Wardle v Wardle

[2021] NSWSC 1529

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wardle v Wardle [2021] NSWSC 1529

Hearing dates:

1 and 2 June 2021

Date of orders:

3 December 2021

Decision date:

03 December 2021

Jurisdiction:

Equity

Before:

Slattery J

Decision:

See paragraph [213].

Catchwords:

EQUITY – unconscionable bargains – undue influence - elderly person gives power of attorney to her adult daughter, the defendant – the defendant/daughter lives with her mother – using the power of attorney the daughter claims she assists her mother to sell her house, before relocating the mother into a nursing home – daughter applies the funds from the sale of the mother’s house property to purchase her own property, claiming that the funds were an inter vivos gift from the mother to her – after the mother’s death her will leaves her estate equally to the defendant and the plaintiff but little remains in the estate – the son challenges these transactions and claims a constructive or resulting trust on behalf of the estate over the defendant’s property acquired with the proceeds of sale of the mother’s house – whether the sale of the mother’s property and application of the sale proceeds by the daughter was improvident – whether the mother received independent legal advice – whether the mother was suffering from dementia – whether the mother was dependent upon the daughter – whether the mother was in a position of special disadvantage in relation to the daughter at the time of the transactions – whether the transactions resulted from the unconscionable conduct or actual undue influence of the daughter over the mother.

SUCCESSION – Family Provision – competing claims by two adult children for provision from the estate of their deceased mother under Succession Act 2006, Chapter 3 – the mother’s will leaves her estate to her adult son and daughter – the deceased’s estate is minimal, as a result of the sale of the mother’s principal asset, her residence, six months before her death – not in issue that the proceeds of sale of the mother’s residence are notional estate – the son brings proceedings for further provision from the mother’s estate and notional estate – the mother gifted the son a property during her lifetime but he sold it to meet pressing financial obligations – whether the son requires further provision for his proper maintenance, education or advancement in life – the daughter brings a contingent claim for further provision for the mother’s estate, in the event that property purchased with the sale proceeds of the mother’s residence is held in trust for the estate – whether the daughter requires further provision from the estate for her proper maintenance, education or advancement in life.

Legislation Cited:

Civil Procedure Act2005, s 56

Guardianship Act 1987

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 11.1, 11.2, 11.3

Powers of Attorney Act 2003, ss 12(2), 13(2)

Succession Act 2006, Chapter 3, ss 59(1)(c), 60, 91

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

Cases Cited:

Allcard v Skinner (1887) 36 Ch D 145

Bank of Credit and Commerce International SA v Aboody and another [1990] 1 QB 923

Banks v Goodfellow (1870) LR 5QB 549

Drury v Smith [2012] NSWSC 1067

Hewitt v Gardner [2009] NSWSC 1107

Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111

Singer v Berghouse (No. 2) (1994) 181 CLR 201

Torok v Becker [2020] NSWSC 1570

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278

Whereat v Duff (1972) 2 NSWLR 147

Texts Cited:

PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters)

Category:

Principal judgment

Parties:

Plaintiff: Roderick William Wardle
Defendant: Sharon Patricia Wardle

Representation:

Counsel:
Plaintiff: N. Bilinsky
Defendant: A. Blank

Solicitors:
Plaintiff: G. Smith, GHS Legal
Defendant: G. Pickering, Pickering Law

File Number(s):

2020/111791

Publication restriction:

No

Judgment

1. Patricia Frances Wardle (“the deceased”) died on 18 April 2019, aged 86. She was survived by her two children the plaintiff, Roderick William Wardle, and the defendant, Sharon Patricia Wardle. As the plaintiff and the defendant are from the same family, for convenience and without intending any disrespect to them, the Court will refer to each of them by their first names.

2. The deceased’s last will dated 10 August 2004 (“the Will”) appointed Roderick and Sharon as her executors and trustees and left the whole of her estate to them in equal shares after making certain specific gifts to Sharon. As the deceased’s net estate is only $16,565.10, neither executor has been motivated to apply for a grant of probate of the Will, the validity of which is not in contest.

3. The first issue in these proceedings is Roderick’s challenge to the deceased’s sale of her home in the Sydney suburb of Marsfield (“the Marsfield property”) in October 2018, six months before her death, and the application of the proceeds of that sale on settlement to simultaneously enable Sharon to acquire a property in Sharon’s name in Macquarie Park (“the Macquarie Park property”) in January 2019. Both transactions together are referred to in these reasons as “the January 2019 transactions”. It is not in contest that Sharon had lived with and looked after the deceased at the Marsfield property since 2010 and that by 2018 the deceased had been diagnosed with a level of dementia. Nor is it in contest that Sharon used a power of attorney from her mother to sell the Marsfield property and to apply the sale proceeds.

4. By his Amended Statement of Claim, Roderick claims that the deceased made the sale and applied the proceeds as a result of Sharon’s actual undue influence and unconscionable conduct exploiting the deceased’s position of special disadvantage due to dementia and dependence on Sharon. He seeks declarations that Sharon holds the Macquarie Park property and any excess proceeds of sale of the Marsfield property on constructive, or resulting trust, for the deceased’s estate. If successful, he would enjoy a half share of the estate. If he were to be financially augmented by this success, he would seek no other relief. But in the alternative, he seeks designation of the proceeds of sale of the Marsfield property as the deceased’s notional estate under Succession Act 2006, Chapter 3, and an order for further provision out of the notional estate, so designated.

5. Strictly the challenge to the January 2019 transactions is made on behalf of the deceased’s estate, although only Roderick is named as a plaintiff. To ensure the proper joinder of parties, the Court has made orders with these reasons joining the estate as a party (“the second defendant”) and ordering under Uniform Civil Procedure Rules 2005 (“UCPR”), r 7.10(2)(a) that the proceedings continue in the absence of a representative of the deceased’s estate. There is no need to appoint a representative under UCPR, r 7.10 in a case such as this, where all the beneficiaries under the Will are already parties.

6. In her Amended Defence, Sharon contests Roderick’s claims of undue influence and unconscionable conduct. She contends that the sale of the Marsfield property, and her use of its proceeds, was an inter vivos gift to her consistent with the deceased’s wishes. And she contests Roderick’s alternative Succession Act claim for further provision out of the deceased’s estate, contending that the deceased had already satisfied her moral obligation to Roderick by arranging for him to receive the benefit of the whole of a property at Crowdy Head (“the Crowdy Head property”), to which the deceased would otherwise have been entitled from her late husband William Wardle.

7. Sharon cross-claims for two forms of relief against Roderick. First, if Roderick is successful on his principal claim and the proceeds of sale of the Marsfield property are held on trust for the deceased’s estate, she seeks an order under Succession Act, Chapter 3 for further provision out of the estate.

8. Second, she claims relief incidental to certain benefits Roderick gained from acquiring and owning the Crowdy Head property. This claim arises in the following way: William Wardle died in August 2003 leaving his estate to the deceased as his sole executor and beneficiary. The deceased obtained probate of his estate in December 2003 and arranged the gifting of the Crowdy Head property to both Roderick and Sharon as joint tenants. But the deceased persuaded Sharon to transfer her half share in the property to Roderick in 2004 to accommodate his then financial needs. He sold the Crowdy Head property in 2014 to meet pressing financial commitments.

9. Sharon’s Cross-Claim sought orders that Roderick pay the deceased’s estate the following sums: $11,240 plus interest, being the stamp duty that the deceased paid upon the transfer to him of Sharon’s half share of the Crowdy Head property; and, $20,000, being the return of the money the deceased loaned to Roderick to pay the real estate agent’s commission on the sale of the Crowdy Head property in 2014. But this aspect of Sharon’s Cross-Claim was not pressed at the hearing and was of doubtful validity in any event for reasons which will be explained below.

10. These proceedings were heard over two days on 1 and 2 June 2021. Mr N. Bilinsky of counsel, instructed by G. Smith of GSH Legal, appeared for the plaintiff. Mr A. Blank of counsel, instructed by G. Pickering of Pickering Law, appeared for the defendant.

11. Sharon’s and Roderick’s cases contest several central facts, so their credibility is a fundamental platform to the Court’s findings in the factual narrative below. They engaged in many disputes about their joint family upbringing and their relationship. It is neither practical nor necessary for the Court to make findings about all their disputes. Findings about the credibility of the parties and the witnesses are dealt with first.

Credibility of Witnesses

12. The Wardle siblings were long estranged from one another. During the hearing they exhibited heightened mutual hostility, which was confirmed by the quality of their recriminatory and acrimonious text message exchanges. They often disagreed about dates and facts. At times it was necessary to choose very carefully between their competing testimony about events, discounting the evidence of each sibling for potential bias against the other.

13. Roderick Wardle. Roderick was a mostly reliable witness. His credibility was damaged in several respects in cross-examination, which are detailed later in these reasons. He made frank concessions and gave short, direct and precise answers after listening closely to his questioner. Much of his evidence is accepted. But his concessions sometimes involved admissions of unflattering past conduct that did him no credit. But importantly he was not a reliable historian, exaggerating the degree of contact he had with the deceased, especially over the last 10 years of her life. He admitted on several occasions “I’m not very good with dates” and his testimony made mistakes in dating events: for example, he was out by a number of years in the ages of two of his own children. The Court often preferred his sister’s account of family history to his.

14. Sharon Wardle. Sharon was an honest and mostly reliable witness. She was a better historian than her brother about family history. But the weakness in her evidence was her account of her dealings with her mother about the January 2019 transactions. She tended to reframe questions directed to her in cross-examination about what her mother had said to her (or what she had said to her mother) about these transactions, answering that her mother “knew” what she was doing. Her answers glossed over the details of what had passed between her and her mother about the sale of the Marsfield property and the application of the proceeds of sale to acquire the Macquarie Park property.

15. Sharon had a strong sense of the righteousness of these property transactions in her favour. But her sense of righteousness was primarily directed at achieving a fair distribution of her mother’s estate between her and her brother. It was less directed to or concerned with the propriety of the transaction as between her and her mother.

16. Sharon had no appreciation that at the time of the relevant transactions she was in a position in which her self-interest was in conflict with the interests of her mother. She had certainly thought about her mother’s welfare, which was prominent among the considerations in her mind at the time of these transactions and she planned to ensure that her mother’s outgoings were covered by her income. But she showed no sign of considering the need to keep some funds in reserve, if her mother needed emergency medical care.

17. Dr Greg Spark. Dr Spark, the deceased’s doctor in the last years of her life, was an excellent witness. He was a capable and careful general practitioner, who had a good memory of his patient, the deceased. He gave a precise account of her consultations with him. None of his medical judgments of her were challenged. All his evidence is accepted. He remembers the deceased as happy and contented in her current situation. He did not observe any serious anxiety in her.

18. James William Ofosu–Asamoah. Sharon’s son, James, was called in her case. He was an honest and reliable witness. All his evidence is accepted.

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

20. This judgment gathers the Court’s narrative of findings into two sections. The section, ‘the Equity Claims’ comprises the narrative of matters relevant to the various claims arising from the sale of the Marsfield property, the purchase of the Macquarie Park property and the sale of the Crowdy Head property. And the section, ‘the Family Provision Claims’, comprises the narrative of matters relevant to each of the Wardle siblings’ competing claims for further provision out of the deceased’s estate.

The Equity Claims

The Deceased and the Pagewood Property – Up to 2009/2010

21. The deceased and her late husband, William, first purchased a property in Page Street, Pagewood (“the Pagewood property”) in 1961. He and the deceased had paid off the mortgage over the property by the early 1990s. The deceased and William lived at the Pagewood property until his death in August 2003. The deceased continued to reside there by herself until August 2008.

22. William was farsighted in seeking to cement family financial security. Throughout the 1960s and 1970s, during his active working life, William had constructed a second family home, the Crowdy Head property, near Port Macquarie on the New South Wales mid-north coast. It was ready for him and the deceased to enjoy when he retired in 1987 at the age of 55.

23. The Will was made in 2004, shortly after William’s death and before the sale of the Pagewood property. Under clause 4 of the Will, the deceased expressly gifted to each of Sharon and Roderick her share in the Pagewood property in equal shares. The deceased did not alter the Will after the Pagewood property was sold. Under clause 5 of the Will, Sharon and Roderick shared the residue of her estate.

24. Roderick claimed he would see the deceased “frequently and no less than twice a week” during the time she lived at the Pagewood property. Sharon disputed this and the Court accepts her evidence that Roderick’s contact with his mother was far less than this. Whatever Roderick’s level of contact was at Pagewood, it reduced further in August 2008 when the deceased moved away for medical reasons.

25. Sharon’s account of the deceased’s medical condition is far more detailed and accurate than Roderick’s. Apart from the Court’s general preference for her evidence about conflicting family history, the quality of her recollection of the deceased’s medical treatment progress is superior to that of her brother’s, adding to the reasons to prefer her version of these events. The deceased underwent an operation to replace her right knee in June 2008. But in August 2008, her knee replacement became infected, ultimately requiring its removal and replacement with an antibiotic-impregnated cement spacer.

26. This surgery meant the deceased could no longer bear weight on her right leg and she spent three months in St Vincent’s Hospital recovering from her infection and surgery and undergoing rehabilitation. Another knee joint was not medically viable, so in November 2008 the deceased underwent arthrodesis surgery, inserting fixing rods across her right knee joint between her tibial and femoral shafts.

27. Following this surgery, the deceased could not realistically return to the Pagewood property. Her arthrodesis and resultant straight leg meant that she could no longer manage the stairs at the Pagewood property without great difficulty and at risk to her personal safety. She underwent an eight-week period of rehabilitation at the Wolper Jewish Rehabilitation Hospital in Woollahra to build up her strength.

28. The deceased’s surgery coincided with severe challenges to Sharon’s health. In December 2008, Sharon underwent surgery for the treatment of breast cancer. In January 2009, she commenced chemotherapy. Sharon’s own medical issues meant that she was unable to give much direct assistance to her mother for a period. So, in December 2008 she arranged for the deceased to have respite stay at the Dorothy Henderson Lodge (“DHL”) nursing home, which was close to Sharon’s home in Marsfield. Sharon chose DHL so she would be able to visit her mother there frequently as, she explained, it was “only a few minutes away” from her home. Sharon says, and the Court accepts, that after the deceased’s surgery, when the deceased was at DHL, Roderick offered “no assistance” to the deceased. Apart from the Court’s general preference for the reliability of Sharon’s evidence, the deceased’s proximity at DHL to Sharon’s residence made it more likely that she would visit her mother more frequently than her brother.

29. Roderick says that prior to the sale of the Pagewood property in 2010 he saw his mother frequently and no less than twice a week and that he spoke to her daily by telephone. But although the settlement of the sale of the Pagewood property occurred in March 2010, the deceased was not living there after the end of 2008. Roderick’s dates are wrong, and he could not have visited his mother there any later than the end of 2008. Moreover, the Court does not accept that his relationship with his mother was this attentive. Had it been this close, his accurate knowledge of her medical care is likely to have been greater than it was demonstrated to be at trial.

The Marsfield Property and the Power of Attorney – 2009 to 2012

30. By late 2009 the deceased had decided that when she left DHL, she wanted to move into a property in Marsfield to be closer to Sharon, and her grandson, Sharon’s son, James, who was then about 10 years old. The deceased felt during her time at DHL that she was letting Sharon down as she was unable to care for James during Sharon’s cancer treatment. On 25 November 2009, the deceased purchased the Marsfield property for $650,000. The purchase was partly funded by a first mortgage to the Australia New Zealand (“ANZ”) Bank over the property. The deceased moved into the Marsfield property in about March 2010, when the proceeds of sale from the Pagewood property of $1,090,000 were used to pay out the bridging finance to the ANZ, leaving a surplus for the deceased.

31. The deceased’s move to the Marsfield property in March 2010 made it easy for Sharon, who lived nearby, to visit her mother, who also saw much more of James because of the proximity. The Court accepts Sharon’s evidence that their contact was very close and frequent in the years following the deceased moving into the Marsfield property. That closeness meant that Sharon could give a reliable account of the frequency of Roderick’s visits to their mother at Marsfield.

30. But the arthrodesis to the deceased’s right leg was not successful in the longer term. As a result of further medical advice, her right leg was amputated in February 2012. Months of rehabilitation followed, and she did not return to the Marsfield property until June 2012. At the same time, Sharon and James moved out of Sharon’s Marsfield property and into her mother’s place, as Sharon judged that it would not be safe for her mother to live alone and the deceased needed more help with day-to-day tasks. At the time of this move, James was 12 years old.

31. On the morning of her leg amputation operation in February 2012, the deceased appointed Sharon as her attorney under a general power of attorney made under the Powers of Attorney Act 2003. The power of attorney, was operative notwithstanding any loss of capacity on the principal (clause 2); authorised the attorney to confer benefits on herself to meet the attorney’s reasonable living and medical expenses as provided by Powers of Attorney Act, s 12(2); and, authorised the conferring of benefits on Rodrick to meet his reasonable living and medical expenses as provided by Powers of Attorney Act, s 13(2).

32. After the deceased moved into the Marsfield property, Roderick claims to have spoken to his mother by telephone every day and to have visited her every few weeks. Sharon strongly disputes this. The Court accepts Sharon’s version of Roderick’s level of contact with the deceased, rather than his. Apart from the Court’s general preference for the quality of Sharon’s evidence, her version is more consistent with the degree of mutual hostility between brother and sister, which is likely to have deterred him from visiting, and contains detail that is absent from his version. She says that Roderick seldom saw his mother and infrequently contacted her. Indeed, she says that from 2008, until her mother’s death in 2019, her mother saw very little of Roderick and that she would try to ring him for weeks at a time leaving numerous phone messages before he would make contact. On more than one occasion the deceased asked Sharon to send a text message to Roderick, which she did, and only rarely did he respond. So distant and difficult to contact was he that on two occasions Sharon had to ring the local police to check on him and she recalls her mother saying to her that she would “never know if anything had happened to Rod” because his then wife would not tell her. Sharon says, and the Court accepts, that Roderick visited his mother on her 80^th birthday on 11 June 2012 but that he had not seen her before that for 18 months.

33. After the operation to amputate her leg, Roderick says that in 2013 the deceased was confined to a wheelchair. But to the extent this might give an impression she was very disabled, it is incorrect. Sharon had day-to-day contact with their mother and explained that the deceased was still able to manage many daily tasks for herself during this period, and that she resourcefully “could do most things” for herself from her wheelchair.

34. The detail of Sharon’s version of the family history was confirmed in other matters. Roderick’s affidavit evidence was that Sharon had lived at the Marsfield property with the deceased rent-free:

“I remember asking Mum:

‘Does Sharon pay rent or any other bills?’

Mum told me several times that:

‘Sharon looks after me but I pay for everything. It all comes out of my account.’”

37. Sharon strongly disputed this. She deposed that she had deposited a total of $326,800.24 into the deceased’s account during the period from July 2012 to May 2019. The deceased’s bank statements confirm that Sharon was making regular periodic payments into her mother’s bank account over many years at a rate of approximately $900 per week. This represents a substantial financial subsidy from daughter to mother over the last seven years of her life. Although these payments were made on account of Sharon’s and James’ occupation of part of the Marsfield property, in many families such large regular sums would not have been so faithfully paid by way of regular subvention to a parent’s household. Roderick did not make any equivalent regular financial subvention to his mother.

38. This objective financial evidence says much about the wider relationship between Sharon and her mother. It was not one characterised by financial mismanagement, or the application of her mother’s funds for her purposes, or misuse of the power of attorney from her mother. It also evidences a faithful relationship of constant care for her mother’s interests in circumstances where no one was or could be expected to be closely scrutinising what she was doing. It adds credibility to Sharon’s general account of caring for her mother’s medical and personal needs, an inference that is in any event not difficult to draw from their cohabitation from 2012 until 2017.

39. When presented with these records, Roderick conceded the following during cross-examination:

Mr Blank:    “Where you say your mum told you she pays for everything and it all comes out of her account, that wasn’t in fact the case?”

Roderick:    “Looking at these records, no.”

40. This admission indicated that Roderick was prepared to advance selective and unverified recollections of conversations with his mother in order to discredit his sister or propound his case against her. The advancing of this evidence was quite damaging to his credibility. The Court doubts that the deceased said to Roderick what he claims she said to him.

The Deceased in Decline – 2017

41. By late 2017, the deceased’s day-to-day care was becoming too much for Sharon to manage herself, even with assistance at home. In December 2017, the deceased was moved into the DHL to receive full-time personal support and nursing assistance there.

42. Not only had the deceased deteriorated physically but her memory was declining as well. The Court accepts some of Roderick’s evidence about the further decline in the deceased’s memory from the time that she entered DHL. He observed that he needed to remind her constantly of his wife’s name and the names of his children and of the family dog, “Kimmi”, which had been in the family for 17 or 18 years, for which the deceased had a special affection.

43. Roderick’s observations about his mother’s memory are generally consistent with nursing progress notes recorded at DHL when the deceased was admitted for two weeks’ respite care in February 2017, before she was admitted full-time later that year. The notes show internal evidence of being very carefully taken care of with a medical, social and care history showing close attention to detail. The Court can infer from the document itself that its author has attempted to record facts precisely. Three paragraphs extracted from these progress notes are set out below:

“Patricia has a hx of a RT lower leg amputation and she has a stump, HT, OA, upper back pain and self reported pain to her Lt lower leg and occasional rib pain and pain to her neck and RT side of her shoulder. Patricia has a history of cataracts and wears reading glasses secured with glasses chain that staff will need to store and clean daily. Patricia also has a history of cellulitis to her Lt leg and although the skin is slightly discoloured to this are there is no wound or skin break although Patricia says that it can be sore to the touch. Staff to have extra care when removing her foot plate and assist with TF.

…

Patricia also has a previous left sided RCI and has limited reach with this arm.

Patricia says that she wakes at about 0600 hours and likes to stay in bed for a while and likes to have a daily am shower at about 0800. Patricia will need full staff physical assistance with all aspects of showering including dressing and undressing and washing and drying and hair washing and pad application and grooming. Patricia says she likes to have assistance to wash her hair every few days and staff to check with her daily. Patricia only wears a sock on her left foot. Staff to encourage participation in showering to Patricias ability and encourage her to wash her face and hands and upper torso of possible to increase her feelings of independence.

Sharon says that Patricia has a diagnosis of dementia and this will need to be documented by GP

Sharon is happy to be called at anytime of the day or night regarding her mothers care and says that she lives locally.”

44. These progress notes are useful for several purposes. Apart from Sharon’s admission of the dementia diagnosis, they also show how much day-to-day care Sharon was giving to the deceased, as it must have been roughly equivalent to the care that the deceased needed during this two-week respite period at DHL.

The Deceased’s Cognitive Capacity – 2015 to 2019

45. The parties were at issue about the deceased’s cognitive capacity in late 2018/early 2019. Roderick contended that the deceased was strongly affected by dementia and had been exhibiting signs of this for several years.

46. Sharon’s case was to the contrary. Although she agreed that the deceased had a diagnosis of dementia by no later than 2017, she contended the deceased was generally lucid and sufficiently so to comprehend the nature of the January 2019 transactions. Both the evidence of Mr Pickering and Dr Spark supported Sharon’s case.

47. The Court prefers Sharon’s case on this issue. Her evidence, and that of Dr Spark and Mr Pickering, supports the inference that she is likely to have well understood the January 2019 transactions. Prominent parts of that evidentiary contest are examined in this section.

48. Roderick’s evidence was that, around 2015, the deceased’s memory started to deteriorate. He recalled to her that in about 2015 he visited his mother at the Marsfield property and had a conversation with her about his ex-wife, Miriam, and their two sons, to the following effect:

Roderick:   “Mum I haven’t seen them for ages. We’ve been divorced for years and she hates my guts”.

The deceased:    “I’d forgotten that.”

Roderick:   “Mum, I’ve been married to Lena for years and we have a son, Andre.”

The deceased:   “I forgot about that. I get so confused and upset.”

49. Roderick says that memory lapses of this type occurred more than once for the deceased in the period 2015 to 2017. Sharon dismissed this, contending that the deceased’s memory was “good” and that Roderick was “fabricating this narrative” that the deceased had poor memory. Sharon gave the example that the deceased often recalled all three of the family’s dogs, the name of the last of which was “Kimmy” not “Kimmi”, as Roderick stated.

50. In December 2017, the deceased was readmitted to DHL. After her readmission, Roderick says he observed her memory to deteriorate even further, with her constantly asking Roderick what his wife’s name was, what his children’s names were, and what their family dog of 18 years had been named. He also stated that he visited the deceased at DHL “every few weeks” and spoke to her on the telephone “every day”.

51. But Sharon disagreed with this, saying that Roderick “did not visit [the deceased] throughout 2016-17 and that he had no idea what the deceased was doing or where she was”. Whilst this is something of an exaggeration and Roderick did visit the deceased from time to time, his visits did not have the regularity he claimed. This reduced his capacity to obtain an accurate understanding of the effects of the deceased’s dementia upon her. His telephone contact with her was also not regular enough for him to draw reliable judgments about her dementia.

52. Roderick’s evidence was that he was concerned about the deceased’s diminishing cognitive capacity when she was at DHL. He said:

“Based on my dealings with, and observations of, my mother over the last years of her life, I was increasingly concerned about her diminished cognitive abilities and her frailty and infirmity more generally, including at the time of the sale of the Marsfield Property and the distribution of the proceeds.”

53. He also made the point that in the course of his visits to his mother at DHL up to the time she signed the Marsfield property sale contract on 27 October 2018 that he was “saddened to see that my mother’s mental processes were deteriorating”. This evidence is difficult to accept. If Roderick was concerned about his mother in the way he claims he was, it was not a concern he raised at any stage with Sharon or with anyone else to prompt them to seek any additional medical care for, or analysis of, her condition.

54. And Sharon disagreed with this depiction of the deceased. She argued that the deceased “did not suffer from memory loss as alleged by my brother…She was bright and aware”. The Court does not accept that she was “bright and aware” all the time. But she was mostly lucid with some memory lapses, as might be expected in an elderly person in the early stages of dementia. This assessment is consistent with the medical evidence.

55. Dr Gregory Spark, a doctor at East Ryde Family Medical Practice, gave expert evidence about the deceased’s cognition. Dr Spark had been Sharon’s general practitioner for approximately thirty years. He took over the deceased’s medical care at Sharon’s request. Notwithstanding that he had come to treat the deceased through Sharon, he showed no signs of bias in her favour. He did not have medical oversight of the deceased for long, but he had seen her on approximately six occasions at DHL from late 2018 until her death. Dr Spark was able to develop a sound picture of her general cognition and his evidence is accepted.

56. The change in the deceased’s medical care to Dr Spark had resulted from a change of doctors at the medical practice the deceased had previously attended. Sharon referred her to Dr Spark so that the deceased went to a doctor with whom Sharon was already familiar.

57. Dr Spark’s account was that the deceased was in generally poor health, both physically and mentally, during 2018 and 2019. In addition to a degree of cognitive impairment, Dr Spark agreed that she suffered from a number of other medical ailments. Although Dr Spark did not speak to the deceased’s previous general practitioner about her health and general mental condition, he was aware that she had an existing diagnosis of dementia and was on a course of Aricept medication for the treatment of dementia, prescribed by her geriatrician, Dr Nargas Shaheen.

58. Dr Spark explained that Aricept is an acetylcholinesterase medication, which in most cases is prescribed for what he called “fairly mild dementia”. It is designed to reduce the progression of dementia and its severity in a marginal way. But as Dr Spark explained, “sometimes it works very well”.

59. Dr Spark said that when he engaged with the deceased she could name the medication she was taking and the dosages, and could describe any medical ailments that she had. Moreover, she was able to recount past and current medical problems and the treatment that she had received. She was also able to give accurate information relating to Sharon and James. From his engagement with her, he observed that she recognised him, was oriented as to space and time, could make lucid and fluent conversation, and could give information about Sharon, which Dr Spark could verify as accurate because Sharon was his patient.

60. Dr Spark said that, as a result of his interaction with the deceased and his knowledge of her cognitive decline:

“…I formed the impression and am of the opinion that at the time [the deceased] made the decision to sell her home and give the proceeds of sale to her daughter (which was a year prior to when I began seeing her as a patient):

a. she would have been capable of giving instructions to Sharon or her solicitor to sell the property; and

b. was able to understand the implications of such transactions; and

c. would have been able to understand the financial consequences such transactions would have on her.”

61. In September 2020, in preparation for these proceedings, Dr Spark also wrote in a letter to Mr Pickering, which well summarises the effect of his evidence in the proceedings. He said that he was of the opinion that the deceased’s:

“Dementia level was mild, and that she was able to give me information about her current and past medical problems and treatment, as well as accurate information relating to her daughter, Sharon, and Grandson James, both of whom she spoke of endearingly.”

62. This evidence is wholly consistent with Mr Pickering’s evidence.

The Marsfield Property Sale Instructions – September to November 2018

63. By mid-2018, Sharon realised that her mother was not going to return to the Marsfield property. In about September 2018, she assisted the deceased in putting the Marsfield property on the market. Sharon says, and the Court accepts, that the sale was necessitated partly due to the high cost of the deceased’s nursing home fees and the need to reduce them by making a capital contribution for her place at the DHL nursing home.

64. Contracts for the sale of the Marsfield property were exchanged on 27 October 2018 for $920,000 with completion due on 21 January 2019. Initially, the vendor’s conveyancing for the sale of the Marsfield property was undertaken on behalf of the deceased by Kirkby & Associates Lawyers.

65. Sharon remained living with her son James in the Marsfield property until it was sold. The Court accepts Roderick’s evidence that he did not become aware of the sale of the Marsfield property until after the deceased’s funeral. Text messages exchanged between Sharon and Roderick shortly after the deceased’s death confirm this. In these messages, which again demonstrate the poor relationship between the siblings, Roderick assumes that the deceased still owns the Marsfield property and he communicates to Sharon that he proposes moving into the Marsfield property because the rent he was paying at his property in Sans Souci was too high.

66. But in November 2018, Ms Susan Kirkby, a principal of Kirkby & Associates, advised Sharon that she could not act on the sale of the Marsfield property, whilst simultaneously acting for Sharon on the purchase of a property using the deceased’s funds, because of a potential conflict of interest between mother and daughter.

67. Sharon did not welcome this advice. She and the deceased and Kirkby & Associates parted company as solicitor and clients directly after an email exchange on 4 November 2018 between Sharon and Ms Kirkby. The exchange is set out in full below and highlights that Ms Kirkby warned Sharon that she was in a position of conflict of interest in seeking to use the proceeds of the sale of her mother’s Marsfield property to purchase the Macquarie Park property in Sharon’s name, given the possible financial disadvantages to her mother from the sale. The first email was from Ms Kirkby at 1.04pm on 4 November 2018:

“Hi Sharon

As we have repeatedly advised, you cannot use your Mother’s sale/funds to acquire a property in your own name – the deposit cannot be released to you have no connection with or rights against the purchaser and vice versa. Release of deposits are always problematic and in the current financial climate are usually resisted by a property advised purchaser.

You will recall that I advised you that the best course of action is for your Mother to settle the sale, you find temporary accommodation or do a short term lease of the property from the new purchaser (if that is possible) and then for your Mum to transfer funds to you and you cannot do this using the Power of Attorney.

The only potential way around all of this is for your Mother to enter into the purchase Contract and then apply S18(3) of the Duties Act to provide for you as the ultimate purchaser of the property. Another way is for you and your Mother to purchase a property as joint tenants.

As Robert initially advised you earlier this year there is a huge potential conflict of interest in us acting for your Mother on the sale and then using her funds for you to acquire another property and we are most uncomfortable with this course of action, I assume your Mother is on a Centrelink benefit which will be affected if she deprives herself of funds from the sale of the property. There is also the question of your Mother’s health and given her age the possibility that she might pass away before the sale is settled. There are many potential legal issues.

I therefore suggest that as we cannot act for you on a purchase using your Mother’s funds, that you engage another firm to act for you in relation to any subsequent transaction. We do not wish to place ourselves in a situation where your Mother would have an action against us.

We have written to your Mother in relation to the sale and as discussed you will need to contact ANZ Bank to arrange the discharge of mortgage - and note your instructions that there is nothing outstanding on file mortgage to the Bank – the bank will be able to discharge the mortgage electronically.

We are happy to talk with you in relation to any aspect of the sale however we cannot discuss your potential purchase any further.

Regards,

Susan Kirkby”

68. Sharon replied to Ms Kirkby at 8.19pm the same day:

“Hi Susan,

PLEASE NOTE THAT MUM’S POSTAL ADDRESS IS [PO Box redacted]. Please do not send anything to Nile Close as the letterboxes are not secure.

What you have stated here was not what you stated when we last spoke. I have been waiting for instructions re ANZ for a week. Also, you did say that you planned to get my mother's permission re purchase in my name and that you would prepare the relevant documentation. You also had me forward the Fontenoy contract to you. Do you not recall this?

Loss of the partial pension my mother receives (after sale of properly or two years in a nursing home) is inevitable and has nothing to do with putting property in my name. By the way, the whole point of putting it in my name was a way of returning the several hundred thousand I invested in Nile Close and also made possible by the fact that I managed to secure a Commonwealth supported place for my mother, thus saving $450,000 in nursing home entry fees. We did not feel it was necessary to justify any of our decisions. We simply wanted you to manage a sale and a purchase.

I do agree that it will be better for another firm to handle the purchase. I think it will probably be better to get someone else to take over the Nile Close settlement as well since you don’t get back from holidays until January 18th and our purchaser has informed me that he may receive his funding earlier than the 20^th (original proposed date of settlement).

The solicitor will be in contact with you.

Kind regards,

Sharon Wardle”

69. The Court infers from Ms Kirkby’s email that another principal at Kirkby & Associates, Mr Robert Kirkby, had given similar advice to Sharon earlier in 2018 and that she must therefore have been well aware of the fact that Kirkby & Associates considered her mother was not in receipt of independent legal advice in relation to the sale of the Marsfield property and the application of its proceeds of sale to acquire the Macquarie Park property. As will be seen, these transactions later proceeded in circumstances which demonstrate the wisdom of Ms Kirkby’s advice and where Sharon must have continued to be conscious of the effect of such clearly and forcefully expressed advice.

Instructions to Mr Pickering – November 2018 to February 2019

70. Sharon decided soon afterwards to engage a new lawyer to handle both the purchase of the Macquarie Park property and the completion of the sale of the Marsfield property. By 8 November 2018, Sharon had retained Mr Garry Pickering, solicitor, who wrote to Kirkby & Associates that day with an authority to release the Marsfield property conveyancing file to him, which after further correspondence, was achieved by mid-November. Mr Pickering then undertook the legal work to complete the conveyancing for the sale of the Marsfield property. He also took instructions from Sharon to act upon the purchase of the Macquarie Park property. He later continued to act as her solicitor in these proceedings.

71. Mr Pickering swore an affidavit in these proceedings on 14 April 2021. He was not cross-examined. The Court accepts Mr Pickering’s evidence in that affidavit. He says that in early November 2018 the deceased instructed him by telephone to act for her on the settlement of the sale of the Marsfield property. The deceased explained to Mr Pickering that she had originally instructed another solicitor to act for her on the sale of the property, but she was wanting to engage him because of “difficulties she was having with her solicitor”.

72. As the correspondence above shows, the difficulties the deceased was having with her solicitor were principally difficulties that Sharon had encountered with Ms Kirkby. The deceased explained to Mr Pickering that Sharon held her power of attorney and that he should speak to her so that arrangements could be made to engage him.

73. Mr Pickering asked the deceased to arrange for Sharon to contact him, which she did a day or so later by attending his office without an appointment. This meeting must have taken place prior to 8 November 2018 because it resulted in the instructions for the file to be transferred from Kirkby & Associates to Mr Pickering by that date. Mr Pickering’s recollection is that Sharon stated to him that the current solicitor acting for her mother was going on holidays and was not due to return until a few days before the settlement for the sale of the property. Mr Pickering affidavit does not disclose whether Sharon told him about Ms Kirkby’s recent advice to her about a conflict of interest. Mr Pickering inspected Sharon’s driver’s license and the power of attorney from the deceased, which he noted was in order, and enabled him to take instructions from the deceased through Sharon.

74. Mr Pickering asked Sharon about her mother’s state of health. Sharon gave her general background and told him that her mother had some dementia but that it was only mild and did not restrict her. This led to a discussion about whether the deceased had an enduring power of attorney. Mr Pickering then advised Sharon as follows:

“I will prepare an Enduring Guardianship for your mother to sign. Given you are the Attorney it is appropriate that you also be the appointed Guardian. I will have to go and see your mother and explain the document to her and given that she has been diagnosed with dementia I will need to assess whether she has the capacity to make an Enduring Guardianship. If there are any doubts in my mind that she lacks capacity I may require that she obtain a medical opinion to support that she has the requisite understanding. But firstly, I will speak to her and make my own assessment.”

75. At this point, Sharon advised Mr Pickering for the first time that she was also looking to buy a property. Sharon explained to him that because her mother was selling her property, she and her son James needed to buy a property to have somewhere to live. Sharon said to Mr Pickering that she had seen a property she wanted to purchase. He asked for a copy of the contract and explained that he would ring her and advise her. A few days later, he received a copy of the contract for the Macquarie Park property that Sharon wished to acquire.

76. After Sharon’s appointment as enduring guardian had been prepared by Mr Pickering’s office, he contacted Sharon to arrange to meet the deceased for the execution of the document. She was not then at DHL but temporarily an impatient at Ryde Hospital, where he met her on 14 November 2018. Mr Pickering arranged for Sharon and James to be absent from the room when he was speaking to the deceased about the instrument of enduring guardianship. Mr Pickering says that at this consultation he had the following exchange with the deceased:

The deceased:    “Mr Pickering thank you for agreeing to handle the sale of my property. I was given your name by Tian Hong Real Estate Agent. Tian is the Agent selling my property at Nile Close. I told Tian that my solicitor was taking holidays and was not due to return until a few days before the settlement and I was stressing that I may not be able to settle on time and that I had lost confidence in her. Tian said that I should contact you and she gave me your telephone number.”

Mr Pickering:   “I wondered how you got my name. I have obtained the sale contract for the Nile Close property from your former Solicitor, and I have allocated the matter to Cassandra in my office. She will liaise with Sharon and I will contact you directly if I need anything otherwise, we can just rely upon Sharon.

The reason I am here today is to discuss with you your need for an Enduring Guardianship and to obtain your instructions for an Enduring Guardianship. I have prepared such a document which I have here.”

77. Mr Pickering explained to the deceased the difference between a power of attorney and an enduring guardianship and raised with her the diagnosis of dementia of which she was aware. He made an informal assessment of her cognitive capacity, as he discussed with her how she felt she was progressing and whether she felt that the dementia impacted upon her memory and understanding. He administered some basic tests of her cognition, not uncommonly used by legal practitioners in these circumstances, asking her who was the Prime Minister, and a little about significant events in the world at the time. His evidence is that “she answered my questions clearly and coherently”. As a result of talking to her he was satisfied that she had capacity to give him instructions and that she had a clear appreciation and understanding of what she was going to sign, and moreover, that she had insight into her health conditions and into the decisions she was making.

78. Mr Pickering says, and it can be accepted, that he carefully assessed the question of whether the deceased had any incapacity which would disable her from executing the enduring power of attorney. He dismissed any concern about such incapacity. He says, and the Court accepts, “I had no concerns with respect to her capacity and her understanding to be able to make an Enduring Guardianship”.

79. The deceased then executed the documents and appointed Sharon as her enduring guardian under the Guardianship Act 1987. James was also appointed as the deceased’s substitute enduring guardian.

80. At the conclusion of the consultations about the enduring guardianship, when Sharon and James had signed their part of the document and as Mr Pickering was about to leave, the deceased called him back saying that she wanted to speak to Mr Pickering alone. Sharon and James left the room again and Mr Pickering had a further conversation with the deceased. He invited her to speak and she commenced by telling him what she wanted done with the proceeds of sale from the Marsfield property:

The deceased:    “With the proceeds of sale from the [Marsfield property] it is my wish that Sharon has access to those funds in order that she [sic] can buy a property for herself. Sharon had her own property some years ago, but she decided to sell the property when I lost my leg and moved in with me to look after me. Sharon and her son moved in with me and gave up their house to do so and I just want to ensure that she will have a house of her own when I am gone.”

81. It was at this point that Mr Pickering first became aware that the property that Sharon was proposing to buy was going to be funded by the deceased. So, he opened up the subject of potential competing claims upon her bounty:

Mr Pickering:    “Do you have any other children?”

The deceased:    “I have a son, but he was looked after by my husband years ago. It is my intention to look after Sharon. She has been so good to me without her I just wonder where I would now be”.

82. Mr Pickering recalled that the deceased told him that her son had been given a house by her late husband and that Sharon had given up her share of that property, so the son could get the property in his sole name. Mr Pickering explained to the deceased that he would prepare a document for her to sign in connection with the settlement of the sale of the Marsfield property, recording her wishes with respect to the application of the settlement proceeds, and that he would come back to her to have the document signed.

83. Mr Pickering was conscious of the relationship between the deceased and her daughter, Sharon, and that he wanted to ensure that the deceased’s decision to fund the purchase of the Macquarie Park property for Sharon was her decision and did not result from undue influence. So he returned to his office and instructed his staff to prepare a document setting out what he understood to be the deceased’s wishes, for her to sign. Sharon admits some involvement in the preparation of this document. But Mr Pickering was not cross-examined so the extent of her involvement is unclear.

84. On 21 November 2018, Sharon instructed Mr Pickering that she had agreed to purchase the Macquarie Park property. And she gave him instructions about a proposed arrangement for her to continue in occupation of the Marsfield property for a week after proposed simultaneous settlements of the sale of the Marsfield property and the purchase of the Macquarie Park property. On the following day she exchanged contracts to acquire the Macquarie property for $770,000. The contract for sale provided for a 10% deposit of $77,000.

85. Mr Pickering next saw the deceased on 19 December 2018. He reported to her about the progress of the proposed simultaneous settlement of the sale of the Marsfield property and the purchase of the Macquarie Park property. He explained his assessment of her capacity on this occasion:

“[28] Again, I assessed her capacity and understanding of what she was doing, and I formed the view that she did have capacity and did have insight into and an understanding of what she was doing. I was also satisfied that what she was proposing in funding the purchase of the property for Sharon was motivated by her love and affection for her daughter and her determination that her daughter would have a property to live in when she was gone. There was, in my assessment, nothing to suggest that her decision had been made because of undue influence being applied by her daughter or anyone else.”

86. On 19 December 2018, the deceased signed a one-page document titled ‘Instructions to my Solicitor’, addressed to Mr Pickering, which provided as follows:

“1.    On 27 October 2018, a Contract for sale for my property at [Marsfield] exchanged. The contract was signed on my behalf by my daughter Sharon Patricia Wardle (hereinafter referred to as Sharon).

2.    Settlement of the sale is due to take place on 21 January 2019.

3.    I am aware that the proceeds of the sale have and will be put towards the purchase of a property at [Macquarie Park].

4.    I am also aware that the contract to purchase that property in [Macquarie Park] is in the name of my daughter Sharon as the purchasing entity.

5.    I have authorised my daughter to exchange the contract in her name and to utilize the funds coming from the sale of [the Marsfield property] to the purchase of the [Macquarie Park property].

6.    I instruct you to transfer the funds from the sale of the property in [Marsfield] to the purchase of the property in [Macquarie Park].

7.    I have a son. My son has already had a property transferred to him by my late husband. My daughter Sharon in effect gave up her entitlement over that property at the time it was transferred to my son.”

87. Mr Pickering was sufficiently absorbed in his discussion with the deceased that although he had a transfer document with him for her to sign, in addition to the acknowledgement of her instructions, he omitted to have the deceased sign it. This was forwarded later for her signature.

88. On the basis of these instructions, Mr Pickering continued to act for the deceased on the sale of the Marsfield property and Sharon on the purchase of the Macquarie Park property through until the simultaneous settlement of the two transactions on 21 January 2019.

Settlement of the Transactions – January 2019

89. On 21 January 2019, both the sale of the Marsfield property and the purchase of the Macquarie Park property settled. The total net proceeds of $803,232.70 from the sale of the Marsfield property were immediately applied, namely $764,732.70 was paid towards the PEXA electronic settlement platform to fund Sharon’s purchase of the Macquarie Park property, and $38,500 was paid into the trust account of the agent handling the Macquarie Park property as to constitute a 5% deposit on the Macquarie Park property purchase. This appears to have been an unpaid balance of the $77,000 deposit required under the Macquarie Park contract.

90. Sharon and James then moved into the Macquarie Park property, where they lived at the time of the trial. Roderick contends in the proceedings that the Macquarie Park property has increased in value since its purchase in 2019, and that its market value at the time of the trial was approximately $875,000. The property valuations in evidence confirmed this figure, which was not in contest.

The Death of the Deceased – April 2019

91. The deceased died on 18 April 2019. Strangely, in Roderick’s original Statement of Claim, Roderick pleaded her date of death as 25 April 2019 rather than 18 April 2019. Whilst this single error would not be significant on its own, it is part of a pattern of errors about the details of the lives of family members that tends to indicate Roderick’s general lack of interest in such matters. That Roderick was mistaken about the correct date of his mother’s death and the correct ages of his three children shows more than just that he is “not good with dates”. Roderick did not focus upon the detail of things that could be, or were likely to be, important to other family members. This is at least consistent with Sharon’s case, and the Court accepts, that he was not attentive to, or a frequent visitor to, the deceased in the last years of her life.

92. This lack of concern about the detail of other family members’ lives is exemplified in Roderick’s account of the deceased’s cause of death. Roderick deposed that the deceased’s cause of death was “lung problems, which she had apparently suffered from for years”. Sharon strongly disagreed with this, giving an account of her mother’s final illness, which the Court accepts:

“270.   Mum did not suffer lung problems for years. She rarely caught colds. Her death was due to infection of a left shoulder hemarthrosis which lead to heart failure. My brother has no idea when or how often Mum was admitted to hospital or to which hospitals.

271.    My brother had no regard for Mum’s care or health whatsoever.”

The Crowdy Head Property

93. In about 1966 or 1967, William Wardle purchased a block of land in Crowdy Head, New South Wales and built on the land a holiday house for the Wardle family, which has been referred to in these reasons as the Crowdy Head property. The family’s dealings in relation to the Crowdy Head property provide important background to the January 2019 transactions, to the parties’ claims for further provision out of the estate, and to Sharon’s Cross-Claim for recovery of certain monies that the deceased paid in relation to the Crowdy Head property.

94. On any view of the Wardle family history, the Crowdy Head property was a matrimonial asset to which the deceased had a claim, though it was in William’s name. The deceased had a real interest in its disposition.

95. In around 1991 or 1992, William entered into an understanding with Sharon and Roderick whereby each of them would own a one-third share of the Crowdy Head property. Sharon said that the reason for this was that their father sought to divest himself of assets to enhance his eligibility for a pension.

96. William effected a transfer of the Crowdy Head property into the three names of himself, Sharon and Roderick as joint tenants in March 1992. The certificate of title shows that there was no mortgage on the property.

97. The Wardle family’s dealings with the Crowdy Head property were related to another transaction at about the same time. In October 1991, Sharon purchased a town house in Busaco Road, Marsfield (“the Busaco Road property”). William loaned Sharon $165,000 to purchase the Busaco Road property. No mortgage was executed between father and daughter. But Sharon made weekly repayments to her father of $350 from October 1991 until his death in August 2003. These payments were made in cash at her father’s request, except for a period of two months around the time of James’ birth.

192. That would be excessive. As Mr Bilinsky points out, when authorising the January 2019 transactions, the deceased did not also change the Will. Although she does not seem to have been advised to alter the Will in January 2019, the effect of the January 2019 transactions was that she continued to recognise Roderick as part of her testamentary bounty. The Court is cautious about neutralising that decision by giving Sharon in effect the whole of the deceased’s estate.

193. In the Court’s view, the combined weight of considerations favouring the making of a substantial order for provision in Sharon’s favour should be balanced by leaving Roderick with a modest additional legacy as a condition of Sharon’s further order for provision. The sum could be used to provide him with an economic cushion for a few years into the future, so he can have some financial headroom to begin to establish himself in a job or a small business and build some capital to provide for his retirement. He is still young enough to use such a sum for his own maintenance and advancement in life. It need not be a large sum: just something sufficient to give him another career or financial opportunity that he would not otherwise have had.

194. Mr Bilinsky submits that Roderick should have further provision to top up his superannuation fund equivalent to the sums that he has drawn down upon in recent years from his superannuation fund because he has fallen on hard times during the COVID-19 pandemic. Mr Bilinsky submits an appropriate figure to reflect this is a legacy in the sum of $64,500. The sum of $64,500 would restore his superannuation fund to where it was before the COVID-19 pandemic forced him to reduce it.

195. The Court will give him further provision in an amount a little more than this, namely a legacy of $75,000. Any more would jeopardise what is proper provision for Sharon. The orders are crafted below so that payment of this legacy is charged over the Macquarie Park property.

A Referral

207. There are aspects of the evidence in this case which raise questions as to the conduct of Mr Pickering. He has put on affidavit evidence in these proceedings which has been relied upon by the Court. But he has not been cross-examined and as a result has not had an opportunity to give a full account of his conduct in acting for both the deceased and Sharon in relation to the January 2019 transactions. The Court has found that the deceased’s and Sharon’s interests were in conflict when Mr Pickering was acting for both these parties. It may be that Mr Pickering is able to give a satisfactory explanation as to how he was able to resolve that conflict.

208. But the Court has found that the deceased did not give informed consent to Mr Pickering acting for her and for her daughter. The lack of informed consent is the reason the Court has vitiated the aspect of the January 2019 transactions involving the application of the proceeds of the Marsfield property towards the purchase of the Macquarie Park property. Of relevance in this situation is Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Solicitors’ Conduct Rules”), rr 11.1 to 11.3 which are set out below:

“11 Conflict of duties concerning current clients

11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule.

11.2 If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3.

11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client:

11.3.1 is aware that the solicitor or law practice is also acting for another client, and

11.3.2 has given informed consent to the solicitor or law practice so acting.”

209. The circumstances that have come to light in this judgment may warrant more detailed scrutiny of Mr Pickering’s conduct than has been necessary to determine the outcome of these proceedings. For that reason, and as Mr Pickering is a practising solicitor, I will request the Registrar in Equity to forward a copy of these reasons to the President of the Law Society for the consideration of his conduct in acting for both the deceased and Sharon throughout the January 2019 transactions, without the informed consent of the deceased. A possible further question for investigation by those authorities is whether the deceased or Sharon has suffered any loss by reason of Mr Pickering’s arguable failure to recognise that the deceased had not given informed consent to create an exception to the conflict of interest that existed between his two clients.

210. In making this referral, the Court is not making any adverse finding about Mr Pickering. All the Court is doing is identifying this issue as a matter worthy of further investigation by the authorities charged with scrutinising the conduct of solicitors. But the Court is mindful of the need to do that in this case because another solicitor, Susan Kirkby, took a position which was consistent with the application of the Solicitors’ Conduct Rules, r 11, and the client decided to go elsewhere. It would undermine the honourable and ethical conduct of legal practice in this State if the identification of a conflict of duty by one solicitor, which is arguably ignored or overlooked by another solicitor, and arguably leads to loss by a client, were not to be referred to the proper authorities for further scrutiny.

Conclusions and Orders

211. The Court raised with the parties the possibility of it making costs capping orders. But the Court has decided not to consider cost capping orders in these reasons but will do so once the parties have an opportunity to consider these reasons. But the parties should recognise that the Court is unlikely to permit the current legal costs budgets to expand beyond their current estimates by reason of making submissions about cost capping orders. Argument about costs should be conducted with costs economy. The parties have already had the benefit of saving some legal costs in a two-day hearing when they had budgeted for a three-day hearing. They should retain that benefit. No further written submissions will be required but will be optional.

212. The Court has granted liberty to apply, which will encompass any application within 14 days by either party to amend the precise form of relief in the Court’s orders.

213. For these reasons the Court makes the following declarations, orders and directions:

1. Order pursuant to Uniform Civil Procedure Rules 2005, r 7.10 that these proceedings continue in the absence of a representative of the estate of the late Patricia Frances Wardle (“the estate”) who died on 18 April 2019;

2. Declare that the defendant holds the legal and beneficial interest in the Macquarie Park property, being the property situated at Macquarie Park, which is more precisely identified in the Amended Statement of Claim (“the Macquarie Park property”) on constructive trust for the estate;

3. Order under Succession Act 2006, s 59 that an order for further provision be made for the defendant/cross-claimant out of the estate by giving to the defendant/cross-claimant the whole of the estate’s interest in the Macquarie Park property, on condition that the Macquarie Park property be charged in favour of the plaintiff/cross-defendant with the payment of a legacy of $75,000 to the plaintiff/cross-defendant;

4. The Court requests the Registrar in Equity to send a copy of these reasons to the President of the Law Society of New South Wales directing her attention to the material in these reasons under the heading “A Referral”;

5. Reserve all issues of costs;

6. Otherwise dismiss the Amended Statement of Claim;

7. Otherwise dismiss the Cross-Claim;

8. The parties are directed to contact the Associate to Slattery J to arrange a suitable time to hear argument in relation to costs orders, including costs capping orders, of no more than half an hour of hearing time;

9. Grant liberty to the parties, if they choose, to provide a skeleton outline of submissions in relation to costs, including costs capping orders, of no more than two pages, clearly setting out that party’s proposals for costs and costs capping orders and the reasons for these proceedings; and

10. Grant liberty to apply.

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Amendments

07 December 2021 - Coversheet - correction to name of legal representatives.

[8] line 2 - "in" inserted before "the".

[8] line 7; [9] line 3; [106] - "half share" rather than "half-share".

[22] line 3 - duplicate definition of "Crowdy Head property" removed; line 6 - "of" inserted before "55".

[50] line 5; [130] line 6 - "DHL" instead of "the Lodge".

[93] line 3 - quotation marks removed around "Crowdy Head property".

[119] line 3 - opening quotation marks inserted before "quite".

[121] line 3 - "alleges" instead of "alleged".

[124] line 4 - "her" inserted after "shown"; line 5 - "the" instead of "her"; line 8 - "in existence" rather than "existed".

[126] line 7 - "deceased's" rather than "deceased"; line 8 - "actual" inserted after "of".

[134] line 1 - "of" inserted before "itself".

[137] line 10 - "yet" instead of "but".

[205] lines 1 and 4 - "Bilinsky" instead of "Blank".

Decision last updated: 07 December 2021