 December 2017, 21 October 2020, 27 January 2022, and 3 February 2022. Each affidavit was tendered with its exhibits thereto.
[9]Exhibit B as tendered by the defendant during trial comprised the affidavits of Jane Elizabeth Perton sworn on 20 March 2019, 9 April 2019, 8 December 2017, 8 December 2017, 29 August 2017, 5 October 2017, 28 October 2017, 2 February 2022, 4 February 2022, 22 January 2019 and an unsworn affidavit dated 29 October 2017. Each affidavit was tendered with its exhibits thereto.
[10]Exhibit 3 as tendered by the plaintiff at trial comprised the affidavits of Peter Nedovic sworn on 7 December 2018, 18 February 2019, 27 October 2020, 21 March 2019 all with their exhibits thereto.
[11]Exhibit E as tendered by the defendant at trial comprised the affidavit of Graham John Haydar sworn on 22 January 2022 with the exhibits thereto.
C.1 Background
Lynne was born on 4 November 1943 and lived in Hobart from 1949. She was married in September 1965 and has a daughter born in 1966 and a son, Sean, born in 1968. She separated from her husband in 1968 and they divorced in 1988. In 1996 Lynne met Don in Hobart. At that time Lynne was living in a property she purchased in 1995 in Blackman’s Bay (the Blackman’s Bay house). Lynne funded the purchase by the proceeds of another house that she had owned outright and a mortgage at the time of purchase of $25,000.
Don was born in Wellington, New Zealand. He was an electronics engineer by profession. He had been married on two occasions. He married for the first time in 1964. He and his first wife, Joy, have three children, now adults: Graeme Warring born August 1966, Jane Warring (now Perton) born August 1968 and Carolyn Warring (now Bowden) born in October 1970. Don and Joy divorced in 1986. Don married his second wife, Marie, in 1986 and separated ten years later in 1996.
In 1979 Don acquired a telecommunications business and renamed it MCS Digital. He incorporated Mobile Communications Systems Pty Ltd (MCS) in October 1985. He and his then partner, Marie, were directors and shareholders. Since 1997 Jane has been a director and for some time also a shareholder.
In October 1989 Don purchased the Bell St property, initially registered on title in his own name. The Bell St property at all times has been used for the MCS business. The building on the property was purpose-built for MCS, which operates a radio network that requires line-of-sight connectivity between its towers located throughout Melbourne. The communications network is used by utilities providers, emergency services and others providing critical communications. The Bell St property is located on one of the highest points in Melbourne and on it is constructed a tower for the purpose of maintaining the telecommunications link. The Bell St property, as I understand it, is the centre or hub of the communication network and occupation by MCS is critical to its operations.[12]
[12]Defendant, ‘Affidavit of Jane Elizabeth Perton sworn on 8 December 2017’ in Walters v Perton S CI 2017 02159, [3]–[40].
In 2007 title to the Bell St property was transferred to Warring Superannuation Fund, which needed arrangements to be made so that it was not encumbered by debt.[13] In 2011, upon MCS securing a large contract, the Bell St property was moved out of the Warring Superannuation Fund and transferred back to Don. It was used to secure company borrowings of $1.1 million for expenditure relating to the new contract. Those borrowings were subsequently increased to meet the company’s working capital needs. By 2017 MCS’s borrowings totalled $2.8 million. These borrowings were secured by guarantees given by the owners of the Bell St property, the Eaglemont property and the Ferny Creek property and supported by mortgages given over the guarantors’ properties.[14]
[13]Defendant, ‘Affidavit of Jane Elizabeth Perton sworn on 20 March 2019’ in Walters v Perton S ECI 2018 00225, [94].
[14]Ibid [105].
Jane worked with her father at MCS for a few months in 1994 and returned to work at MCS again from 1996. Jane describes her role from 1996 as MCS’s managing director and chief financial officer.[15]
[15]Defendant, ‘Affidavit of Jane Elizabeth Perton sworn on 9 April 2019 in Walters v Perton S ECI 2018 00225, [13].
When Don and Lynne commenced their relationship, Don asked Lynne to move to New Zealand and to live with him in his house at Parnell St Auckland (the Parnell house). She agreed to do so and moved to Auckland in October 1996. In New Zealand Don was engaged by a different company called MCSDigitalRT, which was not owned by MCS.[16] While in Auckland, Lynne did not financially contribute to house and living expenses but often acted as hostess when Don entertained for business purposes and did a small amount of unpaid bookkeeping work once a month.
[16]Ibid [12].
From 1998 onwards Don and Lynne travelled to Melbourne from time to time. When they did they generally stayed at the Ferny Creek property owned by Warring Pty Ltd, a company acting as trustee of the Warring Family Trust. Don was a director of that company. When in Melbourne Don was undertaking work for MCS.
C.2. The Eaglemont property
By 2002 Jane had married and was intending to start a family. In or around June and July 2002 Don contemplated moving to Melbourne to have an increased involvement in the MCS business. The circumstances of the move to Melbourne are contentious.
(i) The relocation agreement
Lynne’s evidence was that throughout their relationship she cared for Don on a daily basis: running their home domestically and, as his health deteriorated, caring for him. This included assisting with dressing and later showering and toileting as well as other tasks such as writing cheques after Don underwent carpal tunnel surgery. As at 2002 she described Don as suffering from the following conditions: a hip condition, kidney stones, unequal leg length, spinal scoliosis and past prostate surgeries. She was reliant and dependent upon Don financially. She said that Don did not want her to work and would say ‘my job was looking after him’.[17]
[17]Plaintiff, ‘Affidavit of Lynne Margaret Walters sworn on 31 July 2017’ in Walters v Perton S CI 2017 02159, [15](f).
In June 2002 at the Parnell house Lynne said there were two conversations between her and Don. During the first one Don said that Jane had told him that she wished to start a family and so Don was considering moving to Melbourne to take over running the business.[18] The second conversation was a proposal to buy a family home in Eaglemont: ‘we’ll buy a home together, it will be in both our names, it will be a family home for all the family’.[19] Lynne described this as a ‘carrot’ that induced her to move to Melbourne, a city with which she had no personal connection. In a third conversation in July 2002 Don asked whether Lynne would ‘look after him’ and, as Lynne knew he dreaded the idea of a nursing home, she said she would do so. Her evidence was that she did this until the time of his death.
[18]Plaintiff, ‘Affidavit of Lynne Margaret Walters sworn on 1 April 2019’ in Walters v Perton S ECI 2018 00225, [5].
[19]Ibid [6]; Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S ECI 2018 00225 and S CI 2017 02159, Justice Forbes, 9-14 February 2022, 4 April 2022, 2 May 2022, 10 November 2022) 172.14 (‘T’).
In cross-examination Lynne said she thought the conversations with Don occurred after a real estate agent had contacted Don with an offer on the house.[20] She said that neither her son nor Jane were involved in the relocation agreement. Lynne said that she had told others about the agreement, but they were unwilling to get involved and give evidence.[21]
[20] T 173.10.
[21]T 172.28.
On moving to Melbourne, Lynne and Don initially lived at the Ferny Creek property. They were looking for a house to purchase in the Eaglemont area. Lynne said that in Melbourne, further conversations repeated the intent to purchase a family home in joint names.
In cross-examination on the relocation agreement, Lynne said that she and Don were looking at suitable properties in Eaglemont even before June and July 2002 but at that early stage without any specific intention of purchasing.[22]
[22]T 174.15.
According to Lynne, had she been told that she would not be on title, she would have reconsidered her decision to move to Melbourne and live with Don, and would have instead returned to Tasmania.[23]
[23]Plaintiff, ‘Affidavit of Lynne Margaret Walters sworn on 4 December 2017’ in Walters v Perton S CI 2017 02159; T 198.1-27; T 199.2-8; T 563.13-18.
Jane’s evidence was that she was not aware that Don was looking to establish a new home with Lynne in Melbourne,[24] although she was aware that he was looking to relocate from Ferny Creek. She said Don did not tell her he was looking to buy a home for himself and Lynne.[25] She said that neither Don nor Lynne ever told her that they were purchasing the Eaglemont house together.
[24]T 332.15.
[25]T 334.3.
Lynne alleges that the she and Don made a relocation agreement. Don promised to give her a proprietary interest in the property to be purchased in Melbourne in exchange for her agreement to move to Melbourne and continue to look after him. Don and Lynne subsequently identified the property in Eaglemont in which they intended to live. Jane disputes the existence of the relocation agreement at all or in the terms alleged. Jane contends that any agreement between Don and Lynne was not one establishing a proprietary interest in the property to be purchased nor was it intended to create legal relations.
(ii) Proceeds of sale of Parnell house
In mid-2002 Don sold the Parnell house. At settlement on 9 September 2002 the net proceeds from the sale were NZ$800,427.84. On 13 September 2002 an amount of AUD$658,967.50 (the bank transfer) was credited to a joint account of Jane and her husband (the ANZ joint account). The purpose of the bank transfer is contentious.
On identifying the Eaglemont property for purchase, Lynne said there was a discussion about financing the purchase[26] in which Don said to her that he would use the proceeds of the sale of Parnell house, which were approximately AUD$600,000, and would borrow the remaining $400,000 from MCS. Don told her that such borrowing would need Jane’s approval as director of MCS. Jane inspected the property before purchase and Lynne was told that Jane’s approval was forthcoming.[27]
[26]Affidavit of Lynne Margaret Walters sworn on 1 April 2019, [24]-[27].
[27]The plaintiff’s words were ‘Jane had agreed that Don and I should buy it as our family home’; Affidavit of Lynne Margaret Walters sworn on 1 April 2019, [26].
Lynne said she had offered to sell the Blackmans Bay house to put funds towards the purchase but Don rejected this because it might be needed in retirement ‘in case the company goes bust’.[28] Jane said that Don had told her that Lynne intended to keep the Blackman’s Bay house in case she wanted to move back there.[29]
[28]Plaintiff, ‘Affidavit of Lynne Margaret Walters sworn on 3 May 2019’ in Walters v Perton S ECI 2018 00225, [14].
[29]T 119.30.
Lynne conceded that the net proceeds from sale of the Parnell house were NZ$674,000 and the bank transfer of approximately AUD$658,000 to the ANZ joint account represented approximately NZ$800,000.[30] She said she knew Don used more than the proceeds of sale.[31] She agreed that while Don had given her a general understanding of what was happening regarding the purchase she was essentially a stranger to the transaction,[32] and did not make a financial contribution to the purchase.[33] She confirmed her belief that the loaned funds came from MCS and the ‘rent’ cheques were being paid to MCS to repay that debt. In an affidavit sworn 4 December 2017, by reference to bank statements, Lynne confirmed that in addition to net proceeds from the sale of the Parnell St house, an additional NZ$62,433 was available to Don in a ‘ready money’ credit account, giving him NZ$800,427 available for transfer to Australia.[34]
[30]T 168.1; T 169.
[31]T 169.10.
[32]T 170.18.
[33]T 174.26.
[34]Affidavit of Lynne Margaret Walters sworn on 4 December 2017, [22].
Jane disputed that Don contributed any funds to the purchase price, saying that all funds were provided by the PEI Trust and that the PEI Trust funds were either by way of loan from her personally or by NAB borrowings of the PEI Trust. In her second affidavit,[35] sworn 5 October 2017 in the possession proceeding, Jane disputed that Don provided any funds towards the purchase price, stating:
[35]Plaintiff, ‘Affidavit of Jane Elizabeth Perton sworn on 5 October 2017’ in Perton v Walters S CI 2017 02326.
6.Paragraph 3(b) of the Defence and paragraph 7 of the affidavit of Lynne dated 26 September 2017 say that the deceased provided $600,000 towards the purchase of the Property. This statement is false.
7.The Port Eagle Investment Trust paid in full for the purchase of the Property which was for a purchase price of $900,000. The purchase of the Property was as follows:
(a)$400,000 by way of mortgage with the National Australia Bank (I refer to paragraph 7 and “JEP-4” of my affidavit sworn 29 August 2017). I obtained this mortgage in my capacity as Trustee of the Port Eagle Investment Trust and the Port Eagle Investment Trust has made all repayments.
(b)$500,000 being of the remainder of the Purchase price paid by the Port Eagle Investment Trust.
(c)$100,000 for chattels paid in full by the Port Eagle Investment Trust.
(d)$49,500 for stamp duty paid in full by the Port Eagle Investment Trust.
(e)$3,380.19 for other fees associates with the purchase paid in full by the Port Eagle Investment Trust.
(f) Approximately $8,000 for legal fees.

In other affidavits Jane repeated the assertion that the PEI Trust paid in full for the purchase.[36] She deposed that the source of the funds was $660,880.19 by way of loan from her to the PEI Trust and $400,000 by mortgage from NAB to the PEI Trust. Again this was by reference to statements of the ANZ joint account.
[36]Plaintiff, ‘Affidavit of Jane Elizabeth Perton sworn on 28 October 2017’ in Perton v Walters S CI 2017 02326; Affidavit of Jane Perton sworn 8 December 2017 [53].
On 20 March 2019 in circumstances detailed further below, Jane swore in an affidavit that the funds deposited in the ANZ joint account by the bank transfer were from Don and were a gift to her personally. At no point prior to this did Jane disclose that the source of the bank transfer funds she used to pay part of the purchase price were from Don. In her oral evidence, Jane said: ‘He gave the money to me’,[37] and she said that ‘those funds were for me to use as I wished’.[38]
[37]T 334.
[38]T 338.24.
Jane gave evidence that another deposit of $61,400 on 16 September into the ANZ joint account was deposited from a CBA account in her name that she closed.[39]
[39]T 290.
(iii) Establishment of the PEI Trust and transfer of the Eaglemont property
As far as Lynne was aware, Don looked after the contract and arrangements for purchase. Once the decision was made selecting the house, she took no part in the purchase and settlement. On 26 November 2002 the Eaglemont property was purchased for $1,000,000. On that day, Don signed two interdependent documents: a contract of sale for $900,000 and an agreement to pay an additional $100,000 for works prior to settlement. The additional works agreement was signed as ‘Don Warring and/or Nominee’. The contract document is not in evidence. After summary judgment was granted in the possession proceeding, and when packing up to move out of the Eaglemont property, Lynne found the written additional works agreement signed by Don and referencing the signed contract for sale.[40] Lynne said that until she found this document she had ‘no independent evidence that Don had given effect to his agreement with me to purchase the Eaglemont house’.[41]
[40]Plaintiff, ‘Affidavit of Lynne Margaret Walters sworn on 6 July 2018’ in Walters v Perton S CI 2017 02326, LW1.
[41]Ibid [11].
Jane gave evidence as to the establishment of the PEI Trust. It was anticipated that her father would live in one of the properties to be held in the trust.[42] On 26 November 2002 Jane sent a fax to her accountant Gary Busby regarding a ‘new trust’. It referred to an earlier discussion and contained details of beneficiaries, trustees, appointor and settlor for ‘the new trust’.[43] The fax continues: ‘Don will go ahead today to ‘sign up’ for the property as Don Warring and/or nominee. The next thing will be to organise bank finance’.[44] An earlier fax to the same Mr Busby on 4 November 2002 provides a ‘summary of properties owned and yet to settle for consideration as to the best structure [for holding the properties] as part of the overall plan’.[45]
[42]Affidavit of Jane Elizabeth Perton sworn on 20 March 2019, [13].
[43]Ibid Exhibit 4.
[44]Ibid.
[45]Ibid; it will be noted that no list of properties was included in the exhibit.
Mills Oakley Lawyers prepared a deed of settlement for the PEI Trust.[46] The execution page has two grey boxes, one each for the signature and witness of each of the settlor and trustee. The settlor is a barrister and was a friend of Jane. The signature boxes do not contain a date. Above them is the date of execution with the date handwritten as the twenty-fifth day of November 2002. Jane could not explain why the trust settlement deed is dated the day prior to the date that instructions were given for the establishment of the trust.[47] Jane said the original document had been given to NAB and she believed it had been lost. Apart from the deed itself the first document confirming the existence of the PEI Trust is a letter from NAB addressed to Jane as trustee confirming the loan facility of $400,000. That letter is dated 16 December 2002.[48]
[46]Ibid Exhibit 5.
[47]T 305; Affidavit of Jane Elizabeth Perton sworn on 20 March 2019, [9].
[48]Letter from the National Australia Bank Personal Banker, Tracy Shuttlewood, to Jane Elizabeth Perton in relation to the Port Eagle Investment Trust home loan facility; Affidavit of Jane Elizabeth Perton sworn on 29 August 2017, JEP-4.
Don and Jane’s solicitors sent them the forms nominating Jane as purchaser (in her capacity as trustee) on 12 December 2002. A follow-up letter on 16 December sought return of the signed documents as a matter of urgency and requested details of Don’s bank and a loan reference number.[49] On 16 December 2002, NAB approved the loan to Jane in her capacity as trustee. Although the nomination documents are not in evidence it is clear that they must have been signed on or after 16 December 2002.
[49]Letter from Eggleston Clifton-Jones & Co to Donald and Jane Elizabeth Warring dated 16 December 2002, Exhibit 13.
The Eaglemont property settled on 23 December 2002.
After Lynne located the additional works agreement, Jane swore an affidavit on 4 February 2022 correcting the errors in her earlier affidavits as to the provision of funds by PEI for the purchase price. She deposed that she had not transferred $410,000 to the PEI Trust bank account on 28 November 2002 for the purchase of the Eaglemont property as previously sworn. She deposed that upon review of the PEI Trust bank statements the bank account was not opened until around 23 December 2002.[50] She deposed that she nevertheless provided those funds for the purchase. Jane also corrected her earlier evidence confirming that the PEI Trust had not paid the deposit to the vendor, but that it had been paid from the ANZ joint account direct to the vendor.
[50]Defendant, ‘Affidavit of Jane Elizabeth Perton sworn on 4 February 2022’ in Walters v Perton S ECI 2018 00225.
(iv) PEI Trust purchase and sale of property in Port Melbourne
In December 2002 Jane also purchased a property in Port Melbourne in her capacity as trustee of PEI Trust at a purchase price of $1,350,000. Jane says it was purchased for investment purposes with the intention of renting it, but she decided to live there from shortly after its purchase until 2006 when it was sold. That purchase was financed by PEI Trust borrowings of $1,125.000[51] offered by ANZ on 13 January 2003 with the balance and associated fees of $312,000 being loaned by Jane to the PEI Trust.
[51]Affidavit of Jane Elizabeth Perton sworn on 20 March 2019, JEP-19.
(v) Events after settlement of the Eaglemont property
In 2003 Don provided the ANZ bank with a signed statement of financial position. It listed his major assets as the Bell St property, another property in New Zealand and personal equity in private business. The statement, dated 9 January 2003, was for the purpose of guaranteeing the PEI Trust loan from ANZ for the purpose of purchasing the Port Melbourne property.[52] Lynne identified the handwriting that completed the document as Jane’s.[53]
[52]Ibid.
[53]T 191.25.
Don wrote to the State Revenue Office in response to an investigation of a claim for compliance with land tax obligations. Don was claiming an exemption for land tax on Bell St on the basis that it was his principal place of residence. His letter of reply, dated 16 October 2007, provided the requested information, confirmed that a business was conducted on the property and stated:
I do not own any further land.[54]
[54]Affidavit of Jane Elizabeth Perton sworn on 9 April 2019, JEP-30.
Amanda Noga swore a brief affidavit setting out that she lived at Eaglemont with Don and Lynne in late 2003 and early 2004. She said Don was warm and welcoming and became something of a father figure. She said Don would often make statements with warmth and pride that he was going to take care of Lynne and she would not have to worry about money.[55]
[55]Plaintiff, ‘Affidavit of Amanda Noga sworn on 1 February 2022’ in Walters v Perton S ECI 2018 00225, [4].
Don made monthly payments of rent to PEI Trust. The PEI Trust made monthly mortgage repayments in respect of the NAB loan. Jane said in her capacity as trustee she reached an agreement with Don that he be permitted to reside at the Eaglemont house on payment of rent initially agreed at $2,917 being market rent. PEI Trust obligations to repay the mortgage were $2,450 monthly[56] and PEI Trust has made all mortgage repayments in respect of the Eaglemont property.[57] At some subsequent point rent was reduced to $2,400 until June 2013.
[56]Facility Agreement Details with the National Australia Bank as at 16 December 2002; Affidavit of Jane Perton sworn on 8 December 2017, [53]-[54]; T 185; Defendant, ‘Affidavit of Lynne Margaret Walters sworn on 26 September 2017’ in Perton v Walters S CI 2017 02326, [7].
[57]Affidavit of Jane Elizabeth Perton sworn on 29 August 2017, [8]-[10].
Lynne said that between 2005 and June 2013, from time to time, Don would ask her to prepare monthly cheques he said were rent cheques. She said that she believed the rent payments were applied to reducing borrowings of $400,000 that she understood had been loaned by MCS.[58]
[58]Affidavit of Lynne Margaret Walers sworn on 3 May 2019, [12].
As to the loans to the trust recorded as being from Jane, Jane said she did not believe she was charging interest on those funds[59] and was unclear how the PEI Trust accounted for them. The PEI Trust documents on their face record the loan as an interest-bearing liability.
[59]T 308.31.
Jane accepted that the rent on the two properties at market rate was not going to cover the interest and other expenses of the properties – ‘at least initially’. Despite this she refinanced the Eaglemont property twice during Don’s lifetime for increasing amounts. Jane’s evidence is that in November 2004 she refinanced the Eaglemont property with ANZ[60] for an unknown sum and then in 2008 refinanced it again with NAB for $1,870,375.[61] Her affidavits do not say that rent Don paid between 2003 and 2013 was applied to reduce the loan, but she did depose that the mortgage repayments in the periods between December 2002 and February 2017 were often noted as ‘loan payment J E Warring’.[62]
[60]Affidavit of Jane Elizabeth Perton sworn on 29 August 2017, [8].
[61]Ibid [9].
[62]Affidavit of Jane Elizabeth Perton sworn on 5 October 2017, [12]; Affidavit of Jane Elizabeth Perton sworn on 29 August 2017.
Jane had prepared a spreadsheet described as ‘cashflow for period Jan 03- June 03 PEI Trust’. It recorded monthly rent from Eaglemont at $2,917, Port Melbourne at $3,938 and Bell St at $5,387, giving a monthly income of $12,242 against monthly expenses of $19,436.08. To the monthly loss was added a credit of $4,500 described as ‘Warring profit/Loss’ to reach a monthly loss of $2,694.08. Jane said this document was a theoretical projection on the basis that the Bell St property was to be transferred into the PEI Trust, which did not happen. She agreed that the PEI Trust was a tax effective vehicle for holding the properties[63] but accepted that there needed to be a substantial monthly cash injection to meet the projected expenses of the PEI Trust, even at the initial level of financing. She did not exhibit any financial documents from the PEI Trust that permitted an assessment of the PEI Trust’s true financial position prior to Don’s death. The documents were limited to extracts of some of the Trust’s tax returns:[64] a trust balance sheet and profit and loss statement to June 2003, rental property statements for some years for the Eaglemont property only (2003, 2004 and 2007), and single page summaries of rental property income and deductions only for 2008, 2009 and 2011.
[63]T 317.28.
[64]Affidavit of Jane Elizabeth Perton sworn on 9 April 2019.
Lynne said she was unaware of the existence of the PEI Trust and until 2005 believed the Eaglemont house to be in herself and Don’s names. She said in 2005 she overheard a conversation between Don and a local real estate agent in which Don said the Eaglemont house ‘doesn’t belong to me’. She felt shocked by this and raised it with Don. Don told her that the PEI Trust held the house for tax purposes. She accepted the explanation and understood that it ‘did not mean that the Eaglemont property did not belong to us’.[65] She said it was not until after Don’s death that she learnt that the Eaglemont house was registered in Jane’s name.[66]
[65]Affidavit of Lynne Margaret Walters sworn on 1 April 2019, [36].
[66]Ibid [37].
Don and Lynne were joined by Lynne’s adult son Sean who lived with them from October 2004 until early 2005 while suffering from mental health problems. Sean later commenced a relationship with Holly Walker (Holly) and in December 2009 Sean and Holly had a daughter, Alicia. They also had a son, Riley, born on 16 March 2011. Sean and Holly separated in March 2013 and family law proceedings were on foot in the Federal Circuit Court (the FCC proceeding), being MLG 3867/2018. Sean, Alicia and Riley came to live with Don and Lynne at the Eaglemont property from that time and still lived there at the time Don died.
Lynne gave evidence of a conversation in approximately June 2013 where Don told her that he had now fully repaid the mortgage.[67] She understood it to have been repaid to MCS. Lynne was unaware of any permission from Jane that allowed Don to live in the house. She described Don as a ’strong minded, dominant and controlling person’.[68]
[67]Affidavit of Lynne Margaret Walters sworn on 26 September 2017, [7], LMW-2.
[68]Ibid [11].
It is common ground that in 2013 Don asked to be relieved of rent payments. Jane’s evidence is that Don requested that he be excused from paying rent as his financial circumstances were difficult.[69] Jane said she agreed to this and as a result she used personal funds to meet the mortgage repayments and holding costs, which were a significant sum of approximately $100,000 per annum.[70] Lynne’s evidence in cross examination was that she had a conversation with Don in 2013 because Don was worried about finances. In that conversation she said that surely, with the payments that had been made since 2004, the mortgage was paid off by now.[71] Lynne said ‘at that stage he must have propositioned Jane to stop paying the mortgage or the rent or whatever you like to call it’.[72]
[69]Affidavit of Jane Elizabeth Perton sworn on 8 December 2017, [55] (redacted by agreement to exclude the fourth sentence of that paragraph).
[70]Ibid [56].
[71]T 179.13.
[72]T 179.15.
On 31 October 2014 Don swore an affidavit in the FCC proceeding in which he deposed that:
I am the owner of the house at Odenwald Rd, Eaglemont. I happily share this with Lynne, who I have a loving relationship with. I am happy for Sean to remain living with the children for as long as he wishes.[73]
[73]Affidavit of Lynne Margaret Walters sworn 1 April 2019, [23], LMW-1.
Lynne disputed Jane’s evidence that the PEI Trust paid expenses of the Eaglemont property. She said that while she and Don lived there they were responsible for maintenance, and that she and her former husband, a builder, replaced a large timber deck at a cost of at least $5,000. She said that Sean did much of the maintenance.
Don and Lynne were like parents to Sean and grandparents to Alicia and Riley, and opened their home for them to live there.[74]
[74]An affidavit of Lynne Margaret Walters sworn on 3 October 2014 in the Federal Circuit Court proceeding (MLG 3867/2018) was also tendered by Jane as saying nothing as to any interest of Lynne in the Eaglemont property where she lived.
Lynne said that in 2015 she and Don considered downsizing but remaining in the area and at that time considered they would need between $800,000 to $850,000 to do so, accepting that any home would need to accommodate Sean and his children. She said Don encouraged her to continue supporting their accommodation.
Lynne said that she and Don paid all utilities relating to the Eaglemont property and after Don’s death she transferred the utilities into her name and paid them[75] until vacating the property in circumstances detailed below.
[75]Affidavit of Lynne Margaret Walters sworn on 3 May 2019, [15]-[16].
Lynne recalled a conversation in 2016 about what would happen to her after Don died, in which Don told her he had left her $200,000 in his will and $10,000 for removal expenses. She was shocked by this and said the following day he told her he would leave her financially secure and able to buy something reasonable in the local area so as not to disrupt her grandchildren’s schooling.
Under cross examination Lynne said she and Don spoke about the will not long before he died when she found an envelope containing the will. Don told her to put it away and she said she did not read it. Her evidence was ‘he told me I would get $200,000 immediately upon his death, and then I’d get another chunk later on. Those were his words. I actually said to him, oh is that all? The next day he said to me “did you think that is all I was going to leave you?”’[76] She agreed there was no reference to ‘another chunk’ in her affidavits and agreed that she’d only decided now that should be part of her evidence.[77]
[76]T 201.1.
[77]T 202.1.
(v) Relevant events after Don’s death
A few days after Don’s funeral Lynne and Jane had a discussion about the contents of his will. Lynne only read the will after Don’s death and was shocked and dismayed. She said by then she knew under the will she would have to move out but that she wouldn’t have admitted that fact to Jane.
Jane provided detailed evidence as to the conversation between her and Lynne shortly after Don’s death. Jane said she told Lynne that the will provided for a cash payment amounting to $210,000. According to Jane, Lynne responded that ‘your Dad said I would have $700,000’.[78] Jane said she told Lynne that she assumed Don meant $500,000 for the Backman’s Bay house plus the money referred to in the will. Jane said she couldn’t pay the funds immediately as they would have to come from the sale of the house, but she could make arrangements to pay removalist expenses by lending from her personal funds. There was a discussion about Lynne receiving MCS rent with Lynne saying ‘Don said I would get the rent for 6 months’.[79] Jane responded that the will said Lynne was entitled to receive interest on the residuary. Other matters discussed were also outlined, including transfer of the Telstra account and Lynne’s interactions with Centrelink.
[78]Affidavit of Jane Perton sworn on 8 December 2017, [16] (although, Lynne contests that evidence at T 202.20).
[79]Affidavit of Jane Elizabeth Perton sworn on 9 April 2019, [36].
Lynne recalled asking Jane for the month’s rent from MCS to be added to her account as money was overdue, but otherwise does not have a clear recollection of that conversation. As to the discussion with Jane shortly after death, Lynne did not agree that she would have said she needed the $200,000 before she moved out.
In April 2017 Lynne requested a letter for Centrelink from Jane as the owner of the Eaglemont property that would confirm Lynne was not paying rent to live there. Jane’s evidence was that to this point interactions between them were friendly and no dissatisfaction had been expressed by Lynne. Shortly after this, by letter dated 2 May 2017, Jane’s solicitor advised her that Lynne intended to make a Part IV claim.
A few months after Don’s death Lynne said she decided to sell the Blackman’s Bay house because her pension entitlement alone was not enough to live on. She had taken out a mortgage on the Blackman’s Bay house in October 2017. She ultimately sold the Blackman’s Bay house in March 2018. She said although she intended to use the proceeds to supplement her pension, she had in fact used most of it to pay legal fees.[80]
[80]T 206.16-17.

It is impossible to quantify the likely costs of the parties in the Part IV proceeding and the TEP proceeding as might be recovered from the estate. I can see no basis for the estate to pay the legal costs of the eviction proceeding Jane incurred as trustee of the PEI Trust and I put the question of costs of that proceeding to one side for present purposes.
For a Part IV claim where the claimed provision is somewhere in the vicinity of $1,000,000 or more,^[260] even allowing for the complexity introduced by the TEP claim and the disputes as to the assets of the estate, the parties’ costs seem extraordinarily high and disproportionate. Lynne’s lawyers estimate $859,000 of the total amount relate to the Part IV and TEP proceedings. Lynne attributes this to Jane’s conduct and seeks her costs on an indemnity basis with no right of reimbursement from the estate to meet Lynne’s or Jane’s costs. This would mean no diminution of the estate. Jane submits that if some costs are ordered to be paid by the estate, the quantum should be referred to the costs court.
[260]A nest egg of $192,306 and contingencies of $120,000 plus the cost of a house (about which there is little evidence but using the estimate of the plaintiff as at 2015 of approximately $800,000 - $850,000).
The costs that Jane might seek in her capacity as executor also cannot on present material be estimated. There is no information about apportionment between costs of Jane as trustee and as executor and those costs that are common to both capacities.
I can accept for the purpose of identifying an amount for distribution that an amount for legal costs would need to be allowed but cannot realistically determine an approximate amount. On a worst case scenario the total amounts identified ($859,999 for Lynne and $681,000 for Jane) are both likely to be inflated estimates and would overstate a realistic assessment. If applied, they would leave minimal equity for distribution.
Apart from legal costs, there has been little attention to other liabilities of the estate. Some are likely to be uncontroversial – funeral expenses or liabilities owing at death to third parties such as the Australian Taxation Office. Other liabilities, particularly those identified in updated inventories later in time, such as the loan Don owed to the PEI Trust, are less clear.
(ix) Open offers
During the trial Jane made two open offers, which Lynne rejected. On the first day of trial Jane offered $500,000 of which $400,000 was to go to Jane and $100,000 applied toward legal costs, together with mutual vacation of the various previous costs orders. This offer was described as intending to put Lynne in the position commensurate with where she would have stood at the time of death with adequate provision made.[261]
[261]T 141.30.
A second open offer was made on 28 February 2022 after the close of the evidence and before the commencement of closing submissions.[262] Jane offered to contribute up to $650,000 towards a house in the Heidelberg area plus the stamp duty payable on the purchase. The house would be ‘for Ms Walters’. The offer was proffered with the intention of settling the proceeding. The offer was open for two months with an option for Lynne to seek an extension on the offer if no suitable house could be purchased within that time. If Lynne were unable to ultimately find a suitable house, Jane offered to pay the contribution of $650,000 to Lynne within 30 days of the offer lapsing.
[262]Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S ECI 2018 00225 and S CI 2017 02159, Justice Forbes, 28 February 2022) 3.
Jane made both open offers without admitting liability.
The effect of the open offers will be the subject of argument by the parties once the determination of the quantum of provision to be made is finalised.
F. CONCLUSION
The findings above lead to the conclusion that Don’s will did not make adequate provision for Lynne.
Given that the parties agree that in some aspects the relief cannot properly be assessed until the parties have an opportunity to address the extent of the estate as determined by these reasons, these reasons make some preliminary observations but do not include any findings at to the quantum of adequate provision.
Lynne’s position in closing submissions is that if she is not entitled to Eaglemont or to equitable compensation from the estate for Don not having honoured the relocation agreement, a further hearing would be needed to assess the amount of provision from the estate to contribute to provision of a roof over her head. My findings are that the estate has no interest and there was no agreement to grant Lynne a proprietary interest. Jane agrees that in those circumstances a further hearing to address outstanding issues is needed. The evidence at present only discloses that, in 2015 when contemplating downsizing, Don and Lynne together with responsibility for Sean and his children would need at least $800,000 to meet that desired accommodation need. Jane’s second open offer was supported by reference to some assertions about current property values but none of that material formed part of the evidence before me.
Further, given that the Bell St property was transferred out of the estate within six months of death there may be other issues arising as to how the estate is to meet any liability. That might include consideration of the effect of the ‘six month rule’. Such consideration is currently premature.
I will list the matter in order to hear from the parties once they have had an opportunity to consider these reasons.

SCHEDULE

PLAINTIFF’S DISPUTED OBJECTIONS TO EVIDENCE

Affidavit of Jane Elizabeth Perton sworn 20 March 2019

Paragraph	Determination
Last six words of [38]	Objection upheld.
First sentence of [39]	Objection upheld.
[41]	Objection upheld.
[44]	Objection upheld. Delete first sentence.
[110]	Defendant’s response accepted. Delete ‘with my father’s full consent’ from first sentence. Delete second sentence.

Affidavit of Jane Elizabeth Perton sworn 9 April 2019

Paragraph	Determination
Second sentence of [54]	Objection upheld.

Affidavit of Jane Elizabeth Perton sworn 8 December 2017

Paragraph	Determination
Third and fourth sentences of [54]	Objection overruled.
Third sentence of [55]	Defendant’s response accepted. Delete from “I assume” to end of sentence.

Affidavit of Jane Elizabeth Perton sworn 28 August 2017

Paragraph	Determination
[15] to [24]	Objection upheld in part. Delete [17] – [24].

[2023] VSC 37

9 February 2023