New South Wales Supreme Court CITATION : Varma v Varma [2010] NSWSC 786 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 15-19, 22-26, 29-31 March, 1, 6, 9, 12-14 April 2010 JUDGMENT DATE : 16 July 2010 JURISDICTION : Equity JUDGMENT OF : Ward J DECISION : Plaintiff's claim dismissed CATCHWORDS : EQUITY - CONTRACT - PROMISSORY ESTOPPEL - alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff - before death of father-in-law two-thirds of shares were transferred to defendants - plaintiff claims that defendants held shares on constructive trust for plaintiff - principles requiring caution when relying on uncorroborated representations made by deceased person - HELD - plaintiff has failed to establish that a promise or representation was made that whole of company would be hers - no enforceable contract between father-in-law and plaintiff - defendants did not induce breach of contract - no express trust created in plaintiff's favour - no promissory estoppel - CONSTRUCTIVE TRUSTS - consideration of nature of constructive trust and when it can be said to arise - UNDUE INFLUENCE - circumstances of relationship between father-in-law and defendants would have raised presumption of undue influence which was not rebutted on facts of case - relief not granted on basis of undue influence as no claim based on this ground was relied upon by plaintiff - undue influence was only relied upon to resist defence to claim for specific performance Evidence Act 1995 (NSW) LEGISLATION CITED : Limitations Act NSW 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Adamson v Ede [2009] NSWCA 379 Allcard v Skinner (1887) 36 Ch D 145; [1886-90] All ER Rep 90 AN v Barclays Private Bank & Trust (Cayman) Ltd [2007] WTLR 565 Angaston & District Hospital v Thamm (1987) 47 SASR 177 Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 Austin v Keele (1987) 72 ALR 579 Australian Crime Commission v Gray [2003] NSWCA 318 Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81-655; (2002) 114 IR 165; [2002] FCA 528 Australian Building & Technical Solutions Pty Limited v Boumelhem; Boral Australia Limited v Boumelhem; Boumelhem v Jones & Ors [2009] NSWSC 460 Baden Delvaux & Lecuit v Societe Generale pour Favoriser le Development du Commerce [1992] 4 All ER 161; [1993] 1 WLR 509 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23 Barnes v Addy (1874) LR 9 Ch App 244 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 Birmingham v Renfrew (1937) 57 CLR 666; [1937] ALR 520; (1937) 11 ALJR 188 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Chalmers v Pardoe [1963] 1 WLR 677 PC Ciavarella v Polimeni [2008] NSWSC 234 Clune v Collins Angus & Robertson Publishers Pty Limited (1992) 25 IPR 246 Comet Products (UK) Ltd v Hawkes Plastics Ltd [1971] 2 QB 67 Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Consul Development Pty Ltd v DPC Estates Pty Lt [1975] HCA 8; (1975) 132 CLR 373 Cooke v Turner (1846) 15 M & W 727; (1846) 153 ER 1044 Crabb v Arun DC [1975] 3 All ER 865, [1976] Ch 179, [1975] 3 WLR 847 Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; (2004) 233 LSJS 276; [2004] SASC 102 Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545 Dering v Earl if Winchelsea (1787) 1 Cox 318 Disctronics Ltd v Edmonds [2002] VSC 454 Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Evanturel v Evanturel (1874) LR 6 PC 1 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Fightvision Pty Ltd v Onisforou & Ors; Tszyu v Fightvision Pty Ltd & Ors [1999] NSWCA 323; (1999) 47 NSWLR 473 Flinn v Flinn [1999] 3 VR 712 Galaxidis v Galaxidis [2004] NSWCA 111 Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383 Gibson Chemicals Ltd v SA Sopura NV [1999] VSC 203 Gillett v Holt [2000] EWCA 45; [2001] Ch 210; [2000] 2 All ER 289; [2000] 3 WLR 815 Gillett v Holt [2001] 1 Ch 210 Gissing v Gissing [1971] AC 886 Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 Grant v Edwards [1986] Ch 638 Greig v Insole [1978] 1 WLR 302 Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641 Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298 Henderson v Miles (No 2) [2005] NSWSC 867 Hewitt v Gardner [2009] NSWSC 705 Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Holdings Pty Ltd & Anor v Leroy & Anor [2004] NSWCA 72 Holt v Protective Commissioner (1993) 31 NSWLR 227 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157; (2001) ATPR 41-831; (2001) Aust Contract R 90-133; [2001] FCA 1040 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-240 Huguenin v Basely (1807) 14 Ves Jun Supp 273 J T Stratford & Son Ltd v Lindley [1965] AC 269 Jennings v Rice [2003] 1 P & CR 100 CASES CITED : Johnson v Buttress (1936) 56 CLR 113 Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581 Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276 Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 166 Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082 Leiberman v Morris (1944) 69 CLR 69 Legione v Hately (1983) 152 CLR 406 Lewis v Lewis & Anor [2001] NSWSC 321 Loughran v Loughran (1934) 292 US 216 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Meyers v Casey (1913) 17 CLR 90 Morris v Burroughs (1737) 1 Atk 399 Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 Muschinski v Dodds [1985] HCA 78; (1984) 160 CLR 583 Napier v Hunter [1993] AC 713 Northern Territory of Australia v Mengel (1995) 185 CLR 307 Orr v Ford (1988) 167 CLR 316 Parianos v Melluish (1999) 93 FCR 191; (1999) 164 ALR 229; [1999] FCA 684 Parsons v McBain (2001) 109 FCR 120; (2001) 192 ALR 772; [2001] FCA 376 Pilcher v Rawlins (1872) 7 Ch App 259 Piras v Egan [2008] NSWCA 59 Plimmer v Mayor, &c, of Wellington (1884) 9 App Cas 699 Plunkett v Bull (1915) 19 CLR 544 Ramage v Waclaw (1988) 12 NSWLR 84 Ramsden v Dyson (1866) LR 1 HL 129 Reeves v Pope [1914] 2 KB 284 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Re Diplock [1947] Ch 716 Re Diplock; Diplock v Wintle [1948] Ch 465 Re Hodgson (1886) 31 Ch D 177 Re Jonton Pty Limited [1992] 2 Qd R 105 Re Quartz Hill; Ex parte Young (1882) 21 Ch 642 Re Sabri; Ex parte Brien v Sabri (1996) 137 FLR 165 Re Sharpe (a Bankrupt); Ex parte Trustee of Bankrupt's Property v Bankrupt [1980] 1 WLR 219; [1980] 1 All ER 190 Risk v Northern Territory [2006] FCA 404 Sang Lee Investment Co Ltd v Wing Kwai Investment Co Ltd (183) 127 Sol Jo 410; [1983] HKLR 197 Scallan v Scallan [2001] NSWSC 1129 Secretary, Department of Social Security v Agnew (2000) 96 FCR 357 Shah v Perpetual Trustee Company (1981) 7 FLR 97 Simpson-Cook v Delaforce [2009] NSWSC 357 Smith v Smith (1986) 161 CLR 217 Soulos v Korkontzilas [1997] 2 SCR 217 Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 54 ATR 241; [2003] FCA 1025 Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536 Sullivan v Sullivan [2006] NSWCA 312 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Taylor v Dickens [1998] 3 FCR(UK) 445; [1998] 1 Fam Law R 806 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 The Will of Gaynor [1960] VR 640 Thorner v Major [2009] UKHL 18; [2009] 3 All ER 945; [2009] 1 WLR 776 Victoria University of Technology v Wilson [2004] VSC 33 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Walton v Walton (1994, Cout of Appeal, Civ Div, unreported) Watson v Foxman (1995) NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540 White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379 Wood v Mackinson (1840) 2 Moody & Robinson 273; 174 ER 286 Woolworths Limited v Kelly (1991) 22 NSWLR 189 A J Oakley Constructive Trusts 3rd ed, Sweet & Maxwell, 1997 Halsbury's Laws of Australia, online edition, Butterworths Hanbury, Modern Equity 6th ed, Stevens & sons, 1952 Heydon & Leeming, Jacob's Law of Trusts in Australia, Butterworths, 2006, Ch 5 TEXTS CITED : Heydon D., Cross on Evidence, 7th Australian ed, Butterworths, 2004 Mason A, 'The Impact of Equitable Doctrine on the Law of Contract' (1998) 27 Anglo-American Law Review 1, Meagher Gummow & Lehane, Equity Doctrine and Remedies, 4th ed, Butterworths, 2002 Oakley, "The Precise Effect of the Imposition of a Constructive Trust", in Goldstein (ed), Equity and Contemporary Legal Developments, (1992) Wigmore on Evidence, J H Chadbourn (ed) Little, Brown & Co, 1978, Vol VII Young, Croft and Smith, On Equity, Lawbook Co, 2009 Parveen Varma (Plaintiff) Gautam Varma (First Defendant) PARTIES : Arjun Varma (Second Defendant) Taj Food Sales Pty Ltd (Third Defendant) The Estate of the Late Sah Dev Varma (Fourth Defendant) FILE NUMBER(S) : SC 2009/289939 COUNSEL : B W Rayment QC with W Washington (Plaintiff) E Peterson with J Baxter (First, Second & Fourth Defendants) SOLICITORS : Hall Partners (Plaintiff) Hunt & Hunt (First, Second & Fourth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WARD J FRIDAY 16 JULY 2010 09/289939 PARVEEN VARMA V GAUTAM VARMA & ORS JUDGMENT 1 HER HONOUR: Before me for hearing commencing on 15 March 2010 (and culminating in the hearing of a motion for costs in a related matter on 14 April 2010), were proceedings commenced by Mrs Parveen Varma seeking relief in relation to matters relating to the shareholding in a family company (Taj Food Sales Pty Ltd), which had been incorporated by Mrs Varma's late father in law (Mr Sah Dev (Sid) Varma) in 1990 and of which he had, until the year of his death, been the majority shareholder. Mrs Varma has been employed by, and a director of, the company for most of the period since its incorporation. 2 The present proceedings are the only remaining proceedings in a series of proceedings which were brought by Mrs Varma (variously in her name or, in the first instance, in Mr Sid Varma's name as his tutor) relating to the company and/or the affairs of Mr Varma. In each of those proceedings, the defendants have been or have included Gautam and Arjun Varma (the first and second defendants in the present proceedings), who are Mrs Varma's nephews and two of the grandsons of the late Mr Varma. The third defendant in the present proceedings (which has been unrepresented and has taken no role in the proceedings) is the company itself. The fourth defendant (unrepresented until the commencement of the hearing but since then represented by the executors then appointed to the estate, Gautam and Arjun Varma) is the estate of the late Mr Varma. 3 Without any disrespect to the deceased or his family members, I propose to refer to them by their first names. 4 In summary, what Parveen is seeking in these proceedings is to enforce a promise that she says was made to her by Sid in relation to the company (both at the time of its incorporation and subsequently over the years). That promise is phrased in different ways in the pleadings and evidence but in essence it was a promise that, as from Sid's death, the company would belong to Parveen. Broadly, the relief Parveen seeks is the transfer to her of the whole of the shares in the company. However, since two-thirds of the company shares were transferred by Sid before his death (in roughly equal parcels of shares on two separate occasions in April and June 2008) to Gautam and Arjun, the route by which Parveen now seeks to enforce her claimed entitlement to become the sole shareholder of the company is not straightforward. 5 Parveen's claim is put in a number of ways, each predicated on the promise she said was made to her by Sid (and repeated on several occasions over the years): first, as a claim to enforce the contract which it is alleged came into existence on her acceptance of Sid's promise in early 1990 that, if she transferred her then partnership interest in the business to him, on his death the company would be hers (damages for breach of contract being said to be an inadequate remedy); secondly, as a claim based on an express trust said to be constituted by Sid's promise that he would hold the company shares during his lifetime and that on his death they would be hers; and, thirdly, as a claim based on the principles of promissory estoppel (that Sid, and subsequently his estate, was estopped from denying the contract or trust, or from resiling from the promise, by reason of Parveen's detrimental reliance on Sid's promise during his lifetime). 6 It is contended that, as a result of Parveen's acceptance and acts in part performance of the alleged agreement (and her detrimental reliance on the promise) the shares were at all material times held on constructive trust for Parveen and thus that when Gautam and Arjun took their shares in the company they did so subject to her prior equity and as the recipients of trust property conveyed in breach of trust. It is alleged that they did so as volunteers (and, if that be relevant, with notice of Parveen's claim or interest in the shares). It is also alleged that they wrongly induced their grandfather to breach his contractual or equitable obligations to Parveen by transferring the shares to them. 7 Parveen further alleges that the shares were transferred to Gautam and Arjun in circumstances of undue influence (on the part of Gautam and Arjun and/or their father Deepak Varma, who is not a party to these or any of the earlier proceedings) and in which Sid lacked the capacity to enter into the relevant transactions. Hence, it is said, they cannot resist a claim for the return of the trust property. 8 The undue influence allegation made by Parveen (i.e. as to the receipt by Gautam and Arjun of their shares in the company in circumstances of undue influence), which is denied, has been a source of much contention both leading up to and in the course of the hearing, not least as to Parveen's standing to bring such a claim. 9 Senior Counsel for Gautam and Arjun, Mr Petersen, perceived this aspect of the claim to be an attempt by Parveen to maintain a chose of action belonging to the estate, which she did not have standing to raise (relying on what was said by Windeyer J in Scallan v Scallan [2001] NSWSC 1129, to which reference was made in Hewitt v Gardner [2009] NSWSC 705). 10 When the matter came before me in February this year (on an application, inter alia, by Gautam and Arjun to strike out the allegation of undue influence), Senior Counsel for Parveen, Mr Rayment, relied upon the proposition drawn from Ramage v Waclaw (1988) 12 NSWLR 84 that in certain circumstances a beneficiary may bring proceedings on behalf of a deceased's estate. (Powell J in that case noted that as a matter of basic principle a beneficiary has no locus standi to bring such proceedings but also recognised that a beneficiary may institute proceedings to compel the trustee to perform its duty to protect the beneficiary's beneficial interest in the trust property, even though that interest is only contingent; and that where a trustee refuses to institute proceedings against a debtor or to recover trust property, the beneficiary may wish to institute proceedings either in that beneficiary's own name or in the name of the trustee to do so, but that special circumstances were required in that event. The special circumstances so required were not limited to circumstances of collusion or insolvency.) 11 When the matter came before me for final hearing, Mr Rayment made it clear that the allegation of undue influence was also pressed in answer to any defence pleaded by Gautam and Arjun to Parveen's claim for specific performance of the agreement said to have been reached with Sid. It was, to use his words, to clear away possible defences to Parveen's claim for specific performance. Parveen did not seek to press a claim for setting aside of the inter vivos share transfers to Gautam and Arjun on the basis of undue influence in her capacity as Sid's beneficiary. 12 I note this at the outset as much of the criticism of the manner in which the Parveen's claims have been brought (at least as to her standing) appears to have been based on the assumption that Parveen was seeking to set aside the inter vivos share transfers for undue influence. 13 What Mr Rayment says, rather, is that Gautam and Arjun, as executors, have title to set aside the transfers made to themselves on the basis of undue influence and lack of capacity on the part of Sid and that they cannot rely on their failure to do so in order to preclude Parveen from recovering in this suit. 14 Therefore, as I understand it (and whatever may have been the intention leading up to the hearing), as the matter was argued at final hearing no claim was made by Parveen in her capacity as a beneficiary of Sid's estate or as a beneficiary of the claimed constructive trust to set aside the inter vivos share transfers for undue influence. 15 Apart from denying the principal contentions on which Parveen brings her claims in these proceedings, Gautam and Arjun have raised a number of discretionary defences (such as laches, acquiescence and a lack of clean hands on the part of Parveen) to her claims for relief and they contend that any contractual claim is statute barred. Issues 16 The following issues arise for determination: (i) As a matter of fact, did Sid make the alleged promise(s) or representation(s) to Parveen to the effect that the company or all of the shares in the company would, as from his death, belong to her? (ii) If so, did a binding contract come into existence between Sid and Parveen pursuant to which Sid was obliged to cause the shares in the company to be transferred to Parveen on or before his death and did Gautam and Arjun wrongfully procure or induce a breach of that contract? Is any such claim statute barred? (iii) Alternatively, was there an express trust created pursuant to which Sid agreed, in effect, to hold the shares during his lifetime in his own name and that as at the date of his death the shares in the company would be held on trust for Parveen and, if so, did Gautam and Arjun knowingly participate in or procure a breach of that trust? (iv) Further, if Sid made the promises or representations alleged, did Parveen reasonably rely on them to her detriment in circumstances where it would have been unconscionable in equity for Sid during his lifetime to resile therefrom (and would now be unconscionable in equity for his executors to do so)? (v) If either the alleged contract or a claim based on promissory estoppel is made out, does this have the consequence that Sid held the shares on constructive trust for Parveen and if so at what time did such a constructive trust arise? (vi) Assuming an express or constructive trust (arising prior to the inter vivos transfers) is made out, did Gautam and Arjun, when taking the share transfers in question, do so as volunteers and, if not volunteers, did they take their shares with notice of Parveen's alleged equitable interest in or claim to the shares so as to give rise to relief under the first limb of Barnes v Addy (1874) LR 9 Ch App 244? (vii) Were the share transfers in question effected in circumstances of undue influence (on the part of Gautam and Arjun, and/or Deepak) and/or at a time when, to the knowledge of Gautam and Arjun, Sid lacked the capacity to effect such a transaction; and, if so, what consequences follow from such a finding? (viii) Assuming Parveen is otherwise entitled to the relief claimed, is she precluded from such relief by reason of laches, acquiescence or unclean hands or is she otherwise estopped by her conduct from asserting her claims against the estate and/or against Gautam and Arjun? (ix) If Parveen establishes one or other of the claims and is not disentitled as a discretionary matter from any claim for equitable relief, what relief should be granted? Summary 17 For the reasons set out below, I am of the view that the above questions should be answered as follows: (i) I am conscious of the need carefully to scrutinise claims based on promises or representations by deceased persons. I am not satisfied that Parveen has established the making by Sid of the alleged promises or representations, to the effect that all of the shares in the company would as from his death belong to her. That finding is fatal to Parveen's claims and the proceedings must therefore be dismissed. (ii) Had I been satisfied that Sid made the promises or representations alleged, then I would nevertheless not have held that they gave rise to a binding and enforceable contract (on the basis that I am not satisfied that there was any objective intention on the part of Sid to enter into binding legal relations or to make an irrevocable promise which was accepted by Parveen in relation to his proposed testamentary dispositions). Had I been satisfied that there was a binding agreement, then I would not have held that a claim for breach of that agreement (by reason of the failure of the deceased to cause all the shares to be transferred to Parveen on or before his death) was statute-barred, since such a breach cannot have occurred prior to Sid's death (though at the point at which the share transfers for two-thirds of the shares occurred there was clearly an anticipatory breach insofar as Sid thus put it out of his power to perform the whole of the alleged contract). I would have found that damages was an inadequate remedy for such a breach. As to whether, assuming a contract had been established, Gautam and Arjun had wrongfully procured or induced a breach of that contract, while I would have been found that Gautam and Arjun did procure or induce Sid to make the share transfers in question I would not have been satisfied on the evidence that they did so with notice of any contract in existence in relation to the shares and hence would not have found this allegation to have been sustained. (iii) I am not satisfied that the alleged promises or representations, had they been made, would have been sufficient to give rise to an express trust as alleged (ie a trust pursuant to which Sid agreed, in effect, that as at the date of his death the shares in the company would be held on trust for Parveen). While I would again have found that Gautam and Arjun procured or induced the share transfers in question, and did so in circumstances where one or both was concerned that Sid might leave the company to Parveen or her family, I would not have been satisfied on the evidence that they did so knowing that there was any such trust in existence but I consider that the evidence would have permitted the inference that Arjun and Gautam knew that Sid had or may have made a promise of some kind to Parveen to leave some or all of the shares in the company to her under his will and hence I would have been inclined to think that there was notice within the third category of notice in Baden Delvaux v Société Generale pour Favoriser le Development du commerce et de I'Industrie en France SA [1993] 1 WLR 509, at 575-576; [1992] 4 All ER 161, at 235, 242-243 (decided in 1983) (see below) for the purposes of establishing knowing assistance in a breach of trust on their part. (iv) Had I been satisfied that Sid made the promises or representations alleged, then I would have found that Parveen had established a claim for equitable relief based on the doctrine of promissory estoppel, in that I would have been satisfied that she did reasonably rely on the promises to her detriment (in relinquishing her partnership interest in UV Enterprises and in providing or mortgaging her home to enable the provision of trade loans to the company) in circumstances where it would have been unconscionable in equity for Sid during his lifetime to resile therefrom (and would now be unconscionable in equity for his executors to do so). (v) On the basis of my finding in (i)-(iv) above, this question does not arise. Had I found that there was a contract as alleged or had I upheld Parveen's claim based on promissory estoppel, I would have held that as from the time of incorporation of the company the shares were impressed with a constructive trust in Parveen's favour. (vi) I find that Gautam and Arjun, when taking the share transfers in question, did so as volunteers and (if that were to be relevant) with notice of Parveen's interest in or equitable claim to the shares within the third category of notice in Baden Delvaux (wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make, in circumstances where I would accept that they were on notice that Sid had or may have made a promise to leave the company or shares in it to Parveen and chose to ignore that in pressing their own interests). (vii) I am firmly of the view that the circumstances in which the share transfers were effected were ones in which a presumption of undue influence arose (given Sid's age, his then state of moderate dementia, his dependence on his family, and, importantly, his affection and reliance on his grandsons and particularly Gautam, thus giving rise to a situation of special dependency on his grandsons). Regrettably (given that there were professional advisers involved), I would not have been satisfied on the evidence before me that the presumption of undue influence had been rebutted. As it is, however, nothing flows from the finding of presumed undue influence as there is no claim by or on behalf of the estate to set aside the inter vivos transfers. As to Sid's capacity to effect such a transaction, the evidence before me suggests that this was doubtful due to his susceptibility to outside influence, but I am not satisfied that the medical evidence before me was sufficiently directed to that issue so as to enable a final ruling on that issue. Had it been, then I would have inferred that Gautam and Arjun had knowledge of the matters giving rise to any such lack of capacity. (viii) This question does not arise. Had I found that Parveen had established a claim for breach of contract, then I would have found that damages was an inadequate remedy. Had I found that Parveen had established a claim by way of promissory estoppel, then I would have found that the shares were held on constructive trust as from the incorporation of the company (and, given the involvement of Gautam and Arjun in the process by which the share transfers were effected, I would not have considered it necessary to fashion the relief in order to take into account their interests as third parties). I would have ordered the transfer of the shares to Parveen. I do not consider that Parveen would have been precluded from such relief by reason of laches, acquiescence or unclean hands nor would I have found that she was estopped by her conduct (in commencing and certifying the tutor proceedings) from asserting her claims against the estate and/or against Gautam and Arjun. (ix) In view of my findings, there is no order for relief in Parveen's favour. I dismiss the proceedings. I will hear the parties on costs and any consequential orders which may be necessary. Outline of reasons 18 Given the nature of the claim, there must be close scrutiny of the relevant assertions which have been made. This requires detailed consideration of the facts. I set out below in separate sections of this judgment my analysis of the facts, a brief history of the previous proceedings, the claims made in the present proceedings and my assessment of the witnesses, before turning to the determination of the issues raised in the proceedings. Facts General family background 19 Sid was born in Burma in 1910. He migrated with his family to India in 1964 and established a business there (Globe Wasti Manufacturing), in which various of his family members came to be involved. 20 Sid and his wife, Usha, had three sons – Subash Varma (Parveen's husband), Naval Varma (who has not had any involvement in this litigation and lives in the US), Deepak Varma (the father of Gautam and Arjun), and two daughters – Veena Aggarwal (who lives in Canberra and whose son Dr Arun Aggarwal gave evidence in these proceedings) and Lily Nakra (who, like Naval, has played no part in this litigation and lives overseas). Subash and Naval are older than Deepak (a fact relevant to some of the evidence which emerged during the hearing). It seems from the Explanatory Notes to various of Sid's wills that when his two daughters married, Sid paid dowries to their husband's families and thereafter did not regard himself as under any parental duty to provide for them or their families. 21 Subash and Parveen have one son, Vikram Varma. Vikram is married to Carin Hillman-Varma and they have a daughter, Sahara Ruby Hillman-Varma. Vikram has for some time run his own importing business (now known as Sahara & Co Pty Limited, trading as Globe United Trade). Vikram had worked for a period for the company from about 1996 but there was a falling-out between Vikram and Sid, which led to Vikram setting up his own business, apparently with the blessing of Sid (see para 28 of Anthony Davenport's affidavit). Vikram nevertheless remained a director of the company up until his removal, in circumstances of some controversy, during the course of the events in question in 2008/9). Towards the end of his life, Sid seemed to be concerned to exclude Vikram (and also, for that matter, Deepak) from involvement in the company business. However, in the witness box during the course of the tutor proceedings Sid was not critical of the fact that Vikram had his own business (contrary to the assertion contained in his last will). 22 At least during the course of the events which took place in 2008 (and for some time earlier) Subash and Parveen have lived with Vikram and Carin in the younger couple's home. However, for some time prior to Vikram's marriage to Carin, it seems that Subash and Parveen lived in their own home with Vikram and that, for a time after his arrival from India in about 2001/2002, Arjun also lived with them. (The living arrangements are relevant both as to the extent of Parveen's knowledge of communications sent to Vikram's home and as to the circumstances in which it is said Arjun became privy to the alleged promise by Sid that the company would be left to Parveen by will.) 23 Deepak and his wife, Sangeeta, live in India (though it appears that Deepak visits Australia regularly and says that he obtained a provisional resident's visa in 2008). Gautam is their older son. He is married to Geetika Bhargava and they have one son, Sidhanth. Arjun is the younger son. He is married to Seemita Mitra and they have one daughter, Rhiya. Deepak and Sangeeta also have a daughter (Deepti Varma). 24 The background to the Globe Wasti Manufacturing business was set out in Deepak's affidavit of 1 February 2010. Deepak deposes that he was a 22.5% 'partner' in Globe Wasti Manufacturing, by which 'company' he says Parveen was employed as an Accounts Clerk from about 1974 to 1984. Deepak says that in 1980 he became the general manager of Globe Wasti Manufacturing. At some stage there was a falling out between Deepak and Sid. Deepak seems to have acknowledged in his affidavit that at least as at 1986 his father's attitude was that he and Deepak could not work together. (Further, the evidence suggests that in and from 2006, if not earlier, Sid was adamant that Deepak should not have any involvement in the company or Sid's business in Australia, although at an earlier stage Deepak was issued a share in the company.) Establishment of rice importing business and involvement of Parveen 25 In 1983, Sid and his wife migrated to Australia. He was then aged 73. Shortly after arriving in Australia, Sid established a business importing Basmati rice into Australia. He carried on this business through a partnership, trading first as UV World Travels and from 1984 as UV Enterprises. The partnership was between Sid and his late wife, Usha. Although the partnership records were not before the court, there were in evidence some documents recording the registration of the partnership's business name annexed to Parveen's first affidavit of September 2008) and communications with the Tax Office and the ANZ Bank in December 1988 (in the context of Sid's notification that there was to be a new reconstituted partnership with Parveen from January 1989) which refer not only to the initial partnership between Sid and Usha but which, at least in one case, refer to a partnership deed then in existence. There seems no reason to doubt that there was a partnership formally established through which the business was operated prior to 1990. (Indeed, Mr Petersen points in his written submissions to Sid's own evidence in the tutor proceedings in relation to the existence of the partnership, though he does so in the context of suggesting that Parveen's subsequent interest in it was of no real value.) 26 Deepak deposes in his affidavit to a conversation in late 1986 in which he says that Sid said that he wanted Parveen and her husband to move to Australia to assist him. This is consistent with the evidence given by Sid's nephew, Mr Anthony Davenport, who swore an affidavit on 2 February 2010 in these proceedings and which was read in Gautam and Arjun's case (in this regard, I refer to para 20 of that affidavit). (Mr Davenport was not required for cross-examination.) At this stage Usha (who died in 1989 after suffering from cancer) was unwell and needed care. According to Deepak, his father said that his business required his full dedication and involvement. Relevantly, again according to Deepak's version of the conversation, Sid also said that he considered his son, Subash to be "useless" (which may be the explanation for Sid's seemingly uncharacteristic inclusion of a daughter or daughter-in law in his ultimate testamentary bequests). 27 On Deepak's version of his subsequent conversation with Parveen, in which he says he conveyed his father's message, it is clear that Deepak understood Sid to be suggesting not simply that Parveen should assist Usha in her illness but that Parveen would work in the UV Enterprises business when she emigrated from India to Australia – as she did. 28 Parveen and her husband arrived in Australia in 1988. Both commenced work in the business, Parveen performing accounting/bookkeeping roles (though her role seems to have expanded over the years to include dealings with customers and more responsibility in the running of the business) and Subash performing (at least by the time this dispute became manifest) a role in the delivery and collection of goods or orders. 29 In about March 1989, Usha died. Prior to that, her half share interest as a partner in the business was, in effect, transferred to Parveen. (In fact it is not clear whether there was any formal transfer of a partnership interest or a re-constitution of the existing partnership with Parveen taking what had been Usha's share of the partnership but nothing seems to turn on this.) This is consistent with the promise that Parveen said was made to her by Sid before she emigrated from India, namely that if she joined him in Sydney he would give her a portion of the business – para 6 17 September affidavit.) It is also consistent with Mr Davenport's recollection that Sid had told him he intended to bring Parveen into the partnership (para 22 of Davenport affidavit). 30 As to the financial matters of the partnership, Parveen has deposed to a conversation with Sid in which he told her to take drawings from the business for a deposit on her home, which are described as partnership drawings. That, however, seems to be the only occasion on which such or any 'drawings' of partnership profit were taken and is equally consistent with Sid's conduct in later approving payment of moneys out of the company for the acquisition of homes for his respective grandsons, including Vikram. Nevertheless, it is not surprising that in the early days much of the profits would have been retained in the business. Incorporation of Taj Food Sales and alleged promise to Parveen 31 According to Mr Davenport, at some time in 1989 after Usha's death, Sid told him that he was considering incorporating the business (which he said was growing) and dissolving the partnership (para 24 of Davenport affidavit). The company was incorporated on 20 February 1990. On incorporation each of Subash and Parveen was appointed a director (together with Sid and an accountant). Parveen and Sid continued as directors with the other two resigning in November 1990, according to the 1990 Annual Return in which Parveen was described as Manageress. According to the historical extract in evidence, at least as from the 1991 Annual Return, Parveen held 99 ordinary shares in the company (Subash having held one such share from incorporation). (Parveen's first affidavit refers to the issue of 24 company shares – it is not clear whether those were part of the 99 recorded in the historical company extract.) 32 Parveen says, in effect, that Sid promised to leave her the whole of the company and that she gave up her partnership interest in reliance on that promise. In her first affidavit affirmed in the tutor proceedings (which bears the date 9 September 2008 in the affidavit but has the date 17 September 2008 on the cover page), Sid's promise is attributed to a conversation some time during February 1990. In that conversation, Parveen says that Sid told her that she must work very hard if the company was to go and said "Don't forget it will all be yours one day" (para 21). 33 Parveen was cross-examined (not surprisingly) at some length as to the date on which the alleged conversation took place and as to its content. Mr Petersen points to inconsistency between Parveen's first account of the conversation and later accounts (as to what was said and in what language it was said), and as to the uncertainty of the date of the conversation. 34 As to what was said and the language in which it was said, it seems to me that the thrust of Parveen's recollection of what was said has been broadly consistent. In effect, Parveen says that she was promised that she would end up (on Sid's death) with the whole of the business in which (for a period, albeit short, up to incorporation) she had had a half interest as partner in the UV Enterprises partnership. I think it unlikely that Parveen (whose behaviour on all accounts seems consistent with a reluctance or unwillingness, whether out of respect for her father-in-law as she says or otherwise, to press Sid for information or to assert her own position in relation to the affairs of the company) would have focussed back in 1990 on the means by which the promised outcome was to be achieved (ie whether the company would become hers by means of a bequest under Sid's will or otherwise by way of some form of irrevocable mandate or direction operating immediately prior to death). Therefore, I do not consider that an adverse inference should be drawn from what seem to be understandable differences in the terminology used by Parveen in recounting the promise she says was made to her. I think it unlikely that in a family context any promises of the kind alleged to have been made would have been understood in a general context and without the focus on the precise words used as would be the case if the promise were to be formally documented in a legal context. 35 I do, however, think it is of some relevance (when considering the claim that there was an enforceable contract) that in the later affidavit of 4 November 2009 (by which time Parveen's legal advisers, if not Parveen herself, must have appreciated that there might be some significance in the distinction) Parveen deposed to conversations in 2005/2006 in which she had referred to promises made to her by Sid that when Sid died she would get the company (para 47) and in 2002 that Sid had promised that he would leave the company to her in his will (para 49), which carry with them the understanding that the promises made to her were of a testamentary nature. 36 I do not think it is significant that a more precise account (as to what was said in English and what was said in Hindi) was given when it came to the preparation of Parveen's later affidavit (by which time, it might be inferred, more attention was being given to the detail of the conversation as opposed to its general import). 37 As to the timing of the conversation, it seems to me not unreasonable to assume that, some 18 years after any discussion took place as to the dissolution of the UV Enterprises partnership and incorporation of the company, Parveen would not have a precise recollection of the date on which a particular conversation occurred (without being able to refresh her memory from notes or other documents). In that regard, it seems to me not surprising that she would place the conversation as being around the time of incorporation of the company. I draw no adverse inference from this (nor can I draw any adverse inference from the lack of documentation in relation to the dissolution of the partnership, given the length of time which has passed since that must have occurred). 38 It is, perhaps, of some relevance, however, that on none of Parveen's accounts of the circumstances in which her partnership interest in the business became subsumed by the company is it suggested that there was any detailed discussion between Sid and her as to whether the business should be incorporated or the like. In other words, Parveen's accounts are consistent with it being understood from the outset that this was Sid's business and that he was the decision-maker in relation to the vehicle through which it was to operate. That said, I see this as little more than an indication of Sid's role in the business at that stage and place no weight on this when I come to consider whether Parveen has established as a matter of fact the making of the alleged promises/representations. 39 Parveen has also given evidence of the provision of her house as security for credit to the company by way of trade loans in the early days of its existence (which she says she agreed to after being reminded by Sid of his promise that it would be her company). It is submitted that it would be unusual for someone in the position of a mere employee of the company to take on such a risk. That may well be the case, but here the company was a family company and Parveen had been the recipient of funds for the deposit paid to acquire her home in the first place. It seems to me that the fact that she provided her home as security for the company's trade loans (at Sid's request), while I do not suggest was otherwise than an important commitment on her part to the company, does not of itself compel a conclusion that there had been an earlier promise (contractual or otherwise) on Sid's part that the company would be hers. Sid's succession plans for his grandsons 40 It seems that, from very early in the history of the company, Sid had in mind the question of who was to succeed him in due course in the running of the company (hardly surprising since he was by no means young at the time it was incorporated). Mr Davenport gave evidence as to conversations with Sid during the 1990s in which he says Sid referred to succession plans for the company and said that said he was not looking at his sons or daughters or the current generation inheriting the business, but anticipated that his grandchildren would become his successors (provided that they met his 'criteria') (para 27 of Davenport affidavit). That is consistent with references in other documentation over the years (to which I will refer) as to Sid's 'succession' planning. (The requirement that any successor be required to satisfy Sid's particular 'criteria' is also consistent with the emphasis Sid seems to have placed on the continuity of his business by those who satisfied him as to their ability to do so.) In the context of succession planning, Mr Davenport deposed to the fact that he had never heard Sid say that he had left or had promised to leave the whole of the company to Parveen. 41 In 1992, Mr Dennis Castino became the accountant for the company. Mr Castino gave evidence in these proceedings. He seems to have played a central role in effecting the share transfers to Gautam and Arjun in 2008 (to which I refer in due course) and is relied upon by Mr Petersen as someone who was in a position to give independent advice to Sid (in the context of the denial that there was any undue influence exercised in relation to the share transfers at that time). Mr Castino's affidavit deposes to conversations with Sid in the 1990s in relation to succession issues and in which he says that Sid told him he was considering family members who might be capable of taking up managerial roles within the company "and taking a majority shareholding the company". This is inconsistent with Sid having made (or having understood that he had made) any binding promises to Parveen in relation to her having the ultimate ownership of the company. 42 In 1992, Deepak was allotted one share in the company. While that might be thought surprising given that back in 1986 his father had expressed the view that the two could not work together, it would be consistent with Sid drawing a distinction between control of the company and a lesser degree of participation by way of a nominal or other minority shareholding in the company. 43 According to Vikram, in his affidavit dated 2 March 2010, Sid visited him when Vikram was studying at university in South Australia some time during second semester of 1993 and said words to the effect, "I am happy with your progress at university and I would like you to join my business when you graduate as Parveen and Bashi cannot run it but they will own it" (at [5]). (Sid's desire to have Vikram join in the company seems to have been part of his then succession plan for the company, as indicated by his discussions in the early 1990's with both Mr Davenport and Mr Castino to which I refer below, when the arrangement with Vikram did not succeed.) Early wills – 1993-1997 44 Sid made a series of wills (in the early years accompanied by statements in which he recorded the basis of his testamentary dispositions) over the period from 1993 up until the year of his death. There is a suggestion that Sid had made at least one will before 1993 but the earliest will of which there was a copy in evidence before me in these proceedings was that made on 4 June 1993. In this regard, Mr Petersen submits that Sid has spoken from beyond the grave to give his own account of the position in relation to his succession plans for the company. The wills certainly reveal on their fact the progression in Sid's thinking over the years in relation to the company and the emphasis he placed on the business continuing after his death. Those documents seem to be wholly inconsistent with the promise on which Parveen now relies and which seem to have been asserted for the first time only when the tutor proceedings were commenced. 45 I regard the earliest will as particularly significant in that it was made a mere three and a half years after the initial alleged promise to, or agreement reached with, Parveen (in reliance on which she says that she gave up her partnership interest in UV Enterprises) and at a time when, had such a promise or agreement been made, it would presumably have been fresh in Sid's mind. 46 In the 1993 will, Sid left the shares of the company to Gautam, Vikram and Neil (the last, being the son of Naval) in equal shares, subject to certain conditions (including their participation as employees and managers of the company for three or more years before the vesting date). Significantly, what Sid then had in contemplation was that the shareholding of the company was to be distributed equally among the eldest son of each of Sid's three male children. Parveen was not a beneficiary of any shares (but was to be appointed a member or alternate member of an advisory panel with responsibility for determining the needs or educational needs of the three grandchildren for the purposes of the testamentary provisions which were to apply prior to the first vesting date under the will). Perpetual Trustee Company Ltd was appointed as the trustee under the will. 47 At the time of the 1993 will, Sid signed a document headed Explanatory Notes in which he referred to the arrangements in relation to each of his children and, with respect to Subash, recorded that: Our eldest son, Subash, wife Parveen, grandson Vikram arrived in Sydney as immigrants on 7 September 1988. Both Subash and Parveen are employed in my company on salary and own a unit at Ryde NSW. Unfortunately they do not qualify to attain position as chief executive but they need wages to be in comfort". 48 This is of relevance insofar as it is consistent with Sid's later comments both in relation to other wills and as to his assessment of Parveen's abilities given in the witness box (whether or not those comments are justified, or reflect a view as to the role of women in his company, is something on which I cannot express any opinion) and it is silent as to any arrangement in existence between Sid and Parveen as to the shareholding of the company. 49 One can only conclude from the 1993 will, read with the Explanatory Notes document, that either Sid had no understanding that he had made or was bound by any commitment to leave the company or shares in the company to Parveen or that he was deliberately proposing to flout that commitment (and, not only that, he was also acting deceptively or, in the words used in Taylor v Dickens [1998] 3 FCR (UK) 445; [1998] 1 Fam Law R 806), distastefully towards Parveen in allowing her to continue to provide services to the company unaware of his intention to breach that commitment). (Mr Petersen submits that, as a matter of natural justice to the deceased, I should not make any finding that he behaved deceptively in the absence of Sid to defend himself.) 50 Deepak deposes to Sid having described the contents of that 1993 will both to him and to Parveen. (Parveen, however, denies having any knowledge of the content of Sid's wills until 2008 when Mr Czinner's file was obtained by her or her lawyers.) I consider the credit of the respective witnesses in due course. Suffice to note that in the absence of corroboration I approach Deepak's evidence with some caution. 51 On 2 August 1993, Parveen ceased to be a director of the company and Ms Ruby Shirazee (a family friend of the Varma family, referred to as Auntie Ruby or Ruby Auntie, who seems to have lived in the Varma home and cared for Sid for many years) was appointed a director of the company (a position held by Ruby until her resignation on 12 June 2008). 52 On 10 January 1995, Sid made a further will and, again, signed Explanatory Notes in relation to that will. Under the 1995 will, Sid's shares in the company were again left for the benefit of Vikram, Gautam and Neil (with provision, prior to the vesting date, for funds to be applied for their educational needs as determined by a panel including Parveen). In those Explanatory Notes, Sid said: … for want of managerial skills, my son Subash and wife, Parveen are not eligible to work as manager and/or CEO of my company … after careful deliberations and assessment of the need to continue the Business in Sydney Australia, I have nominated only my three grandsons as prospective final beneficiaries of my WILL to the exclusion of all other children". (To the extent that Sid again seems to have seen the need to justify the fact that Subash and Parveen are not included as beneficiaries under the will, this may indicate no more than a consciousness that he might be seen to have some moral obligation in relation to their welfare.) 53 According to Mr Davenport (para 28 of his affidavit), in the late 1990s, Sid told him that he had employed Vikram in the company after he graduated in 1996 but that he had subsequently terminated that employment and had said "Vicky and I are unable to continue in business as it is unworkable and so I am giving him the Thai Rice portion of my Business, for him to strive independently". (I note that the statement that Sid was 'giving' Vikram the rice business seems to be inconsistent with any concern on Sid's part that Vikram might compete with the company. Indeed, the only time that this seems to have been raised as an issue was at the time of the purported removal of Vikram as a director (in which it might be inferred that Gautam and Arjun had a hand, having regard to the events around that time which I consider in due course in the chronology of events) and when Sid's final will was prepared. In the witness box in the tutor proceedings, however, Sid disclaimed any concern at Vikram's business operations. That leads me to suspect that the reference in the will to Vikram's business (apparently as something to justify Vikram's exclusion from the will) was something prompted or put forward by Gautam/Arjun and did not reflect Sid's own feelings in the matter and, if so, indicative of some influence which they held over Sid at the time. However, as this was not directly put to Gataum/Arjun I make no finding on this issue (and, in any event, it is not relevant to the determination of the proceedings in light of the finding I have made as to the making of the alleged promise).) 54 On 28 November 1996, Sid made a further will and a statutory declaration. This is the first will in which Arjun (or any grandson who was not the oldest in his own family) is named as a beneficiary of shares in the company. None of the shares in the company was left to Parveen under that will and she was not one of the panel nominated to determine the educational needs of Arjun and Neil, for which provision was made prior to the vesting date. The statutory declaration stated "as the business is making a turnover of $2 million, there is a need to ensure that there is a dedicated and knowledgeable manager and it is my belief that my grandsons will have the necessary acumen to manage my business … I have left my residuary Estate to my four grandsons, Vikram Varma, Gautam Varma, Arjun Varma and Neil Varma as I feel that they have the necessary training to continue my business". (It is not clear what 'training' Sid had in mind that his grandsons, or more particularly the youngest, Arjun, who at that stage was in his teens, had at that stage to equip them to carry on his business.) 55 Mr Davenport deposed to a conversation with Sid some time in 1997 in which he says Sid said to him "I am not sure as to which grandson will succeed me in the business. I want to create a trust to protect it from falling into the wrong hands. The Business must continue after me" (para 29 of his affidavit). 56 On 29 May 1997, Sid executed a trust deed (on its face prepared by Perpetual Trustee) establishing the Sid Varma Trust, which was varied by Deed of Variation shortly afterwards on 2 July 1997. He made a Statutory Declaration on 29 May 1997 (Exhibit F pp 53/55) apparently prepared by Perpetual Trustee in which he recited his background, noted that he had paid dowries for his two daughters and that all his children had attained fifty years of age and resided independently in good comfort with their families (owned houses and were settled in life) and not dependent on him or his funds. He commented on the status of each of his children and noted "My son SUBASH and his wife immigrated into Australia on 7 Sept. 1988 and are Citizens. They own Residential Property and both are well employed; their son has Graduated and owns a new car." The statutory declaration goes on to record that "The wealth in Australia and Goodwill of business Taj Food Sales Pty Ltd T/A U V Enterprises are self acquired owned by me only. None of my children is dependent upon me financially or emotionally; everyone is occupied with respective personal commitments." (emphasis in original). 57 Also on 2 July 1997, Sid made a further will, this time leaving his residuary estate to the trustee of the Trust he had established "primarily for the benefit of my grandchildren, great grandchildren and or their legally wedded spouse" and noting in clause 6 of the will his belief that his children were well established and consequently that he had not left his residuary estate to any one or more of them but that their children and grandchildren had been provided for by the Trust. Business from 1998-2000 58 By 1997, it seems that Sid had consulted Mr Czinner in relation to his business and personal affairs. There was in evidence a letter of 29 August 1997 (Exhibit F p81) from Sid to Mr Czinner noting that "As my succession plan has not worked there is no option but to sell my Business to benefit Goodwill" and enclosing his will and trust deed. (By this stage, the only grandson who had worked in the company was Vikram, so the reference to Sid's succession plan not working was presumably at least in part referable to the fact that Sid had formed the view that he was unable to work with Vikram.) 59 Following that it appears that Mr Davenport (para 30 of his affidavit) worked in the company for a short time (between October 1998 and December 1998) but he says that the business relationship was 'unworkable'. (I interpose to note that Mr Davenport seems to have been but one in a serious of family members who found it difficult to work with Sid, including Gautam himself according to a September email to which I will later return. This suggests that Parveen's dedication to Sid over the years was all the more remarkable and deserving of recognition.) He described Parveen's role at that time as Sid's secretary and says she was responsible for clerical work 'as designated' (which I can only assume means as designated by Sid). (Sid himself said in evidence in the tutor proceedings that he did not type and that he dictated documents which were put before him then to sign.) 60 According to Deepak, in 1998 Sid spoke to him and requested that he send Gautam and Arjun to Australia to learn about the business. Deepak says that Gautam and Arjun visited Australia for a month at that time. 61 In April 1999, Parveen resigned from employment with the company. Relevantly, it does not appear that anything was said at this stage by Parveen to suggest that she was under a belief that she was entitled to a prospective interest in the company, whether by way of contract or as a result of her reliance on promises made by Sid. Nor does it appear that Sid's efforts to encourage her to return involved any assertion by him that Parveen was in breach of a contractual arrangement in having left the company's services (as would seem to have been the case on the representations as pleaded in these proceedings.) Rather, Parveen says that he asked her to come back in the context of the promise that the company was or would be hers. 62 On 18 November 1999, the company established its registered office in Gladesville, which was Sid's home up until shortly before his death. Involvement of Arjun in business 63 According to Arjun, in 2000 Sid told him that he wanted him to move to Australia to pursue his higher education and to work in the company. Arjun says that his grandfather said "I am getting old and I see you as part of my succession plan". Deepak in his affidavit corroborates this when he says that in 2000, Sid told him that he wanted a decision to be made as to whether Gautam and Arjun would want to join in the business. Deepak also said that his father said he had given Vikram a chance to work in the business "but he has failed me miserably" (which, apart from the pejorative flavour of Deepak's evidence, is consistent with the evidence of Mr Davenport). 64 The context in which this conversation took place, again according to Deepak, was that Sid was considering an offer to sell the business or the goodwill of the business. This is consistent with Mr Davenport's evidence (in para 32 of his affidavit, which I admitted subject to relevance) that Sid had told him he had been approached to sell the business and that he was considering that 'very favourably'. (Mr Davenport also said that Sid told him he had been assured by the potential purchasers that Parveen and Subash would be kept employed by the 'new management'.) Mr Castino similarly deposed to conversations with Sid in 2000/2001 in which he says that Sid said that he was thinking of selling the company. 65 In April 2000, Parveen resumed employment with the company. A copy of a formal job offer was in evidence. (I note this because it seems to me that Sid was somewhat of a 'stickler' for compliance with notice and other formalities in the employment context (at least insofar as his employees seem to have been required to submit written applications even for minor amounts of time out of the office – and medical certificates if they were not in attendance.) Although there was a suggestion that this was something done to provide a written record of Sid's approval (in case he forgot that he had given that approval), as per Carin's evidence, there is no suggestion that this would have been necessary as at 2000. Insofar as the documents indicate a disposition on Sid's part for record keeping of even relatively minor administrative arrangements, this is inconsistent with the absence of any record of the promise or agreement on which Parveen relies. 66 In 2001, Arjun immigrated to Australia and commenced part-time work for the company while studying at Macquarie University. For a time, he resided with Parveen and her family. During this time it is said that he became aware (through conversations with Parveen) that Sid had promised to leave her the company in his will. His response (according to Parveen, and quite revealing as to his later conduct if Parveen's version of events is accepted since it suggests a means by which Arjun may have been attempting to subvert any such promise), was to enquire whether there was anything in writing. Parveen says that she told Arjun that Sid never showed her any of his wills (see paragraph 52 of Parveen's 4 November 2009 affidavit). Discretionary trust 67 Mr Castino deposed to a proposal by Sid in 2002 to establish a family discretionary trust which would hold the shares of the company. He gave advice to Sid in relation to this (in a letter referenced "Succession Plan", dated 10 January 2002 (Exhibit O p71)), noting Sid's wish that the business be continued "for the benefit of family members who reside in Australia and overseas" and noting Sid's advice that it was his intention to transfer board control in the company to other directors and that a new general manager be appointed to run the business. 68 Mr Castino met with Sid on 17 April 2002 (his notes of that meeting being at pp74/76 of Exhibit O) to discuss matters in relation to the proposed trust (including matters relating to stamp duty, capital gains tax and franking credits). That note records what was presumably Sid's advice at the time that (which was incorrect) the company was incorporated in 1992 and that (which may well have been correct) it had built up retained earnings of $1million. The note records that the controlling shareholder [Sid] "wants to retire and transfer all his assets (being shares in the company) to family trust". 69 Parveen was appointed a director of the company on 23 April 2002, at a stage, therefore, when Sid was in the midst of considerations as to a proposed transfer of the shares in the company to a family trust, yet there seems to have been no discussion with Parveen as to those plans (something again indicative of Sid having no sense that he was under an obligation to transfer the shares or leave them on his death to Parveen). 2002 will 70 In evidence was a handwritten note dated 7 May 2002 prepared by Mr Czinner of a discussion with Sid (Exhibit F, p 52) referring to his will (and other matters which may or may not be related – including "Winding up – No Contracts") and noting under the heading "1. Will" the words "(A) Change to will (B) Share sold/or transferred prior to death". The note also includes a reference to the "accountant De Castino Ryde". According to the invoice rendered on 14 May 2002, this was a 35 minute conference. 71 On 20 May 2002, Sid sent a handwritten document to Mr Czinner referring to his visit the previous week and submitting an outline of his "idea of the 'will' proposal" (Exhibit F p47). 72 There is in evidence a copy of a letter from Mr Castino to Sid on 30 May 2002 referring to a meeting on 27 May 2002 in relation to Sid's "succession plan", which contemplated payment of a "Golden Handshake Eligible Termination Payment" to Sid and for Sid then to be able to proceed with the transfer of his shares to new shareholders (Exhibit O p54). 73 From the documents on Mr Czinner's file, it seems a draft will was forwarded to Sid by letter dated 20 June 2002 providing for the appointment of Mr Castino as trustee and leaving the residuary estate to the Sid Varma Family Trust. The covering letter notes instructions from Sid not to be concerned about the Trust Deed 'or any other issues'. 74 Sid made various handwritten amendments to the draft will and included a typed clause 10 (relating to the continuity of the business of the company and empowering each of Ruby, Parveen and Arjun to appoint managers operate as owners and do all things at their discretion to achieve continuity, and providing that Ruby hold veto powers). Mr Czinner apparently advised on 5 July 2002 that condition 10 could not be included in the will "as explained in our initial conference". 75 On 10 July 2002, Sid signed the will which had bee prepared by Mr Czinner, in which he left his residuary estate "including my shares in Taj Food Sales" to the trustee of the Sid Varma Family Trust (and without clause 10 which had been the subject of Mr Czinner's advice). Sid informed Mr Czinner that he had located a power of attorney made previously and forwarded a document referring to his attorneys as Ruby and Parveen (but with the handwritten addition of Naval and Deepak). 76 Sid then seems to have changed his mind as to utilisation of the trust as a vehicle for his testamentary dispositions. On 19 December 2002, Sid made another will, under which the shareholding of the company was left in equal shares between Parveen, Ruby, Naval and Deepak. This is the first will in which Parveen is named as a beneficiary (and under this will she is left not 100% but 25% of the company shares). Parveen was named as an executor. Mr Czinner deposes in paragraph 32 of his affidavit that he advised Sid to inform his attorneys (Parveen and Ruby) about his will and that Sid said he would do so. Sid's affidavit in the tutor proceedings (paras 25-29) refers to this will and says that he told Parveen about his will. (For the reasons I set out in due course, I approach Sid's October affidavit with some caution.) 77 On 11 March 2003, Sid signed a letter prepared by Mr Czinner notifying Perpetual that he had made a new will under which Perpetual was not appointed as executor or trustee and authorising it to send his will and any documents to Mr Czinner's office (Exhibit F pp216/217). Involvement of Gautam in business 78 According to Gautam, in January 2003, when Sid visited India, Sid told Gautam's mother (Sid's daughter-in-law) Sangeeta (who did not give evidence in the proceedings) that he was "grooming Arjun…who will soon be joining my business on a permanent basis and now I also require Gautam". 79 Arjun was appointed a director of the company on 13 June 2003 and in January 2004, Arjun commenced working full time with the company. 80 Around this time, Sid was apparently still considering retirement. Annexed to Parveen's affidavit of 4 November 2009 (Annexure H) is a copy of a handwritten file note of Mr Czinner dated 16 January 2004 of a half hour attendance on Sid: Attended Mr Varma - he intends to retire – feels tired – still very astute) – without Parveen business would not run therefore not to include her husband – his son – last month he gave money to his children (my emphasis) This note seems relevant insofar as it indicates that Sid was telling at least one other person that Parveen was essential to the business (Parveen called a number of lay witnesses who confirmed that similar statements had been made to them). It does not, however, confirm the making of any promises to Parveen. Rather, it seems to provide the rationale for the testamentary provision Sid made about a week later which included Parveen in the will for the first time. It is also consistent with Sid seeing the disposition of the company shares as more a matter of how to ensure the continuity of the business than as a right of inheritance (though that does not explain the bequest made at the same time for Ruby). Indeed, throughout, Sid's focus seems to have been on who (in his mind) would best be able to run the business in the future. 2004 will 81 On 22 January 2004, Sid made a will leaving one third of the shares in the company to each of Arjun, Parveen and Ruby. (Insofar as it included Ruby, she later signed a letter in which she referred to this bequest as being her having been nominated in a 'caretaker' role – though that was not explained.) 82 In his 8 October 2008 affidavit affirmed in the tutor proceedings, Sid deposed to having shown his 2004 will to Ruby and to Parveen (paras 30-32). Again, I treat this evidence with some caution as it seems to me unlikely that Sid would have had an independent recollection of this without some form of prompting or being able to refresh his memory from any notes at the time (given his evidence generally in the witness box). 83 Nevertheless, Sid seems to have enlightened at least some family members as to his testamentary intentions at the time. According to Mr Davenport, in 2004 Sid told him that he had changed his will and had made Arjun one of his beneficiaries "as I see him as one of the appropriate grandsons to carry on the business" (para 34 of his affidavit). Mr Davenport also deposed to a conversation in late 2004 with Sid in which Sid said he had considered bringing in his grandson, Gautam, and that he foresaw Gautam as one of the future successors of his business (para 35 of his affidavit). 84 According to both Arjun and his wife, Seemita, in June 2005 Sid showed his 22 January 2004 will to them. Seemita was cross-examined as to her recollection of the events on this occasion and was able to explain her recollection by reference to the layout of the document she had seen. Mr Petersen relies on this as evidence that Sid was not secretive about his wills. While I accept Seemita's evidence on this issue, it is inconsistent with the evidence minuted in the 2008 board minutes that the later 2008 will was to be kept confidential and I do not accept that this makes it any more likely that Sid would have shown his earlier wills to Parveen. Rather, it seems to me consistent with the behaviour to which Carin's father (Mr Peter Hillman, whose evidence I also generally accept) deposed, namely of Sid assuring those who were becoming part of his family or their relatives that they would be well looked after by him as head of the family. 85 Nevertheless, none of that sheds any light on what Parveen was actually promised at the time the company was incorporated. Arrival of Gautam 86 A visa application for migration to Australia had been lodged by Gautam in 2004 and Mr Castino had written on behalf of the company to support that application, by letter dated 2 August 2004. There was a subsequent letter of 3 March 2005 from Sid, signed by Parveen as company secretary, in relation to the immigration application in which reference is made to Gautam's proposed role in the company (on which letter reliance was placed by Mr Petersen as showing reliance on Parveen's knowledge of Sid's succession plans). It seems to me that little weight can be placed on this, given that Sid seemed to use the notion of succession plans in the sense of a test as to who would be the appropriate person to manage the company into the future (rather than specifically in relation to testamentary succession or share transfers). 87 Furthermore, there is evidence to suggest that Sid was expressly disclaiming any then intention to give the ownership of the company or his shares in it to Gautam (namely a statement signed by Sid on 27 June 2005 and left on Mr Czinner's file with his wills). It seems that in June 2005, Sid thought it necessary to document a caution in relation to 'possible fraudulent misuse' by his son Deepak of company letterhead to act in a manner contrary to Sid's then final will (being the 2004 will). Relevantly, the letter signed by Sid (which Carin says was found on Mr Czinner's files) on 27 June 2005 includes the statement that: My correspondence regarding Employer Nomination to my Grandson Gautam Varma for Management and Succession to Business of Taj Food Sales Pty Ltd T/A UV Enterprises was issued Only as a Support for his Employer Nomination Entry into Australia and it is Not for Succession Or Ownership of My Business and/or Property 88 That document would suggest that the statements as to succession plans in relation to Gautam did not reflect any testamentary intention as at that stage (notwithstanding that Sid saw Gautam as a potential successor to his business, just as he had seen each of his three oldest male grandchildren (Vikram, Arjun and Neil) as potential successors. 89 Arjun and Seemita (in remarkably similar terms) depose to a conversation which it is said took place at Vikram's house in mid 2005 in which they say Arjun told Parveen that he had been included in Sid's will and was getting one-third of the shares. According to their version of the conversation Parveen said she knew this. Parveen says there was a dinner to celebrate the marriage between Arjun and Seemita and the only discussion was a social one. While it might seem unlikely that testamentary matters were the topic for discussion on such an occasion, it may well have occurred. I note that, during her cross-examination, Seemita gave evidence which suggested that Arjun might have prompted her recollection as to the topic of the conversation, which could cast doubt on the reliability of her memory on this occasion. In any event, it seems more likely that any discussion was as between the cousins and their spouses since the impression I formed during the evidence of the various family members was that Parveen had largely removed herself from discussions in relation to matters relating to the shares – whether as an issue or respect or in disdain for the topic. The only relevance of this conversation (apart from going to matters of credit) would seem to be the defence based on acquiescence by Parveen and I have difficulty in seeing how that defence is made out viz a viz Gautam and Arjun, as I discuss later. Suffice it to note that I think there is sufficient doubt as to this conversation to prevent any adverse inference being drawn against Parveen. 90 In October 2005, Gautam emigrated from India to Australia, initially residing with Sid at the Gladesville house, and commenced work for the company. Parveen deposes to conversations with Sid, after Gautam's arrival in 2005, in which she says Sid said to her in Gautam's presence that after he died the company would be Parveen's (paragraph 47 Parveen's 4 November 2009 affidavit). 91 Carin deposed to a conversation during her engagement party on 27 November 2005 in which she said Sid told her father (in Parveen and Carin's presence) that "If it was not for her [Parveen] the company would not exist. She will take over the company and it is one hundred percent hers in my will" (para 27, 17 September affidavit). If that statement was made as deposed to then it was clearly false as at that time the current will (made in January 2004) was quite different. Mr Hillman's evidence was broadly in accord with this. As noted below, I generally accept the evidence of Mr Hillman. However, there was some (understandable) confusion as to what precisely was said to him in this regard and the glaring inconsistency between the statement as to the will and the testamentary documents as they stood at all times (there never being any document which left Parveen with 100% of the shares) suggests to me that Mr Hillman's recollection may have been imprecise in this regard – and that at most what Sid was more likely to have said was that the business would be Parveen's or run by Parveen after his death (neither of which would necessarily involve 100% ownership of the shares). 92 Carin also deposed to a conversation (at [29]) in the presence of Arjun and Gautam and Parveen by Sid to the effect that "You [Parveen] are getting the company, you know this company is yours" (see also para [6] of her second affidavit dated 2 March 2010). 93 Parveen recalls a conversation between Sid and Arjun at which she was present in December 2005 in which she says Sid told Arjun to tell his father to keep his eyes off the business and that it was to go to Parveen and Subash (paragraph 49 of Parveen's affidavit 4 November 2009). (This seems consistent with the concern Sid displayed at any involvement by Deepak in the business. 2006 94 On 2 March 2006, Gautam became a director of the company. In May 2006, he received an ordinary share in the company. Arjun also received one ordinary share in the company that year. 95 Also in March 2006, Carin visited Deepak's family in India, after her participation in the Mrs World contest overseas. This visit is of relevance because of the fact that Carin says that when she visited the family she set up an email account for Sangeeta to use so that she could communicate with her sons in Australia. Carin says that she showed Deepti how to use the computer email system. In the course of setting up the account, Carin set up the special password on the account (something which she says she later used in order to have access to Gautam's email communications with his mother and, by inference, his father – though Deepak denied any computer literacy). 96 It seems fair to say that the first indications of trouble within the two branches of the Varma family working in the company emerged after Gautam's arrival on the scene, though whether or not that is coincidental I do not know. It does seem, however, from evidence I will come to shortly, that Gautam was in a hurry to be given recognition within the company and/or an assurance that he would inherit a part of the company. It certainly seems that around 2006 there was some jockeying for position as between the respective cousins (Gautam, Arjun and Vikram) as to which side of the family would find the most favour with Sid. There were, it seems, accusations of jealousy or rivalry on both sides (and, in that context, Carin's comments in the witness box that Sid was 'infatuated' with Gautam, while they suggest some emotion on her part are given some credence by the fact that the doctors who assessed Sid later at Concord hospital both spoke of the high regard in which he held Gautam and it certainly seems that by the date of Sid's death Gautam was the favoured grandson). 97 Two matters seem to have sparked dissension within the Varma family at this time – the so-called 'cashew nut' incident and the sale of Sid's property in India (C-559 Defence Colony, New Delhi). Cashew nut incident 98 As to the first, at some stage in 2006 an issue arose as to the responsibility within those working for the company for monetary losses arising from the discovery that a batch of cashew nuts imported by the company was defective. Objection was made by Mr Petersen to much of the affidavit evidence relating to this topic and I expressed the view that the responsibility (as between the various family members) for those losses was irrelevant to any issue in the proceedings. I remain of that view. The only peripheral relevance I can see, in what was clearly a rather vexed matter within the company, in relation to the defective cashew nut incident, arises in the following ways. 99 First, Parveen wrote to Sid on 4 December 2006 apparently seeking to put her side of the story in the face of what she described as "the ongoing anxiety caused by these wrongful accusations" (ie accusations which I infer she attributed to Gautam and/or Arjun) that the monetary losses were somehow her fault. That letter, which clearly points to the existence of internal rivalries between the respective branches of the family (ie between Subash's family and Deepak's family), was written in a respectful manner. Parveen, in that letter, refers to all her "years of loyal service to both your company and to your domestic comfort" and states that she had seen Sid run this company successfully for 18 years. Parveen wrote "why should I doubt your good judgment in directing my duties?" (The letter also points in this regard to the likelihood that, by this time, Sid was becoming forgetful insofar as Parveen said that her only mistake was to rely on Sid's "verbal authorisation which you have since forgotten".) 100 The letter also referred to a request for a salary increase and stressed that Parveen and her husband had worked very hard for the company for many years, every week day, Saturday and public holiday (something also emphasised by Parveen in the witness box) and said: It seems our commitment and dedication to this company has been quickly forgotten since the arrival of others who walked into a ready-made and successful company and all the comforts that come with it. I do not dispute your right to distribute benefits amongst your family staff, I merely ask you to distribute these benefits fairly. 101 While the reference to a right on Sid's part to distribute benefits amongst the family is not necessarily inconsistent with an agreement of the kind Parveen has alleged (in that the letter might be read as limited to the issue of staff benefits during Sid's lifetime and not any disposition of benefits on his death), the tenor of the letter (and particularly the reference to Parveen's years of loyal service for Sid and the company and her ready acceptance of the direction by Sid in her duties), without any reference to Parveen having an expectation to take over or control the company in due course, does not sit comfortably with Parveen being under an understanding that the company would be hers on Sid's death let alone there being any binding contract to that effect. (As I apprehend it, it is to this issue – Parveen's failure to assert her rights prior to Sid's death – that the anthropological opinion evidence was addressed and I consider that in due course.) 102 Secondly, it was accepted by Gautam that there was a period in which he was not in Sid's good graces over the cashew nut incident. However, Gautam's initial affidavit evidence as to the period of that disharmony (6-8 weeks) is inconsistent with his oral evidence in the witness box, in which he seemed to suggest that he was out of favour with his grandfather for 6-8 months and at least through until June 2007 – an inconsistency said by Mr Rayment to have been contrived to fit in with other evidence in the case. 103 In any event, it seems not to be disputed that in the latter part of 2006, Sid was upset about the cashew nut incident and there seems to have been some finger-pointing as between those working in the company as to who was to blame for the losses in question. Thus it is not implausible that Gautam would have been concerned towards the latter part of 2006 at his prospects of succeeding to a share of or role in the company (particularly as he was presumably aware of the result of the much earlier falling out between Vikram and his grandfather, in the sense that Vikram had been excluded from a role in the company for some time), which would have given him an incentive to press his father to try to resolve matters at that stage. C-559 Defence Colony moneys 104 The second matter about which Sid seems to have been upset at that time was in relation to the non-payment of moneys which he believed were owing to him from the sale of the family property (C-559 Defence Colony) in India. Although Sid ultimately seems to have allowed his three sons (Subash, Naval and Deepak) each to retain a one third share of the moneys from the sale of the property, for quite some time it seems he was pressing for those moneys to be paid to him (and both Parveen and Deepak in fact did pay different amounts, which Sid later refunded). In Parveen's case, she paid a sum of about $66,000 (incorrectly included in the calculation of amounts which she said she had lent to the company in reliance on Sid's promises) which was later refunded to her from the company. 105 Carin's evidence that Sid had accused both Parveen and Deepak of not making payment of the funds from the sale is consistent with Sid being agitated as to the C-559 moneys and it does not seem to be denied that this was a point of contention for Sid – namely, that he wanted his money from the sale to be paid to him. September 2006 'Gautam' email 106 In the context of the disharmony within the family in 2006, there arises the issue of authenticity of a highly contentious piece of evidence seemingly emanating from this time. On its face there was an email from Gautam to his mother Sangeeta's email account (addressed to his parents) on 19 September 2006. As it became so contentious during the course of the hearing, I reproduce the contents in full (largely as it appears on the email in evidence, leaving the typographical errors uncorrected but with some formatting changes): Dear Papa & Mummy, I am getting extremely frustrated & dont know what to do. I know you have already gone through and still going through lot of problems because of me & I do not wish to do anything stupid to further cause any harm to you. Dada is after my life on a daily basis regarding money from C-559 Property. He is maintaing that he gave me the money in my name and hece I am 100% responsible. He keeps telling me to let him know exact date when the money will come to him. He also tells me to visit India and get the money. I have told him numerous times to write to you directly but he is not interested at all. He maintains that I have to pay him $200,000. He knows Tayji has money in her bank account in India and he also knows that kuku chacha has bought property in India. But he is only interested in getting back the money which as per him he only gave in my name to safe guard the property. Inspite of various clarifications he is not changing his opinion. On contrast he is being extra nice to Vicky & Carin for everything. In addition to all the money he gave earlier, he gave Carin $4000 about fifteen days back and now again $10,000 on 15/09. I am sure he must have given this to her for getting pregnant. On contrary he stopped paying $200/week which he used to give me for Sidhanth. He stopped this about two months back. I am sure he is going to give them another $100,000 when their baby is born in contrast to $50 which he gave to Geetika. No more discussions happen in front of us. So we do not know what they talk. They take dada and ruby auntie for regular dinners without us and talk behind our back. Dada is also finalising a house for Vicky and Carin, maybe within this month or latest by early next month. Its just a matter of finding the right property. Vicky is taking Dada today to see one property. And all this inspite of me being so productive for him. I have established Cashews so well for him. I have already imported four containers since March '2006 and just booked three more containers from India. I am getting amazing orders for him giving him so much of income, but all in vain. All three containers that I have booked from India are already sold. It is very hurting. I so many times wish to just resign and leave his company, but I fear as I do not trust my KISMAT anymore. I feel that even all my hardwork in cashews will ultimately go to Vicky & Carin. He is all out for them. Vicky had a turnover of One million this year. This means an income of $250,000 minimum owing zero expenses. Inspite of this he wants to pay off his home loan account, buy property for them as he feels Vicky is married and now Carin is pregnant and $250,000 Per Annum is not enough for them to survive. On contrary me & Arjun get salary of $34,840 Per Annum, which as per him is enough for us. When he does these kind of things, it realy makes us feel that the whole business will go to their family. However you have a strong feeling that this will not happen. I feel it is time for us to put our foot down and openly speak to him regarding his motives. However I will not do anything till you confirm. (my emphasis) Re: C-559 property – Maybe you can write a letter giving a date and also say that your share of $200,000 ie $66,666 would be available to either give to Vishnu OR invest in property in India. And that he can call for balance from other two brothers. Or maybe Kuku Chaha can write similar letter to him saying that he is selling his property and money will be remitted to him directly after that. But in his letter he should also state why money cannot come only from you. But instead of October he can give a November date, which can be postponed as per convenience later. He should even state in that letter that $200,000 of Subhash is lying in bank in India in their account. I feel both above options should be ok and you decide which one is better. I am not sure what, but something needs to be said to him soon and he will not stop unless you talk. I guess you were right. There is no point of being nice to him. You are the only person who can control him. He needs a strong letter from you to set him right. I know as of now you are surrounded by my problems [this seeming to be a reference to some fraud allegations then on foot in relation to Gautam, which are of no relevance to these proceedings and as to which there was only passing reference in some of the documents in evidence], which are more severe, but I am losing patience with Dada. I cannot sit calmly and quietly when he calls you & mummy dishonest. Please let me know how to handle the situation. Love Gautam 107 This email, as part of an email chain culminating in a copy of the email as forwarded from a 'John India' email account to the solicitor for Parveen in September 2008, was annexed to Parveen's affidavit of 4 November 2009. The only response to it (disingenuous at best, having regard to the fact that the contents clearly purport to emanate from Gautam) by Gautam in his 1 February 2010 affidavit evidence was the comment that he did not know a John India and did not know why a John India would be writing to the plaintiff's solicitor. (I say disingenuous because it must have been clear from the content of the email that it purported to come from Gautam and yet there was no denial at that stage that this was an email which he had sent to his mother.) 108 In the witness box Gautam denied that the email had been sent by him. He accepted, when taken to various of the statements in email, the correctness of much of the factual matters referred to in the email (such as the payments made to Carin, the payments which had been received by him in relation to his son Sidhanth, the salary he and Arjun were receiving at the time and the issue over the C-559 sale which was preoccupying his grandfather at that stage). The email is relied upon by Mr Rayment to show what Gautam was concerned about at the relevant time (namely that Sid was favouring his cousin's family over himself) and for the suggestion that Deepak was perceived as being able to control his father. 109 Objection was made to the admissibility of this document on the basis that its provenance (and integrity) had not been established and as to the lateness of the time at which it was produced. It had not been tendered when Parveen's affidavit was initially read. I admitted it provisionally as Exhibit N on 31 March 2010, pending evidence as to its provenance, and in due course (on the 15th day of the hearing – 6 April 2010) I admitted a further copy as Exhibit W, following evidence from Carin as to how that email was obtained (to which I adverted earlier). The further copy shows that it was forwarded from Sangeeta's email account to that of the John India g-del account on 31 January 2007 (and only later forwarded to Parveen's solicitor). Carin explained the 'John India' account as being an email account she had set up when conducting or seeking to set up a trade arrangement with contacts in India and that she had used a male pseudonym for the account since when she had used her own email account she had received a number of unsavoury emails. Carin said that she had accessed Sangeeta's account by using her knowledge of the special password. Carin conceded that she was not proud of what she had done but considered it justified in order to find out what Vikram's cousins were doing behind Parveen's back. (There was ultimately no submission made that I should take any adverse view of Carin's credit in this respect.) 110 I indicated that I would give leave for the defendants to seek computer assistance in order to determine the authenticity of the email or its integrity but the defendants chose not to take up that opportunity. To be fair to them, it was said that there would be difficulty obtaining such assistance in the time left available for the (by then already extended) hearing and it may well be that access would have been necessary from the Indian end to a computer or computer server over there. (There had, of course, been an opportunity since the time of service of Parveen's 2009 affidavit for enquiries to be made in this regard if the authenticity of the email was to be disputed.) 111 As to the circumstances in which the email was created, it would seem to me extraordinary if it were to be suggested that Vikram or his wife had had the foresight back in September 2006 (well before the events giving rise to the tutor proceedings let alone this litigation had occurred) to create and send a false email purporting to be from Gautam to his mother (and for there then to be no response from Sangeeta querying the bogus email with Gautam, such that its existence would not emerge until January 2007 in the manner in which it seems to have done) so as to fabricate evidence against Gautam and I do not understand this to be what was ultimately suggested. 112 Rather, what is said by Mr Petersen is that, first, Parveen (to whose affidavit it was first annexed) herself disavowed any knowledge of the document 'prima facie vindicating the defendants' objection to the inclusion of the document as an annexure to that witness' affidavit'. In fact, the document was not admitted as an annexure to Parveen's affidavit. It was separately tendered as an Exhibit in the circumstances mentioned above and its provenance was attested to by Carin. 113 Secondly, it is said that the provenance was not proved because Vikram was not called to give evidence to corroborate Carin's evidence (in the witness box) that he saw the document first (leading her to access the account in the first place) and because Carin failed to put the original print out into evidence but rather produces an email forwarded to the John India account. Reliance is also placed on the fact that the email emanated by a 'convoluted route' via the forwarding of the email to Parveen's solicitor rather than by printing out the document direct on Carin's home computer. 114 As to the submissions raised as to its provenance, the failure to call Vikram would only give rise to an adverse inference if there was an issue which the plaintiff was required to answer on an issue in respect of which he would have been in a position to assist. There is no relevant issue in my view. Why Carin says she chose to access the email seems to me to be beside the point (unless it is suggested that there was some manipulation of the document revealed in that process and none was raised by the defendants' evidence). As to the fact that there was no 'original' printout, what I understood to be the evidence was that Exhibit W was in fact the 'original' version in the sense of what was printed by Carin from her computer and what was on her computer as at the date of her affidavit and that this was what was printed off on 31 January 2007 (ie that the document on Carin's computer was one as forwarded to her John India email account). I do not know whether there was ever any other email printed off on that date and hence I cannot accept that the criticism in this regard by Mr Petersen is justified. As to the criticism that Parveen's affidavit was prepared by using a document forwarded to Parveen's solicitor rather than one printed directly from Carin's computer, that seems to me to carry no weight – it may well have been forwarded to Parveen's solicitor for the purpose of him opining as to whether the document was relevant for the purposes of the preparation of Parveen's evidence and then simply used in that format. 115 Logically, there are a number of possibilities if Gautam's evidence that it was not his email were to be accepted. 116 One is that it might have been possible for someone to tamper with the time settings of the computer in order to manipulate this document so as to make it appear to be an email sent in September 2006 though it was not actually sent at that time. I assume (as someone not professing any computer expertise) that this is possible to do (though there was no evidence that it was in fact done) but this does not seem to address the fact that the email, as printed from Sangeeta's email account, records the sender as being Gautam's email account. Hence, whatever date it was sent it seems that it came from Gautam's email account. 117 Another possibility is that there was a genuine September 2006 email from Gautam to his mother but that at a later date the email was accessed and the content was altered by someone else and then printed off by that person (or left to be fortuitously found by Carin) so as to paint Gautam in a poor light (as I think it is fair to say the email does – indeed, not to put too fine a point on it, it paints Gautam as somewhat of a spoilt brat). Again, I can only assume that technically this would be possible. However, in that case, I cannot see why it would have been thought necessary to include so much of the detail in the email (such as Gautam's boastful assertions of his business prowess and the complaint that Sid had called Deepak and Sangeeta dishonest) and that seems a rather contrived explanation for a document which on its face seems to have come from Gautam. 118 It seems to me that there is nothing more than speculation to suggest that Vikram or Carin tampered with the content of the email as it appeared on Sangeeta's email. (The only niggling doubt I have in that regard is that there was a subsequent email which it is accepted was sent from Vikram's computer in 2008 but which is recorded on the 'Sent' field in the email as being sent in 2006 and for which there was no explanation. However, in the absence of computer evidence to explain the likely explanation for this discrepancy I do not know that I can draw anything from this, particularly when the document was in its current form at the latest by 31 January 2007 and there is no suggestion that other documents from Vikram's computer from that time bore an incorrect 2006 date.) 119 As to the indications which can be drawn from the content of the email itself, it seems to me that those point to it being in fact a document from Gautam just as it purports to be. First, Parveen's husband's name is spelt "Subhash". While this is a minor point, and I place very little weight on it, that seems to be the spelling of his name utilised in the defendants' materials but not in the ASIC records of his name nor in the material filed for Parveen in the proceedings. Secondly, and what I do place weight on, is the manner in which Gautam and his father responded in cross-examination to the meaning of the words "Kuku Chacha" in the email. 120 Gautam's immediate response (at T 1076.39), when asked who was kuku chacha (reference being made to that person in the email), was "That would be Mr Varma's son, Naval in the US". My recollection of Gautam's evidence, assisted by my contemporaneous notes of his evidence, is that this response was given without hesitation and in a matter of fact way. On the other hand, Deepak, when taken to this email, before even denying that he had received or seen it, gave a loquacious response as to the Indian manner of referring to family members and asserted adamantly that no son of his would refer to Naval as Kuku Chacha (Kuku being the family pet name for Naval but Chacha being the diminutive for an uncle who was younger not older than one's father). In other words, Deepak was insistent that his sons would refer to both Naval and Subash as 'Tayji' not 'Chacha' (and on that logic the only one who would refer to Naval as 'Chacha' would be Vikram). Presumably that was intended to support an argument that Vikram had fabricated the email. The only problem with that is that Gautam had only a day or so before been perfectly happy to proffer the response that this was a reference to Naval. The somewhat farcical nature of this evidence was compounded when Gautam then swore a further affidavit in effect resiling from what he had said in the witness box in this regard. I frankly found this quite unbelievable and it casts considerable doubt in my view over Gautam's denial that this was an email sent by him as does his failure to deny authorship at an earlier point in time. 121 The email chain (in Exhibit N) shows that the document was forwarded from the Sangeeta account on 31 January 2007 and then on-forwarded to Parveen's solicitor on 17 September 2008. Exhibit W shows the document as printed from Carin's email account and shows the forwarding from the Sangeeta account to her account on 31 January 2007. That, to my mind supports the conclusion that the email was a genuine document (since the tutor proceedings were not on the horizon in January 2007). 122 Having regard to its contents, the fact that if this were not to be a genuine email it would seemingly have involved an elaborate scam being perpetrated by Vikram in relation to this email, the inconsistency in the evidence of Gautam and Deepak as to what 'Chacha' meant, and the fact that Carin's evidence as to how she found the document seemed to me in general to be plausible, I consider it more likely than not that this was an email from Gautam to his mother at that time. (What I have some doubt about is the suggestion that Vikram simply saw such a message flash up on the office computer screen, which is said to have prompted the search, since I do not know how likely it is that such a thing would occur in the absence of the user of the email account having had the account open, but the circumstances in which Vikram apparently suspected that there might be communications between Gautam and his parents do not seem to me to affect the reliability of Carin's evidence as to her accessing of that account.) 123 In any event, ultimately, other than as going to Gautam's credit insofar as I find it very difficult to accept his denial that this was an email from him, this email does little more in my view than confirm the internal rivalry going on between the two families at that time and cast doubt on Gautam's denial in these proceedings that his grandfather was open to influence (by whomever that influence might be sought to be exerted). I do not think it enables me to draw the inference that (even if Gautam perceived his father as having influence over Sid) Deepak did have control over his father (and his father's apparently adamant refusal to entertain Deepak's involvement in the business suggests otherwise). Nor does it enable me to infer (simply because Gautam may have requested that his father do something to control his father – and that being in the context of the C-559 sale proceeds) that Deepak in fact did so or, further, that he did so in relation to the share transfers some 18 months later (the first of which were implemented in April 2008 before Deepak's arrival in the country in late May) or in relation to the will. (Ironically, perhaps, it seems that Vikram himself sought to avail himself of Deepak's assistance as an intermediary with Sid when trying to reach an agreement within the family for the distribution of the shareholdings in May/July 2008.) 124 Mr Petersen pointed to the fact that the Gautam email makes no reference to any promise or commitment to give shares to Parveen. Indeed, consistent with the defendants' case that the brothers were not on notice of any contractual or other binding promise to leave the shares to Parveen, the Gautam email does not suggest any understanding that Parveen had any contractual entitlement to the shares. One might have thought the complaint to Deepak would have been differently expressed had Gautam thought there was a contract in existence which put paid to his hopes (rather than the concern that whole business would go to Parveen's family). What it seems to reflect is a concern that the generosity exhibited to Vikram and Carin (and Gautam being out of favour for the C-559 reason at least) meant that Vikram's family might be in a position of favour at the time. 125 Mr Rayment submitted that the concern exhibited by Gautam in this email (namely, that everything would go to Vikram's family) was inconsistent with Gautam and Arjun having any knowledge at that time (2006) of the contents of Sid's wills. This is put in the context that Mr Petersen has relied on such knowledge at least of the 2004 will as gainsaying the need for any influence to be exerted by his clients in relation to the share transfers. As I understand it, Mr Petersen in effect says that, because Arjun (and his wife) knew that Arjun was already a beneficiary in the will there was no need for him later to press for the inter vivos share transfers. 126 I do not accept that either conclusion follows. 127 As to Mr Rayment's submission, the fact that Arjun and Gautam may have known about the 2004 will does not mean that they could not have been keen to press either for Gautam to be added as a beneficiary (since he was not so named in the 2004 will) nor does it mean that they might not have wanted to obtain the shares in advance of Sid's death (perhaps to prevent Sid being swayed in favour of Parveen's family at some point). Gautam's email would be consistent with a concern that, whatever was then in the will, it might later be changed by Sid if he were prevailed upon by Vikram or his family members to do so. 128 As to Mr Petersen's submission, again the fact that Arjun and Gautam may have known about the 2004 will at that stage does not mean that they cannot have been concerned that Sid might later change his mind and leave everything to Parveen's family. Indeed, the suggestion in Mr Castino's later notes that there may have been a concern as to a challenge by Parveen's family to the will, seems to reflect a concern by those instructing Mr Castino that the company might not end up in the joint hands of the three individuals named in the April 2008 will. In those circumstances the brothers may well have thought it desirable to shore up their position by getting shares transferred to them before Sid's death. 129 It seems clear (on any version of the events which transpired over the period from 2006) that by the time at which it is suggested that influence was being exerted over Sid (around the time of the share transfers in mid 2008) that at least the three cousins (Gautam, Arjun and Vikram) were engaged in a rather unseemly scramble to ensure that any testamentary or inter vivos dispositions that Sid might make should favour one or other side of the family and that there were suspicions on both sides of the family of the conduct of the other (the Gautam email complaining that he did not know what was happening at the family dinners to which Sid and Ruby were taken by Vikram's family and nothing being said in front of him any more; Parveen in her evidence complaining that Gautam and Arjun were behaving in a secretive manner and spiriting Sid out of the house for meetings with Mr Czinner and Mr Castino; and Vikram and Carin apparently being concerned enough at the motivations of Gautam and Arjun that Carin had accessed Sangeeta's private email account). Hence the concern of Gautam and, for that matter, Arjun, even if they did know what the latest will said as at that time, may well have been to concerned to preserve or maximise whatever benefit they were then expecting to receive and prevent any change of mind by Sid in favour of Parveen's family. 130 In this regard, it seems to me that the most perspicacious comment as to what was going on at least in 2008 if not indeed from this around time (ie from 2006) is that which was attributed by Dr Waite (who assessed Sid in September 2008 when he was a patient in Concord hospital) to Sid himself, namely his observation that all his family was interested in was his money and not his health. (In saying this, however, I should note that it seems that Parveen largely distanced herself from confrontations with Sid in relation to his will or the shares in the company and I do not suggest that she was acting otherwise than with his best interests in mind.) Proposed share transfers to Parveen/Carin – March 2007 131 Disharmony between the family members seems to have come to a head in early to mid 2007 when Sid first gave instructions for and then cancelled share transfers which would have given Parveen and her family 70% of the company. 132 On 15 March 2007, Sid handwrote (on a company financial statement) a message to Mr Castino instructing him to transfer and allot urgently 60% of his share capital to Parveen and 10% to Carin. Parveen handwrote Mr Castino's fax details on the document and seems to have sent it through to him at 3.30pm that day. Parveen also sent a handwritten note to Mr Castino providing him with Carin's details for preparation of share transfer forms in her favour to be signed by Sid. The note requested that this matter be kept confidential and not disclosed "even to Mr Varma's two grandsons who are working in the office". Parveen requested that if there were any query Mr Castino speak to her only. It can be inferred from this communication that Parveen (whether or not she did so on Sid's instructions) was attempting to have the share transfers effected without the knowledge of Gautam and Arjun. In that, she was unsuccessful. 133 Before any share transfer form was executed, the instructions were cancelled by Sid, by letter signed by him which referred to a telephone instruction to that effect. (On Arjun's version of events, the first he learnt of this was when Sid raised the matter with him on 16 March 2007 after he had cancelled the transfers. I find it difficult to accept that Sid would have taken the step to cancel the transfers without some intervention from either Arjun or Gautam or both. There is nothing to suggest that there would have been any reason for him to revisit the question without any such intervention. The suggestion that he did so because he had clarified the position in relation to the cashew nut incident seems inconsistent with the timing attributed by Gautam as to when the period over which he was in disfavour came to an end – which varied, as became apparent in his cross-examination.) 134 On 16 March 2007, Sid signed a letter to Mr Castino, referring to a fax of 15 March and subsequent telephone conversation, and stating: re distribution of my Share Capital with Sixty Percent in the name of Parveen Varma and Ten Percent in the name of Carin Varma w/o Vik Varma. As discussed on phone, kindly ignore my letter dt 15 March 07 and do not implement any distribution of Share Capital of any nature. 135 Sid apparently crossed through the instruction and wrote the word Cancelled. Arjun agrees that he also handwrote on the 15 March instruction the words "Cancelled on 16/3/07 By SID VARMA" (Exhibit J) 136 Carin's affidavit of 2 March 2010 refers to an incident on 17 March 2007 at the office when she says she and Vikram spoke to Sid about the cancellation of the share transfers and she says Sid said he had cancelled it and said that Arjun had told him that Parveen could not run the business (something which would be consistent with Arjun's apparent attempt around this time to undermine Parveen and with the disparaging view expressed in various of the defendants' affidavits as to Parveen's abilities in a managerial sense). She said that Sid had said that Arjun was unhappy. According to Vikram, Sid had told him that Arjun had threatened to disown him (suggesting the exercise of influence over Sid). (It is perhaps indicative of the brothers' approach in this regard that a threat to 'disown' his grandfather is not that far removed from the suggestion in Gautam's September 2006 email that he might just resign, but I draw no inference from any similarity in their reported behaviour.) Carin's account of what occurred on 17 March 2007 is that Arjun had smiled and shrugged his shoulders when Carin asked him if it was true that he had threatened to disown Sid if the company was given to Parveen. I accept Mr Petersen's submission that I cannot place weight on an observed smile (or smirk) in this context. Arjun's memorandum re Parveen 137 Whether or not prompted by concern that the Vikram family members might be getting the upper hand in their relationship with Sid, it seems that there was a readiness on the part of at least Arjun to undermine his aunt's position in the business. 138 On 20 March 2007, Gautam/Arjun prepared a memorandum (Exhibit G) in relation to petrol consumption used by "Subhash" Varma's delivery vehicle. Although he denied in the witness box that this was any attempt to undermine Parveen, that memorandum contained quite inflammatory comments insofar as it concluded (with an extraordinary leap of logic) that: THIS PROVES BEYOND ALL DOUBT'S THAT THE COMPANY IS BEING CHEATED, BY ITS OWN DIRECTOR, PARVEEN VARMA, MONTH AFTER MONTH AND YEAR AFTER YEAR, FOR THE PAST 18 YEARS . YET CLAIMS ARE MADE OF HOW HONEST AND DEDICATED THEY ARE TOWARDS THE COMPANY AND TOWARDS YOU. 139 It beggars belief that this could not be acknowledged as having been intended to undermine Parveen particularly given the extraordinary assertion that mileage calculations from December 2006 to February 2007 (even if correct) established beyond all doubt a course of conduct on a monthly basis over the past 18 years. Little wonder that with such conduct on the part of Gautam, Parveen and her family may have become suspicious that Arjun (at least) was seeking to prejudice Sid against her. That suspicion seems to have led to a sinister construction being put by Parveen on various matters (such as the occasions when Gautam or Arjun were said to have spirited Sid out of the Gladesville office in secrecy). (By the same token after the events of March 2007, it would have been not unreasonable for Gautam and Arjun to suspect Vikram of seeking to sway Sid towards his side of the family. Announcement by Sid of intention re new will/shares to Arjun 140 On 7 April 2007, Sid sent a letter to Parveen which notes that formalisation of a new will was underway (though not stating what provisions were to be made hereunder). Mr Petersen relies on this as indicating that Sid was not being secretive about his wills. It seems to me that this goes no further than a (perhaps in terrorem) notification of the fact that Sid was proposing to make a new will not as to its contents. 141 According to Arjun, on 18 July 2007 Sid announced his intention to transfer substantial shares to Arjun. Parveen refers to this in her affidavit but says that it was an intention to "leave" Arjun shares. Mr Petersen submits that it is more likely that this was a reference to transferring shares since there was by then already a will under which Arjun was a beneficiary – and hence announcing that there was an intention to leave shares would hardly have been newsworthy. However, the force of that submission depends on whether Parveen was aware of the then will provisions, which is very much in issue. 142 It is not disputed that Vikram came into the office at Gladesville to protest in some fashion as to that announcement or that Parveen then took time off work and obtained a medical certificate due to the stress of the announcement. Arjun says that Vikram told Sid he would regret the decision and that Sid instructed the directors to remove Vikram as a director due to that threat. 143 Sid then signed a letter to Mr Castino on 18 July 2007 stating that: I apprehend that Praveen Varma as Secretary of my Company has caused certain unauthorised changes in the Share Holding of Taj Food Sales Pty. Ltd. [By this, I assume he is referring to the instructions of March 2007 which he signed and then cancelled as there is no evidence of any others.] A few minutes ago, my grandson Vikram Varma, Director, threatened to cause wind up of my Business…" and requested that Mr Castino do all that was required to "protect us to continue trading". The letter also requested that a one sheet share transfer form be sent to him. Mr Castino's handwritten notes on that letter included his note that he suggested that Sid "talk to Vik & ask for his resignation" as director. 144 Sid then signed a letter to Vikram dated 19 July 2007 requesting his resignation with immediate effect. Vikram's response, by letter of the same date, was to deny having shouted or threatened to destroy the business, stating that what he had said was "This will come back to haunt you" and noted that this remark was made in reference to "your unfair treatment of my Mother after her many years of faithful service to you". Vikram suggested that Sid "take advice regarding matters of such statements made from a more reliable source, as I believe you are receiving the usual incorrect and inflammatory information from Arjun". 145 Meanwhile, Parveen did not attend the office on 19 July 2007 and wrote to Sid on 20 July 2007 that: I am absent from my position due to the events that happened Wednesday morning. You announced your intention to leave the controlling share of Taj Food Sales Pty Ltd to Arjun. This decision came as a shock to me as my 20 years of service to you has resulted in such insecurity in my life" (my emphasis). 146 Significantly, the complaint by Parveen was not that Sid was proposing to leave any of the shares of the company at all to somebody else but that he was proposing to leave the 'controlling' share to somebody else. That would suggest that what Parveen had understood was not so much that the company would be hers, in the sense that she would own all of the shares, but that she would have the majority or controlling shareholding, but that is not the case as has been pleaded by her. 147 Parveen's letter stated that she had suffered sleeplessness, nausea and depression as a result of the decision and attached a medical certificate certifying that she was suffering from headache and anxiety. 148 Sid's response handwritten on his copy of that letter, faxed to Parveen at 2.30pm the same day was that "My Intention expressed PARTICIPATION & Not Controlling Interest. How did you construe or misunderstand WRONG. Pls get corrected" (emphasis as per original). Like Parveen, Sid seems to have drawn a distinction between participation in the company by way of the transfer of a shareholding in the company and the "controlling interest" in the company. Even then there is no suggestion by Sid that he accepted Parveen was entitled to a controlling interest. 149 It is relevant to note that the complaint made by Parveen was not that there was any breach by Sid of a promise or agreement with her – but rather that her treatment was not fair in light of her years of service with the company. 150 In the interim, Sid had signed as chairman a typed board minute of a meeting of directors (attended by himself, Ruby, Gautam and Arjun) recording a decision to remove Vikram as director "in lieu of the gravity of Misconduct" on his part, on which Sid had written a note – 'me to phone Dennis tomorrow 21/7/07'. 151 On 24 July 2007, Sid signed a typewritten letter to Parveen and her husband acknowledging receipt of the medical certificate and stating that : The recent sale of my property C-559 Defence Colony New Delhi was divided between my three children. It fully satisfies inheritance of parental wealth. The business in Australia needs to continue for my own comfort and also to benefit my grandchildren who join my business to work together in disciplined manner. Please accept the above decision to get your headache cured. [a rather dismissive comment, I would have thought] Both you and Subhash are employed and well provided from the date of arrival in Australia. Lots of love Papa 152 There does not seem to have been a response to that letter, which was followed by a letter signed by Sid on 25 July 2007 expressing the view (rather dismissively of Parveen's stated health issues) that "Headache and Anxiety does not normally warrant Medical Leave for One Month. I therefore suggest you visit a Specialist Doctor/Psychiatrist for a more appropriate analysis of your ailment and speedy recovery." Sid authorised medical leave for only a further two days and even then only on condition that Parveen see a specialist or psychiatrist (and, in what seems to me could only have been a move likely further to upset Parveen, the letter was copied to a general medical practitioner with a request for a recommendation of such a specialist doctor or psychiatrist). 153 Seemita, in her affidavit, deposed to a conversation with Sid in July 2007 in which she says Sid said he was very disturbed that Parveen did not understand the 'ABC' of business but thought she knew everything and wanted to control everything and was jealous of Gautam and Arjun (paras 26-27). Apart from the fact that the evidence before me hardly suggests that Parveen had been in the habit of trying to 'control everything', and accepting Seemita's evidence that Sid did say that to Seemita, it not only suggests that Sid was overstating the position but it begs the question whether Sid's then stated view had been influenced by what he was being told by Gautam and Arjun. By this time, it is hard not to see Sid as someone besieged by one or more of the cousins and (at least to the extent that his views as to the issue of the March 2007 share transfers had seemingly changed literally overnight) as someone whose judgment was vulnerable to outside influence. 154 Seemita also says that Sid told her "I have now asked her [Parveen] to accept my decision that Gautam and Arjun will get the controlling shares or she can resign. The decision is hers". If that conversation was in the actual words to which Seemita has deposed, then it is clearly inconsistent with Sid's written comment on Parveen's letter (which was emphatically that his intention was not for a controlling share or controlling interest to be given to Arjun). 155 Such an inconsistency in Sid's position, as between what was said to have been stated to Seemita and what was written to Parveen would in my view be consistent with Sid being in a position vulnerable to exploitation in the sense that he seems either to have been forgetful of what had been his position to Mr Castino on 16 March 2007 (that there be no changes to the issued share capital of any nature) when deciding to give Arjun a 'participation' interest and then forgot his emphatic position on 20 July 2007 (that all he was proposing for Arjun was a participation, not controlling, interest) or that he changed his position almost overnight from that where Arjun was only to have a participation share to that where he was to have the controlling shares (and the last at a time when the only persons to whose immediate influence he could have been subject at that stage were those other than Parveen who was on medical leave at the time). 156 The other possible explanations open would seem to be that he changed his view at whim depending on who it was he was communicating with at the time (similarly rendering himself vulnerable to exploitation) or was being intentionally deceptive in his dealings with Parveen (as was suggested by Mr Rayment) or that the mere fact that Parveen was absent with a stated headache had been such as to cause him to change his position in relation to the controlling share of the company within a very short period of time. 157 None of those explanations suggests that Sid was other than vulnerable by this stage to exploitation or influence from those closest to him. 158 On 18 August 2007, Parveen ceased to be a director of the company. On the same day, Vikram wrote to Sid apparently acknowledging that he had criticised Arjun to his grandfather and stating that: I made a remark about Arjun's inability to manage Taj Food Sales due to both his inexperience and undisciplined approach. I said that Arjun will put the company into liquidation if he is left in charge and I still believe that to be 100% true … It is a sad shame that things have come to this, however, it is in my interest to set the record straight". 159 The next day, 19 August 2007, Vikram wrote to Sid denying any statement had been made by him that he would destroy the business and suggesting that this was a defamatory claim intended purely to inflame and destroy the relationship between grandfather and grandson. He stressed the fact that his family had "been a part of Taj Food Sales" since it began but made no reference to any entitlement on the part of his mother to the company or a controlling interest in the company. He went on to state that: You always emphasis [sic] the importance of balance, and now there are two directors from Deepak Chacha's family and only one from ours. I understand that you have overlooked this critical imbalance in your annoyance with me upon being presented with the inflammatory fabrication outlined above. Now that I have clarified the truth with you I hope you will reinstate me to the board of directors and restore some of the balance and harmony in Taj Food Sales and in the family". 160 It is not clear whether there was a response to this but, relevantly, what Vikram (with or without his mother's imprimatur) was at that stage pressing for something quite different from the entitlement his mother says that she has and without reference to any such claimed entitlement. February/March 2008 – leading up to initial share transfers 161 By letter dated 12 February 2008, bearing Sid's handwritten corrections and a note requesting that Mr Castino phone him direct to ensure 'speedy compliance', Sid signed instructions to Mr Castino in relation to the transfer and registration of 3,000 A class and 30,690 ordinary shares to each of Gautam and Arjun. In that letter Sid noted "In view to achieve Continuity of the Business without interference from any quarter, it is my wish to Handover Management & Controlling Share in the Business to my Grandsons, Gautam Varma and Arjun Varma" (emphasis as per original) and concluded that he was at Mr Castino's disposal to discuss this and obtain a speedy transfer of Management & Ownership of the Business. 162 Arjun says that in February 2008 Parveen said to Sid "you should distribute the shares amongst your family members fairly. So I should get 50% as the wife of Bashi, and Gautam and Arjun should get 25% each". (While there seems no doubt that a suggestion as to a split along those lines emanated from Parveen's family, I would accept that the proposal was pushed by Vikram rather than Parveen. 163 At about this time, in February 2008, various of the family members, including Sid, attended a wedding function in Canberra. There was evidence as to Sid's difficulty in recollection as to the events that took place at that wedding, which seems to be consistent with an inability to recall information of the kind found when he was formally assessed by the doctors at Concord hospital later that year. 164 On 27 February 2008, Sid and Arjun met with Mr Castino in his office. A copy of Mr Castino's handwritten notes of that meeting were in evidence (Exhibit O p13 and seemingly following through to p17). Relevantly, they record that Arjun is to be appointed company secretary and then show a division of the 100% shareholding as to 60/40% and then Gautam 35% and Arjun 35% totalling 70%. The notes record consideration of the CGT aspects of the transfers. At p 16 of the Exhibit appears the following, after a note as to discussion of CGT rules: 2. Discussed possible challenge to will if balance of shares are passed to estate (But he believed that other family member have been provided for from asset sales). On the following page is note 6: 6.Sid seemed very lucid & firm in his decision to transfer control /majority of shares to Arjun & Gautam & kept stating it was necessary for survival of company in the future." 165 According to Deepak, on 2 March 2008 Vikram telephoned him to say "Dada is planning to give majority shareholding in the company to your family. This is unfair. Both families should get 50%". March discussions re Sid's capacity 166 On 10 March 2008, Vikram wrote to Mr Castino "Re Recent instructions given to you by your client [Sid]", stating that: I am greatly concerned about recent directions given to you by my Grandfather Mr Sid Varma regarding a potentially large share transfer in the abovementioned company [Taj Food Sales] I along with other family members, business associates and board members believe that Mr Varma, age 97, suffers from dementia and this greatly affects his capacity for rational decision making. I believe he is incapable of making sound business and financial decisions in the interests of the company and himself. I furthermore believe Mr Varma's current condition is being exploited by certain individuals within the company. Mr Varma's solicitor has recently indicated to me verbally that Mr Varma's capacity to make such decisions at this stage is diminished enough to warrant caution, particularly in regard to significant and uncharacterisctic changes to both his personal and his company's financial position. I strongly advise that you instruct your client to undergo a Mental Competency Test "prior to your putting into effect any recent instructions form the client… 167 Mr Castino deposed to a telephone call he received from Vikram around that date in which Vikram said that he had heard that there were going to be share transfers in the company. Vikram admits that he spoke to Mr Czinner around this date. Mr Czinner gave evidence that Vikram said "please don't let him [Sid] transfer the shares". (Stopping there, it seems to me to cast doubt over the asserted independence of Mr Czinner that, in circumstances where he was aware that there were concerns within the family as to Sid's ability to enter into important legal transactions, and he must have been aware that the changes being proposed were to the benefit of the very person(s) accompanying Sid and assisting him to effect those transactions (thus giving rise to the spectre of undue influence), and whatever he may have thought was the motivation underlying those concerns, he nevertheless seems to have been prepared in due course to proceed with documentation of the transaction based solely on his own assessment of Sid's capacity and the letter from Dr Bowe which was forwarded to him not by Dr Bowe but by Arjun (and was inconsistent on its face with what was actually happening.) 168 It would seem that following the communications from Vikram, Mr Castino thought it prudent that a medical certificate be obtained as to Sid's competency and suggested that to Arjun. I say this because in due course when Arjun forwarded to Mr Castino (cc Mr Czinner) the medical certificate he had obtained he asked if that was 'sufficient'. 169 Sid saw Dr Bowe, his general practitioner, on 11 March 2008. It does not seem to be disputed that Arjun took Sid to that appointment (although Arjun's affidavit does not make that clear – indeed, one would be forgiven for thinking by reference to Arjun's account of events in his affidavit, that he knew nothing about this until the subsequent medical certificate was handed to him). Dr Bowe then wrote a letter addressed simply to Mr Denis Castino, Castino & Co Ryde 2112 and forwarded by facsimile to the company, stating: Thank you for seeing Mr Sah Varma age 97 years for preparation of a will [presumably having been advised either by Arjun or by Sid that the certificate was for the purposes of establishing competency to make a will and seemingly being under the impression that Mr Castino was a solicitor or otherwise in the course of preparation of a will]. Mr Varma has been a regular patient at this surgery and has been seeing me since 1993. I consider he is sufficiently competent mentally to be capable of making rational decisions in this regard. He has never exhibited evidence of mental illness and apart from some predictable age related memory loss he is not known to be suffereing [sic] from any illness that would preclude him from making a will. Of the incongruity between addressing a certificate of mental competency as to the preparation of a will to an accountant (who was in fact doing no such thing), there seem to be two explanations – either Arjun told Dr Bowe that was what was happening and misstated the position (intentionally or otherwise) or Sid told Dr Bowe and was confused as to what Mr Castino was doing. At that stage, there had seemingly been no steps to contact Mr Czinner in relation to the making of a new will (and, indeed, it seems there was some concern at least on Mr Castino's part when the two realised they had been preparing separate transaction documents which were in one sense inconsistent with each other, as I will explain below). 170 On 13 March 2008, Sid attended Mr Czinner's office. Mr Czinner's note (Exhibit F p 140) records the meeting as taking place between 3pm and 4.45pm. From the contents of the note it appears that Mr Czinner was taking instructions as to a division of the shareholding (whether by will or otherwise). There is a reference to "Denis [presumably Mr Castino] "small business concessions". At the foot of the page is a note "3.30 T/c with Denis. Concerned that they would challenge the will" and a note as to stamp duty capital gains. It appears that the telephone conversation with Mr Castino finished at 4.05pm. 171 Mr Czinner gave evidence that at this meeting Sid asked him whether there was any reason why he could not transfer his shares to Gautam and Arjun and said that he had "no obligation to give Parveen shares but I intend to leave her the remaining one third." (para 9/10 affidavit). Mr Czinner also says that he raised with Sid whether he had any agreement or obligation to Parveen. Mr Rayment relies on this as indicating an awareness that there was some form of obligation to Parveen and it does seem to be somewhat odd that Mr Czinner should single out Parveen in this regard. (Mr Petersen, however, contends that nothing can be drawn from this as the alleged 'promise' was not put to Mr Czinner in cross-examination.) In that regard, I think it unlikely that if Mr Czinner had been told of any such promise or agreement this would not have been recorded at some stage in his notes of his instructions from Sid. Mr Czinner's affidavit very clearly denies that any instructions from Sid to the effect that Parveen was to be left the company or any shares, other than the one-third shareholding for which provision was first made in the 2004 will. The explanation for this comment might equally be consistent with Mr Czinner seeking to explore with Sid any persons who might have an objection to what was being proposed in order to test whether there was any basis for such an objection. I therefore do not read anything into this comment. 172 In Mr Castino's notes (Exhibit O p18) there is a handwritten undated note "Sid Varma Share Transfers" (which must have been written on or after 13 March 2008, since it refers to a call on that date) and the content of which seem to relate to the conversation recorded in Mr Czinner's file note of 13 March 2008. The note includes a reference to 'Ron Czinner & Co' and records the following: Disc Ron, 1. Reason Sid Varma has gone to see him 2. Sections of family are challenging his ability to make rational/reasoned decision because of memory loss/dementia - D.C rec'd letter from Vik - D.C rec'd call 13/3/08 from Parveen saying his mental state needs to be considered and no to rush into any action to transfer 173 The attendances on 13 March 2008 are corroborated by Mr Czinner's fee note of 16 April 2008 (Exhibit F p 134), which records a 30 minute attendance "regarding proposed sale of shares", a 35 minute telephone conversation "with Denis your accountant" and "further discussion with you about changes to your will" all on 31 March 2008 (though from the context and the date on his notes this must be a reference to the attendances on 13 March 2008). 174 On 14 March 2008, Arjun faxed to each of Mr Castino and Mr Czinner the 11/3 medical certificate from Dr Bowe, referring to "our meeting and consecutive discussion" and asking "Please advise if the same is sufficient". Arjun noted in a postscript that he was available on his mobile if they needed to discuss anything further. (Mr Czinner's 16 April fee note included a fee for "perusing "your" [though it was clearly Arjun's] fax and letter dated 11/3/08 from Dr Bowe that you are mentally competent" on 14 March 2008.) It was suggested to Arjun that the request to call on his mobile phone number was an attempt to keep this matter secret from Parveen. Arjun did not accept that was the case. 175 On 27 March 2008, Ruby signed a typewritten letter on Taj Food Sales letterhead noting that she had been "nominated as caretaker in good faith" for the one third shareholding in the January 2004 will and requesting that Sid remove her name as a beneficiary to one-third of this total shares in Taj Food Sales Pty Ltd. It concluded "I posess [sic] a sound and healthy mind & the above declaration has been made by me without any kind of external pressure". 176 According to Mr Davenport, in March 2008 Sid said to him that: Ruby was not in favour and has never been in favour of being a beneficiary of my shares in my company, therefore I am making Gautam the beneficiary in lieu of Ruby. The only way I can do this is by making a new will which I will be doing soon. After I make my new will, I will then like to transfer my shares equally between Gautam, Arjun and Parveen during my lifetime. 177 That is consistent both with the document signed by Ruby and with the instructions given by Sid to Mr Czinner in relation to his will amendments on 27 March 2008. On that date, Sid signed a letter to Mr Czinner purporting to add an annexure to his 22 January will removing Ruby as beneficiary and substituting Gautam, making some further changes and adding a note that: My Grandson Vikram Varma is operating his own import & distribution business of rice other than Basmati grade. He was nominated as a director in Taj Food Sales Pty Ltd without any portfolio and has not been a working member of the company. I do not want Vikram Varma to join or be part of Taj Food Sales Pty Ltd also in the future. I have a sound & healthy mind & mental competence to assess & make decisions in all matters & affairs of the company. Medical certificate dated 11 th March' 2008 attached. 178 (I note that the reference in this document to Sid being of a sound and healthy mind is similar to that in various documents which seem to have emanated from Sid and might equally be seen as a statement for more abundant caution or a response to the assertions from within the family or conveyed to him by his advisers that he was not mentally competent. The only relevance of the repetition of such statements is that they indicate that the communications were being prepared by the same person.) 179 Also on 27 March 2008, Sid signed a typed letter to Mr Castino: In view to achieve continuity of my company's business without any interruptions, I wish to handover the management of the business to my daughter-in-law Parveen Varma & my grandsons, Gautam Varma and Arjun Varma. Please therefore transfer sixty percent of total shareholdngs [sic] & register as below … I possess a sound & healthy mind & mentally [sic] competent of making rational decisions in all matters. I am involved in management of the company in all respects & also sign company cheques & authorize issue of import letter of credits. I declare that the above decision is made by me free of any pressure or outside influence. Encl: Medical certificate dated 11 th March' 2008 April 2008 180 On 4 April 2008, Dr Aggarwal assessed Sid (he said that Sid had been referred back by his general practitioner due to concerns noted by his carers as to his condition (and in that regard he seemed to be referring at least to Ruby) and Dr Aggarwal commenced a new medication for dementia. Dr Aggarwal had started treating his grandfather for dementia in 2001. 181 On 9 April 2008, there was a typed note of a directors' meeting attended by Sid, Ruby, Gautam and Arjun again resolving that Vikram be removed as a director of the company and this was faxed to Mr Castino. 182 On 16 April 2008 Sid attended Mr Czinner's offices where he executed a new will. (Parveen gave evidence that she saw Sid and Arjun leave the office together in the afternoon but did not know where. She nevertheless seems to have rung Vikram or Carin to alert them that something was afoot and Vikram and Carin then took steps to try to prevent anything happening in relation to the will or the shares – much, I might add, as Arjun was seemingly quick in March 2007 to seek to reverse the share transfer instructions then about to be implemented in Parveen's favour.) 183 Certainly, the possibility that Sid was taking steps to change his will or to effect any share transfers was a matter of some consternation within Parveen's family. Vikram's affidavit deposes to a conversation with Mr Czinner on 16 April 2008 in which he says that he was told by Mr Czinner that Sid had changed his will. Mr Czinner confirms that there was a conversation on that date. Similarly it seems that Vikram had a conversation with Mr Castino on that date. Mr Castino has a handwritten note of a discussion with Vikram on 16 April 2008 in which he notes that Vikram advised him that Sid's grandson, Dr Aggarwal, a neurologist had been seeing Sid for last 15 years. Mr Castino's note states that: No financial interest Dr Aggarwal report states that he should not be making 'financial decisions'. 184 The note also records that a half hour prior to Vik calling "Parveen rang advising I should obtain the neurologist certificate of competency". The note concludes with the perhaps self serving note that "I was not previously aware of Dr Aggarwal report prior to Parveen & Vik telling me it existed. Vik has contacted Ron Czinner & advised him of…" . 185 Gautam and Arjun say that on 16 April 2008 (after Sid had returned to the office) Sid said, in the presence of Parveen at the offices of the company, that he had now allotted shares to Gautam and that she, Gautam and Arjun were equal beneficiaries to his shares in his new will. According to Gautam and Arjun, Parveen protested that this was unfair and that she wanted a 50/50 split between Deepak's family and Subash's family, and that she then telephoned Vikram. Parveen's account differs. She was suspicious of Sid being taken to Mr Czinner but she denies knowing the substance of the will. 186 It does not seem to me that it is surprising that some of the family members urging caution in assessing Sid's capacity to make decisions absent any undue influence from those close to him (even accepting that they had a clear interest in what was occurring if the will changes were not in their interests). Where criticism lies I think is in those who seem to have facilitated the entry by Sid into such transactions (both share transfers and wills) at a time when there was room for doubt as to his capacity to do so and without taking steps to ensure his capacity – primarily, Gautam and Arjun. (I do not make any criticism of the issue by Dr Bowe of his certificate. It is by no means clear to me what he was told at the time he assessed Sid for the purposes of his medical certificate and the position may well be that Sid had testamentary capacity at that stage. However, testamentary capacity and a vulnerability to undue influence are two different matters.) Regrettably, to some extent I must include both Mr Czinner and Mr Castino in this criticism. It does not seem to me that either of them could be said to have acted in the best interests of Sid in failing (once the issue of capacity was squarely raised with them) to take or recommend appropriate steps to remove any such doubt. Had they done so, the appearance that things were being done in a rush behind the backs of Parveen and her family would have been avoided and there could have been a determination once and for all as to Sid's capcity at that stage (which might potentially have been spared him the distress of the court proceedings which were commenced in September 2008.). (It is not the case that there was no more than an assertion of incapacity which on its face appeared baseless or mischievous. Dr Aggarwal had diagnosed Sid with dementia as far back as 2001 and was clearly concerned to monitor his condition.) 187 What Parveen's family seems to have been requesting was that there be a proper neurological assessment of Sid's capacity (rather than a possibly brief consultation with a general practitioner). Whatever the motivation of Parveen's family at that stage, there was a simple way to test Sid's capacity and it would surely have been less stressful than that which ultimately occurred. If, as Gautam and Arjun now so strenuously assert, Sid had sufficient capacity at the time to enter into the transactions which were proposed, then the result of such a process would have been to remove a basis for challenge by Parveen's family and (coupled with independent advice as to the transaction) would have gone a long way to rebutting the presumption of undue influence. That did not, however, occur. 188 This April will varied from the January 2004 will, relevantly, insofar as Gautam Varma replaced Ruby as a beneficiary of 33% of the shares. 189 One of the unexplained aspects of the events of April 2008 is why there would have been any point in amending the will in this fashion if, at the same time, Sid was already in the process of effecting the inter vivos share transfers which together would have disposed of all or almost all of his shareholding. (In this regard, I note that there is no suggestion that Sid intended Gautam and Arjun to obtain more than a total two third shareholding through a combination of the inter vivos transfers and then a third share of what was left under the will.) Presumably it was this inconsistency which led Mr Castino later to discuss with Mr Czinner the possibility that the contemporaneous nature of the two events might indicate a lack of competency on Sid's part and provide 'ammunition' for a challenge by Parveen's family. (That choice of language in itself suggests that Mr Castino may have regarded himself as aligned with the interests of Gautam/Arjun to some extent. Certainly, he seems to have regarded the family as by then divided into two camps.) 190 In his affidavit affirmed 8 October 2008 in the tutor proceedings, Sid deposed that "At no time did Parveen challenge me about my Will and the amount of shares that I proposed leaving her." While Parveen accepts that she did not challenge Sid, she adamantly denied knowing anything about the testamentary dispositions in the earlier wills until she saw them in Mr Czinner's file. I accept that there was some inconsistency in Parveen's evidence on this point (although it seemed from my observation of her in the witness box that there was some confusion on her part when giving evidence on this and that she was not attempting in any way to be evasive in answering the questions put to her.) Given Carin's candid observation of Parveen's reaction to the news of those wills, ie that she looked as white as a ghost, which seemed to me to be both genuine and evocative, I would accept that while Parveen may have been aware of the fact that Sid was making wills, she had not seen the contents of those wills and was not aware that Sid had not previously made provision for her in his wills prior to the 2004 will. It seems to me likely, based on the way that Parveen had responded to the 18 July 2007 announcement, that if she had known earlier that there was doubt as to her family's position in relation to the company, then Parveen's would have displayed an emotional reaction of the kind she did in 2007, yet there was no evidence of this. I also note that the explanation Carin gave (at T 538) as to why the subsequent undertaking of 30 June 2008 did not convey an understanding to her about the will (because of the inconsistency between the share transfers and the will operating together) made logical sense. 191 The tax invoice on 16 April 2008 issued by Mr Czinner noted an attendance on "16/03/08: Preparation of new Will. Attending you on execution of same". Parveen approved payment of Mr Czinner's invoice and inserted the correct date of Sid's attendance for the purposes of instructions re a new will as 16 April 2008. Mr Petersen relied on this as evidence that Parveen knew of the will or that this was the purpose of the meeting out of the office with Mr Czinner on that date. However, it does not on its face indicate any knowledge on the part of Parveen as to what the contents of that will may have been. 192 On 17 April 2008, Carin, on speaker phone in the presence of Vikram, telephoned Mr Czinner and asked whether he had asked Arjun for a doctor's report before carrying out Sid's instructions. Mr Petersen relied on this as support for the proposition that Carin has been acting as Parveen's advocate throughout and not as an objective witness (and thus to suggest her evidence is not reliable). I consider that the fact that Carin was taking a pro-active role in seeking to prevent steps being taken without independent medical advice was not an unreasonable stance as at April 2008 to take (just as I think it would undoubtedly have been in the interests of all parties, to avoid any later dispute as to capacity or to rebut a presumption of undue influence, for that to have occurred). (What seems more difficult to accept is that if there was (as I would accept there was – with no little foundation) a concern on the part of Parveen's family as to whether Sid was competent to make such decisions (or was acting other than under the influence of one or other faction within the family), that such a concern should not also have applied to matters favouring Parveen's family (such as the proposed share transfers in 2007 and the payment of Carin's HECS bill in 2008).) 193 Carin was cross-examined as to the discussion she said she had had with Sid around this time in which she says she asked him what he had been doing lately and he had said that he had seen Mr Czinner and had been discussing his death. Carin said, and I accept, that she had not questioned Sid about any changes to his will. In the course of this cross-examination Carin gave an account of Ruby's then stated concerns about Sid's memory. Whether or not what Ruby had said was correct, I accept that by this time Carin had concerns as to Sid's memory and this is consistent with her contacting Mr Czinner to express those concerns. 194 Mr Castino says that on 17 April 2008, Mr Czinner told him about the new will and Mr Czinner says he telephoned Vikram and told him that there was a new will splitting the shares three ways. Mr Castino's note records that he had a discussion with Mr Czinner and that he told him provisions of the original and new will, noting that: Ron advise that fact SV did not disclose his decision […challenge will – 18 months] to transfer shares to Ron yesterday when he made his will. This could give ammunition to others to challenge his mental competency. Fact that share transfers are in same ratio as will may mitigate this. [the words in square brackets seem to have been added as a separate note and may well refer to the time period within which challenges could be made under the then Family Provision Act provisions] 195 The note added: Don't speak to Vik. [It is not clear whether these were instructions from Mr Czinner or a note to remind himself of the position] Also discussed agreement option to buy/restrictions on Parveen's shares. Rang & left message for Mr Varma to call me (he was unavailable) Gautam Rang me to say it may be best to call him at 3.30 or see him at 6pm in private. Also Disc – Vik call to me & neurologist report – Agreement for share to Parveen [It is not clear if there was at some stage a suggestion that Parveen should obtain nothing by way of shares in the company – what was not suggested to Mr Castino that this referred in any way to an agreement back in 1990 for the shares in the company to go to Parveen] 196 Mr Castino was cross-examined as to the meeting on 17 April 2008. There was a suggestion that it was scheduled at this time as Parveen would have left the office by then. Mr Castino says he dropped in on his way home. It was, according to him, a lengthy meeting in which he satisfied himself as to Sid's mental capacity to undertake the transaction. Mr Castino was not, however, able to assist me greatly in seeing how he could have come to that conclusion (and I place little weight on his stated opinion). 197 According to Mr Castino, Sid asked Gautam and Arjun to be present but they joined only at the end of the meeting. Also according to Mr Castino, Sid said "I am worried that any shares transferred to Parveen may be transferred to Vikram … Vikram must not obtain any shares in the company under any circumstances", a comment that rings true in the light of Sid's contretemps with Vikram in July 2007 (paras 53-58 Castino affidavit). Irrevocable Declarations 198 On 23 April 2008, Sid offered shares to each of Parveen, Arjun and Gautam provided they signed an "Irrevocable Declaration", in effect restricting their ability to transfer or assign their shares during their lifetime and obliging them to continue the business of the company. As Sid said he did not type, these must have been prepared for him. Neither Gautam nor Arjun, each of whom readily signed the declaration (and who rely on this as consideration for the transfers), accepted that he had typed the document. The declaration noted, however, that the shares had "not been purchased/earned". Sid wrote on each signed declaration words to the effect "This declaration is OK & accepted. Hence request accountant, Mr Denis Castino to proceed with share transfer as directed by my letter dated 23/4/08". Sid gave evidence before me in the tutor proceedings in which he said that these 'undertakings' had been dictated by him (and they would seem to accord in their phraseology with various other documents seemingly also prepared by Sid or at his direction) (T48.25-45, 24/10/08). (Mr Petersen relies on this to gainsay any involvement by Deepak in the share transfer process.) 199 Sid then signed instructions which were faxed to Mr Castino (referring to a discussion on 17 April 2008) to prepare share transfers for 2,000 A class shares and 20,460 ordinary shares in favour of Gautam and Arjun, and to transfer the same amount to Parveen "only on receipt of her personal declaration, similar to the ones enclosed". Those instructions again contained a declaration that the decision was made by Sid free of any pressure or outside influence. 200 Mr Castino prepared the share transfer forms on 24 April 2008 and they were duly lodged with ASIC. According to Sid's affidavit of 8 October 2008 in the tutor proceedings, he told Parveen that if she signed a similar irrevocable declaration, an identical amount of shares would be transferred to her. 201 Deepak deposed to a conversation in April 2008 with Vikram in which Vikram telephoned and said: Dada has changed his Will on the birthday of my mum. What a bloody gift. Not only this, Dada now wants mummy to sign a declaration that she is not allowed to transfer her allotted shares to anyone during her lifetime. Even if my mummy accepts 33% instead of 50%, I will never be able to become a shareholder in the company during her life … If you don't come soon and resolve the issues, there will be a family war. 202 On 30 April 2008, Mr Castino says he telephoned and asked Parveen to attend a meeting to discuss "share transfers" and that he did so again on 2 May 2008. 203 On 5 May 2008, according to Gautam, Sid equalised salaries between Parveen, Gautam and Arjun, and did so on the basis that he was making each of them equal shareholders in the business. 204 Parveen says that she refused to meet with Mr Castino or to sign the undertaking or to discuss any further the share transfers. She says there was a conversation on 7 May 2008 in which Mr Castino said Sid wanted to transfer 20% of his shares to her but she must sign a document. 205 On 8 May 2008, Mr Castino sent an email to Sid regarding the meeting on 17 April, the faxed written instructions on 23 April and his recent attempts to arrange a meeting with Parveen and advised that she said that she did not wish to meet with him. Varma Family Agreement documents 206 On 15 May 2008, two versions of a document titled "Varma Family Agreement" were prepared. Carin acknowledges she typed a portion of that document or a smaller version of it. She says that Sid asked her to type up a document which would divide up the company into four pieces and that this was when she was at the company office for a social visit. She denied that Vikram was there at the time and she denied the conversation attributed to him by the defendants (namely that he had asked why Gautam and Arjun could not be satisfied with 25% each of the company). (While Carin accepted that Vikram had asked a question of that nature she said that this was later – in about June or July 2008). Carin says that part of the document was dictated by Gautam or Arjun both of whom were present at the time (they deny it was their document). 207 Whether or not the document emanated from Sid, what it proposed was that Gautam and Arjun accept 25% each of the shares, with 25% of the shares to go to Parveen and 25% to go to Carin (or, in the alternate version, Vikram). (Perhaps the reason for the alternate versions was due to the possibility of continuing resistance to Vikram having an involvement in the business.) The document went on to provide that in the event that there was any testamentary or other disposition allocating shares as between three people (33% each) the signatories were agreed that the three shareholders would allocate an appropriate amount of their share capital to bring the shareholders to 25% each. 208 Mr Petersen says that this was a proposal put forward by Parveen, as well as by Vikram and his wife, Carin. Parveen adamantly denies this. Carin similarly denies that either Parveen or Vikram was present in the office when Sid asked her to type it. 209 It would be consistent with the fact that (even after she became aware of the wills/share transfers) Parveen never directly challenged Sid as to what he had done, that Parveen (as she says she did) refused to have any part in the family discussions which took place around this time in order to achieve a resolution of the dispute between the two opposing sides of the family. My impression of Parveen in the witness box was that she was steadfast in her view that it was inappropriate for there to be discussions in relation to the shareholdings while Sid was alive. (I also accept her evidence that she would have regarded it as disrespectful of her father-in-law to do so.) 210 It seems to me clear that what was happening around May 2008 was that Vikram and Carin were seeking to reach an accommodation with Vikram's cousins (at one stage using Deepak as an intermediary for that purpose with Sid) in order to attempt to reach a family solution as to how the shareholding of the company was to be distributed (and to put in place a mechanism where that might be achieved even if that were contrary to Sid's wishes) and that they assumed they would then be able to persuade or pressure Parveen into accepting such an arrangement. 211 Relevantly, however, if the proposals under consideration on 15 May 2008 emanated from Sid (as Carin says they did) then they are inconsistent with a belief by Sid at the time that he had any binding obligation to leave the whole of the company to Parveen. 212 The reference in the documents to the prevention of a family legal dispute over any testamentary will or inter vivos transaction was something Carin said was dictated by Arjun or Gautam. Again, that was not accepted by them. Even if the statement had been one included by Carin it seems to me that it would be consistent with what must have been apparent to all by then, which was that if agreement as between the two sides of the family could not be reached then there was a possibility that litigation could ensue. (It would certainly be consistent with the references in Mr Castino's notes to the possibility of a challenge to the will.) In any event, the document as typed by Carin does not indicate any awareness of a belief on the part of those closest to Parveen that she was entitled to all of the company. 213 Mr Petersen cross-examined as to litigation what was sought to be avoided (and emphasised that it was Parveen who instituted the proceedings), as I understood it to suggeset that this must have been a document emanating from Parveen's side of the family but it seems to me that a concern as to challenges to the wills (and/or perhaps the share transfers) would also have been in the minds of Gautam and Arjun at that time. Of interest is the fact that Sid, at least at this stage (on Carin's evidence), seems to have been prepared to consider a division of the shares at that stage that was in effect 50/50 as between the two families. 214 In any event, after the two documents were given to Sid he wrote upon both versions the words "Not acceptable" (and expressly marked the reference to Vikram with a cross). According to the company minutes, these documents were tabled at a board meeting. Cancellation of medical appointment 215 On 15 May 2008, Sid wrote a note to Arjun and Parveen asking them to cancel an appointment with Dr Aggarwal and stating this was "As I am not well after the incident in the office today", which confirms that there was an incident of some kind about which he had been upset (and would give credence to the Gautam/Arjun version except that the note as written suggests that Vikram was not in the office at the time (since it is asking them to notify him not to come and pick Sid up as planned). Given the contents of a later document as edited by Gautam, there might be room for suspicion that by this stage at least some of the family were not keen for there to be a complete medical check as to Sid's competency (as also suggested by para 13 of Exhibit K, to which I refer in due course). The fact that Sid was upset seems most likely to have been in part or in whole at the fact that Parveen had not signed the Irrevocable Declaration. In that regard, in evidence at p40 of the Annexures to Parveen's September affidavit (Annexure M) are copies of two typewritten documents, which Parveen says she saw on Sid's desk at the time Sid asked her to sign the Irrevocable Declaration. Those documents were unsigned and typed in capital letters; one is signed 15 May 2008. 216 The unsigned document (p39) urges Sid not to attend Dr Aggarwal's office for at least one month and asserts that Tayji (Parveen, Vikram and family are not happy with a 33% shareholding and trying to prove Sid was not of sound mind and suffering from dementia (that document suggests Sid instruct her to sign the declaration that day in Sid's presence). 217 The dated document (p40), which is longer, refers to Sid's "last appointment" with Dr Aggarwal at which it is said that a medical report was issued stating Sid was suffering from dementia and should not take any major financial decisions; the opinion was expressed that this report superseded that of Dr Bowe; the note stated that if Sid visited Dr Aggarwal again on 16 May then a brain test will be conducted and report confirming dementia issued and sent to Mr Castino and Mr Czinner – that this would mean the current will and the share transfers would be cancelled and void. The note goes on to state: WE ARE NOT SAYING THAT YOU SHOULD NOT GO TO A SPECIALIST. ALL WE ARE REQUESTING IS THAT YOU SHOULD POSTPONE THE APPOINTMENT & MUST TAKE ALL THE MAJOR DECISIONS BEFORE YOU GO FOR THE APPOINTMENT. THE APPOINTMENT IS A TRAP AND YOU ARE FALLING IN THIS TRAP . (Emphasis in original) PLEASE UNDERSTAND YOU ARE CURRENTLY SUFFERING FROM MILD TEMPORARY MEMORY LOSS AND FOR THIS REASON YOUR BRAIN SCAN WILL AGAIN CONFIRM AS ABOVE & ALL YOUR EFFORTS WILL GO TO WASTE. 218 That note went on to explain that the effect of the April documents being cancelled would be for the old will to become active. There is then the statement that Vikram and family were running a million dollar business but that Gautam and Arjun were working in Sid's company and their future depended on it – thus if the will was challenged this would only affect them not Vikram and family. "PLEASE UNDERSTAND THAT IF YOU DO NOT POSTPONE THE APPOINTMENT WITH ARUN AGGARWAL, IT WILL NEGATIVELY IMPACT BOTH ARJUN AND GAUTAM". Arjun denied that this was his document and its provenance was not established. However, it raises serious doubts about the protestations by Arjun and Gautam that there was no concern in relation to Sid's capacity at that stage – concerns seemingly reflected in para 13 of the Exhibit K document as amended by Arjun. Arrival of Deepak 219 On 21 May 2008, Deepak arrived in Australia (and his passport records him leaving again on 28 December 2008 – he says that he did so with his father's ashes). After Deepak arrived in the country it seems that he and his family paid their respects to Vikram and Carin who by then had a new baby. According to Arjun's wife (Geetika), it was at this time that Sid told her on 21 May 2008 that he had worked long enough and wanted to retire, and said "It's time for the next generation to take over from me. I have already given some of my shares to Gautam and Arjun, and I will be transferring more shares soon. I want Gautam to take over my position by the end of this financial year". (paras 50-51). Geetika was not required for cross-examination on her affidavit. Her evidence is consistent with what Sid had in fact done though it says nothing as to the influence under which he may have made those decisions. 220 According to Deepak's affidavit, Sid said to him: In my recent will I have already made Parveen and your sons as one-third beneficiaries each of my shares in the company. For the time being, I have transferred 20% of the shares each to Gautam and Arjun. I want to transfer 20% also to Parveen but she is not signing a declaration which I want her sign to qualify for the shares. I don't want you or Vikram inside Taj Food Sales. I don't want Vikram to have any shares in addition to his one ordinary share. Dr Aggarwal 221 On 23 May 2008, Sid saw Dr Aggarwal. He was accompanied to Dr Aggarwal's rooms by both Carin and Arjun. Carin and Dr Aggarwal gave evidence as to the caution given by Dr Aggarwal to Arjun as to the signing of important documents until his mental competency had been assessed. I accept their evidence. In my view it casts a very poor light on Arjun's subsequent conduct in (at the very least) acquiescing in conduct of the kind as to which he knew Dr Aggarwal had expressed concern. (I also note that Arjun accepted in cross-examination that had he known about relevant matters, and in particular the advice of Dr Aggarwal, he would have relayed that to Gautam). 222 Dr Aggarwal then reported his views to Dr Bowe. Mr Petersen notes, as is self-evident, that Dr Bowe cannot therefore have had this report at the time he gave the certificate of competency on 11 March 2008. However, presumably Dr Bowe had the report at the time he wrote on 26 May 2008 to the Geriatric Unit that Sid Varma was a remarkably well man for his age (something I think almost self evident from the fact that Sid was able, albeit with assistance, as late as October 2008 physically to attend in court and be cross-examined over a period of about two hours.) 223 Mr Petersen also relies on the fact that Dr Aggarwal's report referred to Sid's will as suggesting that Sid's testamentary dispositions were common knowledge and the subject of discussion within the family. Dr Aggarwal's report suggested that he had learnt about the fact that there had been some (unidentified) changes to the will in a communication from Dr Bowe (who had been under the impression that there were changes to the will in contemplation as at March 2008 when he provided his medical certificate). In cross-examination in the tutor proceedings, Dr Aggarwal had referred to the fact that he had heard about the updating of the will in conversations during "family meetings" or discussions in the house (by which he later said he was referring to the Gladesville house not Vikram's house). Dr Aggarwal said he also learnt of modifications to the company shareholdings in general discussion at family meetings and that there was a lot of family dissent as to what was happening. 224 I would accept that there seems to have been considerable speculation within the family in relation to what Sid's testamentary dispositions ultimately might be over this period (though I do not include Dr Aggarwal as a participant in this speculation). However, that dissent could have resulted from a concern that changes were being made without any knowledge of precisely what changes were being made or were in contemplation. I regarded Parveen's denial that she knew what was in the wills prior to seeing copies of them was genuine. 225 Relevantly, Dr Aggarwal accepted that Sid had excellent long term memory (as was common with dementia patients) but had observed that he was displaying increasing short term memory loss (T 509) and was of the view that his dementia was progressing. Dr Aggarwal was very definite in his evidence that he had told Arjun on 23 May 2008 that his grandfather should not make important decisions (because of the issues he perceived with his mental competency) and I accept his evidence. (T 512) 226 According to Parveen's affidavit, on 23 May 2008, Carin and Dr Aggarwal discussed Sid's new will and two days later Carin complained to Arjun. This, however, again says nothing about what Parveen knew as to the contents of the will. June share transfers 227 Mr Castino says that on 2 June 2008 Sid told him that he wanted to transfer further shares to Gautam and Arjun. Sid signed written instructions for Mr Castino to do so. Those instructions refer to the earlier transfer of 40% of Sid's total shareholding on 24 April 2008 and note that Parveen had not submitted the 'required declaration'. 228 Mr Castino then prepared further share transfer forms on 2 June 2008, transferring 1,334 A class shares and 13,641 ordinary shares to Gautam and 1,333 A class and 13,641 ordinary shares to Arjun. Those were lodged with ASIC on 2 June 2008, as a result of which Gautam and Arjun then held approximately 33% of the issued share capital of the company. 229 According to the minutes of the company, a meeting of directors took place on 6 June 2008, at which Sid tabled the two (15 May 2008) Varma Family proposals. Parveen is noted in the minutes as being in attendance at that meeting. (Although Parveen denied having been at the meeting, it is submitted by Mr Petersen that this denial came very late in her evidence and that the documentary minutes should be preferred. Given that there were occasions (such as when the resolution to remove Vikram as a director was considered) when the minutes do not purport to record Parveen as being present, it seems to me that some care seems to have been taken with the notation on the minutes of who was or was not present and I would rely upon the accuracy of the minutes in this regard.) The minutes note that Sid informed the board that he had created a will of April 2008 and that its contents were kept confidential (thus seemingly inconsistent with any suggestion that Sid had habitually made the contents of his wills known to the family). The minutes refer to consideration being given to an objection by Parveen. Gautam and Arjun deposed that Parveen said that Sid was not being fair and he was treating Deepak and Subash's families differently (a complaint that is inconsistent with the suggestion that Sid's conduct was in breach of any promise to her let alone a contract with her). 230 According to Gautam and Arjun, Sid said words to the effect: Deepak and Bashi are not going to run the business. I'm also not giving any shares to Naval. The business is going to be managed by Gautam, Arjun and you. My decision is final. Your proposals are rejected. Sign the declaration to qualify for your one-third of the shares. Otherwise you can resign and join your son". 231 It is said that Sid settled and executed the minutes of that meeting and certainly his handwriting appears in corrections on the draft minutes. 232 On 12 June 2008, Ruby resigned as a director of the company. Further proposals 233 On 25 June 2008, Sid showed him a typewritten proposal that proposed 33% of the shares for Parveen and 17% for her husband (or 25% to Parveen and 25 % to Vikram) and that Sid said "give this to Parveen and tell her I'm not interested in any more of her proposals. I have already executed my decisions". In evidence (Tab 34 Ex GV-1 to Gautam's affidavit) was a typed note of that date headed Varma Family Agreement (prepared as if it emanated from Sid) in which a four way 25% split as between Gautam, Parveen, Arjun and Subash was proposed (such shareholding not to be disposed on by sale or transfer during the lifetimes of the abovementioned parties). Deepak agreed that he had prepared this document. In Sid's handwriting appear the words "No. Rejected". 234 On 26 June 2008, Sid approved payment of Carin's university fees (reliance is placed on this by Mr Petersen as indicating Sid's capacity at that stage and/or the acceptance by Carin of his capacity at that stage to make financial decisions). I have commented above on the inconsistency in asserting on the one hand an incapacity or incompetency to make financial decisions and acceptance of this sum. 235 On 28 June 2008, Parveen, Vikram and Carin attended a meeting with Mr Castino at his office. Mr Castino said that he said to Parveen "no disrespect to you, Parveen but Sid Varma has decided that he wants to pass on a majority of the shares to the people who will be managing the company, Gautam and Arjun" and that the remaining 33% of the shares would be transferred to her in December if she signed the declaration. Carin deposed to a statements made by Mr Castino on that occasion to the effect: I am fully aware that Sid has always said Parveen is going to get the whole business when he dies, but it seems he has started grooming Arjun and Gautam to take over the management. and Sid seems to think he needs to give them shares in order for them to be managers. I have some doubts as to fact that this evidence emerged at such a late stage in the proceedings when it might be thought that it was such a fundamental issue that, had it been said, it would have been referred to in the earlier affidavit evidence sworn by Carin. Further, it is not consistent with the notes recorded by Mr Castino of his discussions with Sid over the years. 236 According Vikram's affidavit, on 28 June 2008, Sid said to Parveen, in his presence "Parveen its [the company] yours". 237 According to Gautam, on 30 June 2008 Parveen told Sid that she had signed the undertaking. (That is consistent with her evidence in the tutor proceedings that she had signed the document, though she said she had not given it to anyone. No signed copy was in evidence. Parveen said she had looked but could not find it.) On the same day Mr Castino rendered an invoice to the company, including the time for attendance "to all secretarial matters relating to the transfer of shares from Sid Varma to Gautam Varma and Arjun Varma dated 24 April 2008 and 2 June 2008". Further undertakings prepared by Vikram/Carin and amended by Gautam 238 On 30 June 2008, Vikram prepared a two-page document headed "Undertaking" "Re Parveen Varma" in the name of each of Gautam and Arjun. He typed the document and attached the proposals to an email of 1 July 2006 [sic] to Parveen. 239 The 30 June 2008 email commences "Mummy for Gautam and Arjun". Vikram's email to Parveen says "send corrected undertaking back to me … further ask Dennis Castino to calculate the tax implications on the transactions". It is noted by Mr Petersen that the undertakings attached to the email refer to and accurately describe Sid's recent will of 16 April 2008 and proposed that Gautam and Arjun keep their 33% shareholdings as transferred and that Parveen receive a 33% shareholding later. The proposals included an undertaking on the part of Gautam and Arjun not to claim more than the 33.33% share and contained the statement "As it appears, and as I am told, Vikram Varma has been left out of Sah Dev's final will and testament, I undertake to enter into an agreement that Vikram will be settled with 16.67% of the company value in cash". 240 On 1 July 2008, the minutes of the company record a meeting of directors of the company. Parveen is again noted as being in attendance. According to Arjun, Sid read aloud the minutes of the previous meeting. Those minutes were adopted. Gautam was appointed managing director, Parveen was appointed director of finance and Arjun was appointed director of marketing. Parveen signed a minute of the meeting. 241 On 2 July 2008, Gautam sent to Vikram's email address an amended version of the "Undertaking re Parveen Varma" (Exhibit K) and writes that the contents are "acceptable to Dada" but said that Sid did not want to include his personal assets in the undertaking. Gautam says in the email that he is getting the undertaking attested by a JP in the next two hours. (It is noted by Mr Petersen that this document also accurately describes the effect of the testamentary dispositions under Sid's April 2008 will. Relevantly, it was amended by Gautam to include point 13, which as noted above appears to indicate a clear concern (by insisting on an agreement to accept the opposite) that there were mental health issues potentially affecting Sid's decision making abilities: This undertaking will also be null & void if Mr Sah Dev Varma is made to undergo any form of "medical test" just to try establishing (even if it means nothing) that "he" is now in a state of partial dementia, which he is definitely not (now agreed & accepted by all concerned as witness to this undertaking). 242 Parveen says that she refused to sign this document. July discussions 243 On 5 July 2008, Deepak attended a meeting with Parveen and Vikram at Vikram's house. According to Gautam, Parveen gave a handwritten proposal in her handwriting to Gautam proposing that she take 33% of the shares in the company on certain conditions. Carin and Vikram had signed the proposal. (According to Parveen, this was a document she handwrote at Deepak's direction. Deepak himself handwrote various comments on the document as to the acceptability or otherwise of certain items. Gautam gave the proposal to his father, Deepak, who says he later gave it back to Gautam. There is no evidence that the proposal was ever shown to Sid Varma.) 244 Vikram and Carin agree that they proposed to Gautam and Arjun (in Parveen and Sid's presence) that Gautam and Arjun settle for 25% each of the shares in the company. However, it does not appear that Parveen agreed to this. Parveen denies that she participated in the conversation (and the impression I gained from Parveen's evidence was that she had persisted in taking no part in relation to any settlement discussions and that Carin and Vikram, even had they secured agreement from Deepak's side of the family, may have had an uphill battle to persuade Parveen to accept any such agreement). 245 Carin deposed in her 2 March 2010 affidavit to an exchange with Gautam at the Gladesville house in July 2008 in which she says that, in the presence of Parveen, Vikram, Sid and Ruby, Gautam said that if he did not have at least 35% of the company his lifestyle could not be maintained and 25% was not enough. She said there was a conversation in words to the following effect: Carin: He had dementia and you should never have taken advantage of him. Gautam: His dementia has no bearing on whether he gives us a gift or not. Carin: Why did you cancel Dada's appointment with Dr Tanya Lye? Gautam: Because it may not be good for us if he is declared insane. Sid: What have I done, what have I done? I don't know about that. I wouldn't know about that. 246 Reliance is placed on this conversation (and a discussion preceding it in which Carin says that Sid, almost immediately after having said he did not want Deepak there, had agreed to pay $26,000 to bring Deepak out to Australia or to 'speed up' their visa application) as indicating Sid's condition, Gautam's knowledge of that condition and Gautam's ability to exercise influence over his grandfather. 247 Mr Petersen pointed to the evidence that there was no cancellation of any appointment with Dr Lye (as suggested by Carin). If it is said that this casts doubt on Carin's recollection of the conversation, it should be noted that Dr Aggarwal had first referred Sid to Dr Lye and it may well be that all Carin knew was that there had been an appointment cancelled and assumed that was one which had been arranged with Dr Lye. It seems to me that the thrust of Gautam's reported response to the question is consistent both with the unattributed documents found on the computer (urging Sid to postpone his medical specialist appointment) and with the amendment to the undertaking (to include point 13). (The statement as to Gautam's lifestyle is also not inconsistent with the emphasis placed in the Gautam September 2006 email on the comparative incomes between himself and Vikram.) I would thus be inclined to accept the evidence of Carin in relation to this conversation. 248 I note that there was in evidence a handwritten note of Sid's in which he asked Arjun to cancel the appointment fo this brain scan on 10 July 2008 which had been fixed for 10 July 2008, so it would seem that there was some basis for the concern raised by Carin as to the cancellation of a doctor's appointment even though that was not with Dr Lye. Deepak proposal 249 It appears that at the end of July 2008 Deepak made a final attempt to achieve a resolution of the situation by drafting a letter (though handwritten by Deepak it was drafted as a letter to come from Sid) in which he outlined a proposal (couched as being 'cum instructions for compliance') whereby the shareholding would be divided a third each to Parveen, Arjun and Gautam (Parveen being required to sign the declaration) and that Parveen should have the benefit of some company property rent-free for her family and that there should be a payment of $16,500 per annum to Vikram "until he or his immediate kin do not inherit shares of Taj Food Sales Pty Ltd through Parveen's will or even otherwise" but that he must transfer his one share to Parveen. There were different typed versions of this letter but it was in substance the same. Nothing came of this proposal. Events from August 2008 250 In August 2008 Gautam says two filmmakers from India interviewed Sid Varma. (I refused to admit the edited version of the film taken by the filmmakers on the basis that the whole of the film could not be produced for review by Parveen and her representatives and there was no evidence as to the basis on which the selected extracts had been prepared.) 251 On 6 September 2008, Sid was admitted to Concord Hospital. While he was discharged later that same night, he was re-admitted to Concord Hospital the next day. On that day, Carin prepared proxy forms and authority for Sid to sign. Parveen attended hospital and obtained Sid's signatures on those forms. Carin says that the proxy form was prepared following a discussion with Sid and Vikram (at which Parveen was present) on 7 September 2008 (presumably prior to Sid's readmission to hospital) when Vikram told Sid that Gautam and Arjun wanted to take out $120,000 from the company as dividends and he says Sid said they could not do so without authority and asserted that he held the shares and had not given any shares to them. Carin says that when told he had done so, Sid said that "We have to stop them" and said that he would give his proxy to Parveen. (While this explains the circumstances of the power of attorney/poxy documents as being to preserve the status quo, it is difficult to see how those could have been properly relied upon if, as is the position asserted in these proceedings and as Carin asserted in cross-examination, Sid was not in a state mentally competent to make any such decision at that time and she was aware that this was the case.) 252 Mr Petersen emphasised that it was on this same date (though in fact it was two days after, on 9 September 2008) that each of Parveen, Vikram and Carin appear to have first completed and signed affidavits in the tutor proceedings. In Parveen's affidavit she makes reference to the alleged promises made by Sid to her in 1990. The affidavits were subsequently filed and served under coversheets dating the affidavits 17 September 2008. In the witness box, Carin said that for some time preparation in relation to the material for the affidavit had been undertaken and it seems that Parveen had been seeking advice from around April (presumably after the first share transfers). Proceedings 253 The tutor proceedings were commenced on 17 September 2008. A handwritten certificate of consent to act as tutor was prepared and signed by Parveen certifying that she did not have an interest 'in these proceedings' that is adverse to the interests of Sid. Much weight is placed on that certificate for the assertion that the present proceedings (and the earlier tutor proceedings) are an abuse of process. For Parveen it is said that there was no adverse interest because all she was seeking to do was to restore the shares to Sid (not to maintain any personal claim to those assets). However, on her version of events she must have had a belief at that time that Sid had promised her the shares (or else this is no more than a recent invention) and while she may not have understood whether, as a matter of law, that gave her an entitlement to the shares while he was alive, it seems that she had had ample time to obtain legal advice as to her position. 254 In those circumstances there is a real concern as to how the certificate could have been properly signed. Parveen, however, was unshaken in cross-examination in her belief that she had no right to the shares while Sid was alive and that she was not maintaining any claim in the tutor proceedings to the shares (as he was still alive). I do not accept that the evidence warrants a finding that Parveen knowingly signed a false certificate. Indeed, Parveen deposed in her 4 November 2009 affidavit that she had signed the certificate in conference with Senior Counsel formerly briefed in the tutor proceedings and that he had advised her that: You have to sign this certificate which says that, in these proceedings, you have no adverse interest to Mr Varma, your father-in-law. The interest about the shares being left to you after he dies, is an interest you can bring when the shares come back to his estate and he is deceased if he does not leave you the shares. 255 I do not think that Parveen should be criticised for reliance on her former Senior Counsel's advice in this regard. She is not a lawyer and was not in a position to test whether that advice was sound. (While it is said that the position should have become apparent at least by the time issues were raised about the certification in court, again Parveen can hardly be criticised for accepting her legal representatives' advice.) 256 That said, I think that on a proper view of the matter it was not appropriate to put forward as Sid's tutor (even assuming his incapacity) a person who had an adverse interest in relation to the very subject matter of the proceedings. This could be tested by asking what the position of Parveen would have been had there been a compromise proffered in the tutor proceedings resulting in the return to Sid of less than the whole of the shares he had transferred. She would surely have been in a position of conflict at that point. Guardianship Tribunal 257 On or about 17 September 2008, Parveen made an application to the Guardianship Tribunal for an order to place Sid under financial management. It appears she did so at least without the knowledge at least of Counsel who had appeared for her in the tutor proceedings at that point (Mr Lo Schiavo), given his candid reaction in court at the time to the news that there was such an application on foot. In relation to this application, it may well have been the case that this was something encouraged or advised by those at the hospital, since an assessment was made by the hospital doctors on that very issue. 258 While Sid was a patient at Concord Repatriation General Hospital, Dr Barney Casey, a senior clinical neuropsychologist, prepared an inpatient assessment of Sid on 17 September 2008. In his report (which was in evidence both in the tutor proceedings and these proceedings) Dr Casey noted that Sid clearly held his grandsons who were working in the company (Gautam and Arjun) in high regard and that he appeared to repose particular trust in Gautam. He reported that Sid had nominated Gautam as the person to whom he would give a power of attorney (but he also noted that Sid had denied having given anyone a power of attorney in past, something clearly incorrect). Dr Casey noted that Sid recalled that he had changed his will four months ago (which was correct). 259 Dr Casey assessed Sid's performance in memory tests as very poor and said that Sid could absorb very little verbally presented information and had no recollection of this after a delay. A diagnosis of Alzheimers was suggested. Dr Casey raised a concern that Sid's dementia might affect his judgment and that even absent any deliberate attempt to influence him he might be susceptible to outside influence. Objection was taken to this observation but I did not see it as suggesting that there had been any deliberate attempt to influence Sid. I read it as no more than a medical opinion that a person suffering from dementia (such as someone in Sid's position) may be susceptible to outside influence. That does not seem to me to be an inherently remarkable proposition. (Indeed conditions of age and infirmity are well recognised as conditions in which a person may be susceptible or vulnerable to influence.) 260 Dr Louise Waite, a staff specialist geriatrician at Concord hospital, also assessed Sid and signed a letter dated 22 September 2008 reporting on her assessment. She noted that it was likely that Sid suffered from both mixed Alzheimers's and vascular dementia. It seems clear that the purpose of Dr Waite's assessment was to consider whether an application should be made for a guardian or financial manager to be appointed for Sid. (I interpose to note that this does not strike me as a surprising step for a staff specialist geriatrician to take, in circumstances where Sid was very old and had apparently been suffering from dementia and memory loss.) Dr Waite recommended that the Office of the Protective Commissioner review Sid to ensure that he was not exploited. It seems that in preparing her report or conducting her assessment she had been given some information from Varma family members (insofar as Dr Waite made reference to the cancellation of attempts by Dr Aggarwal to organise a neurophyschological assessment for Sid "by family member" and to the obstruction of "attempts prior to admission to assess Mr Varma's cognition via a Neurophyschological Assessment", which instructions presumably did not come from Gautam/Arjun's side of the family). 261 Dr Waite reported that Sid had mixed up the role of Power of Attorney with that of being a shareholder and director of the company and noted the seemingly perceptive comment by Sid as to the proceedings which were by then on foot: Mr Varma stated that he was aware of the current proceedings by family members. He expressed concern that they were addressing financial matters rather than being concerned regarding his ill health. 262 Again, Mr Petersen points out that there was no cancellation by any family member of any appointment with Dr Lye (the doctor to whom Dr Aggarwal had referred Sid), the evidence disclosing that it was she who had in fact indicated that she did not feel she was the appropriate person to assess Sid. I accept that that is the case. However, I do not read Dr Waite's report as basing her recommendation for review primarily on the fact that an unidentified family member had cancelled a doctor's appointment for nerurophysiological assessment. Dr Waite, who was cross-examined by telephone link in the proceedings, seemed to me to be doing no more than seeking to have a formal review of Sid's needs in relation to the appointment of a financial manager or guardian in circumstances where he was suffering from dementia and she considered that he might therefore be susceptible to exploitation. With respect, that seems to have been an eminently sensible course for to take (and one which would have afforded more dignity to Sid than pressuring him not to attend specialist appointments for fear that there might be an adverse finding inimical to the interests of his grandsons in whom he clearly reposed considerable trust and affection, as the evidence suggests may have occurred). 263 In the event, the application to the Guardianship Tribunal did not proceed pending the hearing of the challenge to the retainer of Parveen's solicitors by Parveen in her capacity as tutor. 264 (By this stage, I note that suspicion seems to have been rife on both sides of the family. In evidence was a copy of a letter dated 22 September 2008 from Parveen's solicitors to Gladesville police alleging fraudulent conduct by Gautam in relation to company invoices; on Gautam and Arjun's part there were assertions as to mishandling of their computers.) 265 On 24 September 2008 Parveen's solicitors wrote to Mr Czinner relying upon the power of attorney she held from Sid and demanding his files concerning Sid's wills. Parveen also seems to have relied on the power of attorney to withdraw funds from Sid's account (which she said were to keep them safe). October 2008- revocation of power of attorney and final will 266 On 3 October 2008, Sid was discharged from Concord Hospital. He handwrote instructions to the effect that on discharge he wished to go to Gautam's house. 267 On 8 October 2008, Sid executed his final will in the office of Mr Czinner (on whom he had attended the previous day in order to instruct him to appear in the tutor proceedings). That final will acknowledged that one third of his shares in the company had already been transferred to each of Arjun and Gautam and left the remaining third to Parveen "provided she does not contest this my Will or the share transfer to my two aforesaid grandsons and provides an undertaking not sell transfer or gift the shares for at least ten years" (clause 4). Clause 4 went on to provide that should Parveen contest the will or the share transfers, or fail to provide the undertaking, then he bequeathed all his shares to Arjun and Gautam in equal shares. 268 (Mr Petersen emphasised that Parveen does not dispute that Sid had testamentary capacity and that she consented to the orders I made in March this year granting probate of this will to Gautam and Arjun. While I note that this is now the case, the fact that Parveen has chosen not to contest the will does not amount to any admission that Sid in fact had testamentary capacity at the time – nor does it say anything in relation to whether Sid had sufficient capacity to enter into financial transactions at the time he made the share transfers. Nor does it preclude any finding of undue influence in relation to the share transfers.) 269 On 9 October 2008, Sid revoked the power of attorney he had given to Parveen. Also on that date, another solicitor, Mr Luigi Ciaglia interviewed Sid at the offices of Mr Czinner. Mr Ciaglia swore an affidavit on 29 September 2008 deposing that Sid told him that "I feel I am over-taxed for no reason. I feel I can dispose of what I have earned and am able to deal with it as I see fit. No one should query my decision on that" (para 7). Mr Ciaglia was not required for cross-examination in either these or the tutor proceedings and thus his recollection of the conversation with Sid was not challenged. I do, however, query the weight which can be placed on his assessment of Sid's capacity in circumstances in the face of reports by those more qualified to express a view on the effects of dementia. 270 On 15 October 2008, Mr Richard Johnson, a registered psychologist, assessed Sid (on the instructions of Gautam and Arjun) and produced a report dated 20 October 2008 and on 18 October 2008 (again on the instructions of Gautam and Arjun) Dr Tuly Rosenfeld, a specialist, assessed Sid and produced a report of that date. Both reports were tendered in the tutor proceedings but they were not tendered or relied upon in these proceedings and I have not had regard to them for present purposes. Sid's evidence in the tutor proceedings 271 On 21 October 2008, Sid was called for cross-examination on his application to challenge the retainer of Hall Partners. (The transcript of Sid's examination in the tutor proceedings was part of the transcript tendered in the present proceedings before me.) In cross-examination by Mrs Baxter, Counsel for Gautam and Arjun appearing on that occasion, when asked whether he knew which of the share transfers this case was about, Sid said that he was not sure. Significantly, he said: "I mean, I would not recall which particular share situation but in any case she [Parveen] has no standing in the matter because the company it belongs to me and not to her" (T 57), an assertion consistent with the manner in which the contemporaneous documents reflect Sid's understanding of the position at least from 1993 onwards. He nevertheless was also adamant that if the shares were his property then they should be returned to him and said that was 'automatic' and a 'moral obligation' (T 47) 272 On 22 October 2008, Sid wrote to Hall Partners asking them to return the file collected from Mr Czinner immediately and to provide a cheque for $15,000 being money said to have been taken out of his account on 2 October 2008. Sid's death 273 On 3 November 2008, Sid was re-admitted to hospital with chest pain. On 25 November 2008 Sid died. 274 On 17 December 2008, Parveen's solicitor wrote to Mr Czinner advising that Parveen would likely challenge the 8 October 2008 Will. (Mr Czinner's response was, perhaps in terrorem, to express concern that Parveen might disentitle herself in respect of the bequest under the will in her favour by pointing to clause 4 of the will.) (I interpose to note that while there is no general rule against provisions in wills that operate to forfeit a beneficiary's entitlement if the beneficiary contests the will or applies for provision under family provision legislation, also referred to as defeasance clause or "non-contest" clause (Leerac Pty Ltd v Garrick E Fay [2008] NSWSC 1082, at [23], per Brereton J; Evanturel v Evanturel (1874) LR 6 PC 1; Cooke v Turner (1846) 15 M & W 727; (1846) 153 ER 1044; AN v Barclays Private Bank & Trust (Cayman) Ltd [2007] WTLR 565, [54]), there is scope for challenge to the validity of such clauses if the clause is either found to be in terrorem (Morris v Burroughs (1737) 1 Atk 399, at (404); 26 ER 253; The Will of Gaynor [1960] VR 640, at 641) or void as against public policy (Leiberman v Morris (1944) 69 CLR 69; Barns v Barns [2003] HCA 9; (2003) 214 CLR 169; Shah v Perpetual Trustee Company (1981) 7 FLR 97; Gaynor; Smith v Smith (1986) 161 CLR 217 at 235 (Gibbs CJ, Wilson and Dawson JJ).) Court Undertakings 275 At the conclusion of the hearing (upon Parveen, on the one hand, and Gautam and Arjun, on the other hand, through their respective counsels giving the usual undertaking as to damages and also giving an undertaking not to communicate to third parties as to the said undertakings), certain undertakings were given on a "without admissions" basis. Those undertakings (for the period up to judgment and except as otherwise ordered by the court) related to the borrowing of funds from the company; the issue of any cheque or payment otherwise than in the ordinary course of its ordinary business (which business includes the purchase and negotiating of US dollars and other foreign exchange and import letters of credit for the purposes of the grain trading business of the third defendant); the disposal of any of the assets of the company or entry into any transaction otherwise than in the ordinary course of its ordinary business; the payment of dividends; and the increase of the salaries or benefits referrable to their employment or services rendered by them to the company. (This followed evidence that there had been unsecured borrowings raised by Gautam and Arjun from the company in the period following prior to this hearing and after an interlocutory hearing before Rein J in which Parveen had sought injunctive relief to restrain, among other things, conduct of that kind.) Previous proceedings 276 Before turning to my consideration of the issues for judgment, it is relevant to note the background to the present proceedings (which is itself by no means uncomplicated). It is set out in some detail in my reasons for judgment handed down on 17 February 2010 on an application which had then been brought by Gautam and Arjun seeking, among other things, to strike out various parts of the then current pleading (the Amended Statement of Claim). I do not repeat that background in full but it is nevertheless useful to canvass some of that material as the course of conduct of the respective sets of proceedings is relied upon by Gautam and Arjun in relation to their discretionary defences of laches and 'unclean hands'. 277 The first set of proceedings was commenced by Parveen in September 2008 (4803/08) (at a time when Sid was in hospital) and has been referred to, in general, as the "tutor proceedings". Those proceedings were brought by Parveen in the stated capacity as tutor for Sid, on the basis of Parveen's assertion that Sid was a person under a legal incapacity. Parveen expressly did not rely on the power of attorney for Sid which she held at the time. In the tutor proceedings, Parveen sought, in the name of Sid, an order setting aside the respective inter vivos share transfers which had been made to each of Gautam and Arjun in April and June 2008. 278 The question of Sid's legal capacity was brought sharply into focus in the tutor proceedings because, shortly after the commencement of those proceedings (and after an application for interlocutory injunctive relief brought before White J, which had culminated in undertakings being proffered on a without admissions basis by Gautam and Arjun in relation to the running of the business of the company), an application was brought in Sid's name by Mr Czinner, challenging the retainer of the solicitors acting for Parveen as Sid's self-appointed tutor in those proceedings. 279 The application challenging the retainer of Parveen's solicitors came before me for hearing in October 2008. As noted, the transcript from that hearing was admitted in due course as evidence in these proceedings (though not all the exhibits from that hearing were tendered in this hearing) and it was accepted by both sides that my observations of Sid as a witness in those proceedings could be taken into account if relevant in these proceedings. 280 Following Sid's death, on 25 November 2008 before the hearing of his challenge to the retainer of Parveen's solicitors in the tutor proceedings was concluded, various interlocutory motions were filed by both sides in the proceedings, not all of which were pursued. Ultimately, on 14 May 2009, I appointed a solicitor (Mr Thomas Bray) as administrator ad litem to Sid's estate, for the limited purpose of determining whether to pursue, on behalf of the estate, the claim the subject of the tutor proceedings (whether in those proceedings or otherwise) and, if he so decided, to prosecute that claim. The administrator, in due course, decided not to do so and the tutor proceedings were discontinued by consent (though not before a further application for interlocutory injunctive relief brought by Parveen, which was heard by Rein J in September 2009). The discontinuance of the tutor proceedings had the consequence that the undertakings, which had been given to the court by Gautam and Arjun in September 2008, were discharged. (They were, in effect, replaced by the more limited injunctions granted by Rein J.) 281 The only matter now remaining in the tutor proceedings is an application by Gautam and Arjun for their costs on an indemnity basis. I heard that application separately at the conclusion of the hearing in this matter and I publish my reasons in relation to that application in a separate judgment. 282 After Sid's death, and while the tutor proceedings still remained on foot, probate proceedings were brought by Parveen (110445/09). A summons was filed for Parveen on 30 January 2009, seeking probate in solemn form of Sid's will of 22 January 2004. It was asserted by Parveen's solicitors that "in all probability" this was the last will and testament for the making of which Sid had capacity. On 27 August 2009, Parveen filed a Statement of Claim in the probate proceedings, this time seeking that letters of administration with the will annexed in solemn form be granted to Mr Bray. In those proceedings Gautam and Arjun filed a cross-claim, claiming probate of the will of 8 October 2008. 283 Parveen subsequently withdrew her objection to the grant of probate in relation to the October 2008 will (something on which Mr Petersen relies for the proposition that Parveen has thereby conceded Sid's testamentary capacity as at the date of that will) and in March 2010 (at the commencement of the hearing) I made orders admitting the October 2008 will to probate. Gautam and Arjun were appointed as the executors and trustees of Sid's estate pursuant to the terms of that will. (In that capacity, though not until the commencement of the hearing of the proceedings, they came to represent Sid's estate in the present proceedings – a matter on which Mr Petersen relies in relation to the standing of Parveen to raise allegations of undue influence, as I outline later in these reasons.) 284 Corporations List proceedings were also commenced (4300/09) by Parveen, by originating process e-filed on 27 August 2009, seeking relief for alleged breach of directors' duties by Gautam and Arjun. They challenged Parveen's standing to bring the proceedings and the proceedings were in due course discontinued. Present proceedings 285 The present proceedings were commenced by way of summons filed by Parveen on 5 August 2009, at that stage simply seeking directions as to the conduct of the proceedings. Criticism was made by Mr Petersen as to the basis on which those proceedings had been commenced, and an order was sought for the dismissal of the proceedings. I declined to make such an order, but directed Parveen to file a statement of claim. That Statement of Claim, which sought relief based on the alleged representations made by Sid and estoppels arising out of those representations, was also the subject of criticism by Mr Petersen. In December 2009 an Amended Statement of Claim was served. It is fair to say that that Amended Statement of Claim was little better in Mr Petersen's submission. 286 An application was made by Gautam and Arjun in January 2010 to strike out a number of paragraphs of the amended pleading. That application was heard by me on 10 February 2010 and was the subject of my reasons on 17 February 2010. In summary, I acceded to that application only in part, striking out paragraph 35 of the Amended Statement of Claim but with leave to Parveen to replead the allegation made in that paragraph. 287 Relevantly, paragraph 35 had pleaded as follows: "In the premises and in particular the facts and circumstances set out preceding in this Statement of Claim, the deceased was estopped from transferring shares in the company to any person other than the plaintiff [Parveen]". During the hearing of the strike out application I was informed by Senior Counsel for Parveen, Mr Rayment QC, that reliance was placed on that paragraph for a claim of promissory estoppel and in support of a claim for breach of contract, namely that Sid was or would have been at the relevant time estopped from denying the existence of a contract of the kind pleaded in the Amended Statement of Claim. 288 I was not persuaded that this paragraph, insofar as it invoked principles of promissory estoppel, was on its face unarguable but was of the view that (as a matter of procedural fairness) Gautam and Arjun should know precisely the case put against them in this regard and that the claim should be clearly enunciated in the pleadings. 289 As re-pleaded in the further Amended Statement of Claim, paragraph 35 now contains the allegation that the transfer of shares to Gautam and Arjun was in breach of the contract pleaded in paragraph 21A of the Further Amended Statement of Claim, in breach of the trust pleaded in paragraph 21C of the Further Amended Statement of Claim and was inconsistent with the representations and promises pleaded in paragraph 20 of the Further Amended Statement of Claim. Paragraph 20 - Representations 290 Paragraph 20 of the Further Amended Statement of Claim pleads the making of various representations by Sid to Parveen, namely that: (i) he wished to be the proprietor of the business previously carried on by him in partnership with his wife in the name of UV Enterprises and that he wished to run and operate it; (ii) he wished to exercise control over the company and would hold the controlling shares in the company; (iii) as managing director, he would hold the controlling shares in the company during his lifetime; and (iv) if Parveen transferred to him her interest as his partner in the partnership business and agreed to work in that business after its incorporation for the rest of his life, "all of the shares in the new company [Taj Food Sales] would as from the death of the deceased belong to the plaintiff". 291 It is alleged that Parveen agreed to and accepted those representations and that, in reliance thereon, she assigned and transferred to Sid her undivided one half interest in the partnership trading as UV Enterprises (paragraph 22(i)), that being conduct also relied upon as consideration for the agreement alleged in paragraph 21A (paragraph 22(ii)), and as reliance on the trust promise alleged in paragraph 21C (paragraph 22(iii)); that she worked as a paid employee of the company from its incorporation up until Sid's death on 25 November 2008 and thereafter (paragraph 25); that she has at various times been a director of the company (paragraph 27); and that she guaranteed loans and obligations of the company to provide it with capital and finance for the purpose of the carrying out of its business (paragraph 29). Paragraph 21A – Alleged Agreement 292 In paragraph 21A of the Further Amended Statement of Claim, Parveen alleges further or in the alternative that in February 1990 she and Sid agreed that she would "concur for her part in the transfer to a new company to be formed of all of the assets, business, and undertaking of the partnership carried on under the business name, UV Enterprises" and would "work for the said company" and that Sid would be the owner of all of the issued shares in the new company during his lifetime and that "upon and after his death, all of the said shares would belong to her" (my emphasis), pursuant to which agreement it is alleged that Parveen did concur in the transfer to the company of the business in which she had held a partnership interest and worked for the company (other than for a limited period as pleaded) (paragraph 21B of the Further Amended Statement of Claim). Paragraph 21C - Trust 293 In paragraph 21C of the Further Amended Statement of Claim, it is pleaded that "In the premises the deceased [Sid] held all of the shares issued to him in the capital of the third defendant [Taj Food] from time to time on trust for himself for life and upon and after his death upon trust for the plaintiff absolutely". 294 The nub of Parveen's complaint is that, as at the date of Sid's death, he had failed to fulfil the obligations she says were owed to her (whether arising under the alleged agreement or the trust alleged to have been created or as a matter of equity given the alleged detrimental reliance by Parveen on the said representations), having failed to transfer to her (or otherwise to make arrangements for the transfer to her of) the shares in the company (paragraph 34 of the Further Amended Statement of Claim). 295 It is in this context that what has been described as the promissory estoppel claim is pleaded as part of paragraph 35 of the Further Amended Statement of Claim that: The transfer hereinafter mentioned by the deceased of shares in the company to the first and second defendants was a breach of the contract referred to in paragraph 21A hereof, of the trust referred to in paragraph 21C hereof, and was inconsistent with the representations and promises referred to in paragraph 20 hereof. Undue Influence/Lack of Capacity 296 It is alleged in paragraph 43 of the Further Amended Statement of Claim that Sid did not, in signing the share transfers, understand their true effect and in paragraph 45 of the Further Amended Statement of Claim that the Gautam and Arjun obtained the benefit of the share transfers "in circumstances of undue influence". 297 Particulars were sought, prior to the hearing, of the undue influence allegation. It is fair to say that the response to that request for particulars was neither enlightening nor helpful in identifying the material facts on which this allegation was made; and it was the subject of justifiable criticism by Mr Petersen. I directed at the commencement of the hearing that proper particulars of the undue influence allegation (and of the allegation as to the notice on the part of Gautam and Arjun) be provided. 298 The particulars of undue influence (Exhibit 1), as amended, are in summary that: 1. Dr Aggarwal told Arjun on both 4 April 2008 and 23 May 2008 that Sid should no longer make important decisions, financial or legal, given his poor cognitive state . (Dr Aggarwal gave evidence as to the making of a statement to this effect to Arjun, as did Carin in relation to the 23 May attendance, and I accept that evidence. There seems to me little doubt that Arjun was aware as at early April that there was a question as to Sid's capacity and that Dr Aggarwal was of the opinion that there was a doubt as to his competency to enter into transactions.) 2. It is to be inferred that Arjun told Gautam of Dr Aggarwal 's statement. (Arjun seemed to accept that it was likely that, had he been told this by Dr Aggarwal he would have done so and I accept that was the case.) 3. By reference to the events of March 2007 in relation to the cancellation of the 15 March 2007 share transfers to Parveen and Carin, and the circumstances in which Carin says Sid agreed in June 2008 to a request by Gautam for money to assist in bringing Deepak out to Australia after having moments before said he wanted Deepak to have nothing to do with his business (referred to in paras 51-58 of Carin's affidavit of 2 March 2010) it is to be inferred that Arjun and Gautam were prepared to and capable of exercising undue influence over Sid . (As to this, I place no weight on the latter event, which seems to me consistent with Sid's generosity in financially assisting his grandchildren on various occasions, including payment of Carin's HECS fees. I place more weight on the events of March 2007. Whether or not there was a threat by Arjun to disown his grandfather prior to the cancellation of the share transfers in question and whether or not he smirked at the result, there seems little doubt that Arjun assisted or had a hand in the cancellation of those share transfers (as indicated by his handwriting on the document). Therefore, I would certainly infer from this, taken together with Arjun's conduct in relation to the instructions given for the 2008 share transfers, Gautam's communications with his parents in September 2006 and the role he played in relation to the events in 2008, that both Arjun and Gautam were in a position to exercise influence over their grandfather and prepared to do so.) 4. It is to be inferred that, because Sid transferred shares to Gautam and Arjun in 2008 and because they had a desire to obtain the company for themselves and had relevant access to Sid, they procured the transfers by undue influence. (I doubt that one can infer that, simply because a person has a desire for something to happen and that it does happen, it has happened by reason of undue influence. The relationship between Sid and his grandsons, and their access to him, does in my view give rise in the circumstances to a presumption of undue influence.) 5. Deepak was, to the knowledge of Gautam and Arjun, in a position to exercise control over Sid and because Gautam asked him to take control over Sid to procure a transfer of shares to them in the capital of the company, it should be inferred that he did so. (Again, it seems to me that just because Gautam and Arjun thought Deepak may have been in a position to assert control over Sid does not mean he could do so – and the events surrounding the C-559 Defence Colony sale funds would suggest that Deepak did not occupy such a controlling position vis a vis his father. Further, just because (as I have found) Gautam requested his father's help in relation to the situation outlined in the September 2006 email, does not lead me to conclude that some 18 months or so later a share transfer was made as a result of Deepak's influence.) Claims against Gautam and Arjun 299 Relevantly, in terms of the way in which the claim is made against Gautam and Arjun, Parveen pleads that, as a consequence of the agreement pleaded in paragraph 21A and her acts of part performance in respect of that agreement, as at both 6 April and 23 June 2008 (when the share transfers in question to Gautam and Arjun were approved by the board of the company) all of Sid's legal and equitable interest in the share capital of the company was held on trust for Parveen, on terms that title and the rights attaching to the shares were to pass to her upon his death (paragraph 50 of the Further Amended Statement of Claim). 300 Paragraph 51A of the Further Amended Statement of Claim pleads, further or in the alternative, that the transfer of the shares to Gautam and Arjun was in breach of the alleged Agreement and in breach of the alleged trust. In paragraph 51B of the Further Amended Statement of Claim it is alleged that Gautam and Arjun induced and participated in the breach of Agreement and took the shares the subject of the trust. 301 In paragraph 52 of the Further Amended Statement of Claim it is pleaded that the ordinary and A Class shares in the company which are held by Arjun and Gautam were obtained by them (i) in breach of the terms of trust on which they were held by Sid in his lifetime; (ii) in circumstances of undue influence [invoking the general concept of undue influence in equity and not the specific concept of undue influence in probate matters]; (iii) in the knowledge of the interest of Parveen and her claim concerning the shares; and (iv) as volunteers. 302 As to the knowledge which it is alleged Gautam and Arjun had of Parveen's interest in and claim to the shares, particulars were provided at the commencement of the hearing (Exhibit 2). In summary, they are that: 1. Parveen and Arjun had a conversation in 2002 (referred to in para 52 of Parveen's 4 November 2009 affidavit) to the effect that Parveen told him that Sid was giving the company to her because she had given him her half of UV Enterprises and had promised that he would leave her the company in his will. 2. In December 2005, Sid and Arjun had a conversation (referred to in para 49 of Parveen's 4 November 2009 affidavit) to the effect that Arjun should tell Deepak to keep his eyes off the business, that it was to go to Parveen and Subash and that his family had been given enough. 3. Sid participated in conversations after the arrival of Gautam in 2005, including in 2006, where words were said to Parveen, in the presence of Gautam and Arjun, to the effect that when Sid died Parveen would get the company and that it would be hers (referred to in para 47 of Parveen's 4 November 2009 affidavit). 4. Both in 2004 and after the arrival of Gautam, Sid spoke to Parveen (and to Gautam and Arjun) to the effect that Parveen was getting the company; that it was hers; and that if Sid did not have Parveen he would not have the company (to which Carin deposed in para 6 of her 2 March 2010 affidavit and para 29 of her first affidavit of 9 September 2008). 5. It is to be inferred that Sid made similar remarks to Arjun and Gautam (and to Deepak in private who, it should be inferred, relayed them to Gautam and Arjun). Defences 303 The first, second and fourth defendants filed in court on 12 April 2010 a Further Amended Defence responding to the Further Amended Statement of Claim. 304 Relevantly, they deny the making of the alleged representations; deny the making the alleged Agreement and the acts of part performance pleaded in respect of that agreement; and, in relation to paragraph 21C, deny that Sid's ownership of shares was subject to any trust or equity in favour of Parveen. (They deny that Sid held his shares in the company after his death on trust for Parveen and deny that he held his shares in the company on trust for himself for life.) They deny that the share transfers to (and receipt of the shares by) Gautam and Arjun were in breach of contract, breach of trust or inconsistent with representations and promises (none of which are admitted). They deny that any of the allegations made (of breach of contract, breach of trust or the allegation that the transfer was inconsistent with representations and promises) can support any of the remedies claimed and deny that Parveen is entitled to rely upon the doctrine of estoppel against Sid. 305 As to the allegation of undue influence, as it is contained in paragraph 45 of the Further Amended Statement of Claim, they deny that Parveen has standing to make the allegation; and (apart from asserting that the allegation should be struck out) say that at all material times Sid transferred the shares with the benefit of legal advice and accounting advice. It is denied that the material facts alleged in this paragraph (which are in any event denied) give rise to any form of relief as claimed. 306 As to paragraph 52 of the Further Amended Statement of Claim, among other things the defendants deny that they had prior knowledge of Parveen's alleged interest or claim (which interest or claim is denied) upon the shares of Sid as pleaded in paragraph 52(iii) or at all. In paragraph 52(d) of the defence it is further said that Gautam and Arjun relied upon representations by Sid that they were likely to inherit or receive substantial shareholdings in the company; relied upon Sid's various representations, offers and promises to them, in consequence of which they migrated to Australia, abandoned business and employment opportunities in India and remained in the employ of the company for modest salaries, refraining from leaving employment with the company. Gautam and Arjun say that they gave consideration (as particularised in paragraph 42) for the transfer of the shares to them. Paragraph 42 pleads that each share transfer was received pursuant to an agreement with Sid and that Gautam and Arjun received the transfers with no notice, actual or constructive, of any alleged dishonesty or fraud on the part of Sid or any alleged claim or alleged legal or equitable interest of Parveen. There is an express denial in 42(d) that Sid lacked mental or legal capacity to make the transfers, and a denial that the transfers were a breach of any agreement, a breach of any trust, a breach of any fiduciary duty, or were dishonest or fraudulent. 307 In further answer to the whole of the Further Amended Statement of Claim, it is said that Gautam and Arjun gave consideration for the transfer of the shares to them in the form of the delivery by them to Sid of a document entitled "Irrevocable Declaration" executed by each of them on or about 23 April 2008, by which they agreed to certain restrictions on their shareholdings (paragraph 58 of the Further Amended Defence); that they received title to the shares free of any trust or charge in favour of Parveen (paragraph 59 of the Further Amended Defence); deny that Parveen and Sid ever formed an agreement for transfer of shares or that there was ever any intent to enter into legal relations (paragraph 65 of the Further Amended Defence); deny that any consideration moved from Parveen to Sid to support the alleged agreement for transfer of shares (paragraph 66 of the Further Amended Defence); and, in paragraph 67 of the Further Amended Defence, assert that any alleged agreement was mutually abandoned by both parties between July 2007 and September 2008. 308 In that regard, the particulars to paragraph 67 of the Further Amended Defence assert that the conduct of Sid and Parveen in the period from July 2007 to November 2008 was inconsistent with the alleged agreement; that they conducted themselves so as to indicate that no agreement for the transfer of nearly 100% of the issued share capital was in existence; that from February 2008 to July 2008 Sid represented to Parveen that, on certain conditions, he would transfer to her 33% of the share capital; and that Parveen (who had executed but did not deliver the irrevocable declaration document) represented to Sid that she and/or her family members would receive from Sid 50% of the issued share capital or 33% of the issued share capital plus additional funds and real estate; that Parveen consented to the transfer of the shares to Gautam and Arjun at board meetings on 6 June 2008 and 1 July 2008 board meetings. Reliance is also placed on the fact that on 23 September 2008, in the tutor proceedings, Parveen executed and filed in court a certificate of consent as tutor accompanied by a solicitor's certificate pursuant to Part 7.16(6) of the Uniform Civil Procedure Rules 2005 (NSW) certifying that she (as tutor) did not have an interest in these proceedings adverse to the interests of Sid. 309 It is pleaded (in paragraph 69 of the Further Amended Defence) that at all relevant times, Parveen was on notice of the transfer to Gautam and Arjun of the shares and acquiesced therein. 310 In further response to the Further Amended Statement of Claim, it is pleaded in paragraph 70 of the Further Amended Defence that any cause of action against Sid by reason of any alleged promise or agreement is statute bard by operation of s 14 of the Limitations Act NSW 1969 (NSW) in that Sid made wills which breached the alleged promise or agreement from as early as 4 June 1993 and then on 10 January 1995, 28 November 1996, 29 May 1997, 19 December 2002 and 22 January 2004. 311 Paragraph 71 of the Further Amended Defence pleads defences based on laches, lack of clean hands (in certifying to the court in the tutor proceedings that Parveen did not have an interest adverse to that of Sid of the kind which is now asserted) and acquiescence to the legal transfer of the alleged trust property. 312 In paragraph 72 of the Further Amended Defence, it is alleged that Parveen should be refused relief by reason of estoppel by conduct arising from the following: (a) Parveen's consent to the transfers of shares to Gautam and Arjun; (b) that Parveen did not at any time prior to 22 September 2008 publish or otherwise make known to Gautam and Arjun or to Sid or to the court (on her application for short service in September 2008), that she claimed an interest in 100% of the shares; (c) that Parveen failed to prosecute, in her own name, the alleged claims the subject of the proceedings during Sid's life or the period during the transfers of shares on or about 23 April 2008 and 6 June 2008, and/or the period of Sid's participation in the court proceedings initiated by her, namely from 8 October 2008 to 25 November 2008; (d) that Parveen represented to Sid that she would be satisfied if she or her family members received 50% of the issued share capital or 33% of the issued share plus additional funds; (e) that on or about 30 June 2008 Parveen represented to Sid that she had executed a document entitled "Irrevocable Declaration"; and (f) the certification executed and filed in the tutor proceedings (of lack of an adverse interest to that of Sid) on 23 September 2008. 313 It is pleaded in paragraph 73 of the Further Amended Defence that Sid and each of Gautam and Arjun relied upon "the abovementioned consents, silences, failures, omission, representations and certification" in variously transferring the shares to Gautam and Arjun and thereafter assuming that there would be no attempt by Parveen to interfere with the transfers and the consequent distribution of shares in the company. 314 Finally, it is pleaded that the Further Amended Statement of Claim should be permanently stayed as an abuse of process of the court, again based on the certification of no adverse interest in the tutor proceedings. Reliance was placed in that regard on the written outline of submissions served by Parveen's solicitor in the tutor proceedings in February 2009, in which it was stated that: The defendants have criticised the proceedings on the basis that it is asserted that there is no proper contradictor. Parveen Varma herself, although nominated as an executor in the 2004 will and also in the Will of the deceased executed in 2008, sets out in her affidavit sworn 17 September 2008 … that there was an agreement between her and the deceased that the share capital of Taj Food Sales would, upon Mr Varma's passing vest in her … significantly, however, Parveen Varma makes no claim as to this entitlement either in these proceedings or in proceedings in which she has made application for Probate concerning the Estate of the deceased. Witnesses 315 Before turning to the issues for determination, I set out below my general views on the respective witnesses. (I also add, by way of a belated transcript correction, so that there can be no misunderstaning in this regard, that the comment attributed to me in the transcript at T1383.17 is incorrectly so attributed – it is certainly not the case that Gautam was in my chambers at the time; rather, my recollection is that the court was informed by his Counsel that he was in Counsel's chambers at the relevant time.) 316 Obviously, the principal witnesses in the proceedings were the main family members – Parveen, Vikram and Carin, on the one side, and Gautam, Arjun and Deepak (though his evidence was given in a slightly unusual mode as I discuss below), on the other side. 317 There were a large number of other witnesses – some other members of the family or extended family (Geetika, Seemita and Mr Davenport, called for the defendants) and various individuals who deposed to conversations with Sid over the years and recalled statements made about Parveen and her position in the company – in no particular order they were Mr Hillman (Carin's father), Ms Violet Ayoub (Vikram's former mother-in-law), Ms Mary Waqa and Ms Sakanya Gangulee (former employees of the company), Mr John Harrower, Mr Don Prasad and Mr Ajay Sud (each of whom had had business relations with Sid over the years) and another Mr Deepak Varma (as I understand it, no relation of Sid's but a relation of Dr Aggarwal). 318 For Gautam and Arjun, affidavits were served from each of Mr Castino, Mr Czinner and Mr Ciaglia. 319 By way of medical evidence, Parveen tendered the reports of Dr Casey and Dr Waite (which had been prepared around the time of commencement of the tutor proceedings and, in relation to the latter in the context of considering whether to recommend an application for the appointment of a financial manager or guardian for Sid.) Parveen also called evidence from Dr Arun Aggarwal. Tendered in her case was the medical certificate issued by Sid's general practitioner, Dr Bowe, in March 2008. No medical evidence was called by any of the defendants. (There was some suggestion that an adverse inference could be drawn from the failure of the defendants to call Dr Bowe. However, the defendants' position was that there was nothing for them to answer in that regard, since the plaintiff herself had tendered his certificate in her case and they accepted that certificate. 320 For Parveen, reliance was placed on an expert opinion from Dr Kalpana Ram, an anthropologist and academic from Macquarie University. 321 Insofar as the transcript of Sid's evidence was tendered in the proceedings and the parties acknowledged that I was able to take into account my observations of him in the witness box in the tutor proceedings, in one sense Sid too was a witness in this case. Principal Witnesses 322 It is fair to say that each side impugned the credit of the principal witnesses for the other and invited me to reject their evidence. Broadly speaking, I found the witnesses for the plaintiff to be credible witnesses. I had some concerns with the evidence of Gautam and Arjun, in particular the denial by them of concerns in relation to the condition of Sid in the last year or so of his life, which in my view cast some doubt on the credibility of their evidence generally. Parveen 323 Parveen gave evidence with dignity in the witness box. She was in court all day every day throughout the hearing and sat quietly and without displaying emotion during the evidence of other witnesses. She was often accompanied by Carin (less frequently by Vikram). Parveen spoke in the witness box with evident feeling as to the services she had provided to the company over the years and the devotion she had shown to the company and to Sid over the years. She broke down at times in her cross-examination. I have no doubt that it was difficult for her (from a cultural viewpoint) to be seen to be challenging Sid's inter vivos and testamentary dispositions. She expressed suspicion of the conduct of her nephews during the period up to Sid's death and both disdain and contempt for the manner in which they had behaved. (I have to say that I consider her apparent contempt for the manner in which Sid was encouraged, or at the very least not discouraged, by his grandsons from entering into the financial and testamentary transactions at a time when there were serious doubts as to his mental competency to be well justified. It seems to me that in the period from 2007 onwards, Parveen's suspicion of the motives of Gautam and Arjun may have coloured her perception of events, such as her assertions that they were talking about things behind her back. There is no doubt in my mind, however, that in the early part of 2008 Gautam and Arjun were trying to conceal from Parveen the steps that Sid was taking to arrange his affairs in their favour.) 324 I have considerable sympathy for the situation in which Parveen found herself placed in April 2008 (torn between her familial duty of respect to Sid and her concern at what was happening in relation to his affairs and the affairs of the company) and for her view that Sid's treatment of her (at the very least in not making clear to her at a much earlier stage that he was not committed to providing any particular share of the company to her) was unfair in a moral sense. However, the fact that her nephews may have (as it seems to me they have) exploited, or taken advantage to Parveen's detriment of, the position of favour in which they found themselves with their grandfather and the 'distasteful' (to use the words in Taylor v Dickens) or disrespectful manner in which I think it is fair to say that Parveen seems to have been treated by her nephews, is not the test by which the claims Parveen has made in these proceedings must be measured. 325 Parveen spoke dogmatically about the promise she said had been made to her. Her evidence was unwavering in that regard and I have no doubt sincerely given. Broadly speaking, I do not consider that the many criticisms which have been made of her evidence are justified. It seemed to me that in the witness box Parveen was bewildered by suggestions that she might have pursued her claims differently (and genuinely confounded by the proposition that she should have sued Sid while he was still alive and at a time when she professed no immediate entitlement to the shares in the company). I considered her to be a truthful witness. While I accept that, as submitted by Mr Petersen, the mere repetition by Parveen in the witness box of her assertion that there was a promise does not make it so, I think the depth of Parveen's belief in the existence of such a promise did emerge clearly from her evidence (and some of the repetition might well be said to have been a result of the repetition of the questions put to her.) She did not seek to elevate her claim beyond that which might, as a matter of law, flow from the making by Sid of the alleged promise and her acceptance and reliance on that promise. 326 I accept the thrust of Parveen's evidence that she did not become a protagonist, so to speak, in thee discussions in relation to the proposed post-mortem divvying up of the company shares (though I would find it hard to accept that she was not aware of what her son and daughter-in-law were pressing in that regard, since she seems to have relayed to Vikram her concerns about the behaviour of Gautam and Arjun in the office or the fact that they were taking Sid out of the office for meetings with his advisers at various times). 327 That said, her evidence must be treated with caution given that her claim is made against the deceased and it is necessary to see what corroboration there is of the alleged promise. Further, having regard to the time which has elapsed since the making of the initial alleged promise and the seeming tendency of Sid to proffer assurances that he would look after many of the family members, there is a risk that Parveen's recollection of what was said to her has been subconsciously transmuted into the promise upon which she now sues (in the way that human memory tends to recast and put a gloss on events, as recognised by McLelland CJ in Eq in Watson v Foxman (1995) NSWLR 315, at 319). Vikram 328 Vikram's evidence covered a limited range of topics and he was in the witness box for only a relatively short period. Other than in respect of the events in March/July and August 2007 (particularly when he challenged Sid over the cancellation of the share transfers and subsequently as to his treatment of Parveen at the suggestion that there be a substantial part of the company left to Arjun) and his involvement in the attempts to broker a compromise between the two sides of the family in relation to the ultimate company shareholdings, he had little direct role in the events in issue in the proceedings. 329 I understood his evidence to be consistent with he having assumed that the company should be owned equally by the two sides of the family and that Parveen's efforts in building up the company should be recognised, rather than having any long term understanding (through his mother or through Sid) that Parveen had an entitlement to the shares as such. Carin 330 Carin's involvement in the preparation and conduct of the proceedings was the subject of criticism by Mr Petersen. It was suggested to her that she saw her role as an advocate for Parveen (not as an objective witness). Carin readily accepted that she had assisted in the preparation of the case for her mother-in-law and it seems likely that some reliance was placed on her assistance (she being a law student). (Indeed Carin accepted that she had drafted a number of the documents in evidence in the proceedings such as the proxy and power of attorney forms signed by Sid in hospital on 7 September 2008 and the underaking prepared in May 2008 in an attempt to resolve the situation of dispute within the family.) Carin, I observed in the courtroom, was often the one to whom Parveen's solicitor turned to obtain documents and the like. However, as I recall, when there were issues requiring instructions reference was made to Parveen. The highest that this criticism could be put, in my view, is that it seems that Carin had reference to the affidavit material for the plaintiff's witnesses when preparing her own. However, there does not seem to me to be anything to suggest that Carin tailored her evidence or had attempted to influence the evidence of other witnesses and I do not accept that there is any sinister connotation in the assistance she rendered in preparation of the case for trial. 331 Mr Petersen disparaged the fact that Carin had prefaced a number of her answers with the words "I believe". I regard that criticism as unfounded. It seems to me that this was an habitual response on Carin's and did not weaken the answers that followed. I do think, however, that Carin may have (consciously or otherwise) put a favourable gloss on what was said in relation to Parveen's position (and in this regard I refer to Carin's account of what Mr Castino said on 28 June 2010 – in particular, given that there is no contemporaneous note of Mr Castino from the early 1990's onwards which suggests that Mr Castino was told by Sid that he had an obligation to leave Parveen any shares, and the notes in fact are quite inconsistent with this, then I find it hard to accept that Mr Castino could have been of that view. I think, however, that it is possible that Mr Castino, seeking to soften the blow to Parveen, may well have been imprecise in what he said to the family on that occasion and this may have been interpreted incorrectly by Carin.) Subash 332 Although an affidavit was filed by Subash, there were a number of objections to its contents and ultimately it was not read in the plaintiff's case. It was submitted that there should be a Jones v Dunkel inference drawn on the basis that it might have been expected that Subash, as Parveen's husband and someone who had worked in the company over a number of years, would have been privy to various family conversations over the years in which (had the promise been made) there would have been discussion as to Parveen's position in the company. Mr Rayment submits, and I accept, that no such inference should be drawn. It is not incumbent on Parveen to call everyone who may have been privy to comments made by Sid over the years. There is no suggestion that Subash was present at any of the critical discussions on which there is a live dispute between the parties nor is it suggested that he had a direct role to play in any of the events in question. Arjun 333 Arjun (as was Gautam) was present in court on most occasions during the hearing and at the various interlocutory hearings. The manner in which Arjun gave evidence was fairly reserved. It appeared to me that he did not elaborate on his answers unless he considered that would be helpful to his case and he was not in general forthcoming in his responses. He did not present as having an open manner but as someone wary of the questioner. His account of the attendances with Sid at Dr Aggarwal's office and his denial of issues in relation to his father's dementia were not consistent with the evidence given by Dr Aggarwal (or Carin) and I have difficulty accepting Arjun's evidence in that regard. As that is a critical element of the allegation as to undue influence, this causes me to view with scepticism Arjun's evidence more generally – in particular his denials of conversations with Parveen (or with Sid) in which Parveen says there was a reference to a promise that Sid would leave her the company in his will or that it would be hers after her death. It seems to me that the unseemly rush to document the share transfers in April 2007 (at the same time as the amendments were made to Sid's will which made little sense in light of the share transfers) in the face of concerns expressed by the family as to Sid's mental competency (of which Arjun was clearly on notice at least as from March 2007) does not reflect well on Arjun's credit but more importantly is a recognition of a concern that absent such steps Parveen and her family might end up with the company or a larger proportion of the company than Arjun wanted. Gautam 334 Gautam gave his evidence in what I would describe as a more brash manner than his brother and was more inclined to be assertive in his responses. I did not form a favourable impression as to the reliability of his evidence as to the September 2006 email which was, I thought, contrived. I cannot accept that there were not genuine concerns held by the family (or which Gautam was aware) as to Sid's mental capacity at the time of the events in question and Gautam's denials of this fly in the face of the evidence from numerous witnesses, including the medical witnesses. Geetika 335 Geetika was not cross-examined and I accept her evidence. Seemita 336 Seemita was cross-examined on the evidence she gave as to the will being shown to her by Sid. She gave her evidence with quiet confidence, answered the questions politely and did not appear to embellish her evidence. Her recollection of the layout of the will was consistent with her having been shown it by Sid (and her description of her discomfort at the conversation in relation to the company at the social gathering held at Vikram's house) seemed to me to be convincing. The only qualification I would make is that there appears to have been some prompting of her recollection in relation to that conversation with Arjun which could have affected the manner in which the evidence was cast. In general, however, I accept her evidence. Deepak 337 As I adverted to earlier, the manner in which Deepak came to be cross-examined was somewhat unusual. Deepak's affidavit was prepared and served by the solicitors for Gautam and Arjun in the normal course and was formally read at the outset of the hearing after rulings had been made on the objections to the admissibility of portions of that affidavit. I expressly noted for the record which of the plaintiff's, and which of the defendants', affidavits were read and the latter included Deepak's affidavit. 338 After each of Arjun, Gautam, Seemita, and Messrs Czinner and Castino had been called and cross-examined, Mr Petersen indicated that he was not proposing to call Deepak and sought leave to withdraw his affidavit. (I should add that various of the plaintiff's affidavits, though read, had been withdrawn by consent – other than Subash's affidavit those included those of a Mrs Madhu Varma (no relation) and Mr Abhay Varma – in each case, I was informed, due to difficulties in arranging for them to be present for cross-examination.) 339 Mr Rayment objected to the withdrawal of Deepak's affidavit and indicated that he wished to cross-examine him. I drew Counsels' attention to what had been said by Coleridge J in Wood v Mackinson (1840) 2 Moody & Robinson 273; 174 ER 286 and indicated that I did not consider that it was appropriate for the affidavit to be withdrawn (having been formally read and therefore constituting evidence before the court) unless that were to be by consent. I also referred to what had been said by Brett LJ in Re Quartz Hill; Ex parte Young (1882) 21 Ch 642, at 645. Having indicated that I proposed to refuse leave to withdraw the affidavit in the face of Mr Rayment's objection thereto, Mr Petersen withdrew his application but then announced that he was not proposing to call Deepak (and thus Deepak would not be made available for cross-examination). 340 Mr Petersen submitted that there was a procedural disadvantage to the defendants arising from the procedure which had been adopted (consistent with the practice in this division of the court) of formally reading the defendants' affidavits before the close of the plaintiff's case. He noted that it is open to a defendant to choose not to adduce any evidence at the close of a plaintiff's case or to make a choice as to what evidence should be led. As I understood Mr Petersen's submissions, they were that not only should no adverse inference be drawn from a decision not to call witnesses whose affidavits had been served (and, I might add, read) (since that decision was open to be made on the fact that, portions of the affidavit or those to which it responded having been struck out, there may have been no need forensically to do so) but also that it would deprive a defendant of the ability to make a decision as to the evidence on which it wished at the conclusion of the plaintiff's case to rely if the consequence of having formally read the affidavits at the outset were to lead to the result that they could not later be withdrawn without consent at this point of the trial. 341 In that regard, I accept that ordinarily it is open to a defendant to seek to defer reading any affidavit until the close of the plaintiff's case. If a defendant so elects then the present issue will not arise. However, having not raised any such issue at the outset, it seems to me that the consequence of that forensic decision is that a defendant may find itself in the position that the affidavit once read cannot later be withdrawn. For the position to be otherwise, the plaintiff itself might be prejudiced (assuming the plaintiff had conducted the case – for example, as was said here, having cross-examined other witnesses – on the assumption that those defence witnesses whose affidavits had been read would be produced for cross-examination). Indeed, there could be a suggestion that a refusal to produce a witness for cross-examination might amount to contempt (though I hasten to add that there was no suggestion that this was the case here). In Comet Products (UK) Ltd v Hawkes Plastics Ltd [1971] 2 QB 67, at 74E-H, Lord Denning said that a deponent, when threatened with cross-examination "cannot get out of it by saying he will withdraw his affidavit". In Wood v Mackinson, (though there obviously not dealing with a situation where an affidavit had been formally read but where the witness had been called to give oral evidence in chief) a distinction was drawn between cases where a witness had been called due to a mistake by counsel that the witness could offer relevant evidence in a matter and the situation where the information which the witness might offer in a relevant transaction was not favourable to the party calling the witness. Coleridge J said, the witness having been called and sworn but examination in chief having not commenced before it was discovered that there was a mistake and the witness was not able to speak to the particular transaction, in dismissing an application for leave to cross-examine the witness: This is, I think, such a mistake as entitles the party calling the witness to withdraw him without his being subject to cross-examination. If, indeed, the witness had been able to give evidence of the transaction which he was called to prove but the counsel had discovered that the witness, besides that transaction, knew other matters inconvenient to be disclosed, and then had attempted to withdraw him, that would be a different case. 342 In circumstances where Mr Petersen indicated that he would not call Deepak (notwithstanding that his affidavit had been read and was not permitted to be withdrawn), Mr Rayment sought leave for short service of a subpoena for Deepak to attend to give evidence and I gave such leave. 343 Deepak then attended in answer to the subpoena and was called by Mr Rayment. In due course leave was sought by Mr Rayment pursuant to s 38 of the Evidence Act 1995 (NSW), to cross-examine Deepak relying on the unfavourable evidence contained in Deepak's affidavit, as read, and I granted such leave (an initial objection thereto not being pressed by Mr Petersen). 344 Deepak presented as a courteous and affable witness. He had a tendency to be didactic in his answers (especially in the explanation of the term kuku chacha) on points where he seemed to have a point he wished to emphasise and he corrected his evidence at one point in circumstances where Mr Rayment suggested that he realised the original answer would be unhelpful, but in general his evidence seemed broadly consistent with the picture which had emerged of events from the documents in evidence. In particular, Deepak agreed that he had played a part in seeking to reach a resolution that would find favour with the respective sides of the family and would be acceptable to his father. Insofar as Vikram seems to have seen Deepak as an intermediary, and Deepak seemed happy to perform such a role, it did not seem to me that this warranted a conclusion that Deepak could be described as a 'puppet master' as was suggested by Mr Rayment. Anthony Davenport 345 Mr Davenport was not required for cross-examination. I place some weight on his evidence – particularly as it appears that he was privy to Sid's thoughts in relation to company succession at a very early stage in the life of the company. Minor witnesses 346 There were a number of witnesses who, without any disrespect, I would characterise as minor witnesses, called by Parveen to corroborate the making of the promise to her by Sid. It is submitted by Mr Petersen (and I think with justification) that these witnesses at the highest suggest that Sid may have been making comments about his will and do not corroborate the allegation that there was a contract as alleged. I comment briefly on those witnesses in no particular order. 347 Mr Ajay Sud was a former business associate of Sid's. In his affidavit (possibly signed by him on 3 November 2009 or possibly at some other date) at [7] he deposed that he had heard Sid frequently say "Taj Food Sales is Parveen's when I am gone", without indicating a time period for when such statements were made. It seems fair to say that Mr Sud presented as an unreliable witness and appeared to have a tendency to say whatever occurred to him off the top of his head and then backtrack or qualify what he had said. His evidence was contradictory and confusing (for example, he said that he was unorganised and that being unorganised made him careless but then that he was "too sharp to be careless" T 740.40-45). It was apparent (and he in effect conceded) that he (perhaps trying to be helpful) was in a number of instances doing no more than speculating or guessing answers to the questions put to him, such that it was difficult to ascertain what was his recollection and what was conjecture. (Insofar as he referred to promises made to Parveen prior to 1988, this was at a time before the partnership between Sid and Parveen existed and before Parveen had emigrated to Australia.) While I did not form the impression that he was being deliberately evasive or dishonest in the giving of his evidence, ultimately I cannot place any reliance on his evidence as it is impossible to know what his actual recollection of events (as opposed to what he was saying off the top of his head) would have been. 348 A different Mr Deepak Varma, who was related to Dr Aggarwal, in his affidavit sworn 6 September 2008 deposed to having witnessed Sid, around the early 1990's, say words to the effect (at [8]) "Parveen will inherit the whole company when I am gone" and "I have left the company to Parveen" and "I am leaving the company to Parveen" in addition to stating (at [10]) that during the earlier years (1990's) up until recently, he had frequently heard Sid use the statement "Parveen, the company is yours" during discussions with Parveen. Mr Varma was cross-examined over the telephone. 349 Mr Petersen notes that Mr Varma confirms that Sid had said he was grooming Arjun and agreed that he had also groomed Gautam after the latter's arrival in Australia. He places emphasis on the evidence that Mr Varma was approached to give an affidavit prior to Sid's hospitalisation and understood at the time that this was a dispute as to whether Parveen's family were heirs under Sid's will. While there was some uncertainty as to when he heard Sid making the relevant statements (saying in his oral evidence that this also happened in the 2000's), it seems to me that this is consistent with Sid having made statements of testamentary intention over the period but not that they were (or would have been reasonably understood) as irrevocable. 350 Ms Mary Waqa, a former employee of the company in her affidavit dated 5 November 2009, (at [3]-[6]; [8]; and [14]) states that she heard Sid make the following statements during the course of her 9 year employment to Parveen and to office staff, Mr Castino and the office cashier Jyoti Almani and herself: "she [Parveen] will run it [the company] when I'm gone"; "the company belongs to Parveen"; "Parveen you know this is your company"; "Parveen, why don't you know this? How will you manage the company when I'm gone?"; "This is your [to Parveen] Company, you have a responsibility to it"; [to Arjun] "Arjun, this Company is 100% for Parveen when I am gone"; "don't' worry, you [Parveen] are a rich woman. All this will be yours"; and "I cannot give Parveen all of the company while I am still alive, only because I want to continue drawing a salary". Ms Waqa was cross-examined over a telephone link as she had only just been released from hospital. Over the telephone she sounded weak and feeble. She was in pain and on some medication. Her recollection could best be described as vague. I do not think much reliance can be placed on her evidence although I have no reason to think she was not genuinely trying to recall what had been said. (I do not place any weight on the criticisms made by Mr Petersen as to the circumstances in which her affidavit evidence was prepared.) 351 Mr John Harrower, a business associate of Sid's, in his affidavit sworn 5 November 2009, states that Sid said to him, in about 1998, "Parveen will ensure the business remains in the family as security for all of the family for generations to come" (at [19]). I have no reason to disbelieve his evidence. Mr Petersen notes that his evidence included that Sid had also indicated an intention to leave the business or shares to Vikram as well, inconsistent with an assertion that he had intended to leave the whole of the company to Parveen. It was also submitted that, to the extent that Mr Harrower had been incorrectly told by Vikram (a material witness in the case) that everything had been left under the will to Arjun, that could have affected Mr Harrower's evidence. It seems to me that unless it is being suggested that Mr Harrower's recollection was contrived to avoid a perceived injustice in Arjun (allegedly) having been left everything under the will (and that was not put to him), the fact that he had a misunderstanding as to the actual position under the will does not take matters very far. Nevertheless, I accept that his recollection was general in its content and (as far as it went) inconsistent with Parveen's principal contentions and more consistent with there being an ongoing process by Sid over the years of changing his testamentary intentions in relation to who should run the business after his death. 352 Mr Don Prasad, a business associate of Sid's, in his affidavit sworn 7 November 2009, states that in recent years Sid said to him "Parveen is doing a great job running the company. It's hers when I'm gone. She's the only one capable" (at [7]); and "I have trained Parveen and her son Vikram very well. The company is basically theirs now anyway, they are running it. They will take over once I'm gone" (at [8]). In his oral evidence he suggested that he had been told it was originally Parveen's business when Sid took over (which is incorrect on any version of events). He accepted that Sid could, in the conversations to which he had deposed, have been talking about what would happen on his retirement as to the running of the company as much as to what was to happen on his death and that, in any event, he understood Sid to be talking about Parveen and her immediate family, including Vikram. 353 Ms Sukanya Gangulee, a former employee, in an affidavit sworn 8 November 2009, states that Sid repeatedly made statements to the following effect "all of the company shall belong to Parveen when I die" (at [3]); "her dedication to the company is commendable … there is no one better than Parveen to manage the company" (at [4]); and to Parveen "one day all this will be yours" (at [5]). The force of her evidence seems to be weakened by her suggestion in the witness box that Sid was making statements of this kind every week over an 18 month period (which seems to me unlikely unless there was some reason that this would have been in the forefront of Sid's mind for the whole of that period and inconsistent with Parveen's evidence that Sid kept his intentions in relation to his wills private and with Ms Waqa's evidence as to the time at which the statements to which Ms Waqa deposed were made). I think Ms Gangulee's evidence must be treated with some caution as I think there was an element of (no doubt unintentional) exaggeration. However, I draw no adverse inference from the fact that she had been asked to provide evidence in the case in August 2008 or that she said she was asked to do so by "Parveen and her friends". 354 Ms Violet Ayoub, the mother of Vikram's first wife, in her affidavit sworn 9 November 2009, states that in about late 2009, Sid said to her words to the effect that "Parveen has been promised the business" and "Parveen and I have an arrangement that she will take over the ownership of Taj when I am gone" (at [8]). Ms Ayoub was cross-examined as to the manner in which this affidavit was prepared and it seemed to be put to her that words had in effect been put into her mouth by Vikram. Mr Petersen suggested that Ms Ayoub had been evasive in her evidence. I do not accept either criticism. Ms Ayoub, who in all candour said that she had not been keen to give evidence in the proceedings and who seemed to me to be somewhat overwhelmed by the atmosphere of the courtroom, appeared to be genuinely confused as to the cross-examination as to how she came to swear her affidavit. I see no reason to disbelieve her version of events in that regard or to think that she had simply said what Vikram told her to say. The statements she said were made to her by Sid seem consistent with the thrust of the statements said to have been made by Sid in other contexts to Mr Hillman and to Seemita, namely assurances that the person marrying into his family would be looked after in the future. I accept, however, that Ms Ayoub's evidence was consistent with Sid indicating that Parveen was to be the one responsible in due course for the management or running of the business. 355 Mr Peter Hillman, Carin's father, in his affidavit sworn 5 March 2010, states that in his presence he heard Sid say "Parveen is getting the whole company" (at [4]). This is consistent with the statement by Carin in her second affidavit dated 2 March 2010, at [12]. I considered Mr Hillman's account of the occasions on which words to this effect were said by Sid to be credible. Criticism was made as to the lateness with which his affidavit was served but it was not put to Mr Hillman that this was a recent invention on his part. While it is suggested that it is not likely that the statements to which he deposed were made on the occasion of his daughter's engagement party, Arjun and Seemita themselves depose to Sid having made statements as to his testamentary intention on social occasions. I do not accept that Mr Hillman was an unreliable witness. On the contrary he seemed to me to be properly concerned to ensure that he said nothing but the truth on his oath. Sid's advisers Mr Ciaglia 356 Mr Ciaglia's evidence was relied upon by Mr Petersen as showing that Sid saw himself as under no obligation to dispose of his estate to anyone in particular. He was not cross-examined. While I accept that Mr Ciaglia was satisfied in his own mind that Sid understood what he had done in relation to the testamentary changes effected to the will the day before (and thus, as a solicitor, had formed the view that he had capacity), I do not think that addresses at all the question of whether Sid had been subject to any influence from his grandsons at that point. Further, Mr Ciaglia's evidence must be considered in the light of the overall medical evidence around that time. Mr Castino 357 Mr Castino had been Sid's and the company's accountant for some time and therefore must have been familiar with Sid's behaviour over the years. Sid's consulting neurologist (Dr Aggarwal) had diagnosed as far back as 2001 that Sid had moderate to mild dementia. While I do not suggest that Mr Castino was aware of that (and his notes suggest that he was discomforted when it was suggested to him by Vikram that there was a report of some kind to that effect) I find it hard to believe that he would not have observed signs of memory loss at the time. I do not suggest that he would thereby have formed a view that Sid lacked the capacity to enter into transactions of the kind he was proposing but I am troubled by the fact that he seems prepared to have participated in a process of excluding some members of the family from discussions in relation to matters of financial import but to have accepted instructions from Sid through other members of the family – matters which emerge from Mr Castino's own notes taken at the time. Moreover, the flavour of some of the remarks noted by Mr Castino (particularly the note as to there being 'ammunition' for Vikram's side of the family in a challenge to the will) is that Mr Castino saw himself as part of one side of the camp – a position not consistent in my view with him fulfilling the role of an objective and independent adviser. Therefore, to the extent that reliance is placed on his involvement in the transaction as rebutting any presumption of undue influence I would have difficult with that proposition. Mr Czinner 358 As to Mr Czinner, likewise he had been an adviser to Sid for some time. Mr Czinner must have been aware that there was an issue perceived within the family as to Sid's competency. He said that he satisfied himself as to Sid's capacity to make the will by reference to the fact that Sid had corrected an error in relation to the status of Vikram's directorship and had raised with him a particular clause which he wanted in the will by reference to a clause in an earlier will. As to the latter, the medical evidence, as I understood it, form the tutor proceedings suggested that it was more likely that Sid's short term memory would be impaired than his long term memory. As to the position in relation to Vikram's directorship, I note that Sid gave inconsistent evidence in relation to Vikram in the witness box from that stated in the will. 359 I am prepared to accept that Mr Czinner considered he was able, consistently with his obligations as a solicitor, to act not only in relation to the preparation and execution of the will in April 2008 (and in October 2008) but also in relation to the challenge to the retainer of Parveen's solicitors in the tutor proceedings. I am not convinced that this would have determined the issue as to whether there had been undue influence on the part of Gautam and Arjun in that regard (and I must confess that I consider it would have been extraordinarily difficult, having regard to Sid's oral evidence and the then medical evidence, for Mr Czinner to have satisfied himself – consistently with his obligations as an officer of this Court as to the basis going forward of any instructions from Sid in relation to the litigation had the retainer challenge been successfully concluded). However, I do not suggest that Mr Czinner's evidence should not be believed and I note that Mr Petersen places emphasis on the fact that he was not cross-examined as to the evidence in paragraphs 10, 16, 32, 37, 38 and 39 of his affidavit or as to the alleged 'promise'. Medical Evidence 360 I have considered above the evidence contained in the medical reports and I do not propose to repeat that here. Suffice it to note that I saw no reason not to accept that Drs Casey and Waite were qualified to express the opinions they did (though noting that they were addressing a particular issue as to Sid's capacity, based to some extent on incomplete or inaccurate instructions and that they were only commenting on his condition as at the time they observed and assessed him, which was sometime after the share transactions.) 361 I do not accept the criticism of Dr Arun Aggarwal's evidence. 362 Mr Petersen took issue with the independence of Dr Aggarwal as an expert, on the basis that he was Sid's grandson. To be fair to Dr Aggarwal he made that very clear at the outset when he gave evidence in the tutor proceedings. It does not seem to me that his relationship with Sid is likely to have affected his medical judgment of Sid's mental condition. He had been treating him for some time and Dr Aggarwal's evidence seemed balanced and thoughtful. Dr Aggarwal, at least when he gave evidence in the tutor proceedindgs did seem concerned that he had not been told when Sid had been hospitalised and had been unable to honour a promise he had made to Sid in that regard, but I did not understand him to be holding a grudge against any one or more of the parties. He had been, over time, friendly with both sets of cousins and their wives. 363 In any event, Dr Aggarwal's evidence was admissible, irrespective of whether he was an expert, as someone who assessed Sid and had expressed an opinion to Arjun (and to Sid) as to the need for assessment in relation to Sid's mental state and the inadvisability of entering into important transactions at that time. Whether that opinion was right or wrong from a medical point of view, it seems to me highly relevant that it was made (and that Arjun, without reference to an expert neurophysiologist, chose to ignore it, apparently preferring to rely on the medical certificate which was favourable on the issue of capacity). (In that regard, the fact that various cases, to which I was taken in Mr Petersen's submissions, have upheld wills made by persons suffering from dementia or other conditions affecting mental ability seems to me to be beside the point – what is relevant here is what action Arjun took when faced with that advice. As Mr Petersen pointed out, the issue before me was not Sid's testamentary capacity.) 364 Mr Petersen was critical of the fact that Dr Aggarwal's opinion had been framed as an opinion that Sid "should not" make important financial decisions (and that he had not set out in his report the reasons for that decision). In cross-examination Dr Aggarwal accepted in effect that that report may have contained an infelicitous use of language. However, the thrust of his opinion seemed to me to be clear – there was an issue in his mind (as a qualified medical pracititioner in this area) as to the mental competence of Sid and he recommended that a neuropyshiological assessment be carried out. It is not surprising that in those circumstances he would recommend that no important financial decisions be taken until Sid's mental competency was assessed. I accept his evidence that he told Arjun this. I think it reflects poorly on Arjun that he chose to disregard that medical advice in order personally to take a substantial financial benefit in the transfer of shares by his grandfather before any such assessment was carried out. Dr Kalpana Ram 365 Dr Ram was proffered as an expert anthropologist. Objection was taken to her as an expert. I was satisfied that anthropology was an area of specialist expertise in which Dr Ram had suitable academic qualifications to give an expert opinion. Objection was also taken as to her independence in that Carin had previously been a student in an anthropology course given by Dr Ram at Macquarie University and it was suggested that the matter had been discussed by Carin with her. I accept Dr Ram's evidence that that was not the case. 366 The issue in relation to which I understand her evidence was said to be relevant was as to the failure of Parveen to raise any objection when Sid acted as he did in relation to the making of the will in April 2008 or the share transfers in April/June 2008 which were inconsistent with the promise she had asserted (and her failure to commence proceedings against Sid in her own right challenging what had occurred during his lifetime). 367 Dr Ram was adamant that the evidence she was giving (as to the existence of social or cultural norms in India) was evidence of fact and not of opinion. I have some difficulty with that proposition. In Wigmore on Evidence, J H Chadbourn (ed) Little, Brown & Co, 1978, Vol VII, at [1917], "opinion" is defined as "an inference from observed and communicable data". An observation as to the expectations as to how daughters-in-law should behave within a family in the Indian culture (assuming that broad cultural expectations are the same across the different classes and religions in Indian society would, I should have expected, have more readily been characterised as a statement of opinion (based on a statistical sample of evidence) as to how particular individuals behaved in a particular context or as to how behaviour contrary to such norms is dealt with in Indian society). Dr Ram, however, asserted that the existence of the general social or cultural norm was an objective fact. 368 In Risk v Northern Territory [2006] FCA 404, where what was being considered was anthropological evidence relating to an Aboriginal land claim, Mansfield J referred to the notion that science and mathematics were exact disciplines, whereas the disciplines of anthropology, humanity and the like, were not. His Honour said (at [468]): In most if not all disciplines, opinion is formed by reasoning drawn from a group of facts. The facts may be drawn from a scientific experiment, historical documents or a series of conversations held with members of a native title claimant group. However "fact" themselves have varying degrees of primacy or subjectiveness. Some facts are now, in reality (and despite the deconstructionists) incontrovertible. Our communications systems make them so: the use of numbers in measurement is a clear example. Some obviously more subjectively perceived: estimates, descriptions of persons or events and the like …. Some are complex and themselves involve judgment. In the realm of expert evidence, the primary data upon which an opinion is based may comprise a mixture of primary and more complex facts. The opinion may then be further based upon an interpretation (sometimes requiring expertise) of those facts and that stage may require an exercise of judgment, sometime fine judgment, by the person concerned. 369 There, the issue was considered in the context of the scope of what would be regarded as specialised knowledge or experience. Here, the above analysis suggests that the distinction between the opinion formed by an expert based on his or her specialised knowledge and the underlying facts on which it is based may in some cases be blurred. 370 In any event, whether Dr Ram's evidence, strictly speaking, was as to her opinion of the import of the cultural norms in Indian society or as to the fact of the existence of such norms is probably of little moment. What I take from her evidence is that, as a general observation, in a traditional Indian family structure sons have more status than daughters and the status of daughters-in-law is on the lowest rung of the social ladder. 371 Relevantly, Dr Ram explained how a daughter-in-law's standing in the society is dependent on the standing of her husband and that therefore the wife of the oldest son has a higher social status than the wife of the youngest. As I understand it, in practical terms this would mean that Parveen's standing within the Varma family members working for the company would be the lowest (but her standing would be higher than that of Carin). (At least as to the status of daughters in Indian families, this seems to be consistent with the way in which Sid treated his children – the daughters were provided for with dowries on marriage and thereafter apparently not considered to have any moral claim on his testamentary bounty; whereas the sons (and their children) were considered to be the natural objects of Sid's testamentary bounty. Further, it seems clear from the Explanatory Notes prepared in respect of Sid's earlier wills that Sid regarded it as significant to note that each of his sons had been provided for (when explaining why there was no provision for them in the will). 372 In this regard, the inclusion of Parveen in the will at all seems to be not in accordance with the social structure as explained by Dr Ram (hence, perhaps, the reference in Mr Czinner's file note in 2004 to Sid's explanation as to why it was Parveen and not her husband who was to be included in the will.) 373 What was also explained by Dr Ram was the expectation that Indian daughters-in-law are expected to be respectful to the patriarch of the family. Both Carin and her father gave evidence (she from the perspective of someone marrying into that culture and he from the perspective of someone whose daughter was marrying into that culture) of the difference in the Indian culture as it applied in Parveen's family and as to the need for respect to be shown to someone in the position of the father-in-law. 374 I accept that the evidence of Parveen's behaviour over the years (in particular, the manner in which she expressed her disappointment at matters such as the treatment of Vikram and the announcement by Sid of his intention to leave or to transfer a substantial amount of shares to Arjun and as to her apparent refusal to participate in any of the discussions in relation to the settlement of the then dispute within the two branches of the family as to what would be an equitable division of the shares) is consistent with conformity to the social norm identified by Dr Ram. 375 I accept that for someone in Parveen's position and of her generation it is likely to have been a difficult decision to make to confront her father-in-law or to stand against him or his wishes and that she was reluctant to do so. Her distress in the witness box seemed to me to be genuine. Her decision to commence proceedings at all therefore seems to me only to be consistent with a strong belief that she had been betrayed by Sid's failure to honour what she regarded as a solemn promise to her. 376 I therefore do not draw the inference (that I was invited to draw) that Parveen had deliberately chosen not to commence these proceedings at first, but instead had chosen to commence the tutor proceedings not in good faith as an attempt to prevent Sid from being in a position to tell his side of the story. 377 However, that does not enable me to infer that, but for the cultural norms under which Parveen was operating, she would have asserted a promise or agreement of the kind now asserted. What seems apparent is that when Sid took steps which Parveen took issue with (say in July 2007), Parveen did raise this with Sid (albeit in a respectful manner). There seems no reason why an assertion as to breach of a promise or of a contract or agreement to leave her the shares or the company could not have been similarly raised. 378 Therefore, while I do not consider that the failure to raise with Sid these issues before he died is a matter which precludes Parveen now from so doing, it does raise doubts as to the particular nature of any promise which was made to her. While those doubts might have been able to be resolved in Parveen's favour having regard to the steps she took in relation to the company over the years, had that been the only evidence, the difficulty I have is that Parveen's understanding of what was promised to her is wholly inconsistent with the steps Sid was taking from the outset in relation to the company. Observations of Sid as a witness 379 In the course of debate in closing submissions, I raised with Counsel whether it was accepted that I could take into account not simply the transcript of the hearing which took place before me (but was not completed) in October 2008 but also my own observations of Sid in the witness box. I did so because it seemed to me that my observations of Sid's appearance and manner in the witness box were distinct from the evidence contained or constituted by the transcript itself (Halsbury Laws of Australia, Butterworths, at [195-5010]; Heydon D., Cross on Evidence, 7th Australian ed, Butterworths, 2004, at [3140]). Those matters were thus not strictly before me, except insofar as manifested in the transcript. In this regard, I note that the fact that I had had the opportunity to observe Sid giving evidence in the witness box was a matter on which some reliance had been placed by the parties in relation to the listing of the present proceedings before me. 380 Both parties accepted that I should be able to take into account the demeanour of Sid when giving evidence before me (Mr Petersen at T 1391.3; Mr Rayment at T 1392, though there submitting that those observations should have limited relevance to the undue influence case). 381 That, however, led me to consider whether it was incumbent upon me, as a matter of procedural fairness, to give notice of the observations I had formed of Sid's evidence in the witness box. The circumstances in which, as a matter of fairness, a judge should give notice that he or she intends to rely upon an observation of the witness in the witness box are the exception rather than the rule (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, at [2]). 382 In Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276, it fell to the Court of Appeal to consider the issue as to whether there had been a denial of natural justice or procedural fairness in circumstances where the trial judge had not indicated an intention to have regard to anything observed about the appellant's behaviour in the courtroom after the time that he had left the witness box. In that case, Blackman ADCJ had referred in her reasons for judgment to the fact that she had had the opportunity of seeing the plaintiff both in the witness box and in the courtroom and had noted that after having given evidence in the witness box, she had observed the plaintiff moving quite freely in the courtroom and discussing various matters with his solicitor (in contrast to the tense manner in which he had sat in the witness box and his non-responsiveness in replying to questions). Her Honour had noted that this was not used as an indication of his medical condition but that it had given her food for thought as to his credit. It was contended on appeal that her Honour should not have relied upon her observations of the plaintiff's conduct in the courtroom without having disclosed her intention to do so before final judgment. 383 Mason P in Kassem, delivering the judgment of the Court of Appeal, referred to (at [15]) what was said by King CJ in Angaston & District Hospital v Thamm (1987) 47 SASR 177, at 178-179, where his Honour (having referred to this as being a matter of fair play and commonsense) had noted that "the condition upon which a judge is at liberty to take notice of what he has seen for himself, is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it", King CJ said: The rule, as it appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of the trial outside the witness box. Something will depend no doubt on the circumstances of the particular case and upon the significance of the particular observations. It is clear however that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice before making use of those submissions to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way . (my emphasis) 384 Mason P also referred (at [16]) to what had been said in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 by Kirby P, as his Honour then was, at [313]: So long as the conventional theory reigns that observations of a party or other witness are an important and legitimate element in curial decision making, it is appropriate to permit at least the observations to be taken into account which occur inside the courtroom. However, this conclusion leads to the question of notification to the parties and their representatives where the observations have occurred, as here, outside the actual period of the trial and when the person being observed is at the back of the court behind the representatives of the parties who thus have no opportunity to observe the features in question and by interrogation, evidence or advocacy, to persuade the decision maker to a different view about them than has been formed. 385 His Honour also referred (at [26]) to the need for there to be an opportunity to meet issues so raised and noted the principle, as stated by Gaudron J in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, at 305, that: As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled". And it is always relevant to enquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue. 386 In this case, the issue arises not because of any observations I may have formed of Sid in the courtroom unobserved by any of the legal representatives for either side (Sid not having remained in the courtroom for any length of time after he gave his evidence). Therefore, the legal representatives present in court on that occasion were just as able to observe what I observed of Sid's demeanour and manner in answering the questions posed. My concern, however, was that three of the four Counsel at the bar table in the present proceedings had not been present in court during the tutor proceedings and thus had not had an opportunity to observe what junior Counsel for Gautam and Arjun (Mrs Baxter) and I had been able to observe. (Mrs Baxter had, of course, not simply observed but had cross-examined Sid during the course of the tutor proceedings.) 387 The situation was also complicated by the fact that, while Parveen was a party to the previous proceedings and (to my recollection) in court during Sid's examination in the witness box, she was then represented in her capacity as tutor for Sid and not in her personal capacity. Though it does not seem to me that anything would turn on this for the purposes of the requirements of procedural fairness, it was an additional matter to take into account. 388 I note that in Chaina v Alvaro Homes, Giles JA noted (at [2]) that there was no dogmatic rule in relation to the use in decision making by a judge of observations of a witness outside the witness box, Gyles JA said (at [3]): Exceptionally, but as a matter of principle possibly, it may be that fairness requires the judge to draw attention to an observation of the witness in the witness box. The rule is not restricted to the actions or demeanour of a party, and is not necessarily restricted to when the actions or demeanour are not observable by counsel, since vice lies in the judge making use of what has been observed when the party's representatives are not aware that it may be used in the decision making. In Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 49, Redlich JA began by noting at [42] the parties' entitlement to know the case sought to be made against them and have the opportunity of replying to it, and after consideration of the cases said: 52. A decision-maker sitting in the courtroom is not blind to the events which occur in the courtroom but when his or her observations are of matters which the party's representative have no opportunity to observe, or where it may be reasonably assumed that the party's representatives will not appreciate the inferences which the decision-maker intends to draw from observations that are made, the party should be informed of the observations or the inferences which the decision-maker contemplates drawing so as to afford the party an opportunity to deal with such matters, whether by calling evidence or by making submissions. (Citations omitted) Many considerations may come into whether there has been a denial of procedural fairness, as it is a question of practical fairness and justice. Amongst other things, where a party is represented the focus will ordinarily be on what should in fairness and justice be made known to the representative. It is not required that the representative be appraised of the judge's views generally, although if the judge is minded to decide the case on a completely different basis from that on which the case is being conducted, that should be raised, Selpsam Pty Ltd v Gahlev (2005) NSWCA 208; (2005) 3 DDCR 1 at [78] per Ipp JA. 389 In Adamson v Ede [2009] NSWCA 379, the question was raised as to whether a judge contemplating making a finding detrimental to a party was obliged, as a matter of procedural fairness, to warn that party that he was contemplating making such a finding and to give the party a proper opportunity to be heard about whether the findings should be made. In that case Campbell JA said (at [72]) he did not regard Holt v Protective Commissioner (1993) 31 NSWLR 227 as standing for any general proposition that a judge should inform someone concerning whom he is contemplating making an unfavourable finding and give them a specific opportunity to argue against that finding being made, and noted that there was authority against a judge being under an obligation to warn parties that he may make findings detrimental to them, referring to what was said by Lord Diplock in Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, at 369: Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties, the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished. 390 Similarly in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, at 166 [48], the High Court said: Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment. 391 In Piras v Egan [2008] NSWCA 59, Giles JA (at [3]) in considering a question of procedural fairness, indicated that it is not necessary that the trial judge disclose before judgment what the judge saw in the evidence what was described as a clue as to what might have been going on any more than it was necessary that the judge disclose before judgment the significance seen in other of the host of competing factual indicators. 392 In the present case, while it seemed to me unlikely that I would be relying on anything observed of Mr Varma's demeanour in the witness box which would not otherwise have been discernible from a review of the transcript (and I note that my views as to the reliability of his memory and the like, are based on matters not only evident on the transcript but emerging from the evidence of other witnesses in the case), I was concerned to ensure that both parties had a proper opportunity to address me in relation to any findings I might make based on my initial observations, particularly where the issues raised in these proceedings included an allegation as to undue influence and where there was still outstanding the issue of costs of the tutor proceedings (in which proceedings my observations of Sid as he gave his evidence must necessarily have carried some weight when it came for me to determine the issue). 393 Therefore, while I do not suggest that this was necessary as a matter of procedural fairness (and do not see this as a precedent for other cases, which will of course turn on their own facts), I considered it appropriate to place on record before the close of submissions, my then observations of Sid as a witness (and to afford Counsel the opportunity to address me in relation to those observations). I did so by reference to notes I had made at the time. 394 In summary, I noted as follows. 395 Sid's evidence occupied over two hours in all, interrupted by a lunchtime adjournment. While Sid exhibited some difficulty in hearing, he appeared generally to understand the questions which were put to him by Counsel and he did not appear agitated or uncomfortable in the witness box (though he did express with apparent feeling his view that this matter was a family matter and not one which should have been brought before the court). When asked by me whether he had been able to follow the questions put to him (by Counsel both for Parveen and for Gautam and Arjun and by Mr Czinner who was representing him) he said he thought he had and, perhaps somewhat testily, that that was why he was able to answer them. 396 It is fair to say that Sid's memory was not reliable. He gave various inconsistent answers during the course of examination – particularly in relation to the current shareholdings in his family company; in relation to whether he had recently driven his car (although there may have been some understandable confusion referable to some of the questions put to him in that regard); and as to the transfer or transfers of shares in issue in the proceedings. There was also an inconsistency between some of what he said in his affidavit and the oral evidence given by him on examination in the witness box as to the views held by him about Vikram. 397 Sid showed confusion as to the subject matter of the substantive proceedings, suggesting that it was Parveen who had signed an unauthorised transfer of shares (though that may be explicable by the fact that there had been the earlier March 2007 share transfers in Parveen's and Carin's favour which had also caused consternation in the family, though from the other side), and was not aware who had informed him of the proceedings. He said he did not remember doctors' tests that had been carried out and he did not recall changing his will (which occurred in April this year). (I note that this is unlike the position reported by Dr Casey the month before to the effect that Sid had then remembered changing his will.) 398 However, some of the confusion in Sid's answers could fairly be said not to be of his own making – for example, he was questioned as to Parveen's appointment in the early 1990's as financial manager, in circumstances where Parveen's then Counsel subsequently conceded that in fact her appointment to a more responsible role had not taken place until far more recently (as Sid in his oral evidence had suggested). 399 In Sid's answers to questions put to him relating to his role in the company and his assessment of Parveen's capability and that of Gautam and Arjun, Sid showed thoughtfulness and indicated a process of reasoning by which he came to those views. His views as to these matters were consistent with those reportedly expressed to various independent professionals such as Dr Casey, Dr Rosenfeld, Mr Johnson and Mr Ciaglia. 400 Sid responded to a question as to his view of Parveen's capability, for example, by saying that that had to be tested by reference to particular tasks. He gave an explanation as to the decisions he made in relation to the importing of goods and prices and as to Parveen's ability in that regard and of the then current financial crisis and the impact of uncertainty of world prices on the business. 401 Sid knew that he was a signatory of company cheques and volunteered that he was not the sole signatory. 402 Ironically, perhaps, given the current proceedings, Sid responded to a question as to whom he would choose to leave his assets to under his will, that he would not make decisions in a casual manner (as I understood him, he meant by this that he would not make such decisions off the cuff in response to a question put to him in the witness box) but said he would certainly weigh that in his own mind, or with his own peace of mind, with his own way of thinking. 403 Sid expressed an understanding that he had a discretion in relation to share transfers and as to the effect of share transfers or qualifying shares on control of the operation of the company. 404 Sid had a tendency to accept, when documents were put to him, that if he had signed documents then he "must have" given instructions or have made decisions rather than recalling the making of those decisions directly. In financial matters he said he gave instructions in writing. He said he signed a number of papers that were put to him (and that he did not type documents), and he accepted that a lot of the documents he signed, he did so on the basis that he trusted what the people who brought the documents to him were saying. However, I did not understand him to suggest that he did not read documents before he signed them. Sid said in answer to a number of questions that he had dictated what he wanted done in relation to certain matters (relating to his earlier wills and revocation of the power of attorney) (and I note that there are in evidence a number of documents handwritten by Sid or on which Sid has handwritten his comments). 405 While in response to a number of questions Sid conceded that if the document had not been shown to him (such as his will) he would not have remembered it or a particular part of it, he was aware that he had revoked a power of attorney given in favour of Parveen and he said that he understood (and was able to explain) what was meant by revocation. Sid's explanation as to why he had revoked that power of attorney appeared to be consistent with what he was reported to have said both to Mr Ciaglia and to Dr Rosenfeld. 406 Sid acknowledged on a number of occasions that he did not remember things. He said that he had had dementia but had been "cured". When I asked him what difference after he said he had been cured, he said his memory had been better – "Well, I find myself that I do remember things more than ever before." I noted that this was consistent with the observations of Dr Rosenfeld (which were in evidence before me at that time, though not on the present proceedings). 407 Sid gave his evidence in a quiet courteous manner. He was generally softly spoken and sometimes hard to hear. Sid only spoke forcefully when asked about the current proceedings. Although he could not recall how he had learned of the commencement of the proceedings, he said (and repeated that) he was shocked by the proceedings having been brought by Parveen without his knowledge or approval. He was adamant that he did not authorise Parveen (and would not authorise Parveen) to act as tutor or on his behalf to bring the proceedings. He said that he did not believe he needed a tutor. (I interpose to note that it seemed to me that his issue was not with the identity of the tutor as much as with his certainty that he did not need a tutor.) 408 Insofar as the background, to or rationale underlying, the making of decisions in respect of his revocation (in October 2008) of the power of attorney or amendments to his will (in April and October 2008) was relevant to the then issue before me (which on the authorities was limited) as to his capacity to instruct lawyers in relation to the litigation, Sid's evidence was (and the evidence before me in the current proceedings would lend support for such a view) that a build-up of family events had led him to take that decision. He gave evidence that matters had been building up to this for some time and he told Mr Ciaglia that he had the impression that Parveen was moving against him. There was nothing to suggest that Sid was delusional. (Indeed one of his final answers seemed to me to be highly pertinent – he expressed the view that this was not a matter to be before the court and was a family issue.) 409 In Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; (2004) 233 LSJS 276; [2004] SASC 102, Debelle J noted, with reference to the required capacity of a party to litigation, that the question was whether the person was able to give sufficient instructions to take, defend or compromise legal proceedings. The capacity to give sufficient instructions extended not merely to the prosecution or defence of the action but also to the compromise of the proceedings. As to what was meant by the qualification "sufficient", in this context his Honour considered it meant instructions of a quantity, extent or scope adequate for the purpose or object of those instructions. His Honour said (at [22]): When qualifying the noun 'instructions' it is signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise. (my emphasis) 410 The fact that the person is vulnerable to exploitation or prone to rash or irresponsible decisions may be relevant to a determination of the question whether he is able to give sufficient instructions but it must be considered with other relevant evidence. 411 Further, his Honour noted that the question whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation (at [23]). Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant. His Honour said (at [24]): A person will not be under a disability, if after careful advice and explanation and time to consider the advice and explanation, he then gives instructions. 412 According to his Honour, the level of understanding of legal proceedings involves an ability "to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes" (at [26]). 413 In Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, at 53, where Handley JA referred to the comments of Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383 (at [33]), his Honour considered that the test of capacity for a litigant in person would be higher than that for a litigant retaining a solicitor (at [35]). 414 At the time the hearing of the retainer challenge was abruptly brought to an end by Sid's death, I was inclined (pending completion of the hearing, and subject to any submissions which might be made from Counsel at the conclusion of the hearing) towards the view that Sid might be said to have had the necessary capacity to give instructions for the conduct (or settlement) of legal proceedings (based on the seemingly low threshold required to establish capacity of that kind), though I would not have been satisfied on the evidence that he was not in a position of susceptibility or vulnerability to outside influence. (In hindsight I note that much may also have depended on the likelihood that any legal adviser acting for Sid would be able to present information to him in an objective and careful way and to be able to satisfy himself or herself that the instructions given represented Sid's own wishes uninfluenced by others.) 415 Of concern, as I was gently reminded by Junior Counsel for Parveen on the current application, Mr Washington, would also have been the evidence (not just of the doctors such as Dr Casey but also as emerged from the giving by Sid of his oral evidence) as to the inability of Sid to absorb and retain verbally presented information. I accept that a client who is unable to remember the reasoning on the basis of which decisions are made is likely to have difficulty giving consistent instructions (perhaps evidenced by the apparent about-face in relation to the March 2007 share transfers and the contradictory positions adopted in July 2007 as to who was to have the controlling share in the company) and that this would have impacted on whether it could be said that Sid had sufficient capacity to give such instructions at all. Mr Washington pointed to the confusion in the witness box by Sid as to the share transfers which were the subject of the proceedings and his adamant assertion that if they were his property they should be returned to him (which rather begs the very question which was in issue in those proceedings). 416 I cannot therefore say that the outcome of that challenge was so certain as to warrant any finding on the outstanding issues in those proceedings (such as costs) as would be necessary were I to have been invited to follow the course of determining costs issues on the retainer challenge by reference to what would have been the likely outcome of that application. In any event, it is not necessary for me to form a view as to this issue in the present proceedings (and in the tutor proceedings neither party suggests that I should do so). Issues 417 With the above in mind, I turn to the issues for determination: (i) Promises/representations by Sid? 418 The difficulties facing the court where a claim is based on an assurance made by a deceased have been noted in many cases. It was conceded, in effect, by Mr Rayment that Parveen bears a comparatively difficult task in evidentiary terms in seeking to persuade the court on the balance of probabilities of the making of the alleged promises given that Sid is not alive to give his version of events. (Of course, even had he been given the opportunity to do so when this issue first arose during his lifetime, there is a question as to how reliable Sid's evidence would have been in view of his state of mind at that time.) 419 Careful scrutiny is required (Plunkett v Bull (1915) 19 CLR 544; Clune v Collins Angus & Robertson Publishers Pty Limited (1992) 25 IPR 246, at 253). As explained in Weeks v Hrubala [2008] NSWSC 162, at [20], the court generally looks for corroboration of those claims (see also Re Hodgson (1886) 31 Ch D 177; Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41). 420 In Weeks v Hrubala (at [20]), Young CJ in Eq said: In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration. 421 In Plunkett v Bull, Isaacs J said: Then we come to the question how far the onus of proof which lay upon the plaintiff was satisfied. She had the burden of establishing the original creation of the indebtedness of the deceased to her, and undoubtedly it is established that in cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as primâ facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue. 422 In Vukic and in Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581, respectively, each of Brereton and Nicholas JJ emphasised that the court must closely scrutinise claims against an estate in circumstances where the only person who can contest the issue is deceased. 423 Similarly, in Lewis v Lewis & Anor [2001] NSWSC 321, Hodgson J (as his Honour then was) referred to the need for caution before finding an intention to create legal relations in a family situation. 424 Adding to the need for close scrutiny of claims made in respect of arrangements with deceased persons who are unable to give their own account of events, is the recognition as to the fallibility of human memory explained by McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (at 318), as follows: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 425 His Honour noted (at 318-319) that: Each element of the cause of action [there for misleading and deceptive conduct though his Honour expressly noted that the principles so espoused were true also for claims based on contract and equitable estoppel] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action …, in the absence of some reliable contemporaneous record or other satisfactory corroboration. 426 In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-240 (at [41]) Rares J cited the above passage and noted that his Honour's observations were just as apposite in a case where the question arises as to what oral terms of the contract were agreed in the course of negotiations. 427 What then is the promise alleged to have been made (and allegedly repeated or affirmed over the years)? I have set out earlier the terms in which it was pleaded. Broadly, it was a promise that as from Sid's death or upon and after his death all the shares would belong to Parveen. (Perhaps not surprisingly, the comments to which various of the witnesses deposed generally related not to the ownership of shares but to the company – that the company would be Parveen's or that she would run the company when Sid died or 'was gone'.) 428 Parveen herself referred to a promise to leave her the company in his will (para 52 of her 4 November affidavit); that the business was to go to her (para 49); that when Sid died she would get the company or it would be hers (para 47). 429 In answer to the cross-examination of Parveen which was directed to the manner in which she thought the promise would be made good, Mr Rayment draws a valid distinction between a promise as to the result or outcome and a promise as to the process by which that result or outcome may be achieved. With one qualification, I accept that it could be said to be irrelevant how the company was to become that of Parveen (ie whether the shares were to be left by will or otherwise or indeed whether there was to be a transfer of the business and not the shares in the company), unless it was the particular process which was in issue or conduct had occurred which was consistent with a promise as to one such means but not another. 430 However, if this is seen (as I think it must be) as a promise which was testamentary in character, then that does have implications as to the reasonableness of any reliance thereon for the purpose of establishing promissory estoppel and as to what must be shown for it to be enforceable as a contract. 431 As I understand it, Mr Rayment relies on the fact that Parveen relinquished her partnership interest as indicating that she must have done so on the faith of a promise of the kind alleged. He points to the statements attributed to Sid by which he encouraged Parveen to work hard (as it would be hers or would all be hers); to the fact that she mortgaged her house to secure trade loans for the company, which it is said a mere employee would not do; and worked long and hard for a relatively modest wage. In that regard, if what is suggested is that one can infer from what Parveen did that this was in reliance on a promise made to her then it seems rather to beg the question. Further, given the somewhat dictatorial fashion in which Sid seems to have regarded his family members as at his disposal in seeking their assistance as and when he needed it in the running of the company (which seems consistent with the status of the head of the family as described in the social hierarchy of the norm identified by Dr Ram), I so not know whether such an inference could be drawn in any event. In other words, I doubt that one can draw any inference from the fact that Parveen behaved in a manner which went beyond what one might have expected from the average employee in a non-family held company (or a non Indian family-held company). 432 The discrepancies to which Mr Petersen points in Parveen'e evidence, in terms of the language in which it is said the promise was made are said by Mr Rayment to be (and I accept this is likely) immaterial - it being the concept which was consistent across the difference versions of the promise. Similarly, I place little weight on the difference between Parveen being left the company or the company being hers, in terms of the reliability of her recollection. I think it likely that those concepts in Parveen's mind were one and the same. 433 However, what must be closely scrutinised is the claim as to what was said to Parveen in or about early 1990 when she agreed to the dissolution of the partnership and in effect gave up any claim to a share in the business. The difficulty I have is that while I think Parveen was genuine in her evidence (and I accept Carin's evidence that she was 'white as a ghost' when she discovered that Sid's earlier wills did not leave anything to her) and I accept that Parveen genuinely believed that Sid had promised her from time to time over the years that the company as hers or would be hers, there is no corroboration of this as at the time the promise is said to have been made and, in fact, the evidence from around that time is wholly inconsistent with such a promise having been made. Moreover, it is unclear to me whether any such promise was one which related to the management or running of the business (as opposed to ownership) or was one which distinguished between having shares in the company (ie what Sid seems to have regarded as a participation interest) or a controlling interest or indeed all of the shares of the company. 434 Deepak's evidence as to what was said at the time (which I approach with some caution as he has an obvious interest in an outcome which is favourable to his sons and seemed in the witness box inclined to argue their case) does not support there being any such promise. Significantly, neither does the evidence of Mr Davenport. 435 I place weight on Mr Davenport's recollection of events in this respect – he being, so far as the evidence before me disclosed, seemingly independent of the respective family factions and he not having been required for cross-examination. Mr Davenport's recollection of events is, moreover, consistent with what Sid put in place by way of the documentary arrangements for his wills from 1993 through to 2004 (when Parveen was first named as a beneficiary). 436 Also highly significant is the fact that Sid, who seems carefully to have documented his thought processes (at least in the period when Perpetual Trustee assisted in the preparation of his wills) in relation to his testamentary affairs and to have required even the most minor administrative matters (such as staff administrative leave) to be documented, has left nothing to record any arrangement of the kind Parveen asserts was agreed or represented to her. While I do not place any weight on the lack of records as to the constitution of the original partnership, or its reconstitution with Parveen as partner in 1989, or its subsequent dissolution in 1990 (due to the lapse of time), I think the lack of any record of an intention or promise that Parveen would be entitled to ownership of all of the shares in the company as from Sid's death, coupled with the documentary evidence that Sid was planning arrangements of a completely different nature over the years, is fatal to Parveen's claim. 437 An issue was raised as to whether the alleged promises or assurances, if made, would have been sufficiently certain in their terms to found any claim by Parveen. In my view a promise that Sid would leave the company to Parveen or that the company would be hers (even if there was no certainty as to how it was intended to be performed) would not have been too uncertain to be enforceable. There would have been a difficulty, however, arising from my uncertainty as to whether Parveen was ever promised more than a controlling interest (as is suggested by Sid's handwritten note of 20 July 2007), which might have lead to any relief being limited to a 'controlling' interest being made available to her (and in that case the issue would have been what should be taken to represent control – in terms of share ownership or veto powers or the like). 438 In Flinn v Flinn [1999] 3 VR 712, at 738-739 Brooking AJA, having noted without dissent the proposition that a proprietary estoppel may give rise to an equity even though the interest to be taken is unclear or the promised or expected interest is uncertain, said that a promise may be definite, "in the sense that there is a clear promise to do something, even though the something promised is not precisely defined". 439 In Australian Crime Commission v Gray [2003] NSWCA 318, at [193], Ipp JA noted that "[w]hile, often, an ambiguous or imprecise representation will not give rise to a promissory estoppel that could not inevitably be the case. In virtually every statement of existing fact or future intent some ambiguity or imprecision of language may be found". 440 In Galaxidis v Galaxidis [2004] NSWCA 111, where the Court of Appeal considered a proprietary estoppel claim, Hodgson JA (at [91]) quoted Ipp JA's view in Gray (at [200]) that the underlying reason for the rule that, generally speaking, an ambiguous or unclear representation will not give rise to a promissory estoppel is that the foundation of promissory estoppel is unconscionability. Unconscionability is usually difficult to establish when the representation is ambiguous or unclear. 441 In Galaxidis, Hodgson JA then went on to say (at [93]-[94]): In my opinion, the effect of this Court's decision in Gray is that even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance. … On the other hand, if it is not reasonable for the representee to rely on the meaning he attributes to the representation in that had he acted reasonably he would have attributed an innocent meaning to the representation, then it cannot be unconscionable for the representor to deny responsibility for the detriment that the representee sustains because of that unreasonable reliance. (Original emphasis) 442 In that regard, had I been satisfied that the promise had been made, then the fact that there was some imprecision in how it was to be performed would not have precluded it from giving rise to a claim based at least on estoppel, if not in contract provided there was sufficient certainty as to whether it was a promise for all of the shares or simply for a controlling interest. 443 However, I am unable to conclude that (having regard to the need for close scrutiny of claims against deceased persons) a promise as alleged was made to Parveen in 1990. Any such promise is inconsistent with the evidence of Mr Davenport, it is inconsistent with the evidence of Mr Castino (and, insofar as Carin asserts that he acknowledged anything to the contrary in their 28 June 2008 meeting, such an acknowledgement would be inconsistent with his notes of the meetings he had with Sid as far back as 2002), and it is inconsistent with the will and explanatory notes prepared by Sid in 1993 when any such promise should have been fresh in his mind. 444 Sid's assurances in later years (which are not what is relied upon in the pleading) are in general form and seemingly made as part of assurances given to various family members from time to time (which makes reliance on them difficult to sustain). 445 I accept that Sid expressed appreciation on a number of occasions to a number of people as to Parveen's services. However, statements of that kind do not of themselves translate into enforceable promises. Unfortunately for Parveen, I suspect that Sid placed greater weight at the end of his life on his grandsons' abilities in that regard and had a rosier view (whether justified or not and whether or not influenced by their own self promotion or their undermining of Parveen's services to the company) as to their business prowess, which led him to the view that they should run the company going forward. Misguided or not as to whether it was necessary (for that to happen) for them to have a 'participation' interest, his decision that they should succeed him in the running of the company seems to have prompted his decision to leave a substantial shareholding to each. 446 While I consider that Parveen's conduct in not raising the promise with Sid over the years (or taking action in relation to the perceived breach of promise while he was alive) is something to take into account, I do not regard it as a decisive factor (especially as that conduct is consistent with the social or cultural norms to which I accept Parveen is likely to have felt bound). (Her failure to raise the promise at all when she did make a complaint as to the unfairness of her treatment in July 2007 is, however, a different matter. I do not see why it would be any less respectful to have reminded Sid of a longstanding promise than to raise the issues which Parveen did raise at that time. However, again I do not see this as decisive.) 447 As noted above, what I see as decisive is the weight of the documentary evidence of Sid's intentions during the whole of the period at least from 1993 onwards – which is inconsistent with the promise alleged to have been made to her. 448 I therefore find that Parveen's claim fails at the first hurdle. 449 The following is my consideration of the remaining issues on the assumption (contrary to my principal finding) that the promise as alleged by Parveen had been found to have been made by Sid. (ii) Was there a binding contract which came into existence between Sid and Parveen pursuant to which Sid was obliged to cause the shares in the company to be transferred to Parveen on or before his death and did Gautam and Arjun wrongfully procure or induce a breach of that contract? 450 As noted earlier, Mr Rayment submitted that this should primarily be seen as a specific performance suit. The claim was put first and foremost on the basis that there was a contract between Sid and Parveen, for breach of which damages would be an inadequate remedy (and it is said that there has been no laches which would preclude an order for specific performance). 451 In relation to the alleged contract (by whatever means) that as at his death the whole of the issued capital in the company would belong to Parveen, the consequence of such an agreement is said that Sid became trustee of the shares for Parveen, relying on Birmingham v Renfrew (1937) 57 CLR 666; [1937] ALR 520; (1937) 11 ALJR 188. 452 While I accept that uncertainty as to the means by which the promise was to be fulfilled would not be fatal to it giving rise to an enforceable promise, the question as to how the company (or the shares) were to become Parveen's is relevant when considering whether the promise was such as to be capable on acceptance of giving rise to a binding contract. 453 The nub of the promise asserted (however it was phrased) was testamentary in character. In cases such as Taylor v Dickens, the absence of a promise not to revoke the will may result in a conclusion that the promise to make a will in favour of a party does not to give rise to an enforceable contract (on the basis, in that case, that it would be open, consistently with the contract, for a will to be made and then revoked). 454 In Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281, at [58] in which Young CJ in Eq (as his Honour then was) noted that "people are well aware that everyone can change their will as often as they like" and that the court will infer this unless there is evidence to the contrary. 455 In Gillett v Holt [2000] EWCA 45; [2001] Ch 210; [2000] 2 All ER 289; [2000] 3 WLR 815, at 950 Carnwath J referred (in the context of proprietary estoppel) to the statement that one should not count one's chickens before they hatched as being: [A]n apt statement of how, in normal circumstances, and in the absence of a specific promise, any reasonable person would regard – and should be expected by the law to regard – a representation by a living person as to his intentions for his will. 456 On appeal ([2001] 1 Ch 210 at 228), Robert Walker LJ (as his Lordship then was) quoted that passage and went on to comment that in the generality of cases that was no doubt correct and that it was notorious that some elderly persons of means derived enjoyment from the possession of testamentary power, and from dropping hints as to their intentions, without any question of an estoppel arising. 457 While the evidence does not suggest that Sid derived pleasure from in effect dangling the prospect of inheritance before his family members, there is evidence that he was (at least towards the end of his life and perhaps earlier) inclined to assure those marrying into the Varma family, or their relatives, that they would be well provided for (such as the comments made to Carin's father, to Vikram's former mother-in-law and to Seemita), not all of which promises could have been compatible, in the sense that if the company were to be wholly left to Parveen it could not also have been left to any other family members. Throughout the course of the business in Australia Sid seems to have been primarily concerned to ensure its continued survival after his death for the benefit of his family. In that regard, he expressed concern (at the time he was proposing to sell the company, that Parveen and Bashi should remain employed by the company). 458 If what is necessary for an enforceable contract in this kind of case is that one must find a promise not to revoke the will (which would raise a question whether one could be implied out of a promise to "leave" property to someone else), then that is fatal to Parveen's contractual claim as there does not appear to have been any promise of irrevocability attributed to or made by Sid (illustrated by the fact that Parveen does not seem to have complained when shares, albeit in small amounts, were issued to Gautam and Arjun). 459 Whether or not it is necessary for there to be a promise of irrevocability, the fundamental difficulty I have with Parveen's contractual claim is finding an objective intention on the part of Sid to enter into binding legal relations. 460 The reluctance of courts to assume such an intention in this area was recognised by Hoffman LJ in Walton v Walton (1994, Cout of Appeal, Civ Div, unreported), (as quoted in Thorner v Major [2009] 3 All ER 945; [2009] 1 WLR 776; [2009] UKHL 18, at [57]): "in many cases of promises made in a family or social context, there is no intention to create an immediately binding contract". One reason identified by his Lordship for the reluctance of the law to assume such an intention was that such promises are often subject to unspoken and ill-defined qualifications in relation to what might happen in the future. 461 For completeness I note that the defendants plead that there was no consideration to support a promise of the kind asserted by Parveen. It is true that Parveen had worked in the business before the making of the alleged agreement and that she continued to do so afterwards but I do not consider that that deprives her agreement to continue on in the company from amounting to sufficient consideration particularly when it is coupled by the relinquishment of any claim to an interest in the partnership when it was dissolved. Similarly, the fact that the partnership may have been a structure set up for tax minimisation purposes (as suggested by Sid when he gave evidence in the tutor proceedings) does not mean that Parveen's interest in the partnership had no value. (There was nothing to suggest, for example, that she held her interest in the partnership on trust for Sid or that she would not otherwise have been entitled to a share in the assets on a winding up of the partnership had those assets not been subsumed or taken over into the business on its incorporation.) 462 I note that Handley JA in Hawker Pacific Pty Limited v Helicopter Charter Pty Limited (1991) 22 NSWLR 298, at 307 emphasised that a single peppercorn may constitute valuable consideration to support a simple contract and, for the reasons adverted to by Kirby P in Woolworths Limited v Kelly (1991) 22 NSWLR 189, at 193-194, the common law will not weigh the adequacy of consideration in judging whether a particular bargain amounts to a legally enforceable contract. 463 As to the acts of part performance which are pleaded, I note that in Ciavarella v Polimeni [2008] NSWSC 234, Young CJ in Eq (as his Honour then was) emphasised that (at [120]): In order for the defendants' conduct in and about the contract to raise an equity sufficient to apply the doctrine of part performance, the plaintiff must have done acts in performance of the contract: Maddison v Alderson (1883) 8 App Cas 467. The exact limitation, whether the court looks for acts permitted by the contract as well as those required by it or what otherwise, is a nice question for law school moots (see the discussion in Meagher, Gummow & Lehane , Equity Doctrines & Remedies (4th ed) at [20-185]) but need not trouble me in this case. … … It is clear on the authorities that the act must be in performance of the contract not merely in reliance on the contract. [referring by way of examply to TA Dellaca Pty Ltd v PDL Industries Ltd [1992] 3 NZLR 88, where Tipping J held that acts preparatory or ancillary to the performance of the contract were insufficient. (my emphasis) 464 Had I found that there was an objective intention on the part of Sid to enter into legal relations (which I have not) then the acceptance by Parveen of his offer would have been established by her relinquishment of any claim in relation to the partnership on its dissolution, that being clearly referable to the terms of the contract. It would not be necessary for Parveen to establish any acts of part performance as there would have been in my view sufficient consideration to support the making of the contract. 465 That said, I have concluded that the contract claim fails on the lack of an objective intention to create legal relations. 466 The next issue is the question whether any claim for berach of contract would have been statute-barred. Had I been satisfied that there was an enforceable contract, then a claim for breach by reason of the failure of Sid to ensure that, on his death, all of the shares in the company were transferred to Parveen would not have been statute-barred as it logically would not have occurred until, at the earliest, the moment of death. The making of wills inconsistent with such a contract would at most have amounted to an anticipatory breach but even then the ability of Sid to revoke those wills would have made it difficult to argue that the promise had then become incapable of performance. 467 I accept that at the time that Sid made the transfers in favour of Arjun and Gautam he put it out of his power to deliver all the shares in the company at the point of his death to Parveen and at that stage there must have been a clear claim for damages for anticipatory breach of the contract. However, that did not occur until 2008 and so cannot have become statute-barred by 2009. Accordingly the defence based on the limitations issue would have failed. 468 As to the allegation that Gautam and Arjun knowingly induced Sid to breach his contract (on the assumption that such contract had been made out), the gravamen of the tort of inducing breach of contract is intention (Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157; (2001) ATPR 41-831; (2001) Aust Contract R 90-133; [2001] FCA 1040, at [127], per Hill and Finklestein JJ, Emmett J agreeing on this point (at [164]); Fightvision Pty Ltd v Onisforou & Ors; Tszyu v Fightvision Pty Ltd & Ors [1999] NSWCA 323; (1999) 47 NSWLR 473, at [171]). 469 Although the requirement of knowledge of the contract is sometimes discussed as if it were a separate ingredient of the tort, it is in fact no more than an aspect of intention. The requirement that the alleged tortfeasor have sufficient knowledge of the contract is a requirement that he or she have sufficient knowledge to ground an intention to interfere with contractual rights (Hospitality Group Pty Ltd at [164]) and [127]). 470 After reviewing the authorities regarding the issue as to the requirements of intention and knowledge, Sheller JA, Stein JA and Giles JA in their joint judgment in Fightvision summarised the position (at [171]) as being that the plaintiff must prove that the defendant intentionally procured the breach and accepted that this required the plaintiff to prove sufficient knowledge on the part of the defendant to ground an intention to interfere with contractual rights. Ignorance of the existence of the contract or of its terms born of inadvertence or negligence is not enough to ground such an intention, although reckless indifference or wilful blindness to the truth may lead to a finding of the necessary intention (Northern Territory of Australia v Mengel (1995) 185 CLR 307, at 342; Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, at 700 - 701 per Lord Denning MR, at 703 - 704 per Diplock LJ; Greig v Insole [1978] 1 WLR 302, at 335; Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545, at 552; Gibson Chemicals Ltd v SA Sopura NV [1999] VSC 203, at [71]; Fightvision at [171]). 471 While here it would not have been necessary to establish that Arjun and Gautam knew with exactitude all the terms of the contract, it would be necessary to show that they had sufficient knowledge of the terms to know that they were inducing a breach of contract (Lord Pearce in J T Stratford & Son Ltd v Lindley [1965] AC 269 at 332; Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) Aust Torts Reports 81-655; (2002) 114 IR 165; [2002] FCA 528, at [61]). In Fightvision v Onisforou, the Court of Appeal indicated (at [160]) that if the defendant knew of the existence of the contract but believed reasonably that what the defendant induced or procured the party to do was not a breach, or reasonably believed that the contract had been rescinded or performance waived, the defendant had not knowingly induced or procured the breach. 472 Here, I have difficulty finding, even on Parveen's case, that either Arjun or Gautam had sufficient knowledge to ground an intention to cause a breach of contract. At most it could be said that one or both was aware of a promise which had been made to Parveen. There is nothing to suggest that they were on notice that it had contractual force. Can it be said there was any reckless indifference to its existence? Arjun, according to Parveen, actually asked if the promise was in writing and was told it was not. I think it more likely that the most Arjun and Gautam would have appreciated was that there might have been a promise of the kind they say was also made to them that they would have an interest in the company. That would not have been enough to establish a claim for knowing inducement of breach of contract even had I found such a contract. (iii) Was there an express trust created pursuant to which Sid agreed, in effect, that as at the date of his death the shares in the company would be held on trust for Parveen and, if so, did Gautam and Arjun knowingly participate in or procure a breach of that trust? 473 Secondly, Parveen relies upon an actual express trust which is said to emerge from the promise made by Sid to hold the shares in his lifetime. 474 It is well understood that in addition to the four elements required for a trust (those being an identified trustee; one or more beneficiaries or a charitable purpose; trust property and an equitable obligation that binds the trust property; Muschinski v Dodds (1984) 160 CLR 583, at 613-614) for an express trust to come into existence there must be certainty of intention on the part of the settlor to create the trust (which is assessed subjectively, albeit reference can be made to objective circumstances; Holdings Pty Ltd & Anor v Leroy & Anor [2004] NSWCA 72, at [43]; White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379); there must also be certainty of subject matter, so that the trust property is clearly defined; and there must also be certainty of object, that is certainty as to who are the beneficiaries of the trust (Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86, at 97; see also White v Shortall; Heydon & Leeming, Jacob's Law of Trusts in Australia, Butterworths, 2006, Ch 5 and Young, Croft and Smith, On Equity, Lawbook Co, 2009, at [6.90]; [6.130]-[6.210]). 475 The promise on which reliance is placed seems to me insufficiently certain to amount to a declaration of trust on the part of Sid (even apart from the question as to whether the subject matter extended over all the shares or just a controlling share as considered above). 476 In my view the promise at its highest would have been a promise by Sid to leave the shares to Parveen on his death, not that he would hold them on her behalf while he was alive. While an enforceable agreement to leave the shares to her on death (or a promissory estoppel arising as a result of detrimental reliance on such a promise) could give rise to a constructive trust, this is not the same as an express trust. 477 Had I found an express trust, the question then is whether Gautam and Arjun took the trust property as volunteers (which I consider below) or with the requisite knowledge for the purposes of the first limb of Barnes v Addy, at 251 (or knowingly procured or participated in the breach of trust for the purposes of the second limb, although reliance on the second limb is not necessary here where the trust property remains in the hands of the defendants in question.) For the reasons set out below, I am of the view that Gautam and Arjun took the shares as volunteers. Had it been necessary I would have considered it likely that they had the requisite notice to sustain a claim under the first limb. 478 The element of knowledge required to make out a claim for knowing receipt was recently considered by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [177]-[178]), which affirmed that the degree of knowledge is that falling within one of the first four categories enumerated in Baden Delvaux and as adopted in Consul Development Pty Ltd v DPC Estates Pty Lt [1975] HCA 8; (1975) 132 CLR 373, at 376-377; 398; 412), namely (i) actual knowledge; (ii) wilfully shutting one's eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man. 479 That test has been applied to knowing receipt cases (Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133, at 163-164; Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 166; Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 54 ATR 241; [2003] FCA 1025, at [60]; and this is the assumed position of the learned authors in On Equity, at [6.910]). 480 Here, I would have preferred Parveen's evidence (which I think generally more reliable than that of Arjun) that she had indicated to him that Sid had promised to leave her the company by will and the evidence that similar statements had been made to Gautam or in Gautam's presence so as to put him on notice that a testamentary promise of some kind had or may have been made to Parveen. I think it likely that the conduct of the two brothers amounted to a wilful failure to make enquiries of the actual position much as there seems to have been a wilful failure to shut their eyes to the mental competency issues surrounding Sid's capacity at the time. (I place weight on the September 2006 Gautam email as indicating a concern that Sid may have been intending to leave shares to Parveen and indicating a willingness by Gautam to seek to subvert that process.) However, ultimately it would not have been necessary to make a concluded finding on this point because, had I been satisfied as to the making of the relevant promise, then I would have had little doubt in holding that Parveen had established her claim in promissory estoppel for the reasons set out below. (iv) Has Parveen established a claim based on the doctrine of promissory estoppel? 481 In Vukic, though disclaiming any attempt at being exhaustive in this description, Brereton J summarised the matters which a plaintiff must establish to found an equitable estoppel as follows (at [28]):- First , in relation to the plaintiff's conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property; Secondly, in relation to the defendant's conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment and that it could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations; Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy. [See generally, Waltons v Maher , 428-429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002), [17-105]]. 482 That summary of the relevant principles was adopted by Nicholas J in Saliba v Tarmo, at [52] and referred to with apparent approval by Bergin CJ in Eq in Simpson-Cook v Delaforce [2009] NSWSC 357. In Simpson-Cook, Bergin CJ in Eq said (at [29]): It is also important to remember Walker LJ's caution that: (1) the "flexible doctrine" of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments; (2) the quality of the relevant assurances may influence the issue of reliance; (3) reliance and detriment are often intertwined; and (4) whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood: at 227 and 230. The following principles relevant to the circumstances of this case may be gleaned from Walker LJ's analysis in Gillett v Holt : (1) promises unsupported by consideration are initially revocable, however detrimental reliance on such promises make them irrevocable; (2) there must be a sufficient link between the promises relied on and the conduct which constitutes the detriment; and (3) detriment can be financial or otherwise, however if other than financial it has to be substantial. 483 In light of the finding I have made in (i) above, this issue does not arise. However, had I found a relevant promise then the testamentary nature of the promise would be relevant insofar as it might affect whether reliance on the promise could be said to have been reasonable. 484 In Galaxidis, Hodgson JA, though considering it unnecessary finally to determine the issue as to whether or not reliance to the representee's detriment was a requirement to be satisfied before equity would grant relief, said (at [118]): In all probability it is, for equity generally only to relieve the representee from detriment. In other words, the relief equity will afford is only that which is necessary to avoid the detriment suffered as a consequence of the representee's reliance. 485 In Walton v Walton, Hoffman LJ said: But none of this reasoning applies to equitable estoppel, because it does not look forward into the future and guess what might happen. It looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept. 486 In that context, it seems that reasonableness of reliance on the promise may turn on whether it was understood to be revocable. In Barnes v Alderton, Young CJ in Eq said (at [51], [58]): It also seems clear from the authorities that where one has the situation that the detriment is incurred in circumstances where the person incurring the detriment knows that the other person may change their mind, there is no relevant representation; see eg Attorney General (Hong Kong) v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 at 124. … There is no evidence that the plaintiff ever thought that that was an irrevocable promise. The general view of the cases I have referred to indicate that the court infers unless there is evidence to the contrary that people are well aware that everyone can change their will as often as they like. That is the ordinary case and in an ordinary case a testamentary promise is very difficult to form the basis of a proprietary estoppel. As Gillett v Holt and Flinn v Flinn show, this is not impossible but one has to show circumstances that the promise was given and understood to be irrevocable. That may be shown by circumstances short of an explicit statement that the promise is irrevocable. (My emphasis) 487 Again, in Weeks v Hrubala, Young CJ in Eq emphasised the above and pointed to the kind of evidence which would be necessary in such a case namely evidence "of the actual terms of the promises and of [the plaintiffs] saying that had they not believed the promises, they would not have continued to work and that they considered the promises to be irrevocable". (My emphasis) 488 In Gillett v Holt [2001] Ch 210, what Robert Walker LJ (at 227) had contrasted was a mere statement of present (revocable) intention and an assurance that was "tantamount" to promise. 489 It seems to me that the relevance of whether that "promise" was understood to be irrevocable goes to the issue of reliance – namely whether any reliance that was placed on it was reasonable for the purposes of establishing the detriment necessary for a finding that it would have been unconscionable for the deceased to resile therefrom. 490 The relevance of whether or not the deceased had induced an expectation of irrevocability was explored in Thorner v Major, where Lord Scott of Foscote observed (at [19]): The second "certainty" problem about a representation that [the plaintiff] would inherit [the deceased's property] a problem inherent in every case in which a representation about inheritance prospects is the basis of a proprietary estoppel claim, is that the expected fruits of the representation lie in the future, on the death of the representor, and, in the meantime, the circumstances of the representor or of his or her relationship with the representee, or both, may change and bring about a change of intentions on the part of the representor. 491 His Lordship had difficulty squaring the cases where the relevant representation was as to inheritance with the principles of proprietary estoppel established by the Ramsden v Dyson (1866) LR 1 HL 129 and Crabb v Arun DC [1975] 3 All ER 865, [1976] Ch 179, [1975] 3 WLR 847 line of cases because in the latter the representations relied on related to the acquisition by the representee of an immediate, or more or less immediate, interest in the property in question. In those cases, his Lordship considered a proprietary estoppel the obvious remedy. The so-called "inheritance" cases, where (what his Lordship described as) representations were made as to future benefits, were ones where his Lordship considered the representations would be subject to (express or implied) qualification on account of unforeseen future events. (For that reason his Lordship considered the inheritance cases better dealt with via the principles of remedial constructive trusts; by which his Lordship meant the form of constructive trust recognised in cases such as Gissing v Gissing [1971] AC 886 (which themselves have been described as being guided by (Grant v Edwards [1986] Ch 638, at 657 per Browne-Wilkinson VC) or as being essentially an application of (Austin v Keele (1987) 72 ALR 579, at 290 per Lord Oliver of Alymerton) the doctrine of proprietary estoppel). 492 In Sullivan v Sullivan [2006] NSWCA 312 (at [18]), the detriment is noted as not being the detriment suffered in actually relying on the promise but, rather, the detriment which would flow from a failure by the promisor to honour the promise. In Sullivan v Sullivan, Handley JA quoted from Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641, at 674-675 in which it was said; the purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. 493 This statement from Grundt has been held to apply to promissory estoppel by Mason and Deane JJ in Legione v Hately (1983) 152 CLR 406, at 437 (see also Henderson v Miles (No 2) [2005] NSWSC 867). 494 Here, although there is no evidence that Parveen turned her mind to the irrevocability or otherwise of the promise, it seems to me that if it had been established that she relinquished any claim on the dissolution of the partnership in reliance on a promise that Sid would leave the company to her on his death, then that would have amounted to an irrecovable promise once Parveen acted to her detriment in reliance on it, so as to found an action on promissory estoppel. Clearly, the detriment which Parveen would then suffer is the fact that, not honouring the promise means that she is deprived of at least two-thirds of the shares in the company (and more if the no-contest clause in the will is valid). (iv) Did Sid hold the shares on constructive trust for Parveen? 495 If an enforceable agreement to transfer the shares had been established, then this would have given rise to a constructive trust in Parveen's favour over the shares (Birmingham v Renfrew). 496 If Parveen's claim had been based solely on promissory estoppel, then this would give rise to the question as to the nature of the relief that would be available and whether the imposition of a constructive trust was the minimum equity to afford Parveen relief and the time at which any constructive trust should be imposed. 497 The remedy of a constructive trust is an equitable response to make good various equitable claims, is not confined to the circumstances of breach of fiduciary duty (albeit it is commonly a breach of this duty, that a constructive trust responds to; Muschinksi, per Deane J at [10], see Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, at [96]) and can arise as a response to a claim based on promissory estoppel (Giumelli v Giumelli [1999] HCA 10; 196 CLR 101, at [3]; Sullivan v Sullivan). Indeed, it has been recognised that there is no reason to deny the availability of a constructive trust in any case where some principle of law or equity calls for the imposition upon the legal owner of property, regardless of actual or presumed agreement or intention, of the obligation to hold or apply the property for the benefit of another (Muschinksi, per Deane J at [10]). 498 In Vukic, Brereton J (at [33]) said: Although there remains some controversy as to whether in such a case the prima facie entitlement is to relief based on the assumed or expected state of affairs which the defendant is estopped from denying [ Commonwealth v Verwayen (1990) 170 CLR 394, 443 (Deane J)], or is limited to the minimum equity needed to avoid the relevant detriment – which at least in some situations may still require nothing less than satisfaction of the expectation or assumption [ Commonwealth v Verwayen , 412 (Mason CJ), 429 (Brennan J), 501 (McHugh J)], there are undoubtedly cases in which it is appropriate to hold a defendant to the assumed state of affairs, and there is a strong case in principle that in a proprietary estoppel case [as distinct from a "windfall equity" case, as to which see Henderson v Miles (No 2) [2005] NSWSC 867] the expectation basis of the equity favours the view that the prima facie entitlement is to satisfaction of the relevant expectation, although such a remedy may be declined in favour of a lesser one where it would be disproportionate to the requirements in the circumstances of conscionable behaviour [ Giumelli v Giumelli (1999) 196 CLR 101, [48]-[50], [64]; Jennings v Rice [2002] EWCA Civ 159, [50]; Henderson v Miles (No 2), [57]-[89]]. 499 In Ciavarella v Polimeni, similarly, Young CJ in Eq said (at [157]-159]): The authorities indicate that where there is a proprietary estoppel by encouragement, the usual remedy is the fulfilment of the promise: see Barnes v Alderton at [67] et seq and cases there cited. [going on to consider whether whether the fulfilment of the expectation would be disproportionate or otherwise inequitable, referring to Jennings v Rice [2003] 1 P & CR 100 and Barnes v Alderton.] 500 Having said that it seems to be accepted that generally it would be appropriate for the plaintiff's expectation to be made good (Meagher Gummow & Lehane, Equity Doctrine and Remedies, 4th ed, Butterworths, 2002, at pp 567-8; Ramsden v Dyson, at 170; Chalmers v Pardoe [1963] 1 WLR 677 PC, at 681-2; Attorney General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114, at 121; Sullivan v Sullivan, at [27]). 501 The High Court in both Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566, at 585 and in Giumelli, at 113 has said that before a constructive trust is imposed the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust. One of the reasons for the caution expressed in Bathurst and Giumelli appears from the judgment in Bathurst, where their Honours said that: … An equitable remedy which falls short of the imposition of a trust may assist in avoiding a result whereby the plaintiff gains a beneficial proprietary interest which gives an unfair priority over other equally deserving creditors of the defendant. 502 Thus in determining whether to impose a constructive trust and then in deciding the form and scope of the trust, it is necessary to look to the circumstances of the case to decide how the equity can be satisfied (Bathurst, at 585; Giumelli, at [10], there citing Plimmer v Mayor, &c, of Wellington (1884) 9 App Cas 699, at 714; Chalmers v Pardoe, at 682; Crabb v Arun DC, at 188; Sullivan v Sullivan, at [21]-[22]). Whatever will be the minimum relief necessary to satisfy the equity should be the form of remedy imposed (Giumelli, at [10], there citing Bathurst, at 425-426; Napier v Hunter [1993] AC 713, at 738, 744-745, 752; Crabb v Arun DC , at 188). 503 As Handley JA explained in Sullivan v Sullivan (at [22]), the Court does not exercise an unfettered discretion but adopts a principled approach to prevent unconscionable conduct (there citing Giumelli, at 123-4, 125; Gillett v Holt, at 225 and Jennings v Rice [2003] 1 P & CR 100, at 112). 504 As indicated in the passage from Bathurst cited above, one of the reasons for caution in finding a constructive trust and consequently what is one of the relevant factors in determining whether such relief is appropriate is the impact of the proposed relief upon relevant third parties (Giumelli, at [10], there referring to the remarks of McLachlin J in Soulos v Korkontzilas [1997] 2 SCR 217, at 236, 241, 243 and Oakley, "The Precise Effect of the Imposition of a Constructive Trust", in Goldstein (ed), Equity and Contemporary Legal Developments, (1992), 427, at 451-456; Flinn v Flinn, at 749, 750; Sullivan v Sullivan, per Handley JA at [24]; Bathurst, at 585). This is relevant here, when part of the property over which a constructive trust has arisen has been acquired by third parties. 505 In relation to the potential third party interests in this case, Gautam and Arjun assert that they took their interests in the shares in reliance on representations by Sid (not dissimilar to the representation or promise on which Parveen relies). In Giumelli, the relief ultimately granted took account of other interests created by way of other similar representations having been made. However, to the extent that there is conduct on the part of Gautam and Arjun (for example, in the way that such promises were ultimately acted upon in circumstances raising issues as to undue influence), which casts doubt on their own actions I would not have considered that any unfair prejudice was occasioned by postponing any equitable interests they might have had deriving from detrimental reliance on representations made to them. (I do not consider in detail the alleged claim they assert based on detrimental reliance by them on Sid's promises. I note that on their evidence any promises made by Sid for them to migrate to Australia were conditional on their performance and that Gautam, by reference to the September 2006 email, well knew that he could not rely on Sid either making a testamentary disposition in his favour or doing so and not later changing it. Therefore, I would not have been inclined to find that there was any promissory estoppel claim established by Gautam and Arjun of the kind which seems to be raised as part of the discretionary considerations to be taken into account when determining any relief which might be granted in favour of Parveen.) 506 The question as to when the constructive trust should be said to have arisen is relevant to the question as to whether Gautam and Arjun hold their interest in the shares as trust property conveyed in breach of trust or should otherwise be liable to transfer the shares. 507 As a matter of general principle, it is seems to be the accepted position under Australian and English law that a constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust (Muschinski, at [7], Parsons v McBain (2001) 109 FCR 120; (2001) 192 ALR 772; [2001] FCA 376, at [9]; Secretary, Department of Social Security v Agnew (2000) 96 FCR 357, at 365; Re Sharpe (a Bankrupt); Ex parte Trustee of Bankrupt's Property v Bankrupt [1980] 1 WLR 219; [1980] 1 All ER 190, see also Young, Croft and Smith, On Equity, at [6.850], A J Oakley Constructive Trusts 3rd ed, Sweet & Maxwell, 1997). In such a case, the doctrine of priorities would apply and, where the equities are equal, the beneficiary of the constructive trust would be entitled to priority over the holder of a later equitable interest, a later legal interest (providing thery are not a bone fide purchaser for value without notice) or an unsecured creditor of the constructive trustee. 508 In Parsons v McBain, the Full Court of the Federal Court (comprised of Black CJ, Kiefel and Finkelstein JJ), considered the time at which a constructive trust founded upon the common intention of the parties came into existence and, referring to Browne-Williamson J in Re Sharpe, at 225 and to the joint judgment of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli, at [122], rejected the notion that a "common intention constructive trust" first comes into existence when so declared by the court. Their Honours referred to what had been said by Deane J in Muschinski, namely that: The old maxim that equity regards as done that which ought to be done is as applicable to enforce equitable obligations as it is to create them and, notwithstanding that the constructive trust is remedial in both origin and nature there does not need to have been a curial declaration or order before equity will recognize the prior existence of a constructive trust : … Where an equity court would retrospectively impose a constructive trust by way of equitable remedy, its availability as such a remedy provides the basis for, and governs the content of, its existence inter partes independently of any formal order declaring or enforcing it. (emphasis as added by their Honours in Parsons v McBain ). 509 Parsons v McBain was followed by Jacobson J in Parianos v Melluish (1999) 93 FCR 191; (1999) 164 ALR 229; [1999] FCA 684 (at [59]), there again considering a "common intention constructive trust". 510 As noted by the authors of On Equity (at [6.850]) the court in Parsons v McBan indicated (at [15]) that any "discretion" attaching to the determination of the date from when the constructive trust is said to have arisen does not allow the court to weigh up various relevant factors but instead is referring to deciding whether the interests protected by the constructive trust should yield to other competing interests created as a result of postponing conduct or other factors, and that such factors may mean that the court determines that the some "lesser" equity is required as the minimum necessary to do equity in the case. 511 In Giumelli the High Court explained that the equity raised by a promissory estoppel is more than a 'defensive equity' (such phrase used by DeaneJ in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, to denote laches, acquiescence or delay or a mere set-off) and the equity established does more than prevent the estopped party from insisting upon its strict legal rights (at [9]). 512 To the extent that it has been recognised that the remedy is to be fashioned according to what is the minimum necessary to achieve equity, so that whether that be by way of a remedial constructive trust which is said to have arisen from a certain time, the date at which the trust is said to have arisen can be fixed at a date that achieves equity, that is it could be from when there is reliance on the promise giving rise to the estoppel which will have the effect of a trust having been in existence from the time that the defendants took there interest in the company. 513 In Parsons v McBain, the Full Court quoted (at 126) the following passage from Agnew, at 365: … the court has a discretion to modify the prima facie date on which the [constructive] trust takes effect. We would adopt the view of A J Oakley that "in the absence of any judicial order to the contrary, a constructive trust will take effect from the moment at which the conduct which has given rise to its imposition occurs": Oakley, Constructive Trusts, 3rd ed, 1997, p 5. See also Pawlowski, pp 12, 130–2. Compare Re Sabri; Ex parte Brien v Australia & New Zealand Banking Group Ltd (1996) 21 Fam LR 213 at 223–9. 514 The court then explained this passage the following way (at 126): We think it clear from the context (including the cases to which the court had express reference) that the Full Court was doing no more than acknowledging that, in an appropriate case, an equitable interest arising under a constructive trust may be defeated by, or must defer to, competing claims. The equitable interest will not be defeated merely because the legal title has passed to a trustee in bankruptcy, for he stands in the shoes of the bankrupt: Aguilar v Aguilar (1820) 5 Madd 414; 56 ER 953. But the interest may be defeated by, or may be made to defer to, later claims "by conduct, by representations, by misstatements of a character which would operate and enure to forfeit and to take away the pre-existing equitable title": Shropshire Union Railways and Canal Co v R (1875) LR 7 HL 496 at 506 per Lord Cairns. What must be shown to take away a pre-existing equitable title is "something tangible and distinct having grave and strong effect to accomplish the purpose": Abigail v Lapin [1934] AC 491 at 504. 515 In Agnew, the Full Court had gone on to say (at [18]): In the present case there is no reason, such as third parties in need of protection , to defer the inception of the trust, and accordingly it came into existence when the conduct which gave rise to its imposition occurred. [my emphasis] 516 The reference in Agnew to "third parties in need of protection", appears to contemplate something other than a question merely of postponing conduct. What seems to be contemplated is an assessment as to whether imposition of the constructive trust would give rise to an unfair priority in all the circumstances (see for example the concerns acknowledged by Gummow J in his dissenting judgment in Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536, when sitting in the Full Federal Court, (at 555) regarding the priority afforded to beneficiaries of constructive trusts against general creditors (or holders of later acquired interests)). Similar concerns have been recognised in Disctronics Ltd v Edmonds [2002] VSC 454, by Warren J, as her Honour then was (at [212]-[213]) and in Victoria University of Technology v Wilson [2004] VSC 33, per Nettle J (at [216]). 517 In Australian Building & Technical Solutions Pty Limited v Boumelhem; Boral Australia Limited v Boumelhem; Boumelhem v Jones & Ors [2009] NSWSC 460, I observed that there appears to be no authoritative guidance as to what is meant by "unfair priority", in the context of equally deserving third parties or those having legitimate claims or needing protection and that while a number of cases have pointed to the need to have regard to the prejudice which might be done (by the imposition of a constructive trust) to the claims of third party creditors who could not have been aware of the circumstances giving rise to the constructive trust there is a fairly clear (though not uncontradicted) line of authority from Re Jonton Pty Limited [1992] 2 Qd R 105 to Re: Sabri; Ex parte Brien v Sabri (1996) 137 FLR 165 to Parsons v McBain in which such prejudice does not appear to have prevented the imposition of a constructive trust. 518 Here, had I found that Parveen had established a claim in promissory estoppel I would have been of the view that there was not an appropriate or available remedy "to quell the controversy" (adopting their Honours' terminology in Bathurst) short of the imposition of a constructive trust and that it was appropriate to impose that constructive trust at the time of the reliance by Parveen which rendered it unconscionable for Sid to resile from the promise. (v) Position of Gautam and Arjun 519 As Sid transferred two-thirds of his company shares to Gautam and Arjun, it would then become necessary to consider whether Parveen could enforce her rights under the constructive trust as against them. Applying the rules of priorities, Parveen's proprietary claim to the trust property (the shares) can be followed into the hands of Gautam and Arjun to the extent that they are volunteers or are not bona fide purchasers for value without notice. Parveen's interest would be an earlier equitable interest taking priority over the later legal interest (Pilcher v Rawlins (1872) 7 Ch App 259; Reeves v Pope [1914] 2 KB 284, property the legal title to which has been acquired voluntarily being held subject to all existing equitable interests); Young, Croft and Smith, On Equity, at [8.300]; Meagher, Gummow and Leahane, Equity Doctrines and Remedies, at [8.230]). Thus Parveen's earlier equitable interest would prevail against Gautam and Arjun's legal interest in the shares if that was not acquired for value (irrespective of any finding regarding the bone fides of or lack of notice held by the defendants). 520 The only consideration put forward by Mr Petersen is the agreement not to dispose of the shares contained in "Irrevocable Declarations" signed by bother Arjun and Gautam (although I note that it is asserted that Gautam and Arjun had acted to their detriment in reliance on promises by Sid in coming to Australia and working in the company such as to give them a claim based on promissory estoppel – which would be a later equitable interest to that of Parveen's). Such Irrevocable Declarations in effect restricted their ability to transfer or assign their shares during their lifetime and obliged them to continue the business of the company and was said to constitute sufficient consideration for the share transfers so that they are not volunteers. Nevertheless, in the Irrevocable Declarations signed by each of Arjun and Gautam they squarely acknowledge that the shares have neither been purchased nor earnt by them. 521 Mr Rayment relies on Re Diplock [1947] Ch 716, at 781-785 for the proposition that a person whose only promise is that property will be held in a particular way is a volunteer and that seems to me to be precisely the situation here. In Re Diplock, Wynn-Parry J found that simply because a gift contains conditions that acceptance of the gift and thus the conditions does not count as consideration and the beneficiaries will remain as volunteers. Specifically in that case, Wynn-Parry J found that a conditional gift made through a will did not constitute consideration. Wynn-Parry J stated (at 784); The acceptance of this condition and the act of the defendant institution in applying the money in accordance with the condition does not of itself appear to me to result in the giving of consideration by the defendant institution. 522 His Honour went on to to indicate that despite the receipt of a gift and acceptance of a condition placing a requirement on how it is spent or restrictions on how it is spent, the recipient will still remain a volunteer (at 784). This aspect of his Honour's findings was not questioned on appeal (Re Diplock; Diplock v Wintle [1948] Ch 465). 523 Accordingly, I find that Gautam and Arjun took and held the shares as volunteers. 524 I note that the decision of the High Court in Farah v Say-Dee, does not affect the application of priority rules here, or require that the only way by which a constructive trust could be imposed on third parties is according to the principles in Barnes v Addy. In Farah v Say-Dee, the alleged knowing recipients were not volunteers (at [187]-[188]), so that it was not possible for the trust assets or traceable proceeds to be claimed without calling into aid the principles in Barnes v Addy. 525 Had I not so found that Gautam and Arjun were volunteers, then the question would arise as to whether they took their shares with notice of Parveen's claim to or interest in the shares so as to permit a claim under the principles outlined in the first limb of Barnes v Addy. Application of these principles extends liability as a trustee to a knowing recipient of trust property, thus rendering Gautam and Arjun potentially liable as constructive trustees, so that they hold the shares on trust for Parveen (as well as being personally liable as trustee, which may require them to make good any loss to the property and to account for any gain) (Consul Development) provided they took with notice of Parveen's interest. 526 Thus if the constructive trust arose prior to the inter vivos transfers of the shares, as I would have held had the promissory estoppel claim been established, then a trust over the shares in the hands of the defendants could be found on the basis that they had received trusts assets, on the first limb basis of Barnes v Addy. 527 It has been recognised that it is possible for third party liability under the principles in Barnes v Addy to extend to persons receiving property which is stamped with a constructive trust (as opposed to receipt of property subject of an express trust or as a result of a breach of fiduciary duty) (Consul Development). 528 For the reasons set out above I would have found that they fell within the third of the categories of knowledge enunciated in Baden Delvaux. (vi) Undue influence/lack of capacity 529 I have noted above the basis on which Mr Rayment relies upon the allegation of undue influence, namely that it precludes Gautam and Arjun from relying upon any failure by the estate to take steps itself to recover the shares (TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130). Thus it is said that even if Gautam and Arjun could establish that they were not volunteers in respect of the inter vivos share transactions and, to the extent that notice is required, that they were not on notice of the alleged breaches by Sid of his equitable or other obligations to Parveen, the claim based on undue influence provides a backstop and precludes them resisting a claim for specific performance of the promise on which Parveen relies. 530 In this context Mr Petersen placed weight on the manner in which Gautam and Arjun came to be appointed to represent the interests of the Estate in these proceedings, and submitted that it was not open to Parveen both to say that Gautam and Arjun should represent the estate in these proceedings and then assert that they have an adverse interest from that of the estate in these proceedings. Mr Petersen pointed to the fact that the administrator ad litem who had been appointed to the estate, discontinued the allegation in relation to undue influence. 531 As I understand it, it is said that Parveen, having foregone the opportunity to treat Gautam and Arjun as parties with an adverse interest to the estate (by consenting, if not proposing their appointment as executors to represent the estate in these proceedings) cannot now say that they had an adverse interest. In other words Parveen's failure to invoke the opportunity to have a representative appointed in place of the putative or proposed executors to run these proceedings, or to proceed in the absence of a representative, in some way precludes her now from running any argument which suggests that the Gautam and Arjun have an adverse interest to the estate. It was suggested that this was simply an attempt to re-open the question of the suitability of Gautam and Arjun as executors. I do not accept that this is so. 532 As to the claim of undue influence, such influence is presumed where there is a sufficient relationship of dependency upon (or ascendancy exercised by) the donee. This is the kind of relationship described by Sir Anthony Mason (writing about the doctrines of undue influence and unconscionable dealing; Mason A, 'The Impact of Equitable Doctrine on the Law of Contract' (1998) 27 Anglo-American Law Review 1) as a class 2B relationship (using the terminology adopted by the English Court of Appeal in Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23): My understanding of undue influence, not altogether fashionable in the light of modern English decisions, is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party ( Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447 at 461,474). In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence (See Peter Birks and Chin Nyuk Yin, On the Nature of Undue Influence, Ed. J. Beatson and D. Friedmann, "Good Faith and Fault in Contract Law" 57 et seq.). The list of the old relationships of influence from which undue influence was presumed supports this view: solicitor and client, doctor and patient, spiritual adviser and novice or parishioner, parent and child, guardian and ward and possibly express trustee and beneficiary (See Meagher, Gummow and Lehane, Equity, Doctrines and Remedies , 3rd edn (1992) § 1519). In these relationships, called class 2A relationships in Barclays Bank plc v. O'Brien ([1994] 1 AC 180 at 189), the weaker party, dependent on the stronger party, is not likely to bring to bear a free, voluntary and independent judgment to a transaction involving the parties to the relationship, whether it is a contract or a gift. Class 2A relationships are to be distinguished from class 2B cases where a de facto relationship of trust and confidence will raise a presumption of undue influence. (my emphasis). 533 In Johnson v Buttress (1936) 56 CLR 113, Latham CJ at 119 said: The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised (Dent v. Bennet (1839) 4 My & Cr 269; 41 ER 105 ; see also Smith v. Kay (1859) 7 HLC 750; 11 ER 299 ). Where such a relation of what may be called, from one point of view, dominion, and from another point of view, dependence, exists, the age and condition of the donor are irrelevant so far as raising the presumption of undue influence is concerned. It must be affirmatively shown by the donee that the gift was (to use the words of Eldon L.C. in the leading case of Huguenin v. Baseley (1807) 14 Ves Jun Supp 372; 34 ER 1138) "the pure, voluntary, well-understood act of the mind" of the donor. (my emphasis). 534 Where there is a sufficient relationship of dependence such as to give rise to the presumption of undue influence, as I think is the case here given Sid's advanced age, his dementia and his physical dependence on and affection for his grandsons, the law requires that persons in the position of Gautam and Arjun positively justify the retention of the benefit conferred on them, namely to show that the gifts conferred on them were the independent and well understood acts of a man in a position to exercise a free judgment based on information as full as the donee. It is not necessary for there to have been an actual use of influence for the purpose of obtaining the benefit; ie that undue influence be proved as a fact. Rather, as Asprey JA in Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540, says (at 167): … where the relations between the donor and the donee have at, or shortly before, the making of the gift been such as to raise a rebuttable presumption that the donee had an undue influence over the donor. … the court sets aside the gift unless the donee rebuts the presumption. The court does not act on the ground that any wrongful act has been committed by the donee, but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused: Allcard v. Skinner (1887) 36 Ch D 145 at 171 (my emphasis) 535 In Allcard v Skinner (1887) 36 Ch D 145; [1886-90] All ER Rep 90 it was said that once the facts are established (as it seems to me they are here) from which the court will infer that a situation exists where undue influence may have been exerted, then the presumption arises and the onus then falls upon the donee to rebut the presumption by proving that "in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the court in holding that the gift was the result of a free exercise of the donor's will". As Deane J noted in Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447 (at 423) when undue influence is raised, one looks to the quality of the consent or assent by the weaker party. 536 Relevantly, the fact that Sid may have expressed the intention (to Mr Castino or Mr Czinner or Mr Ciaglia) to make the share transfers or to change his will in the way he did is not sufficient. The question is how that intention was produced. It was said in Huguenin v Basely (1807) 14 Ves Jun Supp 273, at 299-300: Whereas in those cases where there is a claim by a living person that he has received a gift in the hands of a deceased person the court should carefully scrutinize the evidence to ascertain whether that the living donee puts forward is a probable and credible account of what really happened. 537 In Whereat, Asprey JA said (at 168-169): The question of intention is basic in the law of undue influence. The fact standing by itself that there is evidence that the donor stated that he intended to make the gift does not rebut the presumption ... The ability of the donor to understand and intend that he is making a gift will not by itself necessarily operate as a bar to equitable relief . (my emphasis) 538 (Therefore, to the extent that Gautam is said to have suggested to Carin that Sid's dementia did not stop him making a gift, he was clearly wrong as a matter of law. If there was a position of presumed undue influence then such a gift might well be unable to be retained.) The evidence adduced for Gautam and Arjun to show that Sid understood and intended to do what he did is the evidence of the professional advisers with whom Sid consulted at the time. However, those consultations seem to have been ones in which Gautam and/or Arjun participated or facilitated. I am particularly concerned that the circumstances in which the March 2007 transfers were cancelled suggests a direct involvement of Arjun and a willingness on his part to manipulate his grandfather in order to make dispositions in his favour. In those circumstances, his involvement in the 2008 dispositions, even if peripheral as he seeks to suggest, would give rise to doubt as to the independence of Sid's decision making. I would not have been satisfied on the evidence before me that the presumption of undue influence was rebutted. 539 As to capacity, that is a different issue. It is clear that the test is "issue specific" (Masterman-Lister v Brutton & Co [2003] 3 All ER 162 and see Dalle-Molle. Capacity is therefore to be tested by reference to the particular transaction or conduct in which the person proposes to engage. The capacity required for a testamentary disposition may be different from that required for a financial transaction. 540 In Gibbons v Wright, the principle was expressed as follows (at 437-438): The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. … whether the person concerned is capable of understanding what he did by executing the deed when its general purport was explained to him. The principle … appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained . (my emphasis) 541 I am not convinced that the evidence would have enabled a final finding on that issue, nor it seems was one ultimately pressed, insofar as it was not clear to me precisely what had been explained to Sid as to the respective transactions (Mr Castino having given general evidence at best about a discussion as to various matters in relation to the transfers and then expressed the view that Sid appeared to understand it; Mr Czinner having based his conclusion on two particular matters in relation to the drafting of the will but without explaining how he had satisfied himself as to matters of general testamentary capacity; and Mr Ciaglia referring to more general matters). As noted by Mr Petersen, the medical reports by Drs Casey and Waite were prepared at a time well after the share transfers and April will were executed (and neither addressed the question of testamentary capacity in October 2008). 542 There was some evidence that Sid considered it necessary in order for his grandsons to have a role in the management of the company (as he wished them to do) that he needed to issue shares to them. If that was the basis of his understanding when the April and June 2008 transfers were made then it might perhaps be said that he did not have a proper understanding of the nature and effect of the financial transaction he was undertaking. However, I think there is insufficient evidence as to this (and Sid's evidence in court, after a period of hospitalisation and when he was in the last month of his life, does not assist in knowing what his understanding was earlier that year.) Therefore, I do not consider that I could make any finding as to Sid's capacity to make the share transfers at the relevant times. (vii) Discretionary and other defences 543 Gautam and Arjun rely upon a raft of discretionary defences – laches, acquiescence, unclean hands, and the assertion that these proceedings are an abuse of process. They also assert that Parveen by her conduct abandoned and is estopped from pressing her claim. As I have found that Parveen has not established her claim, I do not propose to deal with these matters in detail. Laches/Acquiescence 544 In Orr v Ford (1988) 167 CLR 316, at 340, Deane J noted that the availability of a defence of laches and what will suffice to make it good depends on the nature of the claim, citing Hanbury, Modern Equity 6th ed, Stevens & sons, 1952, at p349 for the proposition that even in the case of equitable claims "laches finds a Bluebeard's Chamber … in a claim against an express trustee for recovery of trust property", noting however the qualification that where there has been "gross laches" this may be raised as a bar to an express trust. Here, Parveen's claim (even where based on contract) is one is one in which an equitable remedy is sought. 545 By way of relief, Parveen has claimed a declaration that Sid was constructive trustee 'for himself for life and thereafter for her' of all of the shares held in his lifetime in the company and that she is, and upon the death of Sid became entitled to the whole of the legal and equitable estate and interest in the whole of the share capital of the company held by Sid in his lifetime; and orders that the estate transfer to her the shares retained by it and that each of Gautam and Arjun cause to be transferred to her all of the shares registered in their names in the company. (An alternative form of relief seeking the transfer by Gautam and Arjun of the said shares to the legal personal representative of the estate and for the transfer by the legal personal representative to Parveen seems unnecessary in light of the appointment of Gautam and Arjun as executors.) 546 Mr Petersen submitted that, here, Parveen had been guilty of laches or acquiescence and that her delay in commencing the proceedings had prejudiced the defendants throught the loss of evidence of Sid. 547 The delay in question is said to be the fact that Parveen, though she knew by 28 June 2008 at the latest that Sid had breached or committed an anticipatory breach of the alleged agreement did nothing to assert her contractual rights until September 2008 (when she deposed in her affidavit to the existence of the alleged agreement), did not commence proceedings on this claim until after Sid died; and pressed on with the tutor proceedings after Sid died. 548 Deane J in Orr v Ford (at 339) described the field of operation of the doctrine of laches as defined by "the circumstances in which equity will, without need to resort to the rules governing other more particular defences and in the absence of applicable statutory provisions, refuse relied by reason or standing by or lapse of time before action". His Honour (at 337) had noted that the term acquiescence, strictly used, indicated the contemporaneous and informed acceptance or standing by which is treated as assent to what would otherwise be an infringement of rights but that in common parlance it was also used to refer to a representation by silence of a type which may found an estoppel by conduct; acceptance of a past wrongful act in circumstances which give rise to an active waiver of rights or release of liability or an election to abandon or not to enforce rights. 549 In this regard, Mr Petersen in his submissions seems to rely upon laches largely as a defence to the claim against the estate (though asserting that the loss of prospective evidence also prejudices Gautam and Arjun). He asserts that Parveen denied Sid the opportunity to defend himself and submitted that during his life Sid had an entitlement to natural justice and procedural fairness to which he had been denied by reason of laches. Leaving aside for the moment the submission that there was any obligation owed of natural justice owed to Sid (which submission I treat as being emotive rather than a strict legal submission), what was the delay? 550 Parveen became aware that Sid was proposing to transfer or had transferred shares to Gautam and Arjun by the end of June. She sought advice as to the position and she spent some time searching for documents or evidence in support of her assertion that the share transfers should be set aside. She commenced the proceedings in September. In the meantime, Sid, through the various proposals put in relation to the shareholding was on notice that Parveen and her family were unhappy with the events which had occurred and were at least complaining that this was not a fair distribution of the shares as between the respective parties. By October at the latest, Sid appears to have been aware of the potential for a challenge to the will and/or the share transfers (at least insofar as the October will expressly contemplated that as a possibility in clause 4). Mr Castino and Mr Czinner were clearly on notice of that possibility in March (and one might think that, consistent with their professional obligations, they would have alerted Sid to this). Insofar as Sid, through his solicitor, was asserting a capacity to understand and give instructions in relation to the tutor proceedings in which the alleged agreement had been asserted, Mr Czinner might perhaps have been expected to have sought at least initial instructions as to the claimed agreement for the purpose of advising Sid as to his position. Mr Petersen says that it may be inferred that Sid would have fought against Parveen's claim for all the shares. Presumably he would not have done so without obtaining legal advice from his representatives. That advice (if properly considered and based on all the evidence) may not have been available before Sid's death in any event. 551 Mr Petersen submitted that had the matters been raised by 21 October 2008 when Sid was in the witness box then "all the accusations of puppet-mastery and of blind signatures upon documents could have been thoroughly ventilated" while Sid was alive. (In passing I note that that assumes, rather optimistically perhaps, that had the present proceedings been instituted in September in place of the tutor proceedings matters would have reached the point where the issues could have been "thoroughly ventilated" by then. Given the course which the present litigation has taken I rather doubt that.) 552 Mr Petersen's complaint, in part, seems to be that on 21 October 2008 Parveen's Counsel did not look Sid in the eye and ask whether he had promised his shares to Parveen and that in those circumstances Parveen had somehow concealed what was already stated in her affidavit (namely that there had been such a promise). 553 In my view, there has not been sufficient delay to amount to laches. There is no reason to think that the benefit of Sid's evidence would not have been lost in any event, given that (with hindsight) we know that he had little time left to live. Further, where there is a real question as to Sid's ability to recall events accurately, any prejudice by reason of the delay in asking him about the events in question may be more apparent than real. 554 As to acquiescence, I do not think it can be said that Parveen stood by and allowed the share transfers to take place without asserting her rights in an real sense. Rather, there seem to have been concerted steps taken to conceal the fact of the share transfers until they had taken place. Parveen's signature to the board minutes seems to have been after the event. It was not in my view inappropriate for Parveen to obtain legal advice as to her rights before asserting them to all and sundry. 555 That said, where is seems to me that there may be said to have been some scope for a defence based on acquiescence (whether that be in the sense of an abandonment rights seems to me somewhat less likely) would be in the context of Parveen's inaction after the July 2007 announcement by Sid that he proposed to give or leave shares to Arjun. However, Parveen did make complaint about that (albeit not in the terms now made) and Sid assured her that there was no intention to give Arjun a controlling interest. Even allowing for the distinction between participation and controlling, it seems that Parveen's opposition to the situation was known. I cannot see that there has been any reliance by Sid on a lack of opposition by Parveen that would make it inequitable for Parveen now to have asserted her rights, nor do I see any detrimental reliance by Gautam and Arjun on the receipt by them of the shares so as to make it inequitable for relief now to be granted, and I do not consider that the defence based on acquiescence is made out. (Insofar as the estoppel defence based on an alleged representation arising out of Parveen's failure to lodge a claim at the time of the initial transfers – which was said to be an abandonment of her claim – differs from the defence based on acquiescence, I would find that it similarly fails.) 556 As to unclean hands, this turns on the certification to this Court by Parveen (and/or her solicitor) that as tutor Parveen had no claim adverse to that of Sid. Insofar as the certification is concerned, the evidence before me was that Parveen had been advised by her then Senior Counsel that she was required to provide the certification and had been advised that it was appropriate to do so. Whether or not it was appropriate (and I think it was not) for Parveen to put herself forward as tutor in circumstances where there was clearly scope for a conflict of interest to arise, I cannot see a lack of good faith or unclean hands in her having acted on the advice of her Senior Counsel in that respect. 557 Further, the claim that there was an alleged agreement was not one which was concealed, in the sense that Parveen's initial affidavit deposed to it. What was not communicated was an intention on the part of Parveen to sue on that alleged agreement. It is not apparent to me that at that stage Parveen was intending to do so – rather, her evidence was that she was seeking to have the shares returned to Sid. That is consistent with her seeking to preserve the status quo. 558 For a defence based on unclean hands to be made out the conduct must go to the unconscionability of pursuing the claim for relief which is pursued. This will be made out where there is an "immediate and necessary connection" between the conduct said to make the plaintiff's hands unclean and the equity claimed (Dering v Earl if Winchelsea (1787) 1 Cox 318, at 319-320, see also On Equity, at [3.330]). In On Equity, (at [3.330]) it is explained that this "immediate and necessary connection" will be made out where the equity the court is being asked to assist was brought into existence by the wrongful conduct of the claimants "unclean hands" (Meyers v Casey (1913) 17 CLR 90, at 124) so that it could be said that the claimant is attempting to take advantage of his or her own wrong (FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552, at 561). The plaintiff's conduct must be "wanting in good faith" (Sang Lee Investment Co Ltd v Wing Kwai Investment Co Ltd (183) 127 Sol Jo 410; [1983] HKLR 197, at 208. 559 Having said this, and as noted by the learned authors in On Equity "equity does not demand that its suitors shall have led blamless lives" (there citing the decision of Brandeis J in Loughran v Loughran (1934) 292 US 216, where it was stated, at 229). The inappropriate commencement of tutor proceedings does not to my mind suggest that it is unconscionable for Parveen later to have pursued her claim under the agreement – at a time when it was clear that there had been a breach of its terms. (vii) Relief 560 In light of the findings Parveen has not established her claim for relief. Had I found that the promise in question had indeed been made and that the promissory estoppel claim was made out, then I would have ordered that Gautam and Arjun transfer their shares, and the shares held by them as executors to Parveen. As it is, I am compelled to dismiss Parveen's claim. Conclusion 561 For the reasons set out above, I am not satisfied that a close scrutiny of the evidence permits me to find that Sid made the promises alleged to have been made to Parveen and hence her claims fail at the first hurdle. I must say that I have not reached that decision without considerable discomfort. I am troubled by the circumstances in which Gautam and Arjun took their interests in the shares. 562 On the evidence before me there would seem to have been a strong claim that the inter vivos shares were acquired in circumstances where there was a presumption of undue influence arising from the age and mental condition of Sid, and his dependence on and high regard for his grandsons Gautam and Arjun. I am by no means convinced that the involvement of Messrs Castino and Czinner was sufficient to rebut the presumption of undue influence. 563 However, that claim was not ultimately pressed by the administrator ad litem, nor was it pursued by Parveen in her capacity as beneficiary of the estate (assuming standing would have been available to do so under Ramage v Waclaw). 564 In Taylor v Dickens (criticised on other aspects in Gillett v Holt), Weeks J said: In my judgment, there was no equitable jurisdiction to hold a person to a promise simply because the court thought it unfair, unconscionable or morally objectionable for him to go back on it. If there were such jurisdiction one might as well forget the law of contract and judge every civil dispute with a portable palm tree. The days of justice varying with the length of the Lord Chancellor's foot would have returned. 565 Much as I might wish for the metaphorical portable palm tree in order to permit the grant of relief to Parveen on the basis of presumed undue influence in relation to the inter vivos share transfers, I do not consider it is open to me on the matter as pleaded or the case as conducted to do so. 566 Accordingly, I dismiss the proceedings. ********** 28/07/2010 - In para 11, second sentence, the words "Relevantly Mr Rayment confirmed that" at the beginning of the sentence have been deleted, and the words at the conclusion of the sentence commencing "or as the beneficiary of a constructive trust" through to the end of that sentence, have been deleted. - Paragraph(s) 11 30/07/2010 - In paragraph 11, first sentence, the word "However," has been removed from the beginning of the sentence; the word "also" has been inserted before the word "pressed" and the word "only" has been deleted after the word "pressed". - Paragraph(s) 11 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.