Supreme Court New South Wales Medium Neutral Citation: Olsen v Mentink [2019] NSWSC 1299 Hearing dates: 29, 30, 31 July 2019, 1 August, 29 and 30 August, further submissions 4 September 2019 Decision date: 27 September 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See [373]-[375]; [377]-[378]; [380]-[381] Catchwords: EQUITY- unconscionable conduct – special disadvantage- whether unconscientious advantage taken- undue influence EQUITY- fiduciary duties- breach- rule in Barnes v Addy Cases Cited: Barnes v Addy (1874) LR 9 Ch App 244 Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1998) 194 CLR 457 Farah Constructions v Say-Dee (2007) 230 CLR 89 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 Louth v Diprose (1992) 175 CLR 621 National Westminster Bank plc v Morgan [1985] AC 686 The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 Texts Cited: JD Heydon, Heydon on Contracts (2019, Thomson Reuters) Category: Principal judgment Parties: John Henry Olsen (plaintiff) Karen Howard Mentink (defendant) Representation: Counsel: M T McCulloch SC, J Brown (plaintiff) R Wilson SC (defendant) Solicitors: ClickLaw (plaintiff) Bedson Legal (defendant) File Number(s): 2019/118366 Judgement 1. In this matter the plaintiff (John Olsen), seeks a number of orders and declarations against the defendant (Karen Mentink), primarily concerning the alleged unconscionable procurement of monies of the estate of the late Katharine Howard-Olsen (the deceased). Procedural background 1. The matter first came before me in the Expedition list in April 2019. The matter was granted expedition due to the plaintiff's health and advanced years. 2. By statement of claim filed 16 April 2019 the plaintiff seeks judgement in the amount of $2,203,328.67 ($2.2 million) which was withdrawn by the deceased on 11 October 2016 and given to the defendant. The plaintiff claims that in the circumstances the defendant received the money by reason of undue influence or unconscionability over the deceased. In the alternative the plaintiff claimed that the deceased lacked capacity to transfer the funds. 3. The plaintiff makes an alternative claim that the $2.2 million was an asset of the partnership that operated as between the plaintiff and the deceased. It is claimed that the deceased breached her fiduciary duties by transferring the money, and the defendant knew of this breach and therefore holds the money on trust for the partnership. It later became apparent over the course of the hearing, that the plaintiff wished to make a claim under the second limb of Barnes v Addy (1874) LR 9 Ch App 244, that is that the defendant knowingly participated in the deceased's breach of her fiduciary obligations (T450/16-23). 4. The plaintiff also further sought judgement in the amount of $130,390 which was comprised of a series of cheques drawn upon the A Casa Botanica Account in 2017. The plaintiff claims that the A Casa Botanica Account was a partnership asset, and the defendant was therefore required to account for monies misappropriated. 5. The plaintiff also seeks a declaration that the defendant holds the shares in 5913874698 Pty Ltd (formerly John Olsen Pty Ltd) (JOPL) on trust for the plaintiff, and an order that the defendant immediately execute any and all documents required to effect the immediate transfer of those shares. 6. During the course of hearing, the plaintiff accepted that he had reached an arrangement with the defendant, whereby she would transfer the shares in JOPL in exchange for the amount which was left in the A Casa Botanica Account. The plaintiff no longer sought judgement of the $130,390, but pressed for the transfer of the shares (T401/30-402/10). 7. Initially, the plaintiff also sought judgement in the amount of $975,000. The plaintiff claimed that the plaintiff and the deceased had transferred the property known as Hurlingham Avenue to the defendant for $975,000 which the defendant had failed to pay. In the course of preparing for the trial, several documents referring to an agreement to transfer the property were discovered by the parties, including a signed document whereby which the deceased and the plaintiff forgave the consideration of $975,000.00. By amended statement of claim filed 22 July 2019, the plaintiff withdrew his claim for $975,000.000 as it related to Hurlingham Avenue. 8. By cross-claim filed 14 May 2019, the defendant seeks, primarily, a declaration that the withdrawal and transfer by the deceased of $2.2 million was by way of gift. Further the defendant initially sought that a declaration that the transfer by the plaintiff and the deceased of their interest in Hurlingham Avenue to the defendant was by way of gift. This, of course was not in issue at the time of trial. The defendant further sought an order that the plaintiff deliver, pursuant to clause 3(a)(xv) of the deceased's will, the deceased's photograph albums. The issue of the photo albums was resolved between the parties during hearing (T450/25). 9. The matter was part heard from 29 July to 1 August in Moss Vale due to the inability of the plaintiff to travel to Sydney. The matter resumed in Sydney on 29 and 30 August, with final submissions on 4 September. Background Facts The family relationships 1. The plaintiff was born in January 1928. The deceased was born in April 1941. The two married in 1989. At the time of her death, the plaintiff and the deceased had been married for 27 years. It appears on all the evidence, to have been a close and loving relationship. 2. The plaintiff had three children from previous relationships, Jane Olsen (who passed away in 2009), Tim Olsen (Mr Olsen) and Louise Olsen (Ms Olsen). 3. As noted, the defendant was the child from the deceased's previous relationship. The defendant was born on 30 April 1961. Her mother and father separated four years after her birth in 1965. By the time her mother married the plaintiff she was 28 years old. 4. The defendant asserted that she and her mother had a close and loving relationship, and that her family spent many holidays and family events with the deceased and the plaintiff. Other witnesses commented that at times the defendant and the deceased had a more challenging relationship and would sometimes quarrel. The deceased and the plaintiff provided financial support to the defendant over the years, in particular when she and her husband separated around 2004. The deceased and the plaintiff gave loans to the defendant (which it appears at least in part she repaid)(Ex P4), as well as assisted with her children's school fees and allowed her stay in their property known as Hurlingham Avenue rent free for a period of time. It does appear from time to time or occasionally, that the deceased was annoyed with providing for the defendant, for example her diary note from November 2015 recorded (Ex P11): … Karen not happy that I'm even thinking of going to the auction of 66 Osborne Rd. Why aren't I buying her an apartment in the E. Subs. "It's an investment". Who for? So she has a free comfy possy while Oscar finishes school. And then what, I wonder. I'll be the bunny who pays out continually. Although the market has cooled a little, it's still far too high. What Karen refuses to realise is that John is ageing. There may come a time when he can't work/is incapacitated and needs help. If I invest wisely I should be able to bring in $3,000 pw in rent (or more). That should keep us going. … 1. It appears that the defendant had, at least for some time, a close relationship with the plaintiff and the deceased. It was not clear the nature of the relationship between Mr Olsen, Ms Olsen and the defendant; it does not appear that they spent significant time together over the years. 2. The defendant married in 1989 and had three children. She separated from her husband around 2004. In 2012, she commenced a de facto relationship with George Lawrence (Mr Lawrence). 3. The deceased and the plaintiff relocated several times over the course of their marriage. At the commencement of their relationship, the plaintiff moved into the deceased's property in Wentworth Falls. This was sold around 1989 to finance the couple's new residence in Rydal, known as Chapel House Farm. The couple moved again in 1998 to a property known as Owlswood, it appears the purchase of Owlswood was funded by the sale of Chapel House Farm. In about 2010, the deceased and the plaintiff purchased a property in the Southern Highlands known as Hidden Lake. They moved in around 2011 or 2012. The couple lived there together until the deceased's passing. The plaintiff remains at the property to this day. Owlswood was sold in 2015. 4. Earlier in 2002 the defendant relocated her family to Hurlingham Avenue, a property in Burradoo owned by the deceased and the plaintiff as joint tenants. This property was formally transferred to the defendant in October 2016 for nil consideration (CB2/615) as I have already noted. After being shown this transfer document, the plaintiff withdrew his claim as it related to this property. 5. In October 2012, the deceased was diagnosed with amelanocytic melanoma with a Clarke IV rating. In November 2012, a second melanoma was removed. In December 2016, following brain surgery in June, the deceased died. The plaintiff and the deceased's finances and assets 1. It is uncontroversial, that over the years, the plaintiff and the deceased intermingled their financial assets. For the length of their relationship, the deceased was responsible for the financial management of the household, while the plaintiff focused on his painting. 2. The couple engaged the accounting firm Lowensteins Arts Management (Lowensteins) to provide their accounting and taxation services including preparing their partnership and individual tax returns (CB3/91). 3. The couple structured their financial dealings broadly in two parts; a partnership (Chapel House Farm Partnership)(the partnership) which was primarily used to finance the deceased's equestrian interests as well as the various property investments, and second as JOPL which was primarily used to facilitate the sale of the plaintiff's artwork. 4. JOPL itself did not hold any assets (T64/44). The bank account associated with JOPL is referred to as the JOPL Bank Account. Both the deceased and the plaintiff also held assets in their sole names (CB 3/91). There were three shares of $1.00 each in JOPL, each held by the deceased (CB4/561-563). The JOPL Bank Account was not an asset of the partnership. 5. The deceased was interested in property investment, and saw it as a way to secure future income for she and the plaintiff (Ex P11). The deceased purchased, through the partnership, many properties that she and the plaintiff owned together (including Hurlingham Avenue and Owlswood) (CB3/80). 6. In November 2007, the deceased opened an account at the Commonwealth Bank, number 2511 1018 2331 (the A Casa Botanica Account). This account was opened as a sole proprietor account (CB 3/46-52). It was uncontroversial that the A Casa Botanica Account was an asset of the partnership. 7. In January 2015, the deceased and the plaintiff sold Owlswood for $2.9 million. As noted, this property was an asset of the partnership. The proceeds of the sale ($2,609,877.22) were deposited into the JOPL Bank Account (CB 3/84-90). 8. In February 2015, a term deposit was established for $1 million dollars. The funds were transferred from JOPL Bank Account into a new term deposit, the JOPL Term Deposit (CB 3/105-106). 9. In March 2015, the deceased paid a deposit of $87,500 towards the purchase of a property at 2 Alfreda Street Bowral (Alfreda Street). This money was taken from the JOPL Bank Account (CB 3/103). This property was purchased in the deceased's sole name. In April 2015, stamp duty of $81,760 was paid from the JOPL Bank Account (CB 3/103). 10. Around May 2015, the JOPL Term Deposit matured and $1,007,924.66 was deposited in JOPL Bank Account. In May 2015, the deceased withdrew $1,660,448.76 from the JOPL Bank Account to complete the purchase of Alfreda Street (CB 3/189-192). 11. Although Alfreda Street was purchased solely in the deceased's name, the financial statements for the year ended 30 June 2015 of the Partnership, show Alfreda Street being listed as an asset of the partnership acquired on 5 May 2015 (CB 3/137). The deceased's individual tax return in 2016 noted that Alfreda Street was "purchased in Katharine's own name" (CB3/282). 12. On 15 June 2015, the deceased's mother died. In October, she received a significant sum of money from her mother's estate. $1,624,024.55 was initially deposited in Katharine Howard-Olsen and John Henry Olsen ITF the K Olsen Superannuation Fund, #10276987 (the K Olsen Superfund) (CB1/506-507). A further $129,010.95 was later deposited into the K Olsen Superfund, from the deceased's mother's estate (CB3/238). The K Olsen Superfund was not an asset of the partnership. 13. The deceased also received approximately $933,582.38 in shares from her mother's estate. At the time of her death, these shares were in her own name (CB 2/596). 14. In November 2015, the deceased paid a deposit of $202,500 for the purchase of a property at 43 Werrington St (Werrington Street). The money was paid from the Viridian line of credit (Viridian Account) (CB3/225). The Viridian Account was an asset of the partnership (CB3/81). Stamp duty of $96,885 was paid from the A Casa Botanica Account. A withdrawal of $1,750,000 from the K Olsen Superfund was made to complete the purchase (CB 3/238). 15. From early November 2015 until December 2016, the deceased received a further $783,111.00 cash distribution from her mother's estate (CB 4/558). All the funds were deposited into the A Casa Botanica Account. 16. On 4 December 2015, the sale of Alfreda Street settled. Settlement funds of $1,679,850.74 were deposited into the A Casa Botanica Account (CB 3/222; CB3/240). $75,000 from this sale was put towards the purchase of Werrington Street (CB 3/217). The deceased settled on the purchase of Werrington Street on 14 December. The property was purchased in the deceased's name alone (CB 3/223). The deceased's individual tax return for 2016 stated, that Werrington Street "is purchased and owned by Katharine" (CB3/282). The property was absent from the 2016 partnership tax return (CB 3/276; CB3/305). 17. The deposit released from Alfreda Street in the amount of $156,390 was transferred into the Viridian Account (CB3/225). 18. In January 2016, the deceased opened a term deposit at the Commonwealth Bank in Bowral, with $2 million transferred from the A Casa Botanica Account into the new A Casa Botanica Term Deposit (CB3/241; CB3/341A). 19. In March 2016, the deceased purchased a property at 32-34 Sullivan Road, Burradoo (Pinaroo) and paid a deposit of $172,000 from the A Casa Botanica Account. The property was to be purchased in the deceased's name only (CB3/244-248). On 9 September 2016, the deceased exercised her right of rescission under the contract. The deposit money was transferred to the A Casa Botanica Account on 12 September and then into the A Casa Botanica Term Deposit on 6 October (CB3/329A-329B; CB3/341A). The deceased's will 1. The deceased made several wills over the years. The deceased engaged the law firm Colin Biggers & Paisley from at least about 1996, to prepare her wills and provide general advice on estate planning. 2. Generally, it appears to have been the intention of both the deceased and the plaintiff, to leave the residue of each of their estates to each other and in the event that the other does not survive them, to split the residue of their estates four ways; one part to the defendant, one to Mr Olsen, one to Ms Olsen and then a further one part shared between Augustus and Georgina, the children of the late Jane Olsen (See e.g. CB 3/1-45; CB3/53-66). 3. It also appears to have been a general intention of the deceased as well as the plaintiff, to leave or transfer Hurlingham Avenue to the defendant and make equal financial arrangements for the others in paintings (see e.g. CB 3/67; CB3/83; Ex D6). 4. It appears that the deceased was concerned to ensure that there was a 'fair' arrangement in her and the plaintiff's wills, so as to remove any potential challenges to one of their wills. In an email sent by the deceased to Mr Fraser of Colin Biggers & Paisley in March 2014, subject "Will shock", the deceased wrote (Ex D6): Dear Simon, What has happened to a friend in W.A has alerted us to a probable problem in our wills. Her husband died over a year ago and left what he was advised was a watertight will. They had been married for over 12 years. There are three children from one of his former marriages. … The children took her to court almost immediately the will was probated. They want the lot. Her barrister said "Oh. A will is only an opinion!" The bank account has been frozen and she can't even sell paintings to keep herself afloat. John is absolutely horrified by this statement. He does not want the same thing to happen to us. One of his children is rapacious and would probably have no hesitation in doing the same should John die first. (The child has already said to John, "Oh I'm not interested in the properties, Just leave me all the paintings." John replied he had no intention of doing so and has documented this in his diary. We felt we were being fair splitting everything equally. Probably silly us. …. 1. The deceased's last will and testament was executed on 15 October 2016 (CB 2/588). Of particular note, in clause 1, the deceased appointed the plaintiff as her executor and trustee and if he was unable or unwilling, Mr Fraser of Colin Biggers & Paisley. In clause 3(a), the deceased made several gifts to the defendant including; "indoor and outdoor furniture which belonged to my mother", "all shares held in my sole name", "the property at 43 Werrington Street, Burradoo", "all my cookbooks including the big and little black books" and "all my journals and photograph albums". 2. In clause 5, the deceased gave the residue of her estate to the plaintiff. Clause 6, stipulated that if the plaintiff does not survive her, the residue was to be divided as follows; one part to the defendant, one part to Mr Olsen, one part to Ms Olsen and one part to be divided equally between Augustus and Georgina. 3. On 2 November 2016, the deceased executed a Codicil amending parts of her will. In particular the codicil appointed the plaintiff and the defendant as executors and trustees. The deceased's health from July and August 2016 1. In 2012, the deceased was treated for several serious melanomas. 2. In June 2016 the deceased was admitted to Bowral Hospital, suffering from bleeding on the brain. 3. Around this time, the defendant moved to Hidden Lake to assist with her mother's care and management of the household. On 21 July 2016, the defendant was added as a signatory to the A Casa Botanica Account (CB3/321). She stated that this was because the deceased had trouble signing the cheques herself. From about this time, the defendant becomes active in assisting in the managing of the household. The defendant stated she however did everything at the direction of her mother. 4. In late June, the deceased came under the care of Dr Donnellan, a neurosurgeon. In a letter he wrote on 29 June, he noted that five days ago she had presented with confusion and a high temperature at Bowral Hospital. A CT scan revealed further cerebral lesions (CB 4/577). He noted that since the deceased began taking Dexamethasone, her confusion resolved. 5. On 4 July, Dr Pelly, one of the deceased's GP, recorded in a surgery consultation, that the deceased "still seems confused" and was "very anxious" (CB4/746). 6. A letter from the practice of Dr Long, a Sydney based medical oncologist, to Dr Donnellan on 6 July 2016, noted (CB4/847-848): Professor Long has had an extensive discussion with Katharine and her family, and has explained that she has stage IV melanoma, which is a terminal condition. She has expressed concern regarding the size of the brain lesions and has advised her to see a neurosurgeon for possible resection…She was also advised not to drive. 1. On July 2016, the defendant sent a letter to Dr Teo and Dr Long, requesting that Dr Teo lead the neurosurgery team (CB4/845-846). The letter was also signed by the plaintiff: Our family wishes to emphasise that it is imperative that we are included in all decision-making regarding my mother's treatment options. To that end, we require that the specialists involved nominate which specialist will be our contact doctor, willing to communicate clearly with us and to explain treatment options and implications. The family has agreed that I am to be the point of contact; my email and mobile numbers are above. My mother's behaviour and personality have become erratic in recent weeks. This can be distressing for family members to witness a usually charming and vibrant woman become confused and demanding. We know that misunderstandings and miscommunications lead to distress for the patient and close family; our goal is to provide excellent support for my mother while managing the stress levels that are manifesting, particularly for me elderly stepfather. … 1. On 12 July 2016, in a letter to Dr Donnellan, Dr Teo stated that he had informed the deceased of the risks of surgery and potential complications which include "but are not confined to death, paralysis (especially down the left side of her body), thalamic syndrome, etc" (CB 4/587). 2. On 12 July 2016, the deceased was admitted to Prince of Wales Hospital and underwent brain surgery performed by Dr Teo. 3. On 20 July 2016, the deceased was admitted to Southern Highlands Private Hospital to recover. 4. Dr Papadatos, a radiation oncologist, on 28 July 2016, wrote a letter to Dr Pelly, which in part stated (CB4/833): … In the presence of her daughter, Karen, we have discussed the implications of her disease and the role of postoperative radiation treatment to her brain. I have told them that despite recent surgery there is a high likelihood of residual intracranial disease that may declare itself within the next few months. The role of radiation therapy, as per the evidence, would be to help prevent/delay relapse at this site but unlikely to translate to any benefit in overall survival. Toxicity of treatment includes lethargy, alopecia (which she is very much against) and in the medium-longer term, cognitive impairment. Given her present, sub-optimal performance status I feel any benefit would be marginal, at best. Both Mrs Olsen and her daughter were not keen on radiotherapy to begin with and, not surprisingly, have declined to pursue this any further. They are concentrating in optimising home services to facilitate discharge from hospital. She has an appointment to see Steve Della-Fiorentina next week to discuss potential systemic options which, I understand, are somewhat limited. At this point, I have not made any further appointments to see them, but of course would be more than happy to review her as needed. … 1. There is a significant volume of nurses and other medical practitioner's notes from the deceased's time at Southern Highlands Private Hospital. The notes revealed that the deceased was, from July into August, frequently, anxious (CB4/605), unsteady on her feet (CB4607; CB4/608; CB4/625 CB4/632;CB4/627), and eager to move but extremely fatigued (CB4/609; CB4/620; CB4/622; CB4/615; CB4/626). 2. Other notes record that the deceased was unable to reach her face with her hand and experienced facial weakness down her left side (CB4/611). Notes on the 22 July record that she was "alert and compliant – orientated to person/time/place" (CB4/610) but on the same day recorded "Pt stating she would like to just die- referral to social worker" (CB4/611). The deceased was reported as alert and orientated on 25 July (CB4/616) but then confused (CB4/606;CB4/621; CB4/624), distressed and moody (CB4/614; CB4/628; CB4/629) as well as resistant or aggressive to staff (CB4/612; CB4/627). On 27 July the records noted (CB6/621): "Pt then heard calling out and crying → Daughter attempting to settle Pt unsuccessfully, Pt began hitting herself in the right side of the head repeatedly with right hand…Pt settled now Daughter has left. Daughter states she "return to visit tonight" 1. It is clear that the defendant was present almost constantly during her mother's time in hospital (CB4/609; CB4/613; CB4/614; CB4/621; CB4/622; CB4/626; CB4/630) and appears to have been actively involved in her mother's treatment and care. On 25 July, the notes recorded; "Discussed daughter's concerns re changes in affect/personality that followed seizure (prior to surgery)" (CB4/617). On 28 July, the notes stated (CB4/624): Patients daughter at hospital- after hours requesting to see patient. Advised patient asleep but continued into patients room. Came to nurse station to ask which tablets patient has had- advised that prescribed tablets given and can have … if patients awakens, the same as last nights regime as patient settled. Daughter stated "well you weren't here a few nights ago" 1. In August, discussions began about the deceased returning to Hidden Lake. The defendant "reiterated that she needs to be safe to go home" (CB4/629) and she expressed concern about how her mother will manage at night (CB4/650). Throughout August, hospital records noted that at times the deceased was alert and progressing (CB4/642; CB4/647; CB4/653; CB4/654) but quickly fatigued, remained unsteady and lacked insight into her condition (CB4/639; CB4/640; CB4/642; CB4/649). The deceased at times was distressed, agitated and rude to staff (CB4/639; CB4/643; CB4/448). 2. The defendant continued to be actively involved in her mother's care. Notes from 3 August indicate (CB4/634): "Pt alert and orientated"…"Family informed, contacted Mr Olsen as person to notify. Then Pt's daughter rang who was upset that pt's husband was called and asked to be changed to be the person to notify, she was advised to speak with staff when she gets here today" 1. The defendant coordinated with medical staff to organise home visits (CB4/637), and care at Hidden Lake (CB4/646). On 3 August Dr Della-Fiorentina, the deceased's Bowral-based oncologist, discussed with the defendant that the aim of treatment was 'quality of life' although noted that life expectancy can be prolonged (CB4/635). 2. On 4 August, the hospital notes recorded (CB4/638): Pt alert and orientated, very anxious and agitated today. Pt upset that she had to wait in her chair 10 minutes for physio,, stating it was 'exhausting'….x ray department then rang to say she was confused and disorientated…Pt was agitated when picked up and fixated on the home visit apt at 2pm…Pt was informed that the home visit was cancelled. Pt became very upset, stating she wanted to go home tomorrow and that everyone was lying to her. ..Pt was irrational, unsteady at times. Pt remains combative verbally and resistant to nursing care 1. On 6 August the notes recorded; "long discussion with daughter re cognitive state issues- little improvement" (CB4/642). 2. On 10 August 2016, the deceased attended a meeting of JOPL via phone. The minutes to the meeting noted that she was seriously ill and unlikely to return to work. The minutes further noted that the company name was to be changed in the event of the deceased's death, and she further "instructed that she did not want her estate to be complicated by having to deal with the company" (CB1/356). 3. Around 15 August 2016, the deceased was discharged from Bowral Hospital The deceased's return to Hidden Lake 1. In August the deceased returned to live at Hidden Lake. The defendant stayed at the property to act as her primary carer. 2. The deceased continued to be treated by multiple practitioners and underwent chemotherapy and later radiotherapy. 3. Dr Tognela, an oncologist, on 22 August 2016 wrote in a letter to Dr Long, (CB 4/830): … She continues to have some emotional lability and some mild fatigue but this has been improving since her discharge. I plan to continue her treatment every three weeks and will review her again in the clinic after her next cycle of treatment. … 1. On 29 August Dr Pelly recorded, that the deceased was mobilising well and going well at home (CB4/747). 2. On 9 September 2016, the defendant wrote the following letter to Ms Summerville, a solicitor at Colin Biggers & Paisley (CB3/331): Dear Michelle, My mother has asked me to forward the following letter concerning an amendment to her will. Yours Sincerely Karen Mentink 1. Enclosed was a letter from the deceased to Ms Summerville, dated 8 September, which recorded the following (CB3/332): A very serious addition to my Will – Immediately please! I want everything that my mother left me to go to my daughter – Karen Howard Mentink when I die – She can then make distributions to her children. Also the two three paintings Bathurst Butter by John Olsen and the large bush landscape by Ray Crooke - And the Michael Taylor seascape exhibited Canberra 2016. Inclusions from my mother include indoor and outdoor furniture, shares considerable money in houses (in my name only) and other financial dealings in my name. 1. On or about 17 September, the deceased and the defendant travelled to Sydney to visit the Opera House. The deceased had a panic attack at the Opera House and they had to leave the theatre. 2. On 19 September, Dr Pelly recorded that the deceased had 'huge anxiety' over getting up the steps at the Opera House and has been fragile since. The defendant told Dr Pelly, that the medication the deceased was taking was causing anxiety (CB4/747). 3. On 21 September 2016, Dr Dell-Fiorentina wrote in a letter to Dr Long (CB 4/837): … I saw Katharine and her daughter today. She has received two cycles of Pembrolizumab and has been home for the past five weeks. Her main troubles have been with fatigue, lack of energy and sleeplessness… 1. On 30 September, one of the deceased's GPs, Dr Richardson noted that the deceased has developed a lump (CB4/774). On 5 October, Dr Richardson noted that the deceased was again "really unwell", presented as extremely anxious and exhausted (CB4/773-774). 2. On 6 October the deceased had a CT scan of her brain. Dr Grattan-Smith noted that the deceased was again unwell and there are new lesions on the brain, "most likely reflecting further metastases" (CB4/768). On or about this date, the deceased was informed that she was terminal. 3. A 7 October 2016 letter from Dr Della-Fiorentina to Dr Long recorded (CB4/840): … I saw Katharine with her husband John and daughter today. She has had three cycles of Pembrolizumab but has been struggling with fatigue and has had a fall at home which she says was a trip, there was no syncope before or after, no symptoms of arrhythmia and no head trauma with the fall. … …I also discussed the possibility of no further intervention due to her poor fitness at the present time and her wishes not to undergo additional treatment if there is no clear benefit. I will see how she goes with the steroids and the CT scan and keep you informed of her decision. 1. On 10 October whilst in the car, the defendant phoned Ms Summerville at 11 am to enable the deceased to discuss changes to her will. The defendant was allegedly driving and present in the vehicle at this time although she denied this (T261/50). The file note of Ms Summerville recorded the following (CB 3/333): Katharine Olsen 11.10am 10/10 Karen called while in the car with Katherine and put Katherine on the phone to talk to me about the changes Katherine wants to make to her Will. Katherine told me she wants to give Karen 1. 43 Werrington St Burradoo 2. All of her shares-over 200 companies 3. An investment worth $2.2 m- currently being cashed in now so happy to put amount in will I will make these changes to Will together with the changes I have already made - Bathurst Butter already dealt with - Ray Crooke - Michael Taylor Indoor and outdoor furniture give to Katherine from her mum 1. On 10 October 2016, Ms Summerville prepared a draft will that included the gift of $2.2 million, 'all of my shares' with the handwritten words 'held in my own name' written next to it and Werrington Street (CB3/335).This was in addition to the other gifts already left to the defendant. 2. Also on 10 October, the deceased received correspondence from Ms Summerville. The letter appeared to be sent to the deceased's P.O Box (CB3/339): Dear Katharine Your Will I refer to our conversation on 10 October 2016 regarding changes to your Will. I attach revised Will for your signature. The changes to your Will are included at paragraph 3(a)(i)-(vii). The remaining provisions of the attached Will are identical to the Will signed by you on 6 December 2012. Please follow these instructions to sign the Will: 1. ensure two adult witnesses are present (who are not beneficiaries in the Will); 2. sign in blue or black pen; 3. Katharine, you should sign at the bottom of each page and on the last page; 4. Katharine, please date the Will on the last page; 5. the two witnesses must sign at the bottom of each page and on the last page; and 6. the two witnesses must complete their full names, address and occupation on the last page. If you have any questions about signing, please call me. Once signed, please return the original Will to our office to hold in safe custody for you. 1. A further CT scan on 10 October revealed that there "has been rapid progression in the metastatic lung disease" (CB4/769). 2. On 11 October 2016, the deceased and the defendant travelled to the Commonwealth Bank branch in Bowral. On this date, the deceased withdrew $2,173,326.67 from the A Casa Botanica Term Deposit (Ex P12; CB3/340) and gave it the defendant. At the same time $30,000 was transferred to the defendant's ANZ account to pay off her credit card debt (CB3/340). The handwritten note at the bottom of the Term Deposit Withdrawal Request, stated "$30,000 to ANZ a/c 012… Karen Howard Mentink…@4:4pm" (CB3/340). There are bank records (CB3/340-341) which appear to indicate that on 11 October, $30,000 was transferred out of the term deposit, but the "Value date" for the transaction was 6 October (CB3/341), this remains unclear. On the same day, the defendant opened her own term deposit at the Commonwealth Bank and deposited the money (Ex P12). 3. On 12 October 2016, a file note of Ms Summerville recorded a conversation with the deceased (CB3/342): Wants to transfer 21 Hurlingham property to Karen Mentink. I advised they will need a valuation and I will prepare transfer. Stamp duty on $1m is about $40k The investment worth $2.2 million has already been given to Karen. I will remove that from the Will and send by email. 1. Also on 12 October 2016, Ms Summerville sent an email addressed to the defendant advising that she had removed the gift of $2.2 million from the deceased's will (CB3/343)(my emphasis added): Dear Karen I attach the letter sent to you on Monday and revised Will for signing by Katharine in front of two witnesses. As instructed, in the attached Will I have removed the gift to you of $2,200,000. If you have any questions about signing, please contact me. Regards Michelle Summerville 1. The attached will had removed the gift of $2.2 million (CB3/348). 2. On 12 October, the plaintiff and the defendant attended a meeting with Mr Cummins, a Southern Highlands based solicitor from Wilkinson Throsby Edwards, about the deceased's will and general estate planning. The defendant organised the meeting after Mr Cummins had been referred to her by an associate. The deceased did not attend the meeting because she was unwell and Mr Cummins suggested a home visit (CB3/344). Mr Cummins recorded that the plaintiff and the deceased wished to transfer Hurlingham Avenue to the defendant, he also recorded that the deceased owned Werrington Street by herself (CB3/345). He made a further note that he would prepare a will for the deceased, including that the provision for the defendant would be 3 paintings, other inheritance from her mother, and Werrington Street (CB3/346). 3. The deceased executed the will sent by Ms Summerville on 15 October 2016. The will was witnessed by a Ms Leanne Jones and a Ms Sally Rankin. The plaintiff was the only named executor in this will. 4. On 17 October 2016, Ms Summerville sent an email to the deceased and the defendant referring to the deceased's instructions to transfer Hurlingham Avenue to the defendant and attaching a form of transfer (CB3/355). 5. Also on 17 October Mr Cummins attended Hidden Lake for a home visit with the deceased, the plaintiff and the defendant. His file note of the meeting recorded (CB3/352): Re Will of 15/10/16 made Original with me for safekeeping Copy to Karen (by hand Thursday) KHO confirms 15/10/16 Reflects current testamentary intentions + no changes required CB+P instructed to prepare c/s Tfr From Katharine & John to Karen of Hurlingham Ave Valuation today Karen will further advise me 1. On 17 October, Mr Cummins also provided a tax invoice to be paid for his legal services (CB3/353). The invoice was made out to the deceased and recorded the following work done: Legal work and advice in respect of your estate planning. Legal work included: • Initial meeting with John Olsen and Karen Mentink to review your current estate structure and discuss your assets; • Further conference with you (and John and Karen) at your residence to review the Will prepared on your instructions by Colin Biggers & Paisley and confirming its due execution; • Reporting to you with a copy of the executed Will. 1. Also on 17 October, Ms Summerville sent an email to the deceased and the defendant referring to her conversation with the deceased on 12 October. She attached a transfer form and provides instructions for the transfer of Hurlingham Avenue to the defendant. The defendant replied to the email later on the 17; "I will print these out and return to you with the bank cheque as soon as we have the valuation on Wednesday" (CB3/355). 2. On 19 October 2016, Hurlingham Avenue was transferred to the defendant (CB3/359-360). On 20 October 2016, $39,390 was withdrawn from the A Casa Botanica Account to pay for the stamp duty on the transfer of property (CB3/293). 3. On 20 October, Mr Cummins, sent a letter to the deceased, noting that it was delivered by hand to the defendant (CB 3/361). The letter recorded the following: On 12 October 2016, your husband John Olsen and your daughter Karen Mentink conferred with the writer in relation to your then current Will, providing him with an overview of your assets and your testamentary intentions. On 17 October, the writer conferred with you at your residence when you produced a Will which had been prepared by Colin Biggers & Paisley (your former solicitors) and signed by you on 15 October 2016. You told the writer that that Will was a correct reflection of your testamentary intentions at the time of its signature. We enclose a copy of the Will as requested. … At the meeting at your residence (also attend by John and Karen) you told the writer that you had given instructions to Colin Biggers & Paisley to prepare the documents necessary to transfer the joint ownership of you and John in the property 21 Hurlingham Avenue, Burradoo to your daughter Karen by way of gift, and that you were expecting those documents to be in your hands shortly. Karen advised that a valuation of the property was being made for stamp duty purposes, as the transfer will attract full stamp duty (based on its valuation). John concurred in the arrangement that the transfer be by way of gift. This morning, Karen attended our office with the documents that had been received from Colin Biggers & Paisley and the writer completed and had her swear the Purchaser Declaration in his presence. For convenience, Karen will provide us with a bank cheque for stamp duty and we will send all the documents back to Colin Biggers & Paisley so they can complete the transaction. … 1. On 24 Dr Richardson, referred the deceased to a palliative doctor for home visits (CB4/773).On 24 October Dr Richardson wrote to Dr Kuwahata, a palliative care provider, noting (CB 4/776): … Mrs Olsen's Daughter's GP Dr Pelly has recommended that Mrs Olsen be referred to be assessed by Dr Papadatos in relation possible radiotherapy. I do not believe that this suggestion would be in Mrs Olsen's best interests at the time. … 1. On 26 October 2016, the defendant attended a meeting with Mr Cummins. Mr Cummins made the following file note (CB3/364): Re will of K H Olsen Wanted to confirm she is an executor with John No, only John then 2 substitute executors She thinks her mother wants her jointly with John Will, I will see KHO (alone) To take her instructions on this POA Confirmed John is sole attorney I will similarly see KHO on this if she wants to change 1. Also on 26 October, Dr Kuwahata saw the deceased at Hidden Lake with the plaintiff and the defendant. Dr Kuwahata recorded in a Palliative Care Management Plan for the deceased, that the main issue "is around personality changes and episodes of agitation and anxiety" and further that the deceased "denies any symptoms" (CB4/809). The Plan further recorded that the deceased was paranoid, mildly verbally aggressive and was unsteady on feet but refused walking aids or assistance. Dr Kuwahata was unable to assess if the deceased was orientated because she was not answering questions and noted that the "personality change likely due to brain metastases" (CB4/810). 2. On 27 October, the defendant left a message for Mr Cummins. The note recorded (CB3/365): She made an appointment for you to go to see her mother on Monday, as her mother does want to make changes to her executor and attorney as Karen discussed with you yesterday. 1. On 28 October, the defendant left a further message for Mr Cummins. The note recorded (CB3/365): Would like you to bring all the necessary documents to the meeting on Monday (!) 1. Also on 28 October, the deceased called Mr Cummins in the afternoon. His file note of the conversation recorded: "I'm not sure what I want to do", "Therefore I told her I will call on her on Monday at 9.30 to discuss with her and take her instructions" (CB3/366). 2. On 31 October, Mr Cummins visited Hidden Lake. He initially met with the deceased alone, his file note indicates that she was in bed (CB3/367). He then noted (CB3/367-368): Power of Attorney raised by her She now wants Karen + John as POA J + S [joint and several] and executors together if both can't then WTE She does not know if she has an executor – "It would be John but I want both John and Karen" Today, to C'town, 2 x week for treatment: which should work Both John + Karen have her full support – they have been fantastic I'm v proud of them She approves of my sharing this with John + Karen 1. He later met with the deceased, the plaintiff and the defendant together (CB3/369-370): Discussed correcting will to add reference to Katharine intention to give Karen "everything my mother left me" Katharine concluded she was content that will as …signed by her on 15/10( with addition of "Moore Pottery" collection to Karen) as true reflection of her wishes. I discussed with Katharine what inherited from her mother It was largely SHARES & CASH The shares are sufficient in the 15/10 will already other personal items were already mentioned in 15/10 will as passing to Karen Katharine wants John to inherit the cash [double underlined] she got from her mother and Karen accepts this 1. Based on these instructions, Mr Cummins drafted, a codicil appointing both the defendant and the plaintiff as co-executors under the will, as well as a power of attorney for both the plaintiff and the defendant to act for the deceased. 2. Later on 31 October, Mr Cummins recorded the following file note when he gave the draft documents to the deceased (CB3/371): Mrs Katharine Olsen (in car in WTE driveway) She had just returned from radiotherapy at C'town and I inferred she was not up to reading docs there and then. Gave her them to take away. She (Karen) will return on 12:30 Wed 2/11 1. By Codicil executed 2 November 2016, the deceased amended her will so that both the plaintiff and the defendant were to be her executors (CB3/375-376). Mr Cummins recorded the following file note CB3/374): Mrs Katharine Olsen (in her car in WTE driveway) She had previously been given copies of - codicil -POA -letter of advice -revoke POA -rule 12 To read She confirmed she had read and approved and ….docs She signed codicil in presence of S Osbourn and N …. She signed other docs in my presence 1. The power of attorney executed by the deceased on 2 November appointed the defendant and the plaintiff jointly and severally (CB3/382-390). 2. On 16 November, Dr Kuwahata noted "issues with behaviour have continued to be the main problem. She has continued to be very unpleasant to family and visiting nursing staff" (CB4/825). 3. A fax from Dr Richardson to Dr Kenna, on 18 November, noted "I have just spoken to Karen, she agrees mother will need a full time carer" (CB4/820). 4. In about mid-November, the defendant and the deceased arranged for Bowral-based Dr Cooney to provide at-home palliative care. 5. At some point in November, the deceased gave the defendant a list of friends to whom she wanted to make personal bequests to after her death. 6. The consultation record of Dr Cooney, noted on 21 November, that the deceased was irritable and verbally abusive at times. He further noted that "pt confused and stating that someone had put her in the position way down the bed sitting upright in bed" (CB4/773). The records on 23 November note that; "persisting agitation and aggression although has improved", and that she was "eating and drinking well" (CB4/772). 7. The deceased died on 23 December 2016. The breakdown of the plaintiff and the defendant's relationship 1. After her mother's death, the defendant remained at Hidden Lake until about April 2017 to assist the plaintiff with managing the household. 2. On 18 January, Mr Cummins sent a letter to the plaintiff and the defendant as executors of the deceased's estate (CB 2/653), in particular the letter noted: … John Olsen Pty Limited We have made an ASIC search and the results shows that all the shares are held by Katharine and that she is the sole office bearer. The Will, as you are aware, leaves "all shares held in my sole name" to Karen. This gift includes these shares. We doubt that was Katharine's intention and imagine you will agree that these shares will in fact form part of the residue of the estate and pass to John. … 1. On 20 January 2017, Mr Thakrar, accountant for the plaintiff and the deceased, sent an email to Ms Fudge in the course of discussing the various assets of the partnership, stating; "where did the $2,000,000 go?" (CB 4/428). Ms Fudge responded to the email copying in the defendant (CB 4/428): …I have no idea….I have messaged Karen but have not heard back yet. I was aware that there was a $2 million holding account waiting on a property purchase. 1. On the 20th January 2017, the defendant sent an email to Ms Fudge: The sum of $2 million was gifted to me from my mother after the purchase of Pinaroo did not proceed. She did not wish it to form part of her will. It came from her mother's estate. 1. On 22 January, the defendant sent an email to Ms Fudge and Mr Thakrar (CB 4/432): Hi, just reading the correspondence here. The $172,000 deposit was gifted to me after the 'Pinaroo' sale did not go through. 1. On 5 April 2017, Mr Cummins sent another letter to the plaintiff and the defendant as executors, the letter noted that it has been agreed between the plaintiff and the defendant that as part of the administration of the estate the shares in JOPL will be transferred to the plaintiff (CB4/462). 2. A letter from Mr Cummins on the 16 April 2017 to the plaintiff and the defendant as executors noted that the deceased had indicated prior to her death that she would like certain payments made to friends. The letter noted it was agreed that these payments would come from the proceeds of the A Casa Botanica Account (CB4/465). However a further letter from Mr Cummins on 24 April 2017 noted that it has been discovered that the A Casa Botanica Account was an interest in the partnership. The letter further noted that after payments to the deceased's friends, "this partnership asset forms part of the residue of the estate and passes to John" (CB4/470). 3. On 22 May 2017, probate was granted in the estate of the deceased. 4. From May to June 2017, the following cheques were drawn from the A Casa Botanica Account (CB 4/472-475): 1. On 5 May a cheque payable to Oscar Mentink for $10,000 was drawn from the A Casa Botanica Account; 2. On 15 May a cheque payable to Jane Allen for $10,000 was drawn from the A Casa Botanica Account; 3. On 22 May a cheque payable to Lucia Mentink for $10,000 was drawn from the A Casa Botanica Account; 4. On 26 May a cheque payable to Lucia Mentink for $1,000 was drawn from the A Casa Botanica Account; 5. On 1 June a cheque payable to the defendant for $50,000 was drawn from the A Casa Botanica Account; and 6. On 8 June a cheque payable to Sally Aurisch for $10,000 was drawn from the A Casa Botanica Account. 1. A letter from Mr Cummins on 2 June 2017 to the plaintiff and the defendant as executors noted that, they have agreed that the proceeds of the A Casa Botanica Account will go to the defendant (CB4/495). 2. Also in early June, the defendant made accusations that someone at Hidden Lake has disturbed and interfered with her mother's bank account statements and personal letters (CB4/491). 3. On 16 June 2017, Mr Thakrar emailed the defendant about the unaccounted cheques drawn from the A Casa Botanica Account (CB4/499). She responded that these cheques were personal bequests from the deceased (CB4/500). 4. On 30 June 2017, the defendant gave the plaintiff a list of certain items of the deceased's she would like. He agreed to the defendant having certain items (CB1/87). 5. A letter from Mr Cummins to the plaintiff on 14 July 2017 again recorded that it had been agreed that the defendant will transfer the shares in JOPL and would retain what was left in the bank accounts (CB4/512). 6. In August 2017, a Group Certificate was issued to the defendant for 'wages' of $75,586 that she was paid during the time she was caring for her mother. The defendant disputed that these payments should be classified as 'wages' and that there was never an employment relationship between her and the plaintiff (CB1/518). 7. In November 2017, the defendant and Mr Lawrence attended Hidden Lake when the plaintiff and Ms Olsen were having dinner. After a disagreement, the plaintiff told the defendant she was no longer welcome at Hidden Lake. The plaintiff and Ms Olsen then made a police complaint about the incident. 8. It appears that since the breakdown in the relationship, the plaintiff has changed his will to remove the defendant as a beneficiary (T25/13-16). 9. At the time of hearing, the defendant had not transferred the shares in JOPL to the plaintiff. Evidence Plaintiff Witnesses John Olsen 1. The plaintiff swore two affidavits in the proceedings. 2. The plaintiff stated that the defendant and the deceased had an 'intermittent' relationship and quarrelled a lot (JO affidavit, 23 May 2019 [7]). 3. He stated that following the brain surgery in July 2016, the deceased became irritable, demanding and abusive and that the surgery appeared to affect her capacity to reason (JO affidavit, 23 May 2019 [12];[16]-[17]). He stated that after learning of her prognosis, she was extremely anxious (JO affidavit, 23 May 2019 [13]). He recalled that she was abusive and demanding of the nurses who were providing palliative care (JO affidavit, 23 May 2019 [19]). During this time, he stated, the deceased developed a significant tremor, was unable to feed herself, get out of bed or move around, and later became bedridden (JO affidavit, 23 May 2019 [20]). 4. The plaintiff stated that after the deceased's diagnosis in June, he let the defendant stay at the cottage at Hidden Lake. He wanted the deceased to have her daughter with her as much as possible in her final days (JO affidavit, 23 May 2019 [22]) 5. He stated that just before her death, the deceased said the following to him (JO affidavit, 23 May 2019 [28]): Karen is after money and the properties, particularly Hurlingham Avenue. 1. The plaintiff stated that the arrangement in the household was such that the deceased managed all the banking, payment of staff wages, and generally managed all the financials (JO affidavit, 23 May 2019 [29]). He stated that in about October 2016, the defendant started assisting with the financial management; she would bring the cheque book to him to sign certain cheques. He believed that these cheques were for payment of household expenses, and general upkeep (JO affidavit, 23 May 2019 [32]). 2. He stated that after the deceased's death the relationship between him and the defendant began to deteriorate. The defendant began turning up at the house unannounced and began taking items from the house (JO affidavit, 23 May 2019 [33]). He believed she took over running Hidden Lake and made staff changes without his approval (JO affidavit, 23 May 2019 [35]-[36]). He stated that he felt he was unable to resist her continued demands and orders as he was in a fragile emotional state (JO affidavit, dated 19 July 2019 [5]). 3. The plaintiff recalled that in June 2017, the defendant presented him with a list of items she wanted from the house. He stated he made notes on the list indicating items he was happy for her to take (JO affidavit, 23 May 2019 [37]). 4. The plaintiff recalled that the defendant, began speaking aggressively towards him and on one instance in November 2017 turned up with her partner Mr Lawrence unannounced (JO affidavit, 23 May 2019 [40]). Following this, he installed an electronic gate and security camera at the front of the property (JO affidavit, 23 May 2019 [43]). 5. With respect to Hurlingham Avenue, the plaintiff stated that he does not recall agreeing to transfer the property to the defendant, however acknowledged that he has now seen a letter agreeing to forgive the debt on the property, as well as a transfer in respect of that property (JO affidavit, 23 May 2019 [44]-[48]). 6. The plaintiff stated that he did not authorise the various cheques to be drawn from the A Casa Botanica Account. He further stated he was not aware that the defendant had become a signatory for the A Casa Botanica Account (JO affidavit, 23 May 2019 [58]). 7. During cross-examination, the plaintiff stated that he no longer regarded the defendant as part of his family (T25/32). 8. The plaintiff stated that the deceased was a strong personality (T30/48) however when she returned to Hidden Lake after surgery he observed no visible improvement (T31/31). He stated that she was slowly deteriorating (T32/41) but that she continued to eat at the dinner table until her death (T32/44). The plaintiff admitted that during the dealings with Mr Cummins, he never stated that the deceased was too ill to make a will (T33/16-45). 9. The plaintiff stated that on the whole there was a close and loving relationship between the defendant and the deceased (T34/44) although there were periods were they didn't speak (T34/28). 10. The plaintiff could not recall a meeting with Mr Cummins in April 2017 where he said that the defendant could have what was left in the A Casa Botanica Account (T40/33). 11. The plaintiff denied that Ms McKay was ever sacked from their employment (T41/2). Tanya Fudge 1. Tanya Fudge swore one affidavit in the proceedings. 2. Ms Fudge stated that she began working for the Olsen's as a bookkeeper in 2005 or 2006. She stated that, while the deceased was alive she was in charge of the finances (TF affidavit, 31 May 2019 [2]-[6]). 3. She stated that the deceased and the plaintiff's finances were organised into two main sections. First the art and JOPL, which was associated with the JOPL Bank Account and second the partnership Chapel House Farm, which was associated with the A Casa Botanica Account (TF affidavit, 31 May 2019 [13]-[18]). 4. Ms Fudge stated that when the deceased became ill in June 2016 she stopped giving her instructions, and from July 2016, the defendant took over the role the deceased had previously carried out in relation to the household's finances. She further stated that the defendant was in charge of the cheque book when the deceased was ill (TF affidavit, 31 May 2019 [25]-[30]). 5. She stated that during this time, the defendant began receiving cheques of $4000 on a monthly basis from the JOPL account. Ms Fudge stated that she mentioned this to the plaintiff who stated that he believed the withdrawal was there because the defendant was helping with the accounts now (TF affidavit, 31 May 2019 [32]). 6. She stated that the relationship between the plaintiff and the defendant deteriorated in early 2017. Around this time the cheque book from the A Casa Botanica Account disappeared, at this stage the account had approximately $140,000 in it. During this time, Ms Fudge stated she observed various withdrawals made from the account (TF affidavit, 31 May 2019 [39]-[40]). 7. Ms Fudge stated that in early 2017, she was corresponding with Mr Thakrar from Lowensteins with respect to the plaintiff and the deceased's assets and the defendant was copied into the emails. It was at this time, that Ms Fudge and Mr Thakrar discovered that the defendant had been gifted $2 million (TF affidavit, 31 May 2019 [41]-[48]). 8. In around May 2017, together with Sally Rankin, Ms Fudge discovered the existence of the A Casa Botanica Term Deposit, including the fact that the $2,173,328.67 had been withdrawn from that account on 11 October 2016 (TF [49]-[52]). 9. During cross-examination, Ms Fudge stated that around sometime from March to May 2017, the defendant was given the A Casa Botanica Account, she stated that the plaintiff said something to the effect of "I've just had enough. I've given her the chequebook. She can have whatever is in the account" (T73/40-48). 10. Ms Fudge stated that in about 2016 she had heard that the deceased and Ms McKay had had a falling out but she did not know the details of this (T75/39-42), she stated that Ms McKay no longer receives a wage from the plaintiff (T76/11). Tom Lowenstein 1. Tom Lowenstein swore one affidavit in the proceedings. 2. Mr Lowenstein stated that his firm, Lowensteins has been the plaintiff's accountant and tax agent since the late 1970s (TL affidavit, 12 June 2019 [4]). He stated that since 1989, he has provided accounting services to the plaintiff and the deceased together (TL affidavit, 12 June 2019 [6]). In 2001, he advised them in connection to the establishment of their business partnership (Chapel House Farm Partnership). He said words to the effect of (TL affidavit, 12 June 2019 [7]): John's income is increasing and I think that we should set up a management company or partnership and I think you should start operating in that way. I also think it would be good to absorb the costs of the farm and other business undertakings that the two of you would like to take. 1. Mr Lowenstein stated that from around the mid to late 1990s, he ceased having day to day involvement in the Olsen's financial affairs and rather took on more of a 'big picture' and consulting role (TL affidavit, 12 June 2019 [8]). 2. During cross examination, Mr Lowenstein explained that JOPL did not own any assets, it only owned the management rights for the administration of the company (T62/45). He confirmed that the deceased earned a management fee for her work for JOPL (T64/27). Peter Farley 1. Peter Farley swore one affidavit in the proceedings. 2. He stated that he first started working for the plaintiff and the deceased at Hidden Lake as a gardener in 2007 (PF affidavit, 30 May 2019 [1]). 3. He stated that when the defendant moved to Hidden Lake in 2016, she had hired extra gardeners to work at the property and further in early 2017 decreased his wages (PF affidavit, 30 May 2019 [7]-[10]). He stated that in early 2017 he observed the defendant yelling and arguing with the plaintiff. He further alleges that he believes the defendant took items from Hidden Lake without the plaintiff's permission (PF affidavit, 30 May 2019 [11]-[31]). 4. During cross-examination, Mr Farley stated he was insulted when the defendant cut his wages and employed different gardeners without speaking to him (T77/32-47). Nicole McKay 1. Nicole McKay swore one affidavit in the proceedings. 2. Ms McKay stated she has been a long-time friend of the deceased. She stated she was employed on a casual/part time basis to cook meals, shop or do basic jobs around Hidden Lake (NM affidavit, 22 July 2019 [2]-[3]). 3. Ms McKay stated that she was aware that the deceased and the defendant had had a difficult relationship over the years (NM affidavit, 22 July 2019 [4]). 4. She stated when the deceased became ill, she did not visit Hidden Lake, as the plaintiff informed her it would be too stressful and difficult (NM affidavit, 22 July 2019 [6]). 5. She stated that about 6 months after the deceased's death, she and the plaintiff grew closer, now they are more like companions (NM affidavit, 22 July 2019 [10]). 6. During cross examination, Ms McKay denied that she was asked to leave Hidden Lake by the deceased in December 2016 (T83/47), she denied that she had been flirting with the plaintiff (T84/27). She confirmed that she witnessed the deceased and the defendant argue over the years on several occasions (T88/5). Louise Olsen 1. Louise Olsen swore two affidavits in the proceedings. 2. Ms Olsen stated that she has a good relationship with the plaintiff; she would see him at least once a month. She stated that she did not visit Hidden Lake when the deceased was ill because her father had told her the deceased was not in a good mental state and found it hard to have people visiting (LO affidavit, 23 July 2019 [3]-[4]). 3. Ms Olsen stated that when she was visiting the plaintiff in November 2017, the defendant and Mr Lawrence visited Hidden Lake unannounced. She stated that they started a conversation about settling the deceased's estate (LO affidavit, 20 June 2019 [3]-[7]). 4. She stated that after they left, the plaintiff said words to the following effect (LO affidavit, 20 June 2019 [9]): I have had to put up with Karen turning up like that and making demands before. That was very upsetting. I'm so sorry that happened while you were here. 1. She stated she subsequently made a police report about the incident (LO affidavit, 20 June 2019 [11]). 2. During cross-examination, Ms Olsen stated that she never discussed with her father going separate ways from the defendant (T53/1). She stated that following the deceased's death, she was aware that her father had changed his will, but was not across the detail of its contents (T55/20-45). 3. Ms Olsen stated that her current relationship with the defendant is strained, but that she had reached out to the defendant many times over the previous years (T56/44-49). She denied that she has ever been estranged from the plaintiff (T57/41). Piyush Thakrar 1. Piyush Thakrar swore one affidavit in the proceedings. 2. He confirmed he is an accountant employed by Lowensteins, and had been working for the deceased and the plaintiff since approximately 2014 (PT affidavit, 26 June 2019 [1]-[4]). 3. Mr Thakrar stated that the deceased and the plaintiff operated as a partnership trading as Chapel House Farm Partnership as well as through JOPL (PT affidavit, 26 June 2019 [9]). 4. On 10 August 2016, Mr Thakrar attended a meeting at Hidden Lake to resolve how to proceed with JOPL given the deceased's illness. He stated the deceased attended the meeting via phone from hospital (PT affidavit, 26 June 2019 [13]-[14]). 5. Mr Thakrar stated that during early 2017 he made a number of inquiries to find out where the proceeds of sale for Alfreda Street had been deposited (PT affidavit, 26 June 2019 [19]-[26]).Based on investigations he stated that Alfreda Street was purchased with the proceeds of the sale of Owlswood, (PT affidavit [35]). When Alfreda Street was sold, the proceeds were deposited primarily into the A Casa Botanica Account (PT affidavit, 26 June 2019 [38]). Mr Thakrar then stated that these proceeds plus an additional amount of about $320,000 were transferred as part of a total transfer of $2 million to the A Casa Botanica Term Deposit (PT affidavit, 26 June 2019 [39]). 6. During cross examination, Mr Thakrar was asked about Alfreda Street, and why it was included on the partnership tax returns, but also listed on the deceased's individual tax returns. Mr Thakrar stated that the property was owned solely in the Deceased's name for "title purpose" (T108/36) and he declared the capital gain in her sole tax return (T108/47). He said it was then in 2015 partnership returns, not because he had made manual changes but because the "system picks it up" (T110/24). He seemed to suggest that it was in the deceased's own name for tax purposes but a partnership asset for account purposes (T111/40-49). Defendant's witnesses Karen Mentink 1. Karen Mentink swore two affidavits in the proceedings. 2. The defendant stated that she had been close with the plaintiff and the deceased and she and her family regularly visited them at their homes in the Southern Highlands (KM affidavit, 10 July 2019 [24]-[33]). She stated she had had a close, loving relationship with her mother (KM affidavit, 10 July 2019 [153]). She denied any assertion that they were estranged at any point (KM affidavit, 26 July 2019 [5]). 3. She stated when the deceased became sick in June 2016, she moved to Hidden Lake at the plaintiff's request. She stated she provided support and assistance to the plaintiff and cared for and supported her mother throughout her illness (KM affidavit, 10 July 2019 [48]). She stated that she visited the deceased twice daily when she was in hospital (KM affidavit, 10 July 2019 [49]). 4. The defendant stated that when the deceased returned to Hidden Lake in August 2016 she acted as her primary carer (KM affidavit, 10 July 2019 [52]-[54]). Another carer would attend for one hour daily, and she provided the rest of the care. She installed a baby monitor so that she could be notified if her mother needed anything during the night (KM affidavit, 10 July 2019 [55]). The defendant stated that she took her mother to all her medical appointments and liaised with her medical practitioners as required (KM affidavit, 10 July 2019 [56]). The defendant stated that she began helping the deceased running the household, including assisting with payment of household expenses. She stated that in about July 2016, she became a signatory to the A Casa Botanica Account as it had become difficult for the deceased to physically sign the cheques. The defendant stated that from about July 2016 she regularly met with the plaintiff to discuss the payment of the household expenses (KM affidavit, 10 July 2019 [174]). 5. The defendant stated that to her observation, the deceased's health improved after she returned to Hidden Lake. She stated by September 2016, the deceased was enjoying outings including a long weekend away (KM affidavit, 10 July 2019 [57]-[58]), however noted that the deceased did not enjoy having visitors during this time (KM affidavit, 10 July 2019 [60]). The defendant further stated that the deceased continued to manage the household during this time with her assistance (KM affidavit, 10 July 2019 [59]). 6. The defendant stated that when the deceased returned to Hidden Lake in August 2016, she was upset that the plaintiff paid her little attention and had developed a close relationship with Ms McKay (KM affidavit, 10 July 2019 [161]), who was openly flirtatious with the plaintiff (Km affidavit, 26 July 2019 [8]). The defendant stated that the deceased told Ms McKay to leave Hidden Lake in early December (Km affidavit, 26 July 2019 [7]-[8]) 7. She stated that the deceased was informed in early October 2016, that her condition was terminal, however appeared to continue to be interested in making improvements around Hidden Lake (KM affidavit, 10 July 2019 [61]-[62]). The defendant stated that her mother's condition rapidly deteriorated in November 2016 after she underwent radiotherapy (KM affidavit, 10 July 2019 [63]), however she was still interested in making other improvements to Hidden Lake (KM affidavit, 10 July 2019 [65]). She stated that it was only in November 2016 that the deceased was confined to a wheelchair (KM affidavit, 10 July 2019 [164]). 8. The defendant stated that following the deceased's death, the plaintiff asked her to stay at Hidden Lake to help him look after things (KM affidavit, 10 July 2019 [156]). 9. With regards to Hurlingham Avenue, the defendant stated that the deceased asked her to move there sometime around 2002 (KM affidavit, 10 July 2019 [72]-[77]). She stated that the deceased made various representations to her that she would receive the property, and in 2013 the deceased stated she wished to transfer the property to her (KM affidavit, 10 July 2019 [81]-[84]). She stated that in 2015, the deceased, the plaintiff and herself met with a solicitor to discuss the transfer of Hurlingham Avenue, the transfer ultimately took place in 2016 (KM affidavit, 10 July 2019 [86]-[100]). 10. With regards to the transfer of $2.2 million from the A Casa Botanica Term Deposit, the defendant stated that on or about 11 October 2016, the deceased asked to go the Commonwealth Bank in Bowral, she did not state the purpose of her visit (KM affidavit,10 July 2019 [101]). The defendant stated once they were in the branch, the deceased took a bank statement out of her bag and said words to the effect of "I want to transfer this to you" (KM affidavit, 10 July 2019 [102]). She stated she then walked a short distance to her accountant to inquire as to whether there were any tax implications for her or the deceased (KM affidavit, 10 July 2019 [104]). The defendant stated she was told by her accountant that if the money was her mother's, she was free to transfer it as she pleased (KM affidavit, 10 July 2019 [104]). The defendant and the deceased returned to the bank, where the $2.2 million was withdrawn and given to the defendant (KM affidavit,10 July 2019 [106]). 11. The defendant stated that initially the deceased wanted to give everything her mother had left her to the defendant in the will. After the gift of $2.2 million on 11 October, the deceased removed that gift in her will (KM affidavit, 10 July 2019 [108]-[110]). 12. The defendant stated that in about November 2016, the deceased said to her words to the following effect (KM affidavit, 10 July 2019 [113]): I have made John my executor. I'm not sure that he should be doing that by himself, I would like you to be an executor with John. Please contact David Cummins and tell him. 1. The defendant stated she then had the following conversation with Mr Cummins (KM affidavit, 10 July 2019 [114]): Karen: Mum wants to make changes to her will, she wants me as an executor with John. Mr Cummins: I will have to satisfy myself that your mother is of sound mind. I will come out to see her. 1. Mr Cummins visited Hidden Lake in early November 2016. The defendant stated that she recalled driving the deceased to Mr Cummins' office, the deceased stayed in the car where she signed her Codicil in the presence of two witnesses from the office (KM affidavit, 10 July 2019 [115]). 2. The defendant stated that the deceased told her, when she and the plaintiff died, there would be a four way split between herself, Ms Olsen, Mr Olsen and Jane Olsen's children Gus and Georgia. The deceased also told her she would get a property and the others would get paintings (KM affidavit, 10 July 2019 [122]). The defendant stated that in about May 2017, the plaintiff informed her that he was changing his will and would not leave her anything (KM affidavit, 10 July 2019 [124]-[125]). 3. The defendant stated that following the deceased's death and during the course of administration of her estate, there was uncertainty about whether the shares in listed companies were owned by the deceased or held within a trust which may have been established by the provisions of the deceased's mother's will. The defendant stated she was informed by Mr Cummins that her mother had held the share personally and therefore should be gifted to her under clause 3(a)(v) of the Will (KM affidavit, 10 July 2019 [134]). 4. The defendant stated that in November 2017, she and her partner Mr Lawrence attended Hidden Lake to invite the plaintiff to a family event. She stated she had always been welcome at the property and did not believe that she was being intrusive. She stated she was not being aggressive or threatening. She stated since the incident, she has respected the plaintiff's wishes and not returned to the property (KM affidavit, 10 July 2019 [182]-[185]). 5. The defendant stated that it was her belief that her mother used her A Casa Botanica Account as her personal account, for her personal expenses, income and expenses for her horse business, and expenses and for transactions for property she owned in her name solely. She stated she believed that the plaintiff used the JOPL Bank Account for his personal expenses and business relating to his art sales (KM affidavit, 10 July 2019 [190]). 6. The defendant stated that in April 2017, during a meeting with the plaintiff and Mr Cummins, they discussed the deceased's accounts, in particular the A Casa Botanica Account. The defendant stated they discussed the gifts the deceased had asked them to make to various friends. The defendant stated the plaintiff said to her; "Karen can have what is left in that account" (KM affidavit, 10 July 2019 [190]). The defendant later stated that when discussing particular gifts that the deceased had wished to make, she had the following conversation with the plaintiff (KM affidavit, 10 July 2019 [190]): Karen: I will draw the cheques on Mum's list from Mum's account John: You should also pay the legal fees out of the account and you can keep the balance of the account after the payments have been made. 1. The defendant stated that she confirmed this with Mr Cummins on 31 May 2017 (KM affidavit, 10 July 2019 [190]). 2. The defendant stated that she was not aware that there was a partnership between the plaintiff and the deceased (KM affidavit, 10 July 2019 [244]). 3. The defendant denied that she took anything from Hidden Lake without the plaintiff's permission (KM affidavit, 10 July 2019 [230]). 4. During cross examination the defendant made several pertinent comments. She confirmed that in preparing her affidavit she was careful to include all events she considered relevant to the case (T150/42-47). 5. The defendant stated that she, Ms Olsen and Mr Olsen had never lived together with the plaintiff and the deceased (T124/48) and they rarely associated together (T125/2), however disagreed that she had never had a close relationship with either of them (T129/35). She stated that it had never been discussed with her, the type of financial assistance given to Ms Olsen and Mr Olsen, however there was a discussion about giving her an amount of money and the others similar value in paintings (T128/36-49). The defendant stated that she believed the plaintiff may have assisted his son with a mortgage of the gallery in Paddington (T129/17-21). 6. The defendant confirmed that she had never been in full time employment (T125/31-48) but was part-time for a number of years (T138/36) and in receipt of Commonwealth benefits as a single mother (T138/41). She confirmed that she borrowed money from the plaintiff and the deceased (T135/15), and the plaintiff helped pay for her children's school fees (T133/4). The defendant strongly denied that she felt a sense of entitlement to be looked after by the deceased and the plaintiff after her divorce in 2004 (T143/10-14) and denied asking her mother to buy her an apartment in the Eastern suburbs of Sydney (T145/31). She did say that she had had discussions with her mother about buying an investment property in the Eastern suburbs (T146/10). 7. When asked about her mother and the plaintiff's relationship, the defendant stated that it had always appeared to be a close and loving relationship (T130/1) and that, within reason, the plaintiff was often inclined to grant the deceased her wishes (T130/38-41). 8. She stated that she first moved to Hidden Lake in June 2016 at the request of her mother to help care for the plaintiff and take care of Hidden Lake (T127/15). She stated that she only became a full time carer for her mother when she became 'increasingly unwell' (T126/41). She denied that she took over the administration of any financial matters necessary to the property (T131/50), rather she assisted her mother write the necessary cheques and invoices and gave them to Ms Fudge. Later she wrote the cheques herself (T132/10-21). She stated that from time to time she would pay for household expenses on her credit card and then be refunded by the plaintiff (T197/32-35). 9. The defendant confirmed that on 12 June, the deceased had presented at hospital in a state of confusion (T167/17) and "didn't know where she was or what was going on" (T167/33). The defendant confirmed that from about this time, she was the first point of communication in respect of her mother's care and treatment up until her death (T168/4). 10. The defendant stated that the deceased's health was not the same after 12 June 2016 (T161/31), however her health did improve somewhat after the surgery with Dr Teo (T161/43). She later said, some symptoms improved following surgery while others didn't, and the deceased's mood never got better (T172/34-44). She stated that her mother's health deteriorated again around the end of September 2016 (T162/4). The following exchange then occurred (T162/17-43): Q:… After 12 June 2016 you noticed that your mother was irritable didn't you? A: On occasion she was irritable Q: That she was irritable in circumstances where prior to 12 June 2016 she tended not to be irritable? A: Yes Q: So this was a marked change in her personality as far as you could see, wasn't it? A: I think her behaviour changed after that date in June 2016 yes. Q: Yes and it would be fair to describe her appearance to you as showing changes in her behaviour and personality? A: It would be fair to say there was a change in the way that she behaved, yes. Q: It would be fair to have described those changes as erratic? A: No, I would not describe- are you saying her behaviour was erratic or the changes were erratic? Q: Would it be fair to describe your mother's behaviour and personality as becoming erratic in the period after 12 June 2016? A: I don't – I can't really think of what erratic behaviour would look like. Q: Your mother- A: inconsistent behaviour maybe yes. 1. The defendant went on to comment that following 12 June, the deceased "just said what she thought" (T163/12) and "made comments that she previously would not have made (T163/16), although she could not recall any incidence of her mother being confused (T163/34). 2. The defendant confirmed that she visited her mother most days in hospital (T164/9) and attended practically every medical appointment with her (T164/47) as the deceased was unable to drive (T165/8). The defendant stated that she believed she was practically the only person to assist with the care of her mother, and that the plaintiff was not capable of providing the necessary care (T166/39-46), she confirmed she became her mother's primary carer (T180/50). 3. When asked about the deceased's behaviour in hospital up until discharge on 15 August, the defendant confirmed that her mother had been distressed, uncooperative and at times confused (T171/9-31). 4. The defendant was asked about a particular incident in hospital, where nurse's notes recorded the defendant insisting she be the point of first contact, not the plaintiff. The defendant at first denied any memory of the event although later admitted some vague recollection (T175/38-176/39). 5. The defendant denied that from 12 June onwards, her mother was in a vulnerable state (T168/28). She denied that her mother was confused during the relevant period of October (T169/29), and asserted "certainly by the time she came home at the end of August she knew what was going on" (T170/30). The defendant was asked about caring for her mother (T168/43-169/7): Q: Correct, and your mother was so confused and demanding that that was a source of distress for you, wasn't it? A: I, I was very distressed, yes. Q: That distress did not reduce at any time, did it, until her death? A: What can I say? This is the only time I've ever looked after a seriously ill person, and she happened to be my mother. Every day it was a case of shifting sands and dealing with some new emergence, initially after she had the operation, when she was improving, and then discovering at the beginning of October that the tumours had re-emerged and that she was going to die. It was the most distressing period of my life. Q: Your mother's condition remained one where she was confused until the time of her death, didn't it? A: No, I disagree. 1. The defendant insisted that her mother was a very independent woman, who wanted to do things her own way and remained this way upon her return from hospital (T180/33-38). The defendant stated that (T180/40-43): …the things I did were things that basically she wanted to do. If she wanted to get a manicure I took her to the manicurist. If she wanted her hair done I took her to the hairdresser. If she wanted to go to the doctor then I took her there. She was instructing me. 1. The defendant stated that her mother gave certain directions about the staff and she then conveyed those directions to those staff (T205/10), the defendant denied dismissing any staff (T205/47). The following discussion then occurred (T207/35-49): Q: I want to suggest to you that what you did over time was to put yourself in a position where you were able to influence your mother in deciding what she would do in terms, in particular, of gifting you, as you say, the $2.2 million. A: I disagree. Q: Will you agree, though, that what you did was to take on increasing tasks in relation to the household business? For example, by getting yourself involved in the conveyancing matters which your mother was involved in? A: Well, I would much rather not have been involving, specifically in those conveyancing matters, because they were a nightmare, but there was nobody else to do that specific duty. Q: But you relished the opportunity to do this, didn't you? Because it gave you a purpose, will you agree with that? A: No. 1. The defendant confirmed that her mother became exhausted (T189/16) anxious (T184/18) and recalled a time in late September where they travelled to the Sydney Opera House and the deceased had become very anxious (T184/23-34). The defendant said, "this was the first sign that she was no longer improving and something was going on" (T184/35). 2. The defendant stated that her mother told her sometime in late 2015 that she had inherited from her mother's will (T159/24). However the defendant stated her mother did not tell her she had inherited a significant amount of money (T159/26), nor did she know the total of her grandmother's estate until November 2016 (T257/18). The defendant stated that the first time she recalled being told by the deceased that she wanted her to inherit everything that she had received from her mother was sometime around September or October 2016 (T160/3). The defendant stated that her mother had not told her that she had purchased Werrington Street with these inherited funds (T160/17). 3. The defendant was asked in detail about the September 2016 letter to Ms Summerville, the defendant stated she could not recall providing a covering letter and enclosing a letter of her mother, and sending the documents to Ms Summerville (T151/28-30). The defendant denied that she was present when her mother wrote the letter and denied that she had seen it before it was sent (T152/8-12), the following exchange then occurred (T152/20-40): Q: Do you deny that it was you who sent that letter of instructions of 8 September to Colin Biggers & Paisley? A: No I sent it. Q: Well, if you sent it- A: I didn't read it. Q: I didn't ask you. I asked whether you had seen it, that is – A: Well, that suggests that I would read it. Q: All right. You- A: Is that not what you meant? Q: You wish to say, do you, that you did not read that letter before you sent it? A: Correct. Q: You weren't even curious about what the contents were? A: I may have been curious, but I respected my mother's privacy. Q: Have you always respected your mother's privacy in that regard? A: Regarding what she wanted to do with her money or her estate, yes. 1. And later (T154/1-13): Q: So are you saying in light of that, you didn't even glance at what your mother had said in the letter of 8 September? A: I may have glanced at it. Q: You knew very well, didn't you, up until this point- that is 9 September- that your mother had left, under her then current will, some things to you which were in the nature of personal property, things like paintings and matters of that sort? That's all she had left you. You knew that, didn't you? A: Actually, I didn't Q: That was not something you'd ever discussed with your mother? A: I had one discussion with my mother regarding what would happen when she died, in about 2012, and that was about the last discussion we had. 1. When asked again (T250/25-34): Q: You did that because your mother was unable to do it, correct? A: I did that because my mother asked me to do it. Q: Well, you did it, I suggest, because your mother was not able to do it herself? A: I disagree. Q: And what you did was to assume the role of acting on her behalf in respect of her affairs, that's correct, isn't ? A: I did what my mother asked me to do. 1. The defendant could not recall having a number of communications with Ms Summerville about the purchase of Pinaroo (T249/38). She stated "I wanted to be focusing upon my mother's illness and everything I could do to save her life" (T249/48). 2. The defendant stated that after being told she was terminal, the deceased became "very task orientated" and went about putting her affairs in order (T296/10-18). 3. The defendant was asked about the 10 October phone call to Ms Summerville, and responded (T250/40-T254/2): A: I have no recollection of that event. If my mother wanted to speak to Ms Summerville, as we've discussed, she had a tremor in her hand, I probably would have dialled the number for her, if the event happened, and Ms Summerville has indicated that it did happen, if mum wanted to discuss her affairs with, with Ms Summerville, I would have got out of the car. Q: But you acknowledge, don't you, that this occasion that I am not referring to, when you telephoned Ms Summerville, was an event of great significance so far as your mother's testamentary affairs are concerned, don't you? A: I don't know what she discussed with Ms Summerville and I have no recollection of phoning Ms Summerville and handing – and what is it that you say? I retract that. I have no recollection of phoning Ms Summerville in the car with mum. Q: Do you agree that it was most unusual for you to be present in the car, having dialled a firm of solicitors, to pass the phone to your mother and to remain with your mother in the car whilst your mother gave instructions concerning her will, which included gifts to you? A: I don't believe I was in the car. Q: Do you wish to deny that on 10 October you telephoned Ms Summerville and put your mother onto the phone? A: I believe that I did that. Q: Well what enables you to have that belief? A: Because I've seen correspondence from Ms Summerville regarding that phone conversation. … His Honour: Now, is your recollection that there was some discussion and, as a result of which, your mother said, "Would you please get the solicitor on the phone?" Or is your recollection more to the point that, out of the blue, your mother says to you, "Would you please get that solicitor on the phone?" What do you think happened? What do you recall happening, rather? A: I don't recall that event. Q: So it's now a total block in your memory? You have no recollection of (a) the phone call (b) any conversation which took place before or indeed even after the phone call, is that fair? A: That's correct. 1. The defendant could not recall whether she had heard reference to the shares during this phone call (T258/24). The defendant later asserted "that's why I know I wasn't in the car when Mum was speaking to Michelle Summerville, because I have a clear recollection of what happened between those two days" (T261/42), and that she knew for certain that she was not in the car (T261/50). 2. The defendant was later asked about the letter from Ms Summerville on 10 October, she stated she didn't believe she saw the letter nor read her mother's will as attached (T255/14-25), however stated that in all probability she would have been the one who collected the mail from the post office (T255/30-34). The defendant stated she only read the deceased's will after she died (T255/42), however admitted she knew she was a beneficiary before she read it (T257/1). 3. When asked why she did not include these details about communications with Ms Summerville in her affidavit, the defendant denied that she wished to deliberately conceal evidence in these proceedings (T255/49) 4. The defendant was asked about the 11 October transfer from the term deposit. She stated (T263/9-266/11): A: On Tuesday 11 October my mother asked me to drive her to the Commonwealth Bank in Bowral. His Honour: So out of the blue she asked you to drive, no conversation takes place before that? Where was she when she asked you to do that? A: At home at Hidden Lake. … His Honour: Effectively out of the blue because you weren't talking about her will, I take it, you weren't talking about the withdrawal of money, so out of the blue she says, "Can you please take me to the bank?" A: Yes His Honour: What happens next? A: I drive her to the bank. We may have been doing some other chores in town…We went into the Commonwealth Bank. When we were seated waiting to see the teller or attendant, she said, "I would like to give this, this to you" and she… handed me a document…It was a term deposit in her name. The term deposit was termed, "Katharine Howard-Olsen trading as A Casa Botanica." I looked at the term deposit which was due to expire on or about that date, so obviously something needed to be done with the money. I looked at the amount which was $2.2 million. That is a lot of money, I think you will agree, in anybody's, anybody's opinion… I said to Mum, I said "Mum, I don't know if you can, I don't know if you can give this to me." I said, "I'm not sure," and I was thinking, well, I don't know if people can gift people that amount of money. There might be tax implications, there might be other legal implications. So I suggested to her maybe it would be a good idea if I check with my accountant who was just around the corner before we proceeded with this gift. So I took my mum back to the car and put her in the car. … A: So then I walked up the street to Springett's Arcade where my accountant Debra Blacker of Oxley Partners is, and I went into her office and asked if she was in. She was, and I asked her, I showed her the document, and I said, "Can my mother give this to me?" That's the précis of the conversation, and she says, ""Is it her money to give?" and I said, "Yes, I believe so." And she said, "Yes, she can." And I said, "Are there", you know "Are there tax implications for Mum or for me?" and she said, "No"…We then went back into the Commonwealth Bank. We were attended to by an employee of the Commonwealth Bank and mum said, "I would like to give this to my daughter, Karen." So it wasn't a transaction over the account- over the counter, they took us to a desk and seated us there and the bank employee filled out the slip which mum signed and I set up a term deposit and asked for the proceeds of mum's term deposit to be placed in a term deposit at the Commonwealth Bank and for $30,000 to be transferred to my ANZ account…because I had some credit card debts and expenses I would like to pay.. 1. The defendant confirmed she did not refuse her mother's offer of a gift of $2.2 million (T267/46), she confirmed she didn't ask her mother if she had discussed the gift with the plaintiff (T268/10). The defendant stated that at this point she did not know what was in her mother's will, did not know who were the intended beneficiaries, and had not discussed the matter with her mother (T270/25). The defendant stated it did not occur to her that the person who might have required legal advice was her mother (T273/48). 2. The defendant was asked about the email from Ms Summerville on 12 October, she denied having read the will attached to the email (T261/2) stating "I would say I opened the attachment, printed it off, and gave it to Mum" (T261/7). 3. The defendant admitted that at no stage in 2016 did she tell the plaintiff about the gift (T277/45). 4. The defendant confirmed that she had arranged the meeting on 12 October with Mr Cummins (T279/46) in order to discuss the deceased's will, she told Mr Cummins that the deceased was at home unwell and "possibly dying" (T280/16). She stated she arranged the meeting because the deceased was not well enough to travel to Sydney to meet with lawyers from Colin Biggers & Paisley (T280/39-42). It was put the defendant that she engaged Mr Cummins so as to keep Colin Biggers & Paisley at arm's length because they knew about the $2.2 million, the defendant denied this (T298/39-42). The defendant confirmed that she did not tell Mr Cummins about the gift (T285/4), but denied she wanted to keep it a secret (T285/42). When asked why, the defendant stated "I regarded it as a transaction between my mother, who was dying, and myself, her only daughter"(T285/12). 5. The defendant denied that she had received the money unfairly (T298/18), and denied that her mother was in a vulnerable condition during this time (T305/32). 6. The defendant did not recall seeing Mr Cummins on 26 October with regards to being made a co-executor of her mother's will (T289/26), but said that her mother told her she wanted her to be a co-executor (T290/1). She denied that she sought to become an executor to make sure she had control over her mother's affairs when she passed (T29/34). The defendant could not recall any discussion with Mr Cummins about her mother's testamentary intentions (T292/35), nor could she recall her mother saying she "wants John to inherit the cash" (T292/46). She stated she chose not to bring up the $2.2 million and stated she had never discussed the transaction with her mother since the day at the bank (T293/35-41). 7. The defendant stated that she in fact voluntarily left Hidden Lake sometime in April 2017 (T128/7). 8. The defendant frequently stated that she knew nothing about the partnership (T131/7; T131/44; T194/11), on the couple's finances, the defendant said (T194/25-31): Mum had an account called A Casa Botanica which she puts her personal and her horse related expenses through and some of the property transactions through. John-she was the sole signatory on that account. She added me as a signatory. John had an account called John Olsen Pty Ltd, that was the account he used for his business dealings with his art, and for his personal account mum was a signatory on that account as well as John. That was the extent of my knowledge. 1. The defendant denied that she had ever agreed to transfer the shares in JOPL to the plaintiff (T300/2). George Lawrence 1. George Lawrence swore one affidavit in the proceedings. He confirmed that he has been in a relationship with the defendant since 2012 (GL affidavit, 8 July 2019, [3]). 2. He stated that he and the defendant regularly spent time with the plaintiff and the deceased over the years at Hidden Lake (GL affidavit, 8 July 2019 [6]-[10]). He stated while the deceased was ill in hospital, he would visit her frequently, often taking the plaintiff with him (GL affidavit, 8 July 2019 [12]-[15]). He stated that after the deceased returned to Hidden Lake in August 2016, they would all share meals together, sometimes the deceased would become agitated or unsettled and go to bed (GL affidavit, 8 July 2019 [21]). 3. Mr Lawrence recalled visiting Hidden Lake in November 2017 with the defendant in order to speak to the plaintiff about finalising the deceased's estate. He stated that he did not believe that he was being intimidating and believed his conduct was reasonable. He stated he has since respected the plaintiff's wishes and not returned to Hidden Lake (GL affidavit, 8 July 2019 [38]). 4. Mr Lawrence was not required for cross-examination. Prudence Colette Kempson 1. Ms Kempson swore one affidavit in the proceedings. She confirms that she is the defendant's maternal aunt (PK affidavit, 9 July 2019 [5]). 2. Ms Kempson stated that she enjoyed a close relationship with her sister (PK affidavit, [6]). She stated that the deceased spoke fondly of the defendant and they appeared to have a close and loving relationship (PK affidavit, 9 July 2019 [12]-[14]). 3. Ms Kempson stated that the deceased indicated that the defendant would receive Hurlingham Avenue as well as be financially provided for in her will (PK affidavit, 9 July 2019 [20]-24]). 4. She stated that she visited Hidden Lake in about September 2016, at this time she stated, that physically the deceased found things difficult but managed with the defendant's help. She stated that the deceased became quite upset and testy from time to time by her physical limitations and that the defendant was a patient, caring and loving daughter (PK affidavit, 9 July 2019 [31]). 5. Ms Kempson later visited Hidden Lake in late October 2016 she stated that during this time she spoke with the deceased about the Moore Pottery and issues with the plaintiff's children as well as the ongoing administration of their mother's estate (PK affidavit, 9 July 2019 [36]-[37]). 6. Ms Kempson was not required for cross-examination. Michelle Summerville 1. Ms Summerville was subpoenaed to give evidence and was examined on 29 August 2019. 2. Ms Summerville confirmed she had been a senior associate at Colin Biggers & Paisley and had acted for the deceased and the plaintiff around 2015 and 2016 (T323/30). Ms Summerville stated that she did not remember receiving the letter from the defendant on 9 September which enclosed the letter from the deceased (T324/38). She further had no independent recollection about the file note from 10 October 2016, where the deceased had called her from the car (T325/2). She further had little recollection about making the changes to the will or receiving or sending correspondence to the defendant and the deceased (T326/3-34), however did identify her handwriting on the Colin Biggers & Paisley file notes. Ms Summerville stated that she had no idea that during 2016, the deceased was seriously ill (T332/22-45), nor did she know that other estate solicitors had been engaged in Bowral (T332/49). 3. Ms Summerville was asked about the shares left to the defendant. She confirmed that she had understood that the changes to the deceased's will were so that the defendant would receive everything from the deceased's mother's estate (T329/29). She confirmed that she was, at the time, not aware of JOPL (T330/29) and later (T330/41-44): Q: Are you able to say whether that change was made by you to reflect your understanding of what was being passed on the Katharine's daughter, Karen, was the shares which Katharine had received from her mother? A: That's probably correct. Simon Fraser 1. Mr Fraser was subpoenaed to give evidence and was examined on 30 August 2019. 2. Mr Fraser, stated that he was a partner at Colin Biggers & Paisley and that he acted for the deceased and the plaintiff for many years, although as partner often delegated much of the work to other lawyers in the firm (T389/45-390/31). He could not recall specifically preparing or reviewing wills for the deceased (T392/43), nor could he recall knowing the specific assets of the deceased (T393/7). Mr Fraser had some recollection of speaking to the plaintiff and the deceased about transferring Hurlingham Avenue (T393/31-50) 3. He stated that he was unaware that the deceased had been ill at any point (T392/20-27). David Cummins 1. Mr Cummins was subpoenaed to give evidence and was examined on 1 August 2019. 2. Mr Cummins stated that he is a practising lawyer in the Moss Vale area (T218/19-40). He recalled that he first met the deceased at her home on 17 October 2016 (T219/35-43) but had a meeting with both the plaintiff and the defendant on 12 October (T220/47). 3. Mr Cummins stated that prior to the 17 October meeting, he was unaware that the deceased had already executed a will (T222/39), he stated on that day the deceased confirmed that the 15 October will reflected her current testamentary intentions and no changes were required (T222/47). He stated that he observed that the deceased didn't appear to be very well (T223/29), and later (T223/49-224/1): Q: …Did you form any opinion, one way or the other, as to her capacity to make that will? A: I hadn't been there at the time that she gave instructions and I didn't. 1. Mr Cummins was further asked about the defendant calling him with inquiries about the deceased's executors and power of attorneys but had no particular recollection of the event (T225/33-226/44). He was asked about the 28 October phone call from the deceased where she stated "I'm not sure what I want to do", but he had no particular recollection about the event (T227/26). 2. Mr Cummins was then asked about the 31 October meeting with the deceased (T231/7-9): Q: Did you perceive any trouble on Mrs Olsen's part in giving you instructions? A: No. Q: Did you have any trouble in understanding what she was saying? A: No 1. Mr Cummins later said; "I had the sense that apart from the, the need to include as one of the gifts to Karen, the Moore Pottery collection, the, Mrs Olsen thought that the will adequately dealt with those assets which she wanted Karen to have". He was asked about the note "Katharine wants John to inherit the cash she got from her mother" but had no independent recollection of the event (T231/36). 2. Mr Cummins recalled that on 31 October the defendant and the deceased were in the car in the driveway of his law practice. He delivered documents for the deceased to take away and read because, as he recalled, "she was tried following the treatment and I didn't consider it appropriate to proceed further at that time" (T232/25-40). Mr Cummins stated that on 2 November, the deceased and defendant were in the driveway again, when he collected the executed codicil and executed the power of attorney. He formed the view that the deceased had capacity to execute the codicil (T234/12). 3. During cross-examination, Mr Cummins confirmed that on 26 October he deliberately spoke to the deceased alone, and that he was not prepared to accept particular instructions from the defendant (T241/34). Medical evidence Dr Michael Donnellan 1. Dr Michael Donnellan swore one affidavit in the proceedings. 2. Mr Donnellan first met with the deceased on 15 June 2016 at Liverpool Hospital. He stated that she had presented at Bowral Hospital with confusion, which was a direct result of the brain lesions. He stated during his clinical examination, the deceased made significant mistakes when answering questions, confirming that she was confused (MD affidavit, 27 May 2019 [12]). 3. Mr Donnellan stated that the deceased was prescribed Dexamethasone to relieve her confusion and that relatively soon after she started taking the mediation her confusion resolved and she became better oriented (MD affidavit, 27 May 2019 [15]). He noted that Dexamethasone can make a person psychotic, manic or dysphoric and can effect a person's ability to make rational decisions (MD affidavit, 27 May 2019 [16]-[18] 4. Mr Donnellan stated that upon review of the deceased's brain scans and due to the existence of the right thalamic lesion, it was his opinion that the deceased would have been unfit to drive a car and that her ability to make decisions was significantly compromised (MD affidavit, 27 May 2019 [21]). He stated that the deceased also presented with a left temporal lobe lesion which can make someone potentially more emotional and vulnerable to manipulation (MD affidavit, 27 May 2019 [22]). 5. He concluded that as a result of the review of the deceased's medical records and his subsequent examination, he was of the opinion that the deceased was incapable of making decisions of any significance from 12 June 2016 until her death (MD affidavit, 27 May 2019 [23]). He stated he was of the opinion she was emotionally vulnerable and susceptible to making people around her happy, and that any significant decision should have been the subject of a detailed neuropsychological assessment (MD affidavit, 27 May 2019 [24]-[25]). 6. During cross-examination, Dr Donnellan stated that the deceased displayed no confusion when he saw her on 15 June 2016 (T409/5). He noted that there appears to be an inconsistency in his affidavit, re the deceased's state when he saw her, he concluded that she initially presented with confusion in Bowral Hospital but by the time he examined her on 15 June, the confusion had resolve (T409/36-40). 7. Dr Donnellan confirmed that he did not examine the deceased after her surgery with Dr Teo (T411/10) nor did he speak with the deceased's general practitioners when preparing his report (T411/37). He stated that his expert opinion was based primarily on the MRI scan and the deceased's initial presentation at Bowral Hospital, and stated that a full neuropsychological assessment would be needed before the deceased could be considered intact again (T413/6-10). 8. When asked whether he was of the opinion that the deceased had 'capacity' from 12 June 2016 one, Dr Donnellan responded (T413/37-41): Not unless she had an assessment from a new psychologist to say that- I couldn't clear her from what I had seen in terms of her- the records of her presentation, a cursory examination that I can do, and looking at her MRI, I was not in a position to clear her to make a decision unless she had that type of assessment… 1. It should be noted, Dr Donnellan saw the deceased only once and his views are based only on this visit as well the hospital notes prior to the neurosurgery and a CT scan. He made general comments as to the type of illness the deceased had and therefore his views have limited relevance. Dr Nathan Cooney 1. Dr Nathan Michael Cooney swore one affidavit during proceedings. 2. Dr Cooney stated that he first met the deceased in October 2012, when she was his patient at Bowral Street Medical Practice. It was during this time that the deceased was first diagnosed with an amelanocytic melanoma with a Clarke IV rating (NC affidavit, 29 May 2019 [4]-[5]). 3. He stated he later met the deceased again in mid-November 2016, it was his understanding at this time that the deceased and the plaintiff were looking for a doctor with the capacity to palliative care and home visits (NC affidavit, 29 May 2019 [9]). He stated he made his first home visit to Hidden Lake on or around 17 November 2016. At this time the deceased was wheelchair-bound and had an extremely swollen leg due to likely blood clot. He recalled that during this visit the deceased was very confused (NC affidavit, 29 May 2019 [11]-[12]). His records for that day include the following: Pt confused and stating that someone had put her in the position way down the bed sitting upright in bed 1. He stated, this reflected the fact that the deceased was spatially disorientated, she appeared to feel that she way down at the bottom of the bed when actually she was right up the top of the bed. Further she appeared obviously agitated and very unsure about what was happening to her (NC affidavit, 29 May 2019 [12]). 2. Dr Cooney recalled that the plaintiff and the defendant were always present during his visits at Hidden Lake (NC affidavit, 29 May 2019 [13]). 3. Dr Cooney stated he visited Hidden Lake on 22 November 2016 for the second home visit. He stated that in addition to her previous symptoms, the deceased had begun to suffer from pneumonia-like symptoms (NC affidavit, 29 May 2019 [16]). 4. He stated that from his first visit in November, he observed that the deceased had experienced a radical personality change. He stated that prior to her operation, he had observed the deceased to be 'a delightful, pleasant, very polite lady.' When he visited Hidden Lake, he recalled she was verbally abusive to almost everyone in her presence. He stated that the personality change was likely related to the presence of brain metastases and her brain surgery performed in July 2016, as well as the new metastasis that had arisen in her right frontal lobe after surgery in July 2016 (NC affidavit, 29 May 2019 [17]). 5. Dr Cooney stated that during the November home visits, the deceased may have had trouble following the logic in conversations, at times she was unable to comprehend simply statements he would say to her during examination (NC affidavit, 29 May 2019 [20]). 6. He further stated that (NC affidavit [21]): The symptoms of confusion, agitation, aggression and personality change experienced by Katharine were so severe that they would have been evident to each member of Katharine's family, as well as any member of the household or visitor who came to the house during this period. Her presentation was far from normal human behaviour. It is my view that Katharine was emotionally labile during my treatment of her. 1. He stated that he made a third visit on 22 December 2016. He was informed that the deceased had experienced two seizure-like events. On 23 December, after discussions with the deceased's palliative nurse, he prescribed a variety of 'end of life' medications to further assist her with the extreme pain and anxiety she was experiencing. The deceased died later that day (NC affidavit, 29 May 2019 [23]-[25]). 2. Mr Cooney was not required for cross-examination. General impression of the witnesses 1. In general I accept much of the evidence of the plaintiff's witnesses; in particular I accept the evidence of the plaintiff particularly that which describes the deceased's condition and changes therein. I have reservations about some of the accounting evidence which I will come to later. On the whole, I found the defendant a most unsatisfactory witness. Again I will deal with this in detail later. Legal principles Unconscionable conduct 1. The law on unconscionable conduct in Australia, is now reasonably well settled, there are some matters which are not controversial. First, consideration of any so called unconscionable conduct requires a careful consideration of the facts. In Heydon on Contract, the author notes (quoting National Westminster Bank plc v Morgan [1985] AC 686 at 709) that to determine whether a transaction is or is not unconscionable, is a question which depends upon the particular facts of the case. The author goes on to note, relevantly for this case; "most of the relevant principles concerning unconscientious conduct as a factor vitiating the validity of contracts apply to gifts" (at [18.70]). 2. Kitto J in Blomley v Ryan (1956) 99 CLR 362 (at 428-429), stated, albeit in the context of a contract (citations omitted): The essence of the ground we have to consider is unconscientiousness on the part of the party seeking to enforce the contract; and unconscientiousness is not made out in this case unless it appears, first, that at the time of entering into the contract the defendant was in such a debilitated condition that there was not what Sir John Stuart called "… a reasonable degree of equality between the contracting parties"; Longmate v Ledger, and secondly, that the defendant's condition was sufficiently evident to those who were acting for the plaintiff at the time to make it prima facie unfair for them to take his assent to the sale. If these two propositions of fact were established the burden of proving that the transaction was nevertheless fair would lie upon the plaintiff … 1. At 429, His Honour also said (citations omitted): If the burden were not discharged the defendant would be entitled to hold the judgment appealed from, since in that event it would be right to draw the conclusion that, as was said in Evans v Llewellin, "… though there was no actual fraud, it is something like fraud, for an undue advantage was taken of his situation". The fact that the defendant's condition was the result of his own self-indulgence could make no difference, for, as is shown by Cooke v Clayworth, the principle applied is not one which extends sympathetic benevolence to a victim of undeserved misfortune; it is one which denies to those who act unconscientiously the fruits of their wrongdoing. 1. The High Court in The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447, considered that the following must be established to show a transaction as unconscientious (Deane J with Wilson J agreeing at 474) (citations omitted): The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs had dealt with their expectations without being adequately protected against the pressure put upon them by their poverty (see O'Rorke v Bolingbroke). The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or "unconscientious" that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: "the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain the benefit of the contract" (see per Lord Hatherley, O'Rorke v Bolingbroke; Fry v Lane; Blomley v Ryan). 1. Deane J, further commented on the distinction between unconscionable conduct and undue influence (at 474-475) (citations omitted): The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd v Whitelaw; Watkins v Combes; Morrison v Coast Finance Ltd). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued. In Blomley v Ryan, Fullagar J listed some examples of such disability: "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". As Fullagar J remarked, the common characteristic of such adverse circumstances "seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other". 1. In Louth v Diprose (1992) 175 CLR 621, Brennan J further commented on the distinction between unconscionable conduct and undue influence (at 626-627) (citations omitted): The jurisdiction of equity to set aside gifts procured by unconscionable conduct ordinarily arises from the concatenation of three factors: a relationship between the parties which, to the knowledge of the donee, places the donor at a special disadvantage vis-à-vis the donee; the donee's unconscientious exploitation of the donor's disadvantage; and the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgment as to what is in his or her best interest. A similar jurisdiction exists to set aside gifts procured by undue influence. In Commercial Bank of Australia Ltd v Amadio, Mason J distinguished unconscionable conduct from undue influence in these terms: "In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position." Deane J identified the difference in the nature of the two jurisdictions: "Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party … Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so." Although the two jurisdictions are distinct, they both depend upon the effect of influence (presumed or actual) improperly brought to bear by one party to a relationship on the mind of the other whereby the other disposes of his property. 1. Later at 630-631, Brennan J considered unconscionable conduct in the context of a gift (citations omitted) Equity intervenes "whenever one party to a transaction is at a special disadvantage in dealing with the other party ... and the other party unconscientiously takes advantage of the opportunity thus placed in his hands". Citing this passage in Amadio, Dawson J said: "What is necessary for the application of the principle is exploitation by one party of another's position of disadvantage in such a manner that the former could not in good conscience retain the benefit of the bargain." What his Honour said of a bargain can be said equally of a gift. … When a donor who stands in a relationship of special disadvantage vis-à-vis a donee makes a substantial gift to the donee, slight evidence may be sufficient to show that the gift has been procured by unconscionable conduct. Whether that finding should be made depends on the circumstances. In Watkins v Combes, Isaacs J said: "It is not the law, as I understand it, that the mere fact that one party to a transaction who is of full age and apparent competency reposed confidence in, or was subject to the influence of, the other party is sufficient to cast upon the latter the onus of demonstrating the validity of the transaction. Observations which go to that extent are too broad." But where it is proved that a donor stood in a specially disadvantageous relationship with a donee, that the donee exploited the disadvantage and that the donor thereafter made a substantial gift to the donee, an inference may, and often should, be drawn that the exploitation was the effective cause of the gift. The drawing of that inference, however, depends on the whole of the circumstances. 1. Again in Heydon on Contract, on the third and fourth Amadio criteria, the author notes (at [18.310], citations omitted): The plaintiff must establish that the defendant took advantage of the opportunity presented by the plaintiff's condition of special disadvantage. The doctrine extends beyond instances where the stronger party takes the initiative. It can be unconscientious to "procure, or accept, the weaker party's assent to the impugned transaction". The prohibited conduct has been described as "victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. 1. The High Court considered such 'passive acceptance', in Bridgewater v Leahy (1998) 194 CLR 457 (at 479) (citations omitted): In Commercial Bank of Australia Ltd v Amadio, Deane J spoke of unconscionable conduct as occurring where, in the circumstances, it is unconscientious to "procure, or accept, the weaker party's assent to the impugned transaction". It also should be noted that in Hart v O'Connor, an appeal from New Zealand, the Privy Council described unconscionable conduct which provided a basis for equitable relief as "victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances" . In so giving the judgment of the Privy Council, Lord Brightman was reflecting a general proposition put by James LJ in Torrance v Bolton. This was that it was the "ordinary jurisdiction" of the Court of Chancery to deal with instruments and transactions "in which the Court is of opinion that it is unconscientious for a person to avail himself of the legal advantage which he has obtained". 1. In Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25, French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ said at [122] (citations omitted): In Jenyns v Public Curator (Qld) Dixon CJ, McTiernan and Kitto JJ explained that the invocation of equitable doctrines, such as those concerned with the conscience of a party to a transaction, in order to impugn that transaction: calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case': The Juliana. 1. And later at [144] (citations omitted): It is pertinent to note here the observations by Dawson, Gaudron and McHugh JJ in Louth v Diprose that proof of the interplay of a dominant and subordinate position in a personal relationship depends, "in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties". Their Honours observed that findings by a trial judge, "which were substantially dependent on the trial judge's assessment of character and credit and which were reached having regard to the demeanour of the parties in the witness box … are findings which, unless some error is to be discerned, an appeal court must respect." 1. Most recently, the High Court considered such unconscionable conduct in Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49. In particular the Court considered the distinction between unconscionability and undue influence (at [37]-[40])(citations omitted): There was no controversy on this appeal concerning the principles of unconscionable conduct in equity. Those principles were recently restated by this Court in Kakavas v Crown Melbourne Ltd. A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests". The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring "victimisation", "unconscientious conduct", or "exploitation". Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage. In Commercial Bank of Australia Ltd v Amadio, Deane J said that the equitable principles concerning relief against unconscionable conduct are closely related to those concerned with undue influence. The same circumstances can result in the conclusion that the person seeking relief (i) has been subject to undue influence, and (ii) is in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. For instance, in Diprose v Louth (No 1), the trial judge, King CJ, observed that both doctrines were satisfied where the defendant "was in a position of emotional dominance which gave her an influence over the [plaintiff] which she exercised unconscientiously to procure the gift of the house". Before the High Court in that case, Mr Diprose relied only upon the ground of unconscionable conduct. Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows: In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position 1. And further at [64]: The Full Court recognised that Ms Thorne was labouring under a disadvantage, although the Court did not add the adjective "special", which, as Mason J in Commercial Bank of Australia Ltd v Amadio explained, is used to emphasise that the disadvantage is not a mere difference in the bargaining power but requires an inability for a person to make a judgment as to his or her own best interests. The findings by the primary judge that Ms Thorne was subject to undue influence – powerless, with what she saw as no choice but to enter the agreements – point inevitably to the conclusion that she was subject to a special disadvantage in her entry into the agreements. Undue influence 1. On the doctrine, of undue influence in particular, the Court in Thorne v Kennedy observed the following (at [30]-[36])(citations omitted): In Allcard v Skinner, Lindley LJ said that "no Court has ever attempted to define undue influence". One reason for the difficulty of defining undue influence is that the label "undue influence" has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper. In 1836, in a passage which was copied verbatim by Snell thirty years later, Story said that a person can be subjected to undue influence where the effect of factors such as pressure is that the person "has no free will, but stands in vinculis [in chains]". He explained that "the constant rule in Equity is, that, where a party is not a free agent, and is not equal to protecting himself, the Court will protect him". In 1866, this approach was applied in equity by the House of Lords, recognising undue influence in a case of pressure that deprived the plaintiff of "free agency". In 1868, in probate, Sir James Wilde also described undue influence as arising where a person is not a "free agent". In Johnson v Buttress, Dixon J described how undue influence could arise from the "deliberate contrivance" of another (which naturally includes pressure) giving rise to such influence over the mind of the other that the act of the other is not a "free act". And, in Bank of New South Wales v Rogers, McTiernan J characterised the absence of undue influence as a "free and well-understood act" and Williams J referred to "the free exercise of the respondent's will". The question whether a person's act is "free" requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person's free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a "mere channel through which the will of the defendant operated". Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be "markedly sub-standard" as a result of the effect upon the person's mind of the will of another. An example which illustrates the characterisation by a court of a lack of free will sufficient to amount to undue influence is the decision of this Court in Johnson v Buttress. In that case, Mr Buttress was a 67 year old man, who was "wholly illiterate, not very intelligent, and of little or no experience or capacity in business". He made a voluntary transfer of land to a relative of his wife. The land was his only property and his only means of livelihood. When he made the transfer he did not understand that he had parted with the land irrevocably. After Mr Buttress died, the administrator of his estate brought an application to set aside the transfer. The trial judge set aside the transfer on the basis of undue influence. This decision was upheld in this Court. Although other members of the Court relied upon a presumption of undue influence, which is considered below, one member of the Court, Starke J, concluded that it was open to the trial judge to find that undue influence arose without any presumption. His Honour upheld the conclusion of the trial judge that the circumstances of the transfer invited the inference that it was "not the result of the free and deliberate judgment of the deceased". There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a "substantial benefit" to another, which cannot be explained by "ordinary motives", or "is not readily explicable by the relationship of the parties". Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will. Ms Thorne submitted that she was entitled to the benefit of a presumption of undue influence because the relationship of fiancé and fiancée should be recognised as one to which the presumption attaches. This submission was concerned with a presumption of undue influence (that a transaction was the result of a lack of free will) and not with the different doctrine concerning the possibility of an abuse of confidence in any relationship of intimacy. The submission should not be accepted. Although the relationship of fiancé and fiancée was first seen as falling within the recognised categories by Lord Langdale MR in 1848, and although it was also recognised in this Court by Dixon J in 1936 and 1939, in 1961 in England Lord Evershed MR refused to apply the established presumption, saying that "this is 1961 and what might have been said of the position, independence, and the like, of women in 1848 would have to be seriously qualified to-day". In 1992 in Louth v Diprose Brennan J observed that it "may no longer be right to presume that a substantial gift made by a woman to her fiancé has been procured by undue influence". Common experience today of the wide variety of circumstances in which two people can become engaged to marry negates any conclusion that a relationship of fiancé and fiancée should give rise to a presumption that either person substantially subordinates his or her free will to the other. 1. And at [42]-[43] (citations omitted): In Kakavas v Crown Melbourne Ltd, quoting with approval from the judgment of Dawson, Gaudron and McHugh JJ in Louth v Diprose, this Court described how the "proof of the interplay of a dominant and subordinate position in a personal relationship depends, 'in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties'". As Rich J said, in the context of a claim to set aside a transaction, the advantage of the trial judge "of seeing the parties and estimating their characters and capacities is immeasurable". These matters led Toohey J, in Louth v Diprose, to say that the "formidable obstacles" involved in an attack on findings of fact by a trial judge "may be enhanced where issues of undue influence and unconscionability are involved". Related to the fact finding advantage of the trial judge is the evaluative nature of the judgment involved in determining whether the vitiating factors have been established. For example, in undue influence there will be questions of evaluative judgment involved in assessing whether the extent to which a person's will has been subordinated to another's is sufficient to characterise the person as lacking free will. The same evaluative exercise was described by this Court in Kakavas v Crown Melbourne Ltd in relation to unconscionable conduct, quoting from Dixon CJ, McTiernan and Kitto JJ in a passage from Jenyns v Public Curator (Qld) which emphasised how the application of these equitable principles: calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: "A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case." The Barnes v Addy claim 1. The plaintiff in the alternative makes a claim under the second limb of Barnes v Addy that is, that the defendant knowingly participated in the deceased breaching her partnership obligations by transferring the $2.2 million. 2. The second limb of Barnes v Addy, was discussed in detail in the High Court decision of Farah Constructions v Say-Dee (2007) 230 CLR 89. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ noted (at [160]):"As conventionally understood in Australia, the second limb makes a defendant liable if that defendant assists a trustee or fiduciary with knowledge of a dishonest and fraudulent design on the part of the trustee or fiduciary." The knowledge requirement was discussed (at [171]-[178])(citations omitted): What is required by the requirement of "knowledge" expressed in the second limb? In the passage in which Lord Selborne formulated the second limb in terms of assisting with knowledge in a dishonest and fraudulent design on the part of the trustees, he contrasted those "actually participating in any fraudulent conduct of the trustee" and those "dealing honestly as agents". As a matter of ordinary understanding, and as reflected in the criminal law in Australia, a person may have acted dishonestly, judged by the standards of ordinary, decent people, without appreciating that the act in question was dishonest by those standards. Further, as early as 1801, Sir William Grant MR stigmatised those who "shut their eyes" against the receipt of unwelcome information. Against this background, it has been customary to analyse the requirement of knowledge in the second limb of Barnes v Addy by reference to the five categories agreed between counsel in Baden v Société Générale pour Favoriser le Dévelopment du Commerce et de l'Industrie en France SA: (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; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry. … Thus, support in Consul can be found for categories (i), (ii) and (iii). Further, Consul also indicates that category (iv) suffices. However, in Consul, Stephen J held that knowledge of circumstances which would put an honest and reasonable man on inquiry, later identified as the fifth category in Baden, would not suffice. Gibbs J left open the possibility that constructive notice of this description would suffice. Barwick CJ agreed with Stephen J. The result is that Consul supports the proposition that circumstances falling within any of the first four categories of Baden are sufficient to answer the requirement of knowledge in the second limb of Barnes v Addy, but does not travel fully into the field of constructive notice by accepting the fifth category. In this way, there is accommodated, through acceptance of the fourth category, the proposition that the morally obtuse cannot escape by failure to recognise an impropriety that would have been apparent to an ordinary person applying the standards of such persons. These conclusions in Consul as to what is involved in "knowledge" for the second limb represent the law in Australia. They should be followed by Australian courts, unless and until departed from by decision of this Court. Submissions Plaintiff The transfer of $2.2 million was, in all the circumstances unconscionable 1. The plaintiff submits that the transfer of $2.2 million on 11 October 2016 from the deceased to the defendant was the result of unconscionable conduct on the part of the defendant. Further, the plaintiff submits that the transaction was the result of undue influence on the part of the defendant, and that the deceased did not have capacity to make the transaction (Plf subs 30 August [1]-[2]). 2. The plaintiff submits that the following factual matters establish the unconscionability (Plf subs 30 August [9]): 1. The longstanding testamentary intention of the deceased to leave the plaintiff the residue of her estate and the moral duty the deceased felt to provide for the plaintiff in the event of her death; 2. The contemporaneous record in the deceased's diary of the defendants repeated demands, and her appreciation that there needed to be sufficient assets to provide care for her and the plaintiff in their old age; 3. The defendant's sense of entitlement and receipt of constant support from the plaintiff and the deceased; 4. The deceased's medical condition from 10 June 2016 and at the time of the transaction, in particular her confusion, anxiety and lack of insight into her illness; 5. The defendant's knowledge of the deceased's cognitive impairment and confusion; 6. The fact that the defendant had become the deceased's primarily carer and that the deceased was dependent on the defendant; 7. The fact that the defendant took advantage of the circumstances to enrich herself at the expense of the plaintiff; 8. The exceptionally large size of the gift to the defendant; 9. The fact that the defendant was already to receive assets of around $3.6 million under the will and was to be gifted with Hurlingham Avenue; 10. The haste with which the transaction was affected between 6 to 10 October 2016 and the defendants direct involvement with the transaction; 11. The absence of legal or accounting advice in relation to the transaction; 12. The failure by the deceased to mention the transaction; and 13. The failure on the part of the defendant to call the Bank Manager or Accountant apparently present during the 11 October transfer. 1. The plaintiff submits that by at least June 2016 the deceased suffered from cognitive impairment (Plf subs 25 July [65]). The plaintiff noted that after the deceased was diagnosed with bleeding on the brain and underwent surgery by Dr Teo, the defendant moved to Hidden Lake and became the deceased's primary carer (Plf subs 25 July [34]-[38]). The plaintiff stated that the deceased essentially became isolated from the outside world, apparently at her own request. On her own evidence the defendant had effective control over the deceased who was completely dependent on her (Plf subs 25 July [41]). The defendant stated that from June 2016, she became responsible for the financial management of Hidden Lake (Plf subs 25 July [42]-[44]). The plaintiff's evidence is that during this time the deceased was confused, anxious and aggressive towards family members and visitors (Plf subs 25 July [45]). 2. The plaintiff asserts that he was unable to provide care and support to the deceased and the defendant became responsible for her care and running the house and became involved in the deceased's financial affairs (Plf subs 25 July [49]). The plaintiff submits that there was a degree of inequality between the defendant and the deceased during this time (Plf subs 25 July [50]). 3. The plaintiff asserts that the deceased was a vulnerable person and at a special disadvantage during this period (Plf subs 25 July [67]). The plaintiff noted that during this time the deceased did not have an opportunity to obtain independent legal advice and there is no evidence that the deceased had an understanding of the transaction that she was undertaking (Plf subs 30 August [59]). 4. The plaintiff submits that the defendant brought in Mr Cummins so as to create a 'smokescreen' and obscure the fact that the $2.2 million had already been given away (T376/28-33). 5. The plaintiff submits that this casts on the defendant the burden of establishing that the transaction was in the interests of the deceased (Plf subs 30 August [8]). In the alternative, the plaintiff submits that a presumption of undue influence arises, that the impugned transaction was improvidence and procured by the defendant (Plf subs 30 August [61]). Furthermore the plaintiff submits that the evidence clearly establishes that there is a doubt about the deceased's ability to enter the transaction on 11 October 2016 (Plf subs 30 August [62]). 6. The plaintiff submits that the deceased did have a general intention to leave the defendant what her mother left her, which was essentially about $3.6 million in both cash and shares. The plaintiff submits that this amount is represented by the approximately $979,000 in shares and Werrington Street (valued at approximately $2,121,000) that was in fact gifted to the defendant under the will. The $2.2 million was not in fact part of the deceased's mother's estate and should never have been left to the defendant (Plf subs 25 July [74]). The defendant knew that the $2.2 million was more than what her grandmother had. The $2.2 million was partnership assets 1. The plaintiff submits that the 'gift' of $2.2 million, could in any case, not be transferred by the deceased to the defendant because it was an asset of the partnership. 2. The plaintiff submits that Alfreda Street was clearly a partnership asset. The purchase of the property was funded from the proceeds of sale of Owlswood, which was a partnership asset. The flow of proceeds through JOPL did not change their essential character as partnership funds (Plf subs, 5 September [4]). Therefore, although the deceased was the sole registered proprietor, the beneficial owner was the partnership as it was acquired wholly from funds which had the partnership as their source (Plf subs, 5 September [7]). The proceeds of the sale of Alfreda Street which then made up the A Casa Botanica Term Deposit that was 'gifted' to the defendant, was not the deceased's to give away. The funds belonged to the partnership (Plf subs 5 September [8]). 3. The plaintiff submits that the vast majority of the cash received by the deceased's mother's estate, was in fact used to purchase Werrington Street (Plf subs, 26 July [30]), which in turn was in fact given to the defendant under the will. 4. The plaintiff submits that the defendant knew or ought to have known that the funds were partnership funds (Plf subs 25 July [76]). Although the defendant denied this, the plaintiff submits that the defendant's credit is against her. In particular the plaintiff notes (Plf subs 5 September [10]): 1. The defendant was able to give a good description of what both the A Casa Botanica Account and JOPL Bank Account did, but denied knowledge of the partnership; 2. The defendant paid the wages of the staff, she must have made the connection between how the property on the one hand and the partnership on the other were run; 3. The defendant had a close involvement with the household affairs including making payments out of the partnership account; 4. The defendant had close involvement in the Pinaroo transactions; and 5. The defendant was a signatory to the A Casa Botanica Account. 1. The defendant took over management of Hidden Lake and was signing all cheques on behalf of the deceased (Plf subs 5 September [12]-[13]). The plaintiff submits that all the material is sufficient to establish either the defendant's wilful disregard or constructive knowledge of the partnership (Plf subs [14]). Shares in JOPL 1. The plaintiff notes the two letters from Mr Cummins on 18 January and 5 April 2017 which state that the defendant was never intended to receive the shares in JOPL and in fact agreed at one point to transfer the shares to the plaintiff (Plf subs [80]-[82]). The plaintiff seeks relief by way of s 27 of the Succession Act as the deceased never intended to transfer the shares or alternatively on the basis that an agreement was reached whereby the plaintiff would receive the shares and the defendant would receive the amount in bank accounts (Plf subs 25 July [83]). The cheques 1. The plaintiff notes that the defendant was made a signatory the A Casa Botanica Account, a partnership asset, in July 2016, and continued to operate the account following the deceased's death (Plf subs 25 July [88]-[89]). The plaintiff submits that the defendant is required to account for monies under a common law duty to act with reasonable care in drawing cheques as an agent (Plf subs [92]). Defendant The transfer of $2.2 million was by way of gift 1. The defendant submits that the withdrawal of the A Casa Botanica Term Deposit by the deceased and transfer of $2.2 million to the defendant was by way of gift. 2. The defendant submits that the plaintiff has not made out the elements of the unconscionability claim. 3. The defendant submits that during the deceased's time in Bowral Private Hospital in July and August 2016, she was frequently recorded as orientated and alert (Def subs 25 July [31]) It appears that upon her discharge, the deceased enjoyed improvement (Def subs 25 July [33]). There are no notes from the time of the deceased's discharge to the withdrawal of the $2.2 million recording cognition difficulties or confusion (Def subs 28 August [10]). Further there is no suggestion that the deceased lacked capacity to neither execute her will on 15 October nor transfer Hurlingham Avenue to the defendant on 16 October (Def subs 28 august [10]. Mr Cummins was satisfied that the deceased could give instructions on 31 October and that the will was a true reflection of her wishes, and was further satisfied that the deceased had testamentary capacity on 2 November 2016 when she executed her codicil (Def subs 28 August [10]). 4. Therefore on 11 October the deceased did not suffer from any confusion or diminution of cognitive capacity and had a full appreciation of the transaction she entered into (Def subs 28 August [11]). 5. The defendant submits that the deceased was aware that the term deposit was her funds to give away. The deceased further knew that the bulk of her mother's estate had been used to purchase Werrington Street (in particular the deceased's letter of 9 September refers to "inclusions from my mother's estate includes…considerable money in houses [in my name only" which could only refer to Werrington Street). The deceased knew that the term deposit was funded primarily by the sale of Alfreda Street, a property purchased in her name and included in her individual tax return, and was therefore hers to give away (Def subs 28 August [14]-[16]). The deceased was therefore lucid and aware of what she was doing when she gave the gift on 11 October (Def subs 28 August [17]). 6. The defendant submits that the deceased maintained her independence both emotional and in her relationship with the defendant. The defendant saw her role as doing that which her mother asked her to do. There was no inequality in the relationship (Def subs 28 August [19]), and no special disadvantage at the time of the transfer. 7. The defendant submits that it was only in November 2016 that the deceased's condition began to deteriorate (Def subs 25 July [66]). The defendant's evidence was that the deceased was not confused in October and her evidence is corroborated by the medical evidence. The defendant could not have known she was in a position of ascendancy over her mother at this time nor have notice of the special disadvantage (Def subs 28 August [20]-[22]). 8. The defendant submits that there is no evidence that the taking advantage was unconscientious. The defendant did not suggest the gift, nor does it appear on the evidence that the defendant exploited her mother by accepting rather than rejecting the gift (Def subs [24]-[25]). 9. The defendant submits that upon being told her condition was terminal on 7 October 2016, the deceased became focused on her estate planning (Def subs 25 July [43]). Thereafter the deceased made changes to her will, and gifted the defendant with $2.2 million (Def subs 25 July [44]-[49]). 10. The defendant further submits that the gift on 11 October 2016 needs to be assessed in the broader context of the other gifts and promises made by the deceased to the defendant during late 2016 (Def subs 25 July [84]). In particular, during October 2016, the deceased by her will left the defendant Werrington Street, and the deceased and the plaintiff together transferred the Hurlingham Avenue to the defendant for nil consideration (Def subs 25 July [85]-[86]). There is no suggestion that the deceased lacked capacity to make those gifts nor that there was any improper conduct on the part of the defendant in relation to those gifts. The gift on 11 October also needs to be assessed in the close and loving relationship between the defendant and the deceased (Def subs 25 July [87[) as well as the earlier promises made by the deceased to leave the defendant everything that the deceased had received from her mother (Def subs 25 July [88]). 11. The defendant submits that the gift on 11 October was early implementation by the deceased of her plan to leave $2.2 million to the defendant in the will (Def subs 25 July [91]). Accepting the gift was not the result of uncontentious advantage having been taken by the defendant of her mother (Def subs 28 August [26]). 12. The defendant submits that on the meeting with Mr Cummins on 31 October 2016, the reference to "Katharine wants John to inherit the cash she got from her mother" is a reference to the remainder of the cash. If the deceased intended the plaintiff to receive all the cash, it would require a clause revoking the gift of Werrington Street (which had already been purchased with the deceased's inheritance) to the defendant (Def subs 28 August [6]). 13. The defendant further submits that the defendant believed that the $2.2 million was the deceased's to give away, and had no knowledge of the partnership. The defendant knew that the deceased intended to give her inheritance from her mother in her will of a value of $3.5 million approximately. The defendant did not believe that the gift would come at the expense of anyone else and did not victimise or exploit the deceased by suggesting that the gift occur (Def subs 25 July [93]). 14. The defendant notes that if the plaintiff does establish that there was a special advantage and the defendant took advantage over her mother, the defendant must establish that the transaction was fair, just and reasonable. The defendant submits that the transaction was fair, just and reasonable testamentary disposition which the deceased chose to make good early (Def subs 28 August [31]). 15. The defendant further submits that several inferences can be made about why the deceased wished to change her will, first that she believed the $2.2 million was hers to leave the defendant, she was worried about a claim being made by one of the plaintiff's children on her estate, and third that she may have been concerned about the plaintiff revoking his will and leaving nothing to the defendant (Def subs 28 August [34]). 16. The defendant submits that in order to make a case of undue influence, the plaintiff must establish that there was a special relationship of undue influence between the defendant and the deceased. The defendant submits that there is no evidence that the deceased's ability to put her estate in order was effected in October 2016, nor that the defendant carried out her role as carer in anything but an appropriate manner (Def subs 25 July [95]-[97]). The relationship between the defendant and the deceased in October 2016 was not one of dominance and ascendancy on the defendant's part and dependence and subjection on the part of the deceased (Def subs 25 July [97]). The defendant did nothing to invoke the gift, and the gift was in fact a pure voluntary and well-understood decision of the deceased (Def subs [37]-[38]). 17. The defendant further submits that the gift was not improvident because it was not at the expense of any other bequest in the deceased's will (Def subs 25 July [98]). The gift was a voluntary act on the part of the deceased and did not result in exploitation on the part of the defendant. Rather it was part of the deceased's legitimate estate planning (Def subs 25 July [99]). The $2.2 million was partnership assets 1. The defendant submits that the $2.2 million was never partnership funds because the proceeds of Owlswood travelled through the JOPL Bank Account (not a partnership asset) and were then used to purchase Alfreda Street in the deceased's name alone (T459/20-35). In the alternative, the defendant submits that the plaintiff gave away that partnership asset to the deceased (T461/6-20). 2. The defendant submits that even if the $2.2 million was partnership funds, the defendant did not know about the partnership until April 2017. The defendant believed that the term deposit was in the deceased's own name, and believed that the deceased was entitled to make the gift (Def subs 25 July [101]). Defence of estopped by convention or estoppel by representation 1. The defendant submits that at the time of the withdrawal of the $2.2 million on 11 October, the deceased had represented to her that the withdrawal was by way of gift and that representation constituted the conventional basis of the relationship concerning this transaction. In reliance upon this, the defendant acted to her detriment in dealing with part of the $2.2 million and thereby the plaintiff is estopped at common law by this convention. In the alternative in equity by an estoppel by representation from resiling from the representation by the deceased that the transfer was by way of gift (Def subs 25 July [103]). Defence of change of position 1. The defendant submits that she has changed her position in reliance upon the representation that the withdrawal of the term deposit was by way of gift, such that it would be inequitable to permit the plaintiff as one of the executors to resile from the representation (Def subs 25 July [108]). The cheques 1. With regards to the cheques drawn from the A Casa Botanica Account, the defendant stated that during November 2016, the deceased gave the defendant a letter, listing the names of a number of people and writing $10,000 against the names (Def subs 25 July [67]). At a meeting between the plaintiff, the defendant and Mr Cummins in April 2017, it was agreed that the payments to those persons in the letter would come from the A Casa Botanica Account (Def subs 25 July [72]). At this time the plaintiff told the defendant that she could have what was left in the account (Def subs 25 July [73]). Consideration 1. The main issue in this case was the alleged 'gift' of the $2.2 million given to the defendant from the deceased's term deposit on 11 October 2016. For reasons I will come to, I am of the view that the deceased's decision to transfer the funds to the defendant, and make this 'gift', was the result of unconscionable conduct and/or undue influence on the part of the defendant. 2. As the High Court makes clear in Thorne v Kennedy (referred to above [297]-[300]) although the doctrines may arise from similar factual circumstances there is a clear distinction between unconscionabiltiy and undue influence. Undue influence in particular is concerned with whether or not an individual's free will has been subordinated by another whether through the application of pressure or exertion of some kind of other influence. Unconscionability, on the other hand is concerned with whether one has taken advantage of another who is vulnerable. Although my discussion could be said principally to focus on the doctrine of unconscionabiltiy, many of my factual findings would also support a finding of undue influence. In particular, I am satisfied that the deceased's change from a bequest to a gift, in the absence of any independent or objective advice, was not an exercise of her free and informed judgement. 3. As noted above, in order to establish unconscionability, the plaintiff must prove that the deceased had a special disadvantage, that the defendant had knowledge of that special disadvantage, and took advantage in circumstances which were unconscionable. 4. I am satisfied that the deceased was at a special disadvantage in the relevant sense due to her extreme ill health. It was entirely uncontroversial that the deceased was admitted to hospital in June 2016 with significant lesions on her brain. She underwent complex and difficult surgery in July 2016 and remained in hospital for a month to recover. The hospital records from this time, although on occasion note that the deceased was 'alert', 'orientated' and 'making progress', also more frequently record that she was distressed, anxious and confused. Moreover, it is also clear that she was unsteady on her feet, clearly quite weak, fatigued quickly, and experienced facial drooping and slurred speech as well as a significant tremor. In early August the deceased was told she was incurable. The deceased was unable to drive herself and required almost constant care until the day she died in December 2016. 5. Upon her return to Hidden Lake, it does not appear to me, on the evidence that the deceased overall significantly improved. The plaintiff in particular noted that the deceased's behaviour and personality changed and the defendant herself acknowledges that her mother was never the same after Dr Teo's neurosurgery. I accept the plaintiff's account in that regard. In early September, on the evidence, the deceased could not, by herself, send letters to her lawyers. In late September; she experienced a panic attack during a visit to Sydney, to attend an event at the Opera House. By early October, the deceased was 'really unwell' and was told she was terminal. Contemporaneous medical records from October indicate that the deceased was extremely unwell, fatigued, not at her previous level of fitness, anxious and irritable. For example, I am satisfied she could not attend a meeting with her lawyer on 12 October as she was too unwell. 6. Her condition which (apart from short episodes), I am satisfied, steadily deteriorated, from July 2016 and she was in my view both physically and psychologically frail and thereby vulnerable from that time on. She was coping with not only somewhat intense and debilitating treatments but with the devastating realisation that she was soon going to die. Anyone receiving such news would clearly be affected by it. She was almost entirely dependent on the defendant for most or many of her needs. Her approach to estate planning was to say the least, somewhat erratic. Her frequent and unexplained changes of mind, in my view, indicate a level of confusion and vulnerability about the process of getting her estate in order, and persuade me that she was approaching her decision making from an emotional and impulsive frame of mind. The phone call to Mr Cummins in late October, in which the deceased expresses, "I don't know what I want to do", is to me, only too telling of her somewhat fragile state of mind. 7. It is moreover, entirely obvious, that the defendant knew only too well of her mother's condition. The nurses' notes from the Southern Highlands Hospital record numerous interactions between staff and the defendant. Apart from insisting she be the first point of contact, she was actively and daily involved in her mother's care and privy to her condition as it ebbed and flowed. She was present on 3 August when the deceased was informed that her condition was incurable, and aware of her ongoing confusion and unsteadiness while in care. 8. The impression created from the contemporaneous hospital notes is contrary to some important parts of the defendant's evidence. The portrait drawn from the hospital notes shows someone concerned, not unnaturally, with her mother's health, but also of a person wanting to take control of or seeking to take control of, the flow of information between doctor and patient as well as between medical staff and family. She did not impress me, as she sought to assert, as a person, to sit back, passively and take whatever instructions her mother might issue. 9. The defendant's evidence is that her mother improved slightly during October but that she quickly regressed (T161/43; T162/4). However, it seems to me that, the deceased was clearly very unwell during the latter half of 2016 and the defendant as her primary carer was clearly aware of this. The deceased was moody, unsteady in her movements and irritable unsurprisingly given the surgery and the knowledge that she was terminal. The defendant, on her evidence, attended nearly all of her mother's medical appointments, in particular on 6 October when she was told she was terminal. 10. The defendant was also directly corresponding with her mother's solicitors, about her mother's affairs. In early September, she wrote to Ms Summerville enclosing her mother's handwritten letter. The email from Ms Summerville on 12 October was sent directly to the defendant. This email in particular starts "attached is the letter I sent to you on Monday", suggesting that the 10 October letter, even though written to the deceased was in fact posted to the defendant. It clear to me she was despite her denials, entirely privy to her mother's testamentary intentions. 11. By October, the defendant was aware that her mother was unable to travel to Sydney to speak to her lawyers, and therefore arranged for a local solicitor, recommended to her by an associate, to see to her mother's affairs The first meeting with Mr Cummins, was not attended by the deceased, only by the plaintiff and the defendant. It was the defendant who received correspondence from Mr Cummins on behalf of the deceased, and the defendant who called Mr Cummins several times to ensure she was made a co-executor. By 2 November, the defendant was aware her mother was too ill to even step outside a car to have her own Codicil executed. I note that the plaintiff attempted to in cross-examination, make the case that the defendant arranged to engage Mr Cummins in order to obscure the fact that the $2.2 million had been removed from the will and given away. I regard this position as untenable. Not only was this case theory not pleaded, but it unsupported by any evidence. It seems plainly clear to me that Mr Cummins was brought in by the defendant because she was aware that her mother was too unwell to travel to Sydney. 12. As I have said, it is quite apparent that the defendant was intimately involved in her mother's affairs and intensely interested in how her mother was organising her estate. The defendant repeatedly, attempted to distance herself from any detailed knowledge of her mother's affairs. I gained the clear impression from her answers and demeanour, that she deliberately deployed a strategy by either asserting an inability to recall or straight out denial of events. When some of the objective materials are analysed, I find myself unable to accept her so-called inability to recall or many of her denials as an honest attempt to respond to relevant questions. 13. In my view, for example, the defendant's apparent inability to recall any details of important conversations in the latter half of 2016 beggars belief. After all, these conversations culminated in her being the recipient of $2.2 million dollars in cash, hardly an everyday event. She clearly recalled consulting her own accountant on the day of the gift, but could not recall any conversation with anyone working at the bank (defendant's affidavit [101]-[106]). 14. She repeated multiple times, that given the passage of time she could not recall details of the events in the latter part of 2016. This assertion about the passage of time is wholly unpersuasive. It is clear from the contemporaneous documents that the defendant was being asked about the gift as early as January 2017, only a few months following the incident. She knew a very short time after the events that they were subject of scrutiny. 15. Her assertions that she did not even glance at her mother's correspondence on 8 and 9 September, even as she was posting and receiving the letters herself, defies belief. The defendant somehow had come to the knowledge that the deceased intended to leave everything her mother left to her to the defendant, yet strongly denied seeing any correspondence or documents that corroborated this point. I reject her denials. Her assertion that she wanted to protect her mother's privacy, seems completely at odds with her intimate involvement in the deceased's affairs, including being present at nearly all doctor's appointments and in fact meeting Mr Cummins without the deceased in late October. 16. Going forward, it seems to me clear that the defendant and the deceased were in active discussions about the defendant being made a co-executor under the will. The contemporaneous documents show persistence on the part of the defendant in contacting Mr Cummins to arrange a meeting so as to formally change her mother's will in that respect. Not only does this suggest to me, that the defendant was indeed, engaged, involved and informed about her mother's affairs, estate and will, but demonstrates a degree of obsession over getting in or sharing control of her mother's estate and ensuring she received what she thought was her just entitlements. 17. The important events of 11 October have to be viewed in context. On 10 October, the deceased and defendant, together in the car phoned Ms Summerville. The deceased then indicated, amongst other things, that she had an investment of about $2.2 million which she was being "cashed in now" and therefore happy to put that amount in the will. It seems to me, that being "cashed in" would not necessarily mean the deceased intended to withdraw the entire $2.2 million in cash and bring it home, but rather it is more likely she simply sought to change the existing arrangement at the bank in some way or other. It is not entirely clear why she was cashing it in, nor why that would mean she was then "happy to put amount in will". Although this was not explored in evidence, perhaps for good reason, "happy to" would seem to me that putting the $2.2 million was not necessary. It follows, that at this stage it appears she was unsure about what she wanted to do with the money, whether she intended for it to go into her will or be given directly to her daughter. It seems also likely, therefore, that she had already been discussing these options with the defendant. If she was happy for the $2.2 million to go in to the will, but at the same time wanted to give it away the next day, the two positions are completely inconsistent and would be again indicative of the deceased's state of confusion or at least indecision. 18. I am satisfied that the defendant, despite her denials, was in the car on 10 October, when her mother conveyed her wishes to the solicitor. The defendant's evidence on this point was totally unsatisfactory; she first attempted to state she did not recall this conversation, and then later, strongly denied she was privy to it. The file note of Ms Summerville, which I accept as an accurate record of what in fact happened, particularly noted that "Karen called while in the car with Katharine and put Katharine on the phone" strongly suggests to me that the defendant was thereafter privy to the conversation between the deceased and Ms Summerville. After all she was assisting her mother who it seems could not make the call herself. Although the defendant at one point presumed that she would have in fact stopped the car and stood outside while her mother made the phone call in order to protect her privacy, this seems to me implausible and entirely contrived. There is simply nothing in Ms Summerville's note to suggest anything like that occurred. Further, as I have already noted, given that she was already intimately involved in her mother's affairs, it is implausible that the defendant would regard this 'privacy' as necessary. But what is important is that the defendant from this point at the latest knew her mother proposed to leave the $2.2 million to her in her will. 19. I am therefore of the view, that the defendant must have discussed the $2.2 million with her mother by 10 October at the latest. Her mother must have discussed when in the car prior to the call that she wanted to speak to Ms Summerville, about her will and in particular leaving the $2.2 million to the defendant. 20. The defendant stated that the decision on the part of her mother to go to the bank on the morning of 11 October 2016 was spontaneous or "out of the blue" (T264/21). Given my findings above, it is implausible that the trip to the bank was in fact spontaneous, and was I am satisfied the result of a discussion between mother and daughter. On the other hand if indeed all these actions did in fact happen spontaneously, it would appear to be the actions of an ill and confused woman, behaving somewhat erratically and making impulsive decisions. As a very ill woman I accept, the deceased was no doubt struggling to put her affairs in order in an imprecise and somewhat erratic way. 21. The defendant's evidence is that the decision of the deceased quite suddenly, to change from bequeathing the defendant $2.2 million to gifting it is again seemingly unexplained. The defendant's case seems to be that she was merely receiving an 'advance' of sorts on her inheritance. 22. It may be accepted that the deceased was giving instructions to multiple solicitors and it seems apparent that it was her overriding general intention to give to the defendant, everything her mother left her. What makes this case curious is that after having given instructions to put her affairs in a particular order, there is then this sudden change of mind. After apparently making the decision herself, to "cash" in the $2.2 million immediately there is no indication to her solicitors or in fact anyone about why she did this. 23. That said I am persuaded that the defendant initiated her mother's decision to make changes to her will and likewise must have been involved in her mother's decision to make a gift as opposed to a bequest of the $2.2 million. The defendant denied any suggestion that she had influenced her mother into giving her the $2.2 million or in fact influenced her change of mind. However I reject her denials. 24. From time to time there was a family discussion about wills and them being challenged (I note in particular Ex D6). The deceased may well have been persuaded to give the defendant immediate access to cash, so as to remove a possible challenge to the will. If that is what occurred, it would have been as a result again of discussion between the deceased and the defendant in the absence of any independent legal or accounting advice. Further it was entirely in the defendant's interest and she could not have failed to have appreciated that. It was clearly in the defendant's interest to get her hands on the money immediately without having to worry about a grant of probate, or wait until her mother died to pay off her credit card debts. In my view given the state of her health as at October 2016, I am not satisfied that the deceased was capable of making any informed judgement call on what may or may not be the best course to adopt; i.e. bequest or gift. With the benefit of independent advice, her wishes could properly be assessed including more importantly what was truly hers to deal with. 25. It is clear that the only person who benefited from this sudden change was the defendant. Moreover not only did she get a very substantial cash gift, but her credit card was paid off by her mother at the same time. The defendant must have requested her mother to authorise the payment of her credit card debt. Although the defendant from time to time paid for expenses for Hidden Lake on her credit card and then sought reimbursement, there is simply no breakdown of the $30,000 to infer what the debt related to. More importantly there is no evidence that the deceased had any knowledge of the defendant's credit details or debt, nor would she necessarily have that information. Those details could only have been supplied by the defendant. 26. There was some debate, and it remains unclear on the documents, as to whether or not the credit card payment happened on the 6 or the 11 October. In my mind, it does not change the ultimate outcome, which is that the defendant must have informed her mother about the debt, and provided details of the account, and then asked her mother to authorise its payment from the term deposit. If this happened on 6 October, it only shows the defendant's clear involvement from an earlier point in time. 27. The mere fact that the defendant seemed solely concerned with identifying whether there was any personal tax liability as a result of the gift, and not whether her mother was in a fit position to gift the money, nor whether her long-term step-father knew of and was agreeable to the gift, or whether any legal professional should be consulted, shows a degree of selfishness and utter self-indulgence on her part. She was in my view plainly ignoring her mother's vulnerability and instead was focused on her own material gain. 28. I am of the view that the defendant and the deceased's conduct after the 'gift' on 11 October 2016, is particularly telling. Although, indeed the deceased, spoke to lawyers on 12 October requesting that the $2.2 million be removed from her will because she had already given this money to the defendant, but at the meeting with Mr Cummins on 31 October she appears, on one view of the evidence to have forgotten this. In fact on this day the deceased makes the assertion that the plaintiff not the defendant should have the cash from her mother's estate. The diary note is unclear in its terms. It could mean, as the defendant submits, the residue of the cash not all of the cash. The problem on any view however, is that it is another change in mind. Regardless, I consider the better view is that 'the cash' refers to what she had received from her mother. The defendant, who was also present at this meeting, did nothing to indicate that her mother was mistaken and had already given the money to her. To me this not only supports the fact that the deceased was confused about what had so recently occurred, but also that the defendant was then aware of or at least must have suspected her mother was confused and that there may have been an issue with the gift. But she remained silent and clearly chose not to divulge the gift. 29. The deceased's phone call to Mr Cummins in late October, fortifies my view that she was confused and vulnerable. She clearly stated she 'does not know what she wants to do'. This was not explained. Although it may apply to the defendant becoming an executor, it is indicative of the deceased's confusion, and uncertainty. 30. The defendant agreed that at no stage did she raise the gift of $2.2 million with anyone nor did she ever discuss the gift or what she may do with the money (including whether she would give any of it to her children as apparently intended by the deceased) with her mother ever again. There was clearly no impediment to raising it other than the defendant wanted to keep it a secret. There was no suggestion that the deceased had ever asked the defendant to keep such a secret. The defendant clearly could not have forgotten about the money or the payment of her credit card debt, nor had she forgotten about the change in the will. It was the defendant, who made the choice not to raise the gift of $2.2 million, and it was her decision alone on the evidence to keep it a secret. 31. The defendant attempted to make the case that the reason the deceased transferred the $2.2 million, and the reason why should did not tell plaintiff, her husband of nearly 30 years about the disposal of the money, was because she was jealous of the plaintiff's relationship with Ms McKay. The defendant insinuated, that the plaintiff had begun a relationship with Ms McKay during the final months of the deceased's life, and to get back at him, she gave her daughter $2.2 million in secret and sacked Ms McKay. I do not accept that there is any substance in that assertion. Ms McKay denied the assertion that she was in fact fired, and I accept her denial. There is no other evidence apart from the defendant's say so that this in fact happened. I am of the view that this entire allegation was manufactured by the defendant in an attempt to explain her mother's conduct. Not only was the defendant's evidence on the matter unpersuasive, it makes no logical sense that the deceased would make this gift, out of anger towards the plaintiff, but then proceed to leave the bulk of her estate to him just a few days later. More to the point she told Mr Cummins she wanted the plaintiff to receive the balance of the cash from her mother's estate on 31 October. Another change of mind perhaps? But in any case a decision in favour of the plaintiff, hardly consistent with the defendant's assertions. 32. Prior to her illness, when in the best of health, it appears by all accounts, that the deceased was a dynamic and vivacious individual. She provided a home for herself and her husband, she was actively involved in buying and selling property and horse breeding. As she succumbed to this illness she struggled, not only with the consequences of the various treatments, including chemotherapy, radiotherapy, and surgery, but also with the knowledge that she would soon die. Not only did the deceased undergo physical and mental changes, as observed by the plaintiff, the defendant and various medical staff, but she was clearly unable to act as she once had. She became dependent on the defendant, and that made her vulnerable. Brief moments of apparent improvement, were overshadowed by, when objectively viewed, a slow, painful and obvious deterioration in her condition. The defendant observed all of these changes at close range. 33. The defendant, knowing of her mother's illness, anxiety, change in behaviour, change in mood either was actively involved in or stood by and did nothing as she accepted an extraordinarily large gift. It was an act of self-indulgence, somewhat callous and extraordinarily selfish on the part of the defendant. The defendant took no opportunity to suggest her mother seek independent advice, nor speak to anyone else in the family about such a large gift. The only concern the defendant had was to hurriedly consult her own accountant to ensure that the gift, was ultimately tax neutral in her hands. She knew her mother was otherwise without any independent and objective sounding board. 34. Although the precise sequence of events is not clear. I am satisfied either the defendant initiated or contrived, despite her denials, her mother's change of mind to her own benefit or she took advantage of her vulnerability in circumstances which were unconscionable. I would nonetheless find, that in this case even if she did not specifically initiate the gift, the defendant's passive acceptance of the large gift was, in all the circumstances unconscionable. In particular, if the defendant did not initiate the gift, she witnessed at close range, her mother's indecisiveness and impulsivity, in circumstances where she was receiving a substantial benefit and in circumstances where her mother had no independent or objective advice. 35. As far as the presumption has arisen that the defendant received the gift in unconscionable circumstances, I am not satisfied that the defendant has discharged the burden, she has not shown that the transaction was in any case fair, just and reasonable. I would also note that the pleaded defences estoppel by convention and change of position cannot arise in this case. Having already found unconscionability and undue influence the defences have no application and are in fact antithetical to my findings. 36. In so far as the plaintiff claimed that the deceased did not have the capacity to make the gift on 11 October, I am not sure what follows. It is clear, and both parties agree, that the deceased had the requisite capacity to execute her will on 15 October and then later execute the codicil on 2 November. The existence of capacity to execute such relevant documents however does not necessarily detract from a finding of undue influence or unconscionabiltiy. Importantly, the deceased received clear independent legal advice in relation to the will and the codicil and did not receive any such advice on 11 October. As far as could be said that the deceased lacked the ability to make an informed decision about the gift, that issue really goes to a finding of unconscionable conduct or undue influence, and not a lack of capacity. 37. The plaintiff's alternative claim for recovery of the $2.2 million was articulated under the second limb of Barnes v Addy. The plaintiff sought to make out that the deceased, breached her fiduciary obligations as a partner by dealing with the partnership funds in such a way, and the defendant knowingly participated in the fraudulent and dishonest scheme. It seems more likely than not that the bulk of the funds were partnership funds. It appears uncontroversial that the deceased and the plaintiff clearly conducted their affairs to a large extent as partners. Although there was no formal agreement in place and monies were not clearly delineated, there can be no doubt on the evidence (including numerous tax returns for the partnership itself) that the partnership existed. However, what remains somewhat unclear is which particular assets formed part of the partnership. There was on any view a high level of intermingling of funds. The $2.2 million was primarily sourced from the sale of Alfreda Street. Although Alfreda Street was held in the deceased's sole name and the capital gains tax is recorded on her individual tax return, the property was also listed as an asset as part of the partnership tax returns. Why this was done however, remains unclear. Mr Thakrar's evidence on this point is somewhat unsatisfactory; it goes not much further in my view, than showing that there was indeed a high-level of intermingling of funds. I am satisfied that the better view of the evidence is that given Alfreda Street was primarily funded through partnership funds (sale of Owlswood), it was indeed an asset of the partnership. It follows therefore, that the vast majority of the term deposit was an asset of the partnership. The evidence on this point remains, ultimately, unclear, however does not change the final outcome of the case. 38. Insofar as the deceased unilaterally breached the partnership agreement, I am not sure what then follows. The only case made against the defendant is a Barnes v Addy claim. That is, the defendant's liability arises from knowledge of the partnership and knowledge of the breach. The evidence does not support a finding that the defendant knew or could have known that the $2.2 million was partnership or substantially partnership funds, nor that she knew of any supposed breach. I am not satisfied, in fact, that the deceased was consciously aware she was in breach of the partnership, it seems totally against her character and the evidence of her and the plaintiff's relationship, for her to deceive him in that way. The case fails the second limb of the Barnes v Addy test. 39. Further, I would make an order that the defendant should transfer the shares in JOPL to the plaintiff. I am of the view, that although the deceased, did in fact leave all her shares in various companies to the defendant, I am not satisfied she intended that to include the share in JOPL. I am of the view she only intended to leave the shares she had inherited from her mother, those shares in listed companies. The deceased knew that JOPL was a bespoke business entity brought into existence for the sale and management of the plaintiff's art. Although she was the only shareholder, she was aware, at all times that the company, was used exclusively for that purpose, and in fact, had little to do with her own interests in property investment or horse breeding. I am satisfied that if she had been directed to the fact that all her shareholdings, did include her share in JOPL, she would have excluded it from the gift in her will. In particular the bequest to the defendant of all 'shares in my name' must be considered in the context of the instructions to Ms Summerville. The 8 September letter to Ms Summerville, noted that part of the deceased's inheritance from her mother that she wished to then leave the defendant included shares. On the 10 October phone call, whereby the deceased provides further instructions to Ms Summerville about amendments to her will particularly refers to shares in over 200 listed companies. It is clear therefore, that it is these shares in listed companies that the deceased wished to leave the defendant. 40. I am further satisfied, that the defendant knew that JOPL was a bespoke corporate entity for a particular purpose, and had in fact agreed to transfer the shares back to the plaintiff (see the various correspondence detailed at [114]-[126] above). 41. In any case, I am of the view that the plaintiff and the defendant made an arrangement for the transfer of the share in exchange for whatever was left in the A Casa Botanica Account, as referred to in the letter of Mr Cummins. I am satisfied such an agreement occurred and moreover that the defendant was therefore authorised to draw such cheques on the account as she wished. I would dismiss the plaintiff's claim of $130,000 in relation to the cheques and make orders that the defendant should do everything reasonable to ensure the speedy transfer of the shares. 42. In respect of the shares in JOPL, I can make orders rectifying the will or ordering the transfer of shares as appropriate. I invite the parties to prepare short minutes to reflect these reasons and I will hear the parties on outstanding costs issues should they arise. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2019