Supreme Court New South Wales Medium Neutral Citation: Dowsett v King [2019] NSWSC 1459 Hearing dates: 29-31 July 2019, last submissions received 6 September 2019 Decision date: 28 October 2019 Jurisdiction: Equity Before: Robb J Decision: See pars 105-107 Catchwords: PERSONAL PROPERTY — Gifts — Whether amount transferred was a gift or was being held for the benefit of the alleged gifter Legislation Cited: Civil Procedure Act 2005 (NSW) Contracts Review Act 1980 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Category: Principal judgment Parties: Marea Pearl Dowsett by her attorney and tutor Terrence Charles Dowsett (plaintiff) Donna Maree King (defendant) Representation: Counsel: A J Bulley (plaintiff) D Eardley/A Galapo (defendant) Solicitors: Nicholas Dan (plaintiff) Falzon Legal (defendant) File Number(s): 2017/155950 Judgment 1. These proceedings were commenced on 24 May 2017 by the filing of a summons on behalf of the plaintiff, Mrs Marea Pearl Dowsett, by her son, Mr Terrence Charles Dowsett, in the exercise of a power of attorney granted to him by his mother on 6 November 2015. 2. The defendant, Ms Donna Maree King, is a daughter of Mrs Dowsett. Mrs Dowsett has two other children, Ms Narelle Anne Rowland and Mr Neale Leslie Dowsett, and four in total. I will call the children by their first names to avoid confusion, and without meaning any disrespect. 3. A consent to act as tutor for Mrs Dowsett was filed by Terrence on 26 July 2019, a few days before the commencement of the hearing on 29 July 2019. 4. Mrs Dowsett was born on 30 August 1930, and at the time of the hearing was almost 89 years of age. Mrs Dowsett did not give evidence in support of her claim. There was no evidence going directly to the issue of why Mrs Dowsett did not give evidence, or why it was necessary for the proceedings initially to be commenced by her attorney, or why a tutor was ultimately appointed. 5. Mrs Dowsett's summons sought relief in relation to three matters. First, it sought a declaration that Donna holds property at Pelican (the Pelican Property) on trust for Mrs Dowsett, as well as an order granting leave to Mrs Dowsett to file a caveat to protect her claim to a beneficial interest in the Pelican Property. The summons sought an order that Donna repay to Mrs Dowsett an amount of $140,000, and such other amounts as may be determined that Donna had transferred out of the accounts of Mrs Dowsett. Finally, the summons sought an order that Donna return to Mrs Dowsett jewellery taken from Mrs Dowsett's house. 6. By her statement of claim filed on 6 July 2017, Mrs Dowsett sought in substance the same relief as in her summons, and in addition an order that Donna pay to Mrs Dowsett an amount of $30,000 plus interest. 7. In relation to the Pelican Property, Mrs Dowsett pleaded in respect of her transfer of that property to Donna a claim that the transfer be set aside under the Contracts Review Act 1980 (NSW), or alternatively on the basis of undue influence or unconscionability. 8. On 25 July 2019, shortly before the commencement of the hearing, Mrs Dowsett was given leave to file an amended statement of claim. 9. By her amended statement of claim, Mrs Dowsett abandoned all of her prayers for relief, save the claim for an order that Donna pay to her the amount of $140,000 plus interest since 19 October 2015, as well as such further or other amounts as it may be determined that Donna has relevantly transferred out of accounts held by Mrs Dowsett. 10. At the hearing, Mrs Dowsett did not attempt to prove that any amounts in addition to the $140,000 had been transferred by Donna out of Mrs Dowsett's accounts. 11. As Donna was required to plead to and prepare evidence in response to the abandoned claims, the fact of the abandonment will be relevant to the issue of the costs orders that should be made in these proceedings. 12. The remaining prayer for relief in the amended statement of claim was supported by the following pleading: Funds in Greater Building Society 38. In about June 2015, [Mrs Dowsett] sold shares in AMP Limited that she held. 39. The proceeds of sale of $129,402 were deposited into [Mrs Dowsett's] accounts with Greater Building Society on 30 June 2015. 40. On 12 September 2015, [Donna] transferred $140,000 out of [Mrs Dowsett's] Greater Building Society into an "Everyday Account" that [Mrs Dowsett] held with Teachers Mutual Bank. 41. On 7 October 2015, [Donna] transferred $140,000 from the "Everyday Account" [Mrs Dowsett] held with Teachers Mutual Bank into a Cash Management Account held by [Mrs Dowsett and Donna] with Teachers Mutual Bank. 42. On 19 October 2015, [Donna] transferred $140,000 from the Cash Management Account into an account in her own name. 43. [Donna] had no beneficial interest in the $140,000 referred to in paragraphs 40-42 above. 44. [Donna] has admitted holding those funds on [Mrs Dowsett's] behalf. 45. In the premises: (a) [Donna] holds the $140,000 on trust for [Mrs Dowsett]; and (b) [Mrs Dowsett] demands the return of $140,000 plus interest on that amount from [Donna]. 46. In the alternative to paragraph 45 above, the amount of $140,000 referred to in paragraphs 40-42 are monies had [and] received by [Donna] to the use of [Mrs Dowsett]. 1. These proceedings have been greatly simplified by the amendments to Mrs Dowsett's claim made by her amended statement of claim, and the fact that she did not at the hearing seek to support her claim in respect of the contents of her safe, as pleaded in pars 32 to 37 of her amended statement of claim. 2. Donna responded to the remaining allegations in the amended statement of claim in pars 38 to 46 of her amended defence filed on 31 July 2019. 3. In essence, Donna admitted that, on 12 September 2015, she transferred $140,000 out of Mrs Dowsett's account, but alleged in par 40 "that [Mrs Dowsett] caused this to occur". Then, in par 41, Donna admitted that, on 7 October 2015, she transferred $140,000 into the jointly held Cash Management Account, as alleged in par 41 of the amended statement of claim, but pleaded that the payment was a "provision of money to [Donna] for her advancement in life and was otherwise a gift". 4. Donna then admitted the allegation in par 42 of the amended statement of claim that, on 19 October 2015, she transferred $140,000 from the Cash Management Account into an account in her own name, but, in the balance of her defence, she denied that she holds the $140,000 on trust for Mrs Dowsett, or that she is required to return that money plus interest to Mrs Dowsett. 5. As I have said above, Mrs Dowsett was born on 30 August 1930. She had lived with her husband, Mervyn, who died on 31 March 2013, in a home at Gunnedah, since about 1951. 6. On 19 April 2013, Mrs Dowsett granted a general power of attorney to Donna and Donna's son, Ryan James King (Ryan). The power of attorney did not authorise the attorneys to make gifts to themselves of Mrs Dowsett's property. 7. Also, on 19 April 2013, Mrs Dowsett executed an appointment of enduring guardian in favour of Donna and Ryan. 8. Mrs Dowsett made a will on 16 July 2013. It is only necessary to notice a number of terms of this will, as it was revoked by a later will. 9. By clause 2, Mrs Dowsett appointed Donna and Ryan as the executors and trustees of her will. 10. By clause 3, Mrs Dowsett devised her interest in the Pelican Property to Donna. 11. The effect of clause 4 was to devise Mrs Dowsett's interest in her Gunnedah home equally to three of her children, excluding Terrence. 12. The effect of clause 6 was to bequeath any shares held by her in the AMP to three named grandchildren. 13. By clause 8, Mrs Dowsett gave all money held by her in any banks or financial institutions, after payment of her funeral and testamentary expenses, as to half to Terrence and as to the remaining half equally to her three other children. 14. By clause 9, Mrs Dowsett gave any shares held by her in Insurance Australia Group Ltd to Terrence. 15. The effect of clause 10 was that the residue of Mrs Dowsett's estate was to be shared equally by her three children other than Terrence. 16. The significance of the terms of this will, at the time that it was made, is not clear, as the evidence does not establish in any complete way what property Mrs Dowsett owned at the time, relative to the various specific gifts that she made in her will. 17. On 30 October 2014, Mrs Dowsett transferred her interest in the Pelican Property to Donna. The Transfer acknowledged the receipt of $290,000, but it was common ground that Donna was not required to pay any price for the transfer. Donna gave evidence that she paid the stamp duty of $8,640. 18. A letter dated 10 November 2014 to Mrs Dowsett from the solicitor who acted for her on the transaction, Ms Lorraine Boyce, noted that no money had been paid by Donna for the transfer, and that Mrs Dowsett had given instructions that Donna "…had agreed that she would try and look after you in the future. It may be that she may even build a small flat on the back of the block where it is closer to Donna for you to reside in…" The letter also stated that the solicitor retained an affidavit that was prepared by Mrs Dowsett to protect Donna "…showing that you were of sound mind and your decision to transfer the property to Donna was in accordance with directions from your late husband…" 19. Mrs Dowsett swore an affidavit on 28 August 2014 to explain the reasons for her transfer of the Pelican Property to Donna for no consideration. 20. In short, the affidavit stated that Mrs Dowsett's husband bought the property at about the same time as Donna was born. The Pelican Property had not been cared for as well as it should have been over the last 20 odd years or so. Throughout Mrs Dowsett's marriage to Mervyn, her husband had always stated that the property was to go to Donna. Donna had kept the property in good order. Unfortunately, Mervyn died without an updated will expressing his desire that the property be given to Donna. Mrs Dowsett said that she had the responsibility to carry out Mervyn's wishes "in accordance with what he informed me over the years of our marriage". Although Mrs Dowsett had four children, Donna "is the one that I most depend upon". Mrs Dowsett then explained that she had been required to pay the upkeep, rates, water and insurances upon the Pelican Property and that, due to her financial circumstances, she was finding it to be a struggle. Mrs Dowsett said: 17. It will be a weight off my shoulders knowing that the property is able to be kept by the person Merv wanted the property to go to and will assist me financially as I am not in a position to continue to look after the property. 1. Mrs Dowsett annexed to her affidavit a brief medical certificate by a local Gunnedah doctor that confirmed that he had seen and examined Mrs Dowsett "and find her to be alert and oriented and mentally and intellectually intact. She is of sound mind and fully able to make informed and responsible decisions about her affairs." 2. Plainly, Mrs Dowsett's affidavit states that she transferred the Pelican Property to Donna for no consideration to implement the wishes of her late husband. The gift was consistent with clause 3 of Mrs Dowsett's 16 July 2013 will, under which she had devised the Pelican Property to Donna. Ms Dowsett apparently decided to accelerate the transfer of the Pelican Property to Donna, so that Mrs Dowsett could avoid having to bear the continuing financial burden of retaining the Pelican Property in her own name. 3. The evidence concerning the manner in which Mrs Dowsett made a gift of the Pelican Property to Donna establishes that, in 2014, Mrs Dowsett participated in a transaction in which she was advised by a solicitor, and should have learned the steps that needed to be taken by a mother in her position and of her age to make a substantial gift of her property to one of her children, in a manner that would be able to resist claims by her other children that the transaction was improper. 4. The transactions that led to the transfer of $140,000 from Mrs Dowsett to Donna began on 30 June 2015. There was no issue between the parties concerning the steps involved in the transaction. 5. It appears that, on 15 May 2015, Mrs Dowsett signed an AMP withdrawal form that would, if implemented, have led to the withdrawal of the whole of Mrs Dowsett's investments in what were described as "AMP Capital Balanced Growth" and "AMP Blue Chip", worth $131,401.72, and the payment of that money into a joint account at the Commonwealth Bank of Australia in the joint names of Narelle and Neale. I will refer below to Donna's evidence as to why this withdrawal form was not implemented. 6. On 30 June 2015, an AMP cheque was deposited into Mrs Dowsett's Bonus Saver account with Greater Building Society Ltd, in the amount of $129,402.19. After the deposit, the balance in the account was $144,555.18. 7. On 10 July 2015, Mrs Dowsett executed a new enduring power of attorney, which made Donna her sole attorney. The effect of clause 2 was, when read in the light of s 12 of the Powers of Attorney Act 2003 (NSW), that Donna was not authorised to do any act as a result of which a benefit would be conferred on Donna, as the power of attorney did not expressly authorise the conferral of any such benefit. 8. Mrs Dowsett also executed a new appointment of enduring guardian on 10 July 2015, by which she appointed Donna and another of her grandsons, Jaxson Robert King, as her enduring guardians. It may be noted that, by clause 4, Mrs Dowsett stated her wish that when she was incapable of living on her own, she was not to be placed in a nursing home, but instead it was her wish that she live with Donna and her son-in-law, Mr Dennis Frederick King. 9. Mrs Dowsett made what I understand to be her last will on 10 July 2015. Mrs Dowsett revoked her prior wills, and by clause 2(a) appointed Donna to be her sole executrix and trustee. 10. After making a number of small gifts, by clause 7 Mrs Dowsett directed that her Gunnedah home be sold and the proceeds form part of the balance of her estate. 11. Clause 8 had the effect that the residue of Mrs Dowsett's estate was to be shared equally between her four children. 12. Compared to the earlier will, Mrs Dowsett did not provide for individual components of her estate to be given to different beneficiaries. 13. One effect of the will was that, while under the 16 July 2013 will Mrs Dowsett's AMP investment had been given to her grandsons, by 10 July 2015 that investment had been realised and the proceeds paid into Mrs Dowsett's Greater Building Society Ltd Bonus Saver account. It would therefore, as at the date of the 10 July 2015 will, have formed part of the residue of Mrs Dowsett's estate, and been shared equally between her four children. 14. On 12 September 2015, $140,000 was withdrawn from Mrs Dowsett's Bonus Saver account. The withdrawal left a balance of $5,292.46. 15. The $140,000 was apparently, on 12 September 2015, paid into a "Retirement Plus" account with Greater Building Society Ltd. Before the transfer, there was $7,689.17 in that account. 16. On 14 September 2015, $140,000 was transferred into Mrs Dowsett's Everyday Account with the Mutual Bank. 17. By telephone transfer made on 7 October 2015, $140,000 was withdrawn from that account, leaving a balance of $1.52. 18. The final transaction, which occurred on 19 October 2015, involved a telephone transfer of $140,000 into an account solely in the name of Donna. 19. The evidence establishes that all of the transactions, after the initial deposit, were effected by Donna. Donna gave evidence in cross-examination that Mrs Dowsett was not "savvy" about computer or telephone banking arrangements (at T95.20). 20. It is clear that the effect of this series of transactions was to transfer $140,000 of Mrs Dowsett's funds, initially from an account in her sole name, through an account in the joint names of Mrs Dowsett and Donna, into an account solely in the name of Donna. 21. The evidence appears to show that there was a sharp difference of opinion between Donna, on the one hand, and her three siblings on the other, as to the manner in which Mrs Dowsett should be cared for in her remaining years. There is some evidence of Mrs Dowsett having inconsistent views as to which side of this dispute was in her best interests. The evidence on this issue was not comprehensive, and it is not possible for the Court to resolve this issue in detail. 22. However, the evidence does establish that, for about six months up to 5 November 2015, Mrs Dowsett lived with Donna at her home in Wallsend, and was cared for by Donna. 23. On 5 November 2015, Mrs Dowsett went to live with her daughter, Narelle, in Gunnedah. Subsequently, it appears, Mrs Dowsett lived for a period in a nursing home in Gunnedah, but because of the difficulty in funding the nursing home fees, on 6 September 2016, Mrs Dowsett moved in to Terrence's home, and she has subsequently spent periods living with Neale and Narelle. 24. Donna put into evidence a letter written by Mrs Dowsett, apparently in August 2015, to her sister in Gunnedah. Mrs Dowsett explained that she had to leave Gunnedah because Narelle and Neale were both trying to put her in a nursing home "so they could sell my house for themselves". Ms Dowsett said: "Neale and Narelle even tried to get into my bank account – but we stopped them just in time. I never thought they were such thieves – however I had known for some time that she was a thief, she stole my jewelry [sic] and tried to pass the blame onto Donna. Neale has always been helping himself to anything he wanted – He was always in trouble with the police and Merv and I had to get him out of it…" 25. It appears that Donna must have kept a copy of this letter. 26. Donna gave the following explanation of the circumstances in which she caused the $140,000 to be transferred to her own account, in her affidavit made on 5 December 2017: 34. Mum has owned a policy in AMP Flexible Lifetime – Investments Ac. No. 0107756 ("AMP Funds"). 35. I was present when AMP phoned Mum, Mum and I spoke with AMP on speakerphone to discuss the payment of the sum of $129,402.19. 36. AMP advised Mum that they had received a direction which advised that the funds were to be deposited into the account of Narelle Ann Rowland and Neale Leslie Dowsett. 37. Mum upon learning this was distraught as Narelle had previously stolen items and jewellery and monies from Mum. I then heard Mum say to the staff at AMP to cancel the direction, that she did not authorise the payment and to provide the proceeds in a cheque and post to her address rather than the bank account of Narelle and Neale. … 1. I have referred to the relevant withdrawal form above at par 37. That withdrawal form appears to have been signed by Mrs Dowsett. I mention this fact in order to record that the evidence is not entirely consistent. It is to be noted that these events all occurred when Mrs Dowsett was living with Donna. 2. Donna put into evidence a letter from the AMP to Mrs Dowsett dated 14 December 2015, addressed to Donna's Wallsend address, which included the statement: 2. Donna & Marea authorised the withdrawal to be paid via a cheque and posted to Donna's address as originally it was to be paid into a third party bank account as per below. 1. The letter explained that the third-party bank account was the bank account of Narelle and Neale referred to in the withdrawal form dated 29 May 2015. 2. Donna's affidavit continued as follows: 40. The AMP funds had grown with interest [balance of sentence rejected]. Mum said that the amount was 'an early Christmas present' for me and that under no circumstance should the money be given to the other siblings as Mum was worried that they would use the funds to 'put her in a nursing home'. 41. Mum told me that Narelle and Neale should not have the funds as they had tried to previously steal the money from her… 1. As I have said, on 5 November 2015 Mrs Dowsett left the home of Donna in Wallsend. Donna claimed that Mrs Dowsett had been forcibly taken away. 2. However, on 6 November 2015, Mrs Dowsett executed an enduring power of attorney in favour of Terrence. 3. Subsequently, Donna commenced proceedings in the New South Wales Civil and Administrative Tribunal Guardianship Division (Tribunal) seeking an order for the appointment of a financial manager for Mrs Dowsett. 4. The hearing took place on 6 April 2016 at Newcastle, and the decision was given on that date. Among other persons, Mrs Dowsett, Donna, and her three siblings were recorded as being parties to the financial management application. Mrs Dowsett and Donna, as well as other parties, took part in the hearing by telephone. 5. The reasons for decision record that the Tribunal dismissed the application for the appointment of a financial manager. 6. In its reasons for decision at [14]-[16], the Tribunal referred to medical evidence that was before it concerning Mrs Dowsett's mental condition. A report of a geriatrician dated 16 June 2015 recorded that Mrs Dowsett "does not meet the criteria for a dementing illness but would have mild cognitive impairment syndrome". Another medical report dated 7 December 2015 stated that Mrs Dowsett "was relatively stable with early cognitive change". A report of a general practitioner dated 1 December 2015 stated that Mrs Dowsett "was capable of making decisions regarding her care and that she could understand the implications with such decisions". The doctor stated that Mrs Dowsett "has forgetfulness but this is consistent with her age". Finally, the report of a general practitioner dated 28 October 2015 stated that Mrs Dowsett "was diagnosed with mild cognitive impairment syndrome which appears to have progressed since then and is unlikely to be able to make rational decisions and judgments on her own". 7. The Tribunal summarised the involvement of Mrs Dowsett in the hearing as follows: 19. Mrs Marea Dowsett told the Tribunal that she is happy residing back in Gunnedah which is her home town. She knows many people residing there and has friends and family in Gunnedah. She is happy with the care being provided by her daughter Ms Rowland. Mrs Dowsett said that she can make her own decisions regarding her financial matters and if she needs assistance then Mr Terrence Dowsett can provide this financial assistance. Mrs Dowsett did not express a willingness to meet up with [Donna]. 1. In cross-examination in these proceedings, at T98.42, Donna suggested that Mrs Dowsett had been taken from Donna's Wallsend home against Mrs Dowsett's will. The evidence given by Mrs Dowsett before the Tribunal, and recorded at [19] of its reasons, does not sit comfortably with the evidence given by Donna. At least by 6 April 2016, Mrs Dowsett stated that she was happy with the care being provided to her by Narelle. 2. The Tribunal summarised the evidence given by Donna at [17]. The Tribunal recorded: …[Donna] stated that she is holding $700 for her mother and there is an account with around $140,000 that is in her own name that she is holding on behalf of her mother. She is also holding jewellery on her mother's behalf. [Donna] stated that the property in Pelican was gifted to her by her mother and [Donna] paid the stamp duty on the transfer. 1. This is clear evidence of an admission by Donna, at least at that time, that she held the $140,000 on trust for Mrs Dowsett. The evidence summarised by the Tribunal was given in the context that Donna took the opportunity to claim that the Pelican Property had been transferred to her as a gift. 2. The Tribunal hearing took place before these proceedings were commenced on 24 May 2017, so it is likely that when Donna gave her evidence she did not have in mind that Mrs Dowsett may initiate proceedings, through Terrence, to recover the $140,000. 3. The transcript of part of the hearing before the Tribunal was put into evidence as annexures to the affidavits of two transcription contractors, who had each transcribed part of the electronic recording of the hearing. The relevant part of the transcript was an annexure to an affidavit by Marilyn Betts sworn 29 July 2019. 4. The questions were asked by Mr Shaun McCarthy, Senior Member (Legal). 5. At p 18, Mr McCarthy asked: "Is there any money in a bank account that you're holding on behalf of your mother?" Donna answered: "Yes". Donna then said: "My mother asked me to put money into my account because she didn't want the other three to get it and I said she needed it for later". 6. At p 19, Donna again answered affirmatively in response to a question "that there's money in an account that you're holding for your mother". 7. On the same page, Donna identified the amount as being "140,000 I think". Donna then again affirmed the position in response to the question: "But it's your mother's money?" 8. Then, at p 23, the following exchange occurred: SM And so, Mrs King, [sic] the – so you're holding $140,000 in an account in your name on behalf of your mother; is that right? DK That's correct. 1. In an affidavit affirmed by Donna on 30 July 2019, Donna gave evidence of the benefits that she had conferred on Mrs Dowsett, and gave the following explanation of her evidence to the Tribunal: 8. I told the NCAT Guardianship Division Member that I was holding the $140 000 [sic] in an account on behalf of my mother because even though Mum had gifted me the money, I felt an obligation to help her if she needed assistance. I have previously spent a great deal of money on my mother's wellbeing and I love my mother she is my best friend. 9. Mum said to me words to the following effect prior to the transfer of the $140,000: "This is an early Christmas gift. Just promise me that you won't let Narelle and Neale have it." 10. During the NCAT Guardianship Division hearing, I was not feeling well. I was on the phone for close to 4 hours and my blood-sugar level was becoming extremely low. 1. Donna was cross-examined about her evidence to the Tribunal at the hearing of these proceedings. Donna claimed that Mrs Dowsett gave the $140,000 to her as a gift because Donna had looked after her and paid for many of her needs. The cross-examination established, however, that many of Mrs Dowsett's expenses had been paid from Ms Dowsett's own funds. Donna claimed that Mrs Dowsett had only used her own money for the upkeep of her Gunnedah property, and that Mrs Dowsett's other day-to-day needs were paid for by Donna. 2. In respect of the $140,000, Donna claimed, at T92.4, that she made the transfer to her personal account at Mrs Dowsett's instruction. 3. At T103.4-103.38, Donna was taken to the transcript of the evidence before the Tribunal concerning her holding $140,000 on behalf of Mrs Dowsett. Donna said, at T103.31: "I don't recall saying that". 4. Ultimately, at T104.12-105.20, the following cross-examination occurred: Q. The next question from Mr McCarthy is, "And how much is in that account?" and your answer is, "Well I made a bit of interest so I think about $10,000 in interest, so I think it's - well it's not making interest now, but around 140 - 140,000 I think." A. Correct. Q. See that? A. Yes I do. Q. Your answer was - "That's in an account in your name?" and your answer is, "Yes." A. Yes. Q. Then Mr McCarthy asks you, "But it's your mother's money?" A. Mm-hmm. Q. And your answer is, "Yes." A. Yes it was my mother's money. Q. So it couldn't be - A. Originally. Q. It couldn't be any more plain, could it, that six months after the transfer, you are telling NCAT that it's your mother's money? A. Well originally it was her money until she gifted it. Q. No, you're telling NCAT in April 2016 that it's your mother's money. A. It was my mother's money, originally. Q. You are telling NCAT that the money belongs to your mother? A. It did belong to my mother. Q. The fact of the situation is that it was always your mother's money, wasn't it? A. I've never said that it wasn't my mother's money, ever. Q. It was never a gift to you, was it? A. Yes it was. Q. You didn't tell NCAT there anywhere did you that "It was gifted to me"? A. I think it actually is in there somewhere from maybe the first NCAT. Q. You think it might be in the transcript of the first NCAT hearing? A. Possibly. Q. But it's not there in the transcript of the second NCAT hearing, is it? A. I have no idea. I don't recall. Q. You received a letter - just before we get to that, I want to put this to you. Given what you told NCAT in April 2016 about the moneys belonging to your mother, your assertion now that the moneys were a gift to you, that is a false assertion, isn't it? A. Sorry I can't - I didn't hear you at the end. Q. It's a false assertion, isn't it - A. No. Q. - that the $140,000 - A. No, absolutely not. 1. Given the unqualified nature of the evidence given by Donna to the Tribunal, I find that Donna's attempt to reconcile that evidence with her claim that Mrs Dowsett had made a gift to her of the money lacks credibility. I do not accept that the evidence given to the Tribunal can stand with Donna's assertion that all she meant was that "…originally it was her money until she gifted it": see T104.36. I also do not find Donna's evidence in her second affidavit that she stated to the Tribunal that she held the $140,000 on behalf of her mother, notwithstanding that the money had been given to Donna, because she thought Mrs Dowsett may need assistance, or because Donna was feeling unwell, to be plausible. 2. Terrence gave evidence of correspondence issued by the Australian Government Department of Human Services concerning Mrs Dowsett's financial circumstances. A letter to Terrence dated 8 November 2016 stated that: "For aged care purposes, your assets have been assessed as $390,551.32 and your net fortnightly income as $893.55…" (emphasis in original). 3. A later document issued by the Department to Mrs Dowsett, on 12 December 2016, gave details of Mrs Dowsett's assets, as assessed by the Department. The total assets were assessed as being worth $271,164.12, with Mrs Dowsett's annual income being $6,287.26. The assets included: "Gifted Cash/Loans" of $130,000 and "Gifted Real Estate" of $11,000. The letter did not explain in detail how the "Gifted" amounts had been calculated. 4. The assets included cash of $8,725, life insurance of $45,002, managed investments of $62,554.78 and shares worth $11,063. 5. Terrence's evidence was that the effect of the Department's assessment was that Mrs Dowsett did not have sufficient funds to pay the required fees for the Gunnedah nursing home. 6. Further, on 10 March 2017, Centrelink demanded payment of an amount of $4,792.08, by a notice addressed to Terrence, representing an overpayment: "Due to the gifting of property and cash…" 7. For the following reasons, I reject Donna's claim that she was authorised to transfer the $140,000 by the series of transactions that led to the whole amount being paid into an account solely in the name of Donna, on the basis that the payment was intended by Mrs Dowsett to be a gift to Donna. 8. The evidence is not sufficient to enable the Court to make any positive finding about whether or not Mrs Dowsett authorised the series of transactions. However, whether or not Mrs Dowsett knew of the transactions, I am satisfied that she did not say that she intended to transfer the $140,000 to Donna as a gift. 9. I consider that the admissions made by Donna in the formal context of the hearing in the Tribunal are decisive that no gift was intended, and that Donna appreciated that fact. 10. It is significant that the admissions were made to the Tribunal by Donna at a time when Mrs Dowsett was on the telephone and could hear the admissions. Not only did Mrs Dowsett not contradict the statements made by Donna, but the fact of those statements must have given Mrs Dowsett an understanding that Donna acknowledged that she held the $140,000 on behalf of Mrs Dowsett. 11. It is true that Mrs Dowsett has not personally given evidence to contradict the evidence given by Donna in her affidavit, to the effect that Mrs Dowsett wanted Donna to keep the money as a gift. Donna was therefore entitled to make the submission that she did, relying upon the decision of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel), that the Court should infer that Mrs Dowsett was not able to give evidence contradictory of that given by Donna. 12. However, the special features of this case, in my opinion, attenuate the effect that should be given to the principle in Jones v Dunkel. 13. First, any decision by Mrs Dowsett not to give evidence must be judged in the light of the unqualified admissions made by Donna to the Tribunal. It was reasonable, in my view, for Terrence, as Mrs Dowsett's tutor, to take the view that those admissions were so clear that they could not be explained away by Donna. 14. Further, even though there was no specific evidence as to why Mrs Dowsett did not give evidence, the fact remains that she was almost 89 years of age at the date of the hearing. Donna had sought to establish in the Tribunal that Mrs Dowsett was incapable of managing her own financial affairs. The Tribunal rejected that application, but only on the basis that, notwithstanding the medical evidence before the Tribunal, Terrence was capable of giving Mrs Dowsett the necessary assistance in respect of her financial affairs. 15. The Court should not give significant weight to the indirect medical evidence referred to in the Tribunal's reasons, but it should not ignore entirely the fact that there is some evidence that Mrs Dowsett may have an impaired memory. 16. It is significant that Mrs Dowsett did intend to make a gift to Donna, that is the transfer of the Pelican Property to Donna, and did so with advice and in a manner such that she would have had reason to understand that she should take special steps to ensure that future such gifts could not be attacked. The fact that comparable steps were not taken in respect of the payment of $140,000 to Donna weighs in the balance against a finding that Mrs Dowsett intended to make a gift of that money to Donna. 17. Mrs Dowsett's 10 July 2015 will was made only three months before the $140,000 was transferred into the sole name of Donna on 19 October 2015. As recorded above, that will provided for the residue of Mrs Dowsett's estate, which would at that time have included the proceeds of the AMP investment that had been paid into Mrs Dowsett's Bonus Saver Account, to be divided equally between Mrs Dowsett's four children. There is no satisfactory explanation as to why, by October, Mrs Dowsett may have changed her mind, so that the whole of the amount should be given to Donna alone. 18. Such a change of mind is also unlikely given that, on 30 October 2014, Mrs Dowsett had transferred the Pelican Property, valued at $290,000, solely to Donna. On the whole of the evidence, there is insufficient reason for the Court to infer that Mrs Dowsett so greatly preferred Donna above her other three children, as to wish to give such a substantial portion of her estate to Donna to the exclusion of those other children. 19. Finally, while the evidence is not comprehensive, it appears that the effect of Mrs Dowsett making a gift of $140,000 to Donna may have been to deprive Mrs Dowsett of having sufficient residual funds to provide for herself for the balance of her life. 20. This conclusion appears to have been borne out by the fact that Mrs Dowsett was said to be unable to pay the fees for the Gunnedah nursing home, as a result of the fact that both the Department and Centrelink treated the supposed gift as remaining an asset of Mrs Dowsett. 21. In these circumstances, Mrs Dowsett is entitled to an order that Donna pay her $140,000 plus interest calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW) from 19 October 2015. Mrs Dowsett should, after confirming the calculations with Donna, inform the Court of the total amount, including interest, that should be the subject of the order in favour of Mrs Dowsett. 22. As Mrs Dowsett abandoned a substantial part of the case that she originally made against Donna, it will be necessary for the Court to hear the parties on the issue of the costs orders that should be made. Any submissions that are made by the parties on that subject should be supported by some objective analysis of the preparation and the consequent costs in respect of the parts of Mrs Dowsett's claims on which she has succeeded, as opposed to those that were abandoned. 23. I direct the parties to provide to my associate brief written submissions within 14 days, after serving those submissions on the other party. Submissions strictly in reply may be delivered within a further 7 days. ********** 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: 28 October 2019