Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Grant v Grant [2021] NSWCA 181 Hearing dates: 12 March 2021 Date of orders: 18 August 2021 Decision date: 18 August 2021 Before: Basten JA at [1]; Leeming JA at [2]; White JA at [3] Decision: 1 Appeal dismissed. 2 The first and second appellants pay the respondents' costs of the appeal from the declarations and orders made in proceedings 2017/316190 (the estate recovery proceedings). 3 The first appellant pay the respondents' costs of the appeal from the orders made in proceedings 2018/139174 (the family provision proceedings). 4 Discharge the stay granted on 14 December 2020 of the orders made in the Equity Division on 24 September 2020. 5 Direct that any application by the respondents for any consequential orders be made to the primary judge, or such other judge as the Chief Judge in Equity may direct. Catchwords: SUCCESSION — Claim by estate to recover property — Where property of deceased transferred by deceased's daughter by way of gift in favour of deceased's granddaughter in exercise of power of attorney — Where no power of gift conferred on attorney — Where daughter purportedly acted pursuant to direction in letter — Whether deceased's signature was forged SUCCESSION — Family provision — Claim by adult child — Where evidence of ill treatment of testatrix by claimant — Where evidence that claimant received substantial benefits from testatrix before death Legislation Cited: Powers of Attorney Act 2003 (NSW), Pt 2, s 11 Succession Act 2006 (NSW), s 100(2) Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Category: Principal judgment Parties: Nerez Gwynneth Grant (First appellant) Kashaya Williams (Second appellant) Seth Grant (First respondent) Tansin Leckie (Second respondent) Representation: Counsel: Mr L Ellison with Mr N Avery-Williams (Respondents) Solicitors: First Appellant self-represented Teece Hodgson & Ward (Respondents) File Number(s): 2020/287951 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 1288 Date of Decision: 24 September 2020 Before: Slattery J File Number(s): 2017/316190; 2018/139174 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] By his tutor, Dr Alan Grant brought proceedings against his daughter Nerez Grant and her daughter Kashaya Williams seeking to set aside a transfer of land in favour of Kashaya which was executed by Nerez as her father's attorney on 27 September 2017. He also sought sums of $100,000 and $34,700 transferred out of his bank account by Nerez. Dr Grant died in the course of the proceedings and his estate was ultimately represented by his son Seth Grant as administrator ad litem. The power of attorney was given to Nerez on 10 July 2014. It did not authorise her to make gifts of Dr Grant's property. The memorandum of transfer executed by Nerez stated that it had been given for consideration of $900,000 in favour of Dr Grant. No consideration was paid. The appellants relied on a copy of typed letter addressed to Nerez and purportedly sent by Dr Grant in which Dr Grant appeared to direct Nerez to transfer the property to Kashaya. The letter was signed "Alan". The original was not produced. Seth contended that the letter was a forgery. The primary judge accepted the evidence of a Ms Holt, a handwriting expert called by Seth, that the word "Alan" had been copied. The primary judge held that the transfer constituted a fraud to which Kashaya was party, and therefore ordered that the property be transferred to Seth as administrator. On appeal, the appellants contended that his Honour failed to take into account "expert reports in evidence supporting the case for Nerez Grant and Kashaya Williams", and that it was Dr Grant's intention that the property remain out of the hands of Seth and his sister Tansin. Nerez also brought proceedings seeking a family provision order out of the estate of her mother, Mrs Gwynneth Grant. The primary judge refused the order on the basis that Nerez had ill treated her parents and had already received substantial benefits from her mother. In the course of reaching this conclusion, the primary judge made a large number of factual findings, resolving conflicting evidence given by Nerez and Kashaya on the one hand, and on the other by Mrs Grant's other children, her carer and others. Nerez challenged the primary judge's decision in the family provision proceedings on a number of grounds. She alleged a failure to take into account certain documentary evidence, an error in accepting evidence given by Seth and his sister Tansin proven in cross-examination to be fabricated, a failure to allow Nerez and Kashaya to examine each other in chief, a failure to consider Dr Grant's dementia, a failure to take into account that Mrs Grant's several wills were allegedly signed while under undue influence, favouritism on the part of the primary judge, and a failure in not making several factual findings. The Court held (per White JA, Basten JA agreeing and Leeming JA): In respect of the estate recovery proceedings: The appellants failed to identify any "expert reports" supportive of their case that Dr Grant intended to make a gift to Kashaya; no evidence to contradict Ms Holt's report was tendered: at [35]. The primary judge did not err in finding that Kashaya's title was obtained by fraud to which she was party: at [46]. In respect of the family provision proceedings: The documentary evidence relied upon by Nerez which concerned an altercation between her and Tansin neither disproved the evidence of Seth and Tansin about the incident, nor discredited their evidence generally: at [98]. Nerez failed to identify anywhere in cross-examination where the evidence of Seth or Tansin was proved to be untruthful: at [99]. No submissions were made in support of the ground that not allowing Nerez and Kashaya to examine each other amounted to a denial of procedural fairness, in circumstances where each was permitted to supplement their affidavits by serving further evidence: at [101]. Dr Grant's dementia, which went to testamentary capacity, was irrelevant to the family provision proceedings, as were the allegations of undue influence: at [103]-[105]. No submissions were made in support of the allegation of favouritism, and a review of the transcript reveals no basis for the assertion: at [107]. The evidence which it is said the trial judge failed to take into account was either dealt with at length, or was irrelevant: at [108]-[111]. Judgment 1. BASTEN JA: I agree with White JA. 2. LEEMING JA: I agree with White JA 3. WHITE JA: This is an appeal from orders of the Equity Division in two proceedings that were heard together. 4. Proceeding 2017/316190 was commenced by Dr Alan Grant by his then tutor, the NSW Trustee and Guardian, against Dr Grant's daughter Nerez Grant and Nerez Grant's daughter, Kashaya Williams. The NSW Trustee and Guardian sought to set aside a transfer of land owned by Dr Grant in Killcare to Ms Williams. Nerez Grant executed the transfer as Dr Grant's attorney on 29 September 2017. The transfer was expressed to be for a consideration of $900,000 but no payment was made. Acting as attorney for Dr Grant, Nerez Grant paid the stamp duty on the transfer from Dr Grant's bank account. Ms Williams entered into a residential tenancy agreement with her mother for the term of her mother's life. The residential tenancy agreement provided that the rent payable was nil. 5. Dr Grant died in November 2019. The NSW Trustee and Guardian ceased to represent him as his tutor. Dr Grant's son, Professor Seth Grant, was appointed as administrator ad litem to represent Dr Grant's estate. 6. In the balance of these reasons I shall refer to the parties involved (after their introduction) by their first names for ease of reading and intending no disrespect. 7. The primary judge (Slattery J) declared that Nerez breached her fiduciary duty to her father and engaged with Kashaya in a dishonest and fraudulent scheme to transfer the whole of Dr Grant's interest in the Killcare property to her daughter in return for a life interest in the Killcare property (Grant v Grant; Grant v Grant (No 2) [2020] NSWSC 1288 at [376(1)]). His Honour ordered that Kashaya transfer the Killcare property to Seth. 8. The orders of the primary judge contemplate that Seth hold the Killcare property for whomever is entitled to be appointed as executor of Dr Grant's estate on the trusts of whichever will of Dr Grant is admitted to probate. At the time of the hearing before Slattery J and as at the hearing of the appeal there were contested probate proceedings on foot as to which will of Dr Grant should be admitted to probate. That was not an issue before the primary judge nor on appeal. 9. The proceedings brought by Dr Grant through his tutor and continued by Seth as representative of Dr Grant's estate have been called "the Estate Recovery Proceedings". In these proceedings the primary judge also declared that Nerez held a sum of $100,000 transferred from Dr Grant's bank account on 4 October 2017 on trust for Seth as administrator ad litem of the estate of Dr Grant and declared that Nerez breached her fiduciary duty to Dr Grant in causing Dr Grant's estate to be debited with the sum of $34,700 in payment of stamp duty on the transfer. The primary judge ordered Nerez to pay those sums with interest, to Seth. Seth is to hold the moneys ordered to be repaid as administrator ad litem of Dr Grant's estate. 10. Dr Grant was married to Mrs Merle Gwynneth Grant. She died on 6 May 2017. In proceedings 2018/139174 Nerez sought an order for provision out of the estate and notional estate of Mrs Grant. These are the second proceedings, and were referred to as the "family provision proceedings". 11. On 15 August 2017 probate was granted of Mrs Grant's will dated 10 May 2012. There was no challenge to the grant of probate of that will. By her will of 10 May 2012 Mrs Grant appointed Seth and her daughter Tansin Merle Leckie as her executors. Mrs Grant was a musician. She made specific bequests of violins and printed music, jewellery and a valuable painting to Seth and to Tansin. She left her residuary estate to Seth, Tansin and her son Ryven in equal shares. 12. The primary judge found that the distributable estate of Mrs Grant would be $361,104 and there was notional estate of $350,000 ([275] and [276]). Nerez received no benefit under her mother's will. The primary judge accepted Nerez's evidence of financial circumstances. She received $532 per fortnight from Centrelink and was borrowing money to survive from friends and had no earning capacity. She had minimal assets and her expenses vastly exceeded her income ([283]-[286]). 13. The primary judge rejected Nerez's claim that she had provided her mother with significant care and that they had a close relationship throughout their lives until 2011 ([287]-[288]). The primary judge found that Nerez's treatment of her mother over a long period disentitled her to any relief by way of a family provision order and found that Nerez had already received very substantial benefits from her mother throughout her lifetime ([294]-[296]). 14. The primary judge found: "[297] Mrs Grant was afraid of her daughter Nerez with good reason. Nerez behaved with callous brutality towards both of her parents over decades. She had seen Nerez's physical violence towards Dr Grant. She had personally been the object of Nerez's constant hectoring and harassment for money. She had seen Nerez sequester Dr Grant, dominate Dr Grant, and use his willingness to give her money as her treasury. Mrs Grant was so fearful of Nerez that she had taken up Seth and Marguerite Grant's offer of seeking respite at Cambridge in the first few months of 2011, during one of the worst periods of Nerez's harassment. [298] Nerez's conduct over decades was calculated to make Mrs Grant fearful and compliant with her demands and it had that effect. Nerez treated her mother as a creature to be frightened and then coerced into doing what she wanted. Any vestiges of mother-daughter affection had long disappeared between Nerez and Mrs Grant. Stung by the constant pain of Nerez's drug taking, thefts, aggression, unpredictability and the shame she brought upon the family, Mrs Grant's decision to keep her daughter at arm's length was entirely understandable. [299] For Nerez to be omitted from Mrs Grant's will does not offend community standards of what would be expected of a testator in her position. Children with difficult relationships with or estrangement from parents not uncommonly obtain family provision relief. But this case is in a category of its own and involves decades of actual aggression by Nerez towards her mother, who was afraid of her daughter. [300] And Nerez's case is missing another potentially mitigating factor. The Court has immense difficulty in finding in Nerez's conduct any reliable evidence pointing to the altruistic or selfless conferring of benefits upon her mother. [301] But Nerez seeks to excuse this gap in her case. She says that Seth and Tansin hid Mrs Grant away from her from 2011 and she could not provide a daughter's support to her. In one sense this is true. Mrs Grant was kept away from Nerez between 2011 and 2017. But this was at Mrs Grant's own request and was both a necessary and well justified decision taken for Mrs Grant's own protection from Nerez. [302] And looking at Nerez's conduct before 2011, the Court does not accept that Nerez provided any services, support, affection or security to her mother. Nerez is underserving of Mrs Grant's testamentary bounty and her Succession Act, Chapter 3 claim for family provision fails. Her Summons will be dismissed with costs." 1. Nerez and Kashaya appeal from the primary judge's orders in the Estate Recovery proceedings. Nerez appeals from the dismissal of her claim for a family provision order. 2. There was a sharp conflict between the evidence of Nerez and Kashaya on the one hand and, on the other, the evidence of Seth, Tansin and other witnesses called by the respondents in the family provision proceedings. The primary judge made adverse credit findings against Nerez and Kashaya and accepted the evidence of Seth, Tansin and other witnesses called by the respondents in the family provision proceedings. 3. The appeal is by way of rehearing. But that does not mean that this court can assess the evidence on the basis of the affidavits and transcripts to form its own judgment as to where the truth lies on the many issues of contested fact without regard to the primary judge's findings. To the contrary, this court must give full weight to the primary judge's advantage in seeing the witnesses give evidence and observing the appellants conducting their cases. Only if the appellants can point to some clear objective evidence that is contrary to the primary judge's findings would this court be justified in interfering with his Honour's findings that were heavily dependent on his assessment of the parties' and witnesses' credibility. To put it another way, the appellants must show that the primary judge's findings are contrary to incontrovertible facts or uncontested testimony, or are glaringly improbable, or contrary to compelling inferences, or that he palpably misused his advantage or acted on facts which are inconsistent with the evidence, if his Honour's findings are to be set aside in this court (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31]). Estate Recovery Proceeding 1. By their notice of appeal the appellants challenged the declarations and orders made in proceeding 2017/316190 (the Estate Recovery Proceedings) and sought an order that those proceedings be dismissed. 2. On 29 September 2017 Nerez executed a memorandum of transfer as attorney for Dr Grant of a property owned by Dr Grant at Killcare. The property was transferred to Kashaya for an expressed consideration of $900,000. The transfer was executed by Nerez pursuant to a power of attorney given to her by Dr Grant on 10 July 2014. 3. The power of attorney was an enduring power. It authorised Nerez to "…exercise the authority conferred on my attorney by Pt 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do." 4. This power did not authorise Nerez to make a gift of any of Dr Grant's property (Powers of Attorney Act, s 11). Section 11(2) provides that a prescribed power can authorise an attorney to give the kinds of gift specified in Sch 3 to that Act. But the power did not provide such authority. The box authorising the attorney to give reasonable gifts as provided by s 11(2) was not ticked. Even if it had been, the power would only have authorised the gift of the Killcare land if Dr Grant might reasonably have expected to make such a gift and its value was not more than was reasonable having regard to all the circumstances and in particular his financial circumstances and the size of his estate (Sch 3, cl 1.1(2)). The primary judge found that the transfer was improvident. It deprived Dr Grant of his only remaining substantial asset. After the transfer of $100,000 from Dr Grant's account on 30 September 2017 and a transfer of $34,700 from his account to pay stamp duty on the transfer of the Killcare property he was left with insufficient funds to pay his ongoing nursing home fees ([347], [349]-351]). 5. Although the memorandum of transfer stated that it had been given for consideration of $900,000 that had been received by the transferor, that was not true. No consideration was paid. 6. Nerez contended that the transfer should not have recorded a consideration of $900,000 but a consideration of nil. She sought to blame the solicitor who acted on the transaction claiming that the solicitor must have changed the form of transfer from showing nil consideration to a consideration of $900,000. The primary judge rejected that claim. The solicitor's file produced on subpoena contained no transfer for nil consideration that could be changed ([318]-[322]). 7. The primary judge did not accept that Nerez or Kashaya mistakenly signed the transfer without appreciating that it stated that the transfer was for a consideration of $900,000 ([322]). That is not surprising. It would be well nigh impossible to sign the transfer without reading the words a few lines above the spaces for signatures and without seeing the typed figure of $900,000. 8. Neither Nerez nor Kashaya intended that Kashaya would pay Dr Grant for the transfer of the land. 9. Nerez deposed that on 11 April 2016 she visited Dr Grant at a retirement complex at which he was then living and that he gave her a typed letter stating: "Dear Nerez I want to give the Killcare house to Kashaya. I want you to live there for the rest of your life. I give you a lifetime tenancy. I will pay for the transfer. Please transfer the property to Kashaya. Thank you for all the care of me. Love Alan." 1. The copy letter attached to Nerez's affidavit is purportedly signed "Alan". 2. Seth called for the production of the original of the letter. It was not produced. 3. Seth called evidence from a handwriting expert, a Ms Melanie Holt. She opined that the handwritten name "Alan" had been copied from another document, either a letter dated 25 March 2011 written by Dr Grant to his wife, or some third document that had not been submitted to her. The copy signatures on the letters of 25 March 2011 and 11 April 2016 were identical. The handwritten name "Alan" on the two letters was "superimposable". She said: "No two naturally written words of length will overlay each other to such an extent that, for all intents and purposes, they are identical. This is due to the fact that humans cannot write with machine-like repetition and two words of length naturally written by the same person will exhibit an observable degree of variation." Both documents were a second-generation copy. Ms Holt said that the only explanation for the degree of superimposition was that at least one of the handwritten entries was the product of a cut and paste manipulation. She noted that Dr Grant's writing ability had deteriorated between July 2014 and October 2017 and opined that the handwritten name was more consistent with a date of circa 2011 than 2016. 1. Ms Holt's conclusion was: "The handwritten name on item 6 (the typed letter commencing 'Dear Nerez' dated 10 April 2016) is not natural writing; rather it has been copied from another document. The source from which the handwritten name 'Alan' on item 6 derives [was] either item 5, the original of item 5 (or another copy of it) or some third document not present in the submission." Item 5 was the handwritten letter dated 25 March 2011 addressed to Mrs Grant. 1. Ms Holt was unshaken in cross-examination. She said the chance of separate signatures being completely superimposable would be remote. It was put to her in cross-examination by Kashaya that there was a possibility that Dr Grant could have written and signed all of the documents with which Ms Holt was provided. (She also expressed opinions on other documents including withdrawal slips purportedly signed by Dr Grant). Ms Holt said depending upon the document in question there is a variance between an "I don't know" kind of possibility and a possibility that was incredibly slim. It is clear from her report that the signature on the letter of 11 April 2016 came in the latter category. That is, the possibility that the letter was signed by Dr Grant was incredibly slim. 2. Nerez and Kashaya called no handwriting evidence to contradict Ms Holt's opinion. 3. The primary judge did not err in accepting Ms Holt's evidence. He accepted Seth's submission that the document had been fabricated by photocopying Dr Grant's signature from another document. (J [334], [338]). 4. The only ground of appeal apparently addressed to the declaration and orders made by the primary judge in the Estate Recovery proceeding was ground 4. Ground 4 asserts a "failure by Judge below to take in account expert reports in evidence supporting the case for Nerez Grant and Kashaya Williams". 5. No such reports were identified in the appellants' submissions. The primary judge recorded ([337]) that no evidence to contradict Ms Holt's report or findings was tendered. 6. The primary judge found that Kashaya became registered as proprietor of the Killcare land by fraud. His Honour found: "[365] Kashaya's Liability. Kashaya was well aware that Nerez had fiduciary obligations to Dr Grant and that she was acting in breach of those fiduciary obligations to him. Kashaya was fully aware: that Nerez held a power of attorney from Dr Grant as that is how Nerez was able to operate accounts and authorise the taking of cash from those accounts for many years for Kashaya's benefit. She also knew the other matters that Nerez knew from her close contact with Nerez and from her agreement with Nerez to lease the property to her for life. She knew of Nerez's complete ascendancy over Dr Grant. Kashaya did not have any genuine or well-grounded belief that the power of attorney authorised gifts to her such as the transfer of the Killcare property, as she had never inspected the power of attorney or sought to enquire what it authorised. [366] Kashaya was quite conscious that there was every chance that Dr Grant would be very substantially disadvantaged by this transaction and she did none of the things that an honest person would do satisfy themselves that the transaction was not in breach of Nerez's fiduciary duties to Dr Grant. She was in a prime position to insist Dr Grant had legal advice before this transaction proceeded and to satisfy herself that the transaction was not as improvident from Dr Grant's perspective as it looked on the surface. But she did not do so. … [368] Kashaya had years of knowledge of the money that she had enjoyed from Dr Grant's accounts. Her failure to enquire about what Dr Grant would be left with is not the conduct of an honest and reasonable person. Rather it is a basis to find, as the Court does, that she already had knowledge of sufficient facts about the transfer of the Killcare property to her by Nerez as would indicate to an honest and reasonable person the likelihood that Nerez was herself engaged in a breach of fiduciary duty. [369] The transfer of the Killcare property was obviously improvident for Dr Grant. That obvious improvidence sharpens the inference that both Nerez and Kashaya were also acting dishonestly in effecting the transfer of the Killcare property. The transaction left him at the risk of being put out of comfortable nursing home accommodation because he could not fund the refundable accommodation deposit for the Montana Nursing Home nor meet his ongoing medical and accommodation expenses. The more obvious this is (and it was very obvious) the more that an honest person would enquire as to whether the property was being acquired in breach of a duty to Dr Grant. This would establish liability against Kashaya under the first limb of Barnes v Addy. [370] But the obviousness of the improvidence of the transaction also strengthens the more demanding inference under the second limb that Kashaya and Nerez were acting in concert for their mutual financial advantage when Nerez used the power of attorney to transfer the Killcare property to Kashaya. They must have known that this was a fraud on Dr Grant because they were taking his last asset and putting him in a helpless position. This was a mutually conceived dishonest and fraudulent scheme that they were both perpetrating on Dr Grant. Kashaya was an active participant in this scheme with full knowledge of its elements and of its disadvantage to Dr Grant." 1. Those findings were not challenged in the notice of appeal. The only submission made by Nerez (who appeared for herself and for her daughter) was that when she learned that Seth and Tansin visited Dr Grant in 2017 she moved him to another nursing home and then transferred the Killcare property to her daughter because her father wanted Kashaya to have the house and for her to live there. She submitted that: "He made it clear he did not want 'the enemy' (Tansin and Seth) to have anything after what they had done to him and Mum." 1. The primary judge rejected Nerez's evidence to that effect and there was no objective corroboration of it except the purported corroboration through the forged letter dated 11 April 2016. 2. In the Estate Recovery proceedings Dr Grant, through his tutor, also alleged that on 4 October 2017 Nerez, as attorney for Dr Grant, transferred from Dr Grant's bank accounts three sums of $200,000, $100,000 and $60,000. The last payment was made to Kashaya. The only one of those claims pursued at trial was the transfer of the sum of $100,000 that Nerez caused to be paid to herself. (Nerez stated that Kashaya repaid with interest the sum of $60,000 to the NSW Trustee and Guardian in March 2019.) 3. Nerez pleaded that she did not breach her fiduciary duty by transferring $100,000 from Dr Grant's account to her bank account because she held a promissory note from Dr Grant for $400,000. The promissory note is dated 10 July 2012. It states that in consideration of the care and maintenance provided to Dr Grant by Nerez, Dr Grant agreed to pay Nerez $400,000 from the proceeds of sale of any of his properties. 4. The primary judge did not accept that the transfer could be justified on the grounds of the promissory note. He observed that Dr Grant lived in various locations under the care of Nerez from 22 February 2011 until 4 October 2017. During that period approximately $4 million was paid into Dr Grant's estate from real estate sales ([343] and [346]). Withdrawals from Dr Grant's accounts over that period well exceeded the amount of the promissory note ([346]-[348]). In oral submissions in reply Nerez said that the numbers were incorrect but did not submit that the transfer of $100,000 on 4 October 2017 was money that could be traced as being the proceeds of sale of any of Dr Grant's properties. Nor did she submit that she had not transferred at least $400,000 from Dr Grant's accounts to herself or her daughter prior to the transfer on 4 October 2017. 5. The primary judge found ([344]) that: "The probable amount of withdrawals for this period (22 February 2011 until 4 October 2017) was well beyond anything that could possibly be related to Dr Grant's care and was so great that it depleted his estate to the point of placing him in penury." 1. That finding was not challenged. 2. Nerez did not contend and could not have contended that the transfer of $100,000 from her father's account to herself was for her father's benefit. 3. The primary judge was correct to find that the power of attorney did not authorise Nerez to transfer the sums of $100,000 and the amount of the stamp duty on the transfer of the Killcare property to Kashaya. 4. For the reasons above the primary judge was also correct in finding that the power of attorney did not authorise Nerez to transfer the Killcare property to Kashaya and was correct in finding that Kashaya became registered as proprietor of that property by fraud. 5. The appeal in the Estate Recovery proceedings should be dismissed. Family Provision proceedings 1. I have referred at [13] and [14] above to the primary judge's conclusions in relation to Nerez's claim for a family provision order. His Honour appropriately described in detail the conflicts in the family relationships of Dr Grant, Mrs Grant, Seth, Tansin and Nerez. Dr and Mrs Grant were married in 1953 ([2]). Nerez was their eldest child and Seth was the next eldest. They had three other children (Ryven, Miles and Tansin). The primary judge described Dr Grant and Mrs Grant as a gifted and cultivated couple. She was an accomplished musician. He was a radiologist. For the last years of their marriage (from 2011) they were separated until Mrs Grant's death in 2017. Nerez accused Seth and Tansin of being responsible for that separation. The primary judge found that Nerez was responsible for the separation because Mrs Grant was terrified of Nerez and Nerez had achieved an ascendency over Dr Grant. If, as the primary judge found, Nerez was responsible for her parents' separation and behaved towards Mrs Grant in the way the primary judge found, then his Honour was correct in finding that Nerez is not entitled to an order for provision from Mrs Grant's estate. 2. The primary judge's conclusion that Nerez was not entitled to provision out of Mrs Grant's estate because of her ill treatment of her parents over a long period and his finding that Nerez had already received very substantial benefits from Mrs Grant throughout her lifetime were underpinned by a multitude of findings of particular facts. 3. The findings included that Mrs Grant told Seth in 1975 or 1976 that she had to hide her personal jewellery from Nerez and was very upset that some of her own mother's jewellery had been stolen by Nerez. The primary judge accepted that Nerez was regularly stealing from her parents by this time ([66]). 4. The primary judge found that when Nerez worked as a secretarial assistant in Dr Grant's radiology practice at Gosford between 1977 and 1979 she stole petty cash and the silver residues left over from the processing of x-rays at the practice ([67]) and that she took further money from Dr Grant's medical practice when it expanded to branches in Wyong and Toukley. 5. Seth gave evidence which the primary judge accepted that Dr Grant said to him in front of Mrs Grant that Nerez had stolen money from the medical practice and sold silver residues. Seth deposed that his mother told him that Nerez had taken money to support her drug addiction and illegal activities and the amount taken amounted to $600,000. 6. The evidence of these statements by Mrs Grant was hearsay. It was not inadmissible on that account (Succession Act 2006 (NSW), s 100(2)). The evidence was not objected to and no limitation on its use was sought. 7. Seth, Tansin and their brother Ryven gave first-hand accounts of Nerez harassing her parents for money and abusing her parents. Both Dr Grant and Mrs Grant told Seth that they were upset with Nerez's drug addiction and said that her typical routine was to come to their house very early in the morning when she knew they would be at home and verbally attack and harass them. Mrs Grant said that Nerez would shout and scream and verbally abuse both her parents using vile language. It is not necessary to set out the detail of the evidence of Nerez's abuse of her parents which the primary judge accepted. His Honour accepted Seth's evidence that Mrs Grant told Seth that she was paralysed with fear and was disgusted with Nerez's behaviour in selling drugs. Seth, whose evidence was accepted by the primary judge, gave evidence of Nerez storing US$70,000 in cash in his apartment when he was living in New York (without his knowledge at the time) which she said was the proceeds of drug dealings ([77]-[78]). 8. After Kashaya was born and Nerez's partner had been sent to prison for drug related offences Dr and Mrs Grant purchased a property for Nerez in Maitland Bay, a short distance from their house in Killcare ([80]). The primary judge found that they also covered Nerez's living expenses and paid for her use of a motor vehicle ([80]). 9. Ryven described his mother's fear of and abuse by Nerez. Ryven, Seth and Tansin accused Nerez of causing their parents' separation. The primary judge accepted their evidence about this. 10. The primary judge found that by purchasing a property for Nerez in Maitland Bay Dr Grant and Mrs Grant were able to play an active and satisfying role in their granddaughter's life ([82]). His Honour said that this meant that they came into continuous contact with Nerez in all her different moods. 11. The primary judge found that on one occasion Nerez attacked her father with the buckle end of a dog leash after Dr and Mrs Grant had taken Kashaya for a haircut which Nerez thought was far too short. There was no doubt that the blows with the dog leash were struck. There was photographic evidence to that effect and Nerez did not deny it. She said that the blows were made in self-defence, a claim that the primary judge rejected ([83]-[86]). 12. The primary judge found that this incident made Dr and Mrs Grant wary of ever provoking Nerez. The primary accepted Ryven's evidence that this and other incidents ultimately resulted in Dr and Mrs Grant being always on edge when Nerez came around ([88]). 13. Nerez sold the house in Maitland Bay when Kashaya was ready to go to school and kept the proceeds ([97]). Up to 1995 Dr and Mrs Grant lived in the house in Killcare. In 1995 after Dr Grant had retired from private practice he and Mrs Grant purchased a property in McMahons Point in Sydney and lived there together until 2011. They continued to use the Killcare property from time to time ([100]). 14. The primary judge accepted the evidence of Mr Benjamin Isaac that Mrs Grant told him that Nerez was giving her a hard time, was intimidating her and demanding money to finance her excessive habits ([101]). 15. The primary judge found: "[108] By about 2008, a clear pattern was emerging in Nerez's constant requests for money from her parents. She had divined that Dr Grant was far more amenable to these requests than Mrs Grant. Why this was so is unclear. Perhaps it was his advancing age. Perhaps it was fear of losing contact with Kashaya with whom he was very close: loss of contact with her being a threat Nerez had used in the past. Perhaps it was related to the violence that Nerez displayed towards him. Perhaps it was because he felt particularly sensitive about ensuring Kashaya was not disadvantaged because of her upbringing with Nerez. [109] Whatever it was, the precise reason is difficult to discern. But the Court infers that all of these factors were in play. But a ready willingness to give money to Nerez and Kashaya became a marked weakness in Dr Grant. And Nerez was ever-alert to her parents' weaknesses and ever-ready to make use of them to her advantage. And she did. [110] Many of the witnesses the Court accepts attest to a regular pattern of conduct in which Nerez (later accompanied by Kashaya) would come to the McMahons point property, take Dr Grant aside into his study, lock the study door, and have Dr Grant sign cheques in their favour. Nerez (and later with Kashaya) would also take Dr Grant to ATMs to withdraw money and use his credit cards. This pattern was clearly established by 2008 – 2009. [111] This pattern of conduct forcibly excluded Mrs Grant from Dr Grant's financial decision-making and financial confidences. Mrs Grant was consulted less and less on her husband's financial decisions. Naturally this caused Mrs Grant anxiety, disappointment and frustration with her husband. She complained to him. [112] And she had good cause. Dr Grant was giving his credit cards to Nerez and Kashaya to use even when he was not present. This upset Mrs Grant and added to the friction between the couple. She complained to Seth and Tansin the Dr Grant was "being coerced and manipulated" by Nerez and Kashaya. Not surprisingly, this aggravated Dr Grant, who started to display uncharacteristic rudeness to his wife. Tansin recalls Mrs Grant saying to her that, when she questioned Dr Grant about how much money he was giving to Kashaya, Dr Grant told her in the presence of Kashaya that she should "shut up". [113] The result of these targeted requests for money was that Dr Grant was funding a significant portion of both Nerez and Kashaya's lifestyles. The credit card statements from this period show that payments being made on Dr Grant's account ranged from baby supplies, and car insurance payments, to large cash payments, an Audi Q5, and house renovations for Kashaya's McMasters Beach property. [114] All of this perplexed Mrs Grant. She felt that Dr Grant was slipping away from her. She repeatedly confided in Seth at this time, "Nerez is taking over and I don't know how to keep her away." That neatly encapsulated the problem. Mrs Grant was powerless to constrain Nerez's influence over Dr Grant, which Nerez was using to her financial advantage." 1. These findings are not challenged. 2. The primary judge recorded that in mid 2008 there was a physical altercation between Tansin and Nerez which resulted in the police being called. The primary judge noted that each woman accused the other of attacking her. His Honour said that it was difficult to resolve the contest about what happened but said that from what his Honour had seen of both Nerez and Tansin, aggression on Nerez's part was far more likely ([116]). 3. The significance of this event is that Nerez submits that the primary judge ought to have found the documentary evidence proved that allegations made by Seth and Tansin were untrue (appeal ground 1). Seth deposed having been told by his parents in 2009 that Tansin had visited their home in McMahons Point when Nerez unexpectedly arrived and flew into a rage when she found Tansin there and tried to strangle her and gouge her eyes out. He deposed that "I believe Tansin reported this to the police and obtained an AVO to protect herself from Nerez". 4. Tansin deposed that "On one occasion in my parents' house, Nerez assaulted me by gauging (sic) my left eye, leaving nail marks around my eye. My parents were appalled by Nerez's conduct". 5. Nerez submitted that the primary judge ought to have found that this evidence was perjured. The basis for this assertion was that Nerez deposed that: "The AVO in 2008 was on our sister Tansin Leckie for assaulting me. Seth's claim the AVO was on me is perjury. A true copy of the police report is annexed hereto and marked 'A'." 1. The police report identified Tansin as the Person of Interest for assaulting Nerez. The police report was evidently based upon the accounts provided to the police by Nerez. The report notes that the defendant (Tansin) was yet to be interviewed. 2. The police report is not determinative of who attacked whom. The primary judge made no finding about that issue. Nerez's submission that the police report shows that Seth and Tansin perjured themselves and the primary judge ought to have so found has no foundation. 3. In about late March 2019 Nerez sent anonymous letters to Seth, Tansin and other witnesses who had made affidavits in the Family Provision proceedings warning that perjury is a very serious offence and stating that "…if you have to face a NSW court soon, either answering to charges or as a witness, being honest in court is really the best thing to do because being caught out lying could end up landing you in a lot of trouble". No doubt the sentiment is true. But the sending of the letters was clearly an intimidatory act. 4. Nerez sought to justify the act as follows: "Seth Grant and Tansin Leckie both stated in their affidavits that an AVO had been placed on me by police in 2008 for attacking Tansin at the home of my parents. Seth Grant confirmed that at the hearing under cross examination. I had obtained from NSW Police a record of that AVO and it was not on me. I provided it in evidence. The Police AVO was on Tansin for attacking me. I know just about nothing about the Law, but I do know you are not supposed to go to Court and give untruthful evidence. I know perjury is Section 43 of the Crimes Act. I considered that Seth and Tansin should be charged for perjury. I certainly did not expect the Judge below to consider them honest and believe them. The Judge below should not have." 1. The sending of the letters was intimidatory conduct that supports the primary judge's findings as to Nerez's character. 2. The primary judge accepted the evidence of Ms Sally Saxby who provided domestic help for Dr and Mrs Grant from 1998 to 2010 that Mrs Grant told her that she felt bullied and left out of the family business, that Nerez and Kashaya locked themselves away with Dr Grant who continuously wrote cheques for them and that Mrs Grant was nervous when they were around the house. She recalled Nerez being aggressive to her mother (Mrs Grant) but Mrs Grant having excellent relations with Tansin and Seth ([118]-[122]). 3. Mrs Grant made a will on 20 May 2010 in which she made provision for Nerez but a smaller provision than was made for the other children. In her will Mrs Grant declared that the reason for giving Nerez a lesser share of her estate was because of advances already made by her and/or her husband to Nerez during their lifetime out of their matrimonial assets and income ([126]). 4. The primary judge found that by the second half of 2010 Mrs Grant was complaining regularly to Tansin about Nerez's demands for cash and about the amount of money Dr Grant was giving her ([131]). Dr Grant's gifts to Nerez were a source of friction between him and Mrs Grant. The primary judge accepted Seth's evidence that Mrs Grant told him that Nerez was being increasingly abusive to her and that she was concerned that Dr Grant was vulnerable and could not defend or protect her from Nerez ([134]). His Honour found that this pressure had physical consequences for Mrs Grant who suffered a number of collapses ([135]). 5. The primary judge found that Dr Grant had to sell capital assets to fund his regular gifts to Nerez and Kashaya ([138]). This finding is not challenged. Land owned by Dr and Mrs Grant near Maitland was sold in 2010. 6. The primary judge described an incident in January 2011 when Dr Grant and Mrs Grant were living at the Killcare property and Nerez was also present. His Honour accepted Ryven's evidence of Nerez abusing Mrs Grant (then aged 81) in the foulest terms ([148]). 7. Seth, who lived in England, returned to Australia on 31 January 2011. Kashaya had driven Dr and Mrs Grant back to their McMahons Point property from the Killcare property. The primary judge accepted Seth's evidence that Mrs Grant broke down in tears and said that Nerez shouted and screamed at her and threatened her with physical violence and threatened to kill her as well as making her and Dr Grant change their wills. ([155]). 8. On 2 February 2011 Mrs Grant obtained an Apprehended Violence Order against Nerez ([159]). The primary judge accepted the evidence of Mr Warwick Miller (Tansin's partner) that Mrs Grant told him that she had no choice but to seek an AVO because she feared for her life ([160]). 9. On the same day Mrs Grant moved out of the McMahons Point property where she lived with her husband to move in with Tansin and Warwick Miller who lived in Kirribilli. 10. Nerez submits that Seth removed Mrs Grant to Kirribilli on the false pretext that the McMahons Point property was too hot for her and that Dr Grant was concerned that Seth might coerce money from her. 11. The primary judge said that Nerez consistently characterised Mrs Grant's move to the Kirribilli property as a kidnapping by Seth and Tansin against Mrs Grant's will. The primary judge rejected that characterisation of the events. His Honour found that Mrs Grant left Dr Grant in order to get away from Nerez ([163], [164]). 12. On 7 February 2011 Mrs Grant left Sydney and travelled with Seth to the United Kingdom to visit his family ([181]). Nerez was aware of the plan. Seth's wife, Marguerite, deposed that on 8 February 2011 Nerez phoned her house in the United Kingdom and threatened her children saying "I will slice your children into pieces". Nerez denied making that threat, but the primary judge accepted Marguerite's evidence ([170]). 13. When Mrs Grant was in the United Kingdom she made a statement before a notary public. The statement is dated 21 February 2011. Mrs Grant said that she was extremely fearful for her safety and sought protection from Nerez. She said "I left my home two weeks ago and went to England with my son. I was scared of Nerez and what she might do to me. I seek police protection so that I can return to my home." She said that Nerez had taken a considerable amount of money and possessions from her over many years and was increasingly abusive to her. She said: "7. Nerez threatens, intimidates, bullies and harasses me. She screams at me demanding money. She continuously swears and this is so loud it can be heard on the street. She shouts at me using the F and C word along with every other expletive. To stop her screaming l give her money. I am afraid to upset or argue with her because she is physically intimidating and has an explosive anger. I just have to go along with anything she says. She does the same to my husband." 1. In the statement Mrs Grant also said: "9. Nerez has effectively moved in and taken over my home in Sydney (16 Queens Avenue, McMahons Point). Nerez comes in at any time of the day without asking, including very early in the morning. Nerez also phones very early in the morning (sometimes at 5 am) or just shows up. She comes into the house and starts shouting. She shouts at me about money as well as other matters. For example, she shouts and derides me if I am slow to leave the house, or if I am being indecisive, and even when I am doing gardening. I cannot have anybody over to the house including my friends because Nerez might come around. 10. Nerez is trying to manipulate my life and l am very concerned that she interferes with my medical records and treatments. Nerez insists on escorting me to the local doctor and when she is there she comes into the consultations, talks to the doctor and discusses in detail my medical conditions. l don't want her to know about my medical conditions or take me to the doctor but I can't stop her, I have never told the doctors the truth about Nerez. … 12. Nerez is always trying to get money out of my husband and me. I am concerned that she knows too much about our finances. When she is in the house she goes through our financial records and my purse. She takes money from my purse. We have reason to believe that she has withdrawn monies from. our bank accounts/credit cards without our consent. 13. I have a fear for my life and have told family, friends and acquaintances that I am concerned Nerez could murder me. When I hear a sound outside the house I am scared that it is Nerez coming into the house and I am scared that she might harm me. 14. I am genuinely afraid for my safety and call upon the law to help provide me the protection that I need to allow me to return to my home and live there and venture out without fear of Nerez. I cannot return to Australia until I am afforded some protection from Nerez. My daughter Tamsin is my legal guardian and also holds Power of Attorney for me. She too has fears for my safety when Nerez comes to my house. Nerez has also threatened and intimidated my other children and their families." 1. Nerez said of this statement that it was a document that was obviously written by Seth and was an absolute fabrication. But the primary judge accepted Seth as a witness of truth and rejected Nerez's evidence. 2. The day after Mrs Grant left for the United Kingdom Nerez and Kashaya moved Dr Grant out of the McMahons Point home to live with Nerez ([182]). The primary judge found that a week later Mrs Grant authorised Tansin to change the locks and remove some of her valuable possession from the McMahons Point property. The primary judge rejected Nerez's submission that Seth and Tansin, with Mr Miller's help, conspired to separate their parents for their own gain. His Honour found that Seth, Tansin and Mr Miller played a part in protecting Mrs Grant from Nerez that resulted in the separation of Dr and Mrs Grant ([185]). 3. The primary judge quoted a letter Mrs Grant sent to her solicitor on 9 April 2011 explaining why she had downgraded Nerez and Kashaya in her testamentary intentions ([197]). Mrs Grant wrote: "1. They have each received very large sums of money from me during my lifetime. 2. Nerez has taken and not repaid hundreds of thousands of dollars. She has also accessed my bank accounts without my permission and removed funds. 3. Kashaya has had her entire private school education paid and additional costs and fees. She has had substantial financial assistance for renovations of her personal home at McMasters Beach. She has also had private medical expenses covered and a very expensive wedding covered by me. 4. Nerez and Kashaya have received substantial sums of money in cash and purchases of goods including many appliances, cars and car expenses, clothing and food. 5. They have also benefitted from rent-free accommodation for extended periods. Nerez has caused me enormous grief and anxiety since her adolescent years with her behaviour and drug taking. She has also been a drug dealer and supplier. Her behaviour has been aggressive and abusive to me and my husband and my other children. This had lead (sic) to police action in the form of complaints and anti-violence orders taken out against her. She continues to seek out my money wherever possible and has used my credit cards and cheque books without my permission. She has also tried to instigate the sale of my various properties without asking me. She threatens and intimidates me and has made my life a misery. She has been a great embarrassment to me and my entire family. Her behaviour humiliates me and is a source of constant distress. …" 1. The primary judge accepted both that these were Mrs Grant's genuine thoughts and that the facts stated were true ([198]). Mrs Grant's assessment of Nerez's conduct and claim on her testamentary bounty has considerable weight. 2. Mrs Grant returned to Australia on 20 April 2011. On 21 April 2011 Nerez consented to the AVO against her ([199]). The primary judge did not accept Nerez's evidence that she only consented to the AVO to save her mother from cross-examination and found that Nerez's conduct towards her mother justified the grant of the AVO ([199]-[200]). 3. The primary judge described an incident on 4 October 2011 when Nerez confronted her mother at the Kirribilli house when Tansin and Warwick Miller were away but Mrs Grant was attended by her carer, Ms Caroline Nolan. Ms Nolan described Nerez as screaming at Mrs Grant and waving her arms at her and shouting right in her face. She believed that if she were not present, Nerez would have taken Mrs Grant away. The primary judge accepted Ms Nolan's evidence in preference to Nerez's account. 4. The next day Kashaya brought Dr Grant to the Kirribilli property and Mrs Grant agreed to spend a night in a hotel with Dr Grant. The primary judge accepted Ms Nolan's evidence that Mrs Grant was physically shaking and was shocked by the visit and said to Ms Nolan "I can't go outside anymore, they will take me away". The primary judge accepted the evidence of another witness, Ms Jill Shaw, that Mrs Grant told her that she lived in constant fear of being kidnapped by Nerez and Kashaya ([210]). 5. From this time, Dr and Mrs Grant were separated. Tansin and Seth kept Mrs Grant away from Nerez because they feared for Mrs Grant's safety and security ([224]). Nerez kept Dr Grant away from Seth and Tansin by keeping his location secret until July 2017 ([231], [233], [234], [239]). 6. The primary judge's findings as to Nerez's conduct towards her parents amply justifies his Honour's conclusion that Nerez's conduct disentitled her to any claim on her mother's estate. Nerez made no submission to the contrary. Rather, Nerez submitted that the primary judge was wrong in making his findings about her conduct. 7. But the primary judge's findings were not contrary to any incontrovertible facts, or indeed, to any objective evidence. To the contrary, his Honour's findings were in accordance not only with the evidence of family members, but with that of independent witnesses (Ms Nolan, Ms Saxby, Ms Shaw and Mr Isaacs). The objective evidence of Nerez's having forged the letter she deployed in the Estate Recovery proceedings and of having sent intimidating letters to those who had sworn affidavits contrary to her interests in the Family Provision proceedings, were powerful objective reasons for rejecting her credit. 8. The evidence of Ryven and the other witnesses referred to above corroborated Mrs Grant's complaints and Seth's and Tansin's evidence. The primary judge's finding ([109]-[111]) that Nerez and Kashaya exploited Dr Grant is corroborated by the fact that notwithstanding Dr Grant received millions of dollars from the sale of jointly held property he was left destitute. 9. Grounds 1 and 2 of Nerez's notice of appeal were: 1. Failure by judge below to take into account documentary evidence that proved allegations of Seth Grant and Tansin Leckie were untrue. 2. Judge below erred in fact by believing fabricated and uncorroborated evidence of Seth Grant and Tansin Leckie and their witnesses in their affidavits when proved under cross-examination they were not being truthful. 1. As to ground 1, the only documentary evidence relied upon by Nerez that she asserted proved that the allegations of Seth and Tansin were untrue was in relation to the altercation between Nerez and Tansin referred to at para [64] above which does not prove that the evidence given by Seth and Tansin about that matter were untrue (for the reasons at [68]-[69] above), and in any event, would not discredit the whole of their evidence. 2. When asked to identify where under cross-examination it was proved that the evidence of Seth or Tansin was not truthful, Nerez submitted that Seth had claimed that she had received $600,000 from her parents for university whereas she had said that she was at university on a teacher's scholarship and in those days universities were free. 3. Seth did not claim that Nerez got $600,000 from her parents for university. He said that Mrs Grant told him that Nerez had destroyed the Toukley practice by taking all the money when she worked there and that the money Nerez took amounted to $600,000. Nerez pointed to no evidence that disproved Seth's evidence that that is what his mother told him. 4. Ground 3 of the notice of appeal was that the primary judge erred by failing to allow Nerez and Kashaya to examine each other in chief orally. This was a claim of denial of procedural fairness. No submissions were made in support of this ground. The parties' evidence in chief was given by affidavit in accordance with directions for the service of evidence in chief. The primary judge permitted Nerez and Kashaya to supplement their affidavits by serving additional evidence in writing during the course of the trial. There was no denial of procedural fairness. 5. Ground 4 of the notice of appeal concerned the Estate Recovery proceedings and is dealt with at paras [34]-[35] above. 6. Ground 5 is that the primary judge failed to take into account that Dr Grant was suffering severe dementia. Nerez's claim for a family provision order was denied on the grounds of her treatment of her parents and the benefits she received in her lifetime. Dr Grant's capacity is not relevant to those grounds. 7. Grounds 6, 7, 9 and 13 were that the primary judge failed to take into account that Mrs Grant signed five wills and a codicil when under undue influence of those who benefited from those wills; that his Honour failed to take into account an alleged breach of fiduciary duty by Seth and Tansin and their removal of $2,500,000 for their own benefit from Mrs Grant's accounts before her death; that he failed to take into account that Tansin did not produce documents as ordered by the court which would have shown that Tansin removed large amounts of Mrs Grant's money; and that he failed to take into account letters from Dr Grant's solicitor to Mrs Grant's solicitor questioning Mrs Grant's capacity to give instructions to her solicitor. 8. Again, these grounds are irrelevant to the bases upon which Nerez was denied a family provision order. There was no issue at the hearing as to the validity of Ms Grant's final will (Ground 6), nor as to her capacity to give instructions to her solicitor (Ground 13). Although Nerez claimed that Seth and Tansin had wrongly depleted their mother's estate during her lifetime, this contention is relevant only if the primary judge's findings, on the basis of which Nerez was found not to be entitled to an order for provision, were set aside. Nerez's conduct, as found by the primary judge, disentitles her to a claim for a family provision order regardless of the size of Mrs Grant's estate. 9. Ground 8 was that the primary judge appeared to show undue favouritism to Seth and Tansin and their witnesses and assisted them in providing answers in cross-examination. 10. No submission was made in support of this ground, which is unparticularised. On my review of the transcript there is no basis for the assertion. I have not found any instance of the primary judge's assisting the witnesses to answer questions, as distinct from stating his Honour's understanding of the evidence given where the cross-examination assumed that a concession had been made when it had not. 11. Ground 10 was that the primary judge failed to take into account actions of Seth and Tansin in allegedly separating Dr and Mrs Grant and preventing their being together. Ground 11 is that the primary judge failed to take into account evidence that Nerez and Kashaya and Dr Grant tried on many occasions to contact Mrs Grant and were prevented from doing so from Seth and Tansin. Ground 15 was that the primary judge did not take into account that Mrs Grant and later Dr Grant were isolated and prevented from seeing friends and family by Seth and Tansin. 12. These grounds are misconceived. The primary judge dealt at length with who was responsible for the separation of Dr and Mrs Grant and concluded that Nerez and not Seth and Tansin was responsible for their separation. 13. Ground 12 was that the primary judge failed to take into account numerous letters in evidence from Dr Grant to Mrs Grant after their forced separation. Ground 14 was that the primary judge failed to take into account a letter from Mrs Grant's solicitor stating knowledge of where Dr Grant was residing and that Seth and Tansin had full knowledge of his whereabouts contrary to Seth's evidence in cross-examination. 14. No submissions were made about the letters referred to in these grounds. Nerez does not suggest that the letters may have provided an excuse for her treatment of her parents as found by the primary judge. 15. For these reasons, I would not uphold any of the grounds of appeal. 16. The appeal should be dismissed with costs. 17. The notice of intention to appeal and the notice of appeal named both Nerez and Kashaya as appellants but were signed only by Nerez. Kashaya did not attend the directions hearings before the registrar but notice of the orders made for preparation of the appeal for hearing and of the listing of the hearing were sent to her by email to the email address provided in the notice of intention to appeal. Kashaya did not appear at the hearing of the appeal. Nerez informed the court that Kashaya had asked Nerez to represent her. The presiding judge asked Nerez if she could obtain a document from Kashaya to be sent to his Honour's associate confirming that she wished Nerez to represent her so that leave could be given to Nerez to do so. No such document has been received. 18. I have assumed that Kashaya did authorise Nerez to file the notice of appeal and to represent her on the hearing of the appeal. 19. A single notice of appeal was filed that related to both proceedings. On the assumption that Kashaya authorised Nerez to file the appeal for her, or acquiesced in Nerez's doing so and representing her, Kashaya as well as Nerez is liable for the respondents' costs of the appeal so far as they relate to the Estate Recovery proceedings. Kashaya is not liable for the costs of the appeal so far as they relate to the family provision proceedings. 20. A copy of this judgment will be sent to Kashaya to the email address stated in the notice of intention to appeal and in her defence, and to her address given in the proceedings below. If Kashaya contends that Nerez did not have authority to institute the appeal on her behalf and that she did not acquiesce in Nerez's doing so and representing her, then Kashaya can apply within 14 days to set aside the costs order (Uniform Civil Procedure Rules, r 36.16(3A)). 21. On 14 December 2020 Macfarlan JA ordered a conditional stay of the orders made in the Equity Division on 24 September 2020. This court was informed that the conditions of the stay had been satisfied. The stay was not expressed to be made until the determination of the appeal. The stay should be discharged. 22. Accordingly I propose the following orders: 1. Appeal dismissed. 2. The first and second appellants pay the respondents' costs of the appeal from the declarations and orders made in proceedings 2017/316190 (the estate recovery proceedings). 3. The first appellant pay the respondents' costs of the appeal from the orders made in proceedings 2018/139174 (the family provision proceedings). 4. Discharge the stay granted on 14 December 2020 of the orders made in the Equity Division on 24 September 2020. 5. Direct that any application by the respondents for any consequential orders be made to the primary judge, or such other judge as the Chief Judge in Equity may direct. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2021