A v N & anor - [2012] NSWSC 354 - NSWSC 2012 case summary — Zoe

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A v N & anor

[2012] NSWSC 354

Supreme Court of NSW|2012-02-24|Before: Ward J

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Court

Supreme Court of NSW

Decision date

2012-02-24

Before

Ward J

Source

Original judgment source is linked above.

Judgment (3 paragraphs)

[1]

A Little Company Ltd v Peters [2007] NSWSC 833 Agricultural and Rural Finance Pty Ltd & Anor v John Edward Atkinson & Ors [2010] NSWSC 635 Arthur Young v Tieco International (1995) 182 LSJS 367 Ashpifel v Bryan (1884) 122 ER 999 Australian and New Zealand Banking Group v Aldrick Family Company Pty Ltd [2010] NSWSC 1000 Australia and New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 Baburin v Baburin [1990] 2 Qd R 101 Banks v Goodfellow (1870) LR QB 549 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11 Barton v Armstrong [1976] AC 104; (1973) 3 ALR 355 Baulderstone Hornibrook v Gordian Runoff [2008] NSWCA 243 Black Uhlans Inc v NSW Crime Commission & Ors [2002] NSWSC 1060 Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; 62 NSWLR 653 Brandi v Mingot (1976) 12 ALR 551 Bridgewater v Leahy (1998) 94 CLR 457 Browne v Dunn (1893) 6 R 67 (HL) Bull v Fulton (1942) 66 CLR 295 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136; [2006] FCA 446 Canon Australia Pty Ltd v Patton (2007) 244 CLR 759 Carantinos v Magafas [2008] NSWCA 304 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 Charter Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 Clarke v Lopwell [2008] NSWSC 615 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Commonwealth of Australia v McLean (unreported, NSWCA, 31 December 1996) Corin v Patton (1990) 169 CLR 540 Crago v McIntyre [1976] 1 NSWLR 729 Crescendo Management v Westpac (1988) 19 NSWLR 40 Dalle-Molle (by his next friend Public Trustee) v Manos BC-200402709 Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck) [1992] 2 AC 152 Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 EMG v Guardianship and Administration Board of Victoria (unreported, Supreme Court of NSW, Young J, 28 May 1999) Ford v his Tutor Watkinson v Perpetual Trustees Victoria Ltd [2009] NSWCA 186 Frizzo & Anor v Frizzo [2011] QSC 107 Gibbons v Wright (1954) 91 CLR 423 Gregory Paul Montfroy v Roads Corporation (trading as VicRoads) [2005] VSC 320 Harding v Tingey (1864) 12 WR 684 HML v R [2008] HCA 16; (2008) 235 CLR 334; (2008) 245 ALR 20 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 Howitt Transport v Transport and General Workers' Union [1973] ICR 1 Huguenin v Basely (1807) 14 Ves Jun Supp 273 Hume v Munro (No 2) (1943) 67 CLR 462 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Ingot v Macquarie [2004] NSWSC 1136 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; (2008) 252 ALR 659; (2008) 68 ACSR 595; [2008] NSWCA 206 Jackamarra v Krakouer [1998] HCA 27 at 29; (1998) 195 CLR 516 Jenyns v Public Curator (Qld) (1953) 90 CLR 113 Johnson (by her tutor Smith) v Johnson [2009] NSWSC 503 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kation Pty Limited v Lamru Pty Limited [2009] 257 ALR 336 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; (1977) 52 ALJR 189 Kazar, in the matter of Frontier Architects Pty Ltd (in liq) [2010] FCA 1381 Kowalczuk v Accom Finance Pty Ltd (2008) 252 ALR 55 Kung v Wang Din Shin [2005] HKCFA 54 Low v Innes (1864) 4 De GJ & Sm 286 Lush v Russell (1850) 5 Exch 203 Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2007] NSWSC 12 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117 Massoud v NRMA Insurance Ltd (1995) 8 ANZ Insurance Cases 61-257 (75,873) Masterman-Lister v Brutton & Co [2003] 3 All ER 162 McLarnon v McLarnon (1968) 112 Sol J 419 McNair Anderson Associates Pty Ltd v Hinch; McNair Associates Pty Ltd v 3AW Broadcasting Co Pty Ltd [1985] VR 309 Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242; [1964] 3 All ER 592 Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 Murphy v Doman [2003] NSWCA 249 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 O'Brien v Australia and New Zealand Bank Ltd (1971) 5 SASR 347 Orleans Investments Pty Ltd and Anor v Mindshare Communications Ltd [2009] NSWCA 40 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Patterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588 Petelin v Cullen (1975) 132 CLR 355; 6 ALR 129 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 Ratcliffe v Evans (1892) 2 QB 524 Re Bega Co-operative Society Ltd & Anor v The Milk Authority of the Australian Capital Territory & Anor [1997] FCA 200 Read v Nerey Nominees Pty Ltd [1979] VR 47 Riz v Perpetual Trustee Australia Ltd (2008) NSW ConvR 56-198; [2007] NSWSC 1153 Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 Saunders v Anglia Building Society [1971] AC 1004; [1970] 3 All ER 961 Saxon v Saxon [1976] 4 WWR 300 Silver v Dome Resources NL [2007] NSWSC 455 Smith v Elders Rural Finance Pty Ltd (1995) Aust Contract R 90-054 Spina v Conran Associates Pty Ltd [2008] NSWSC 326 Spina v Permanent Custodians Ltd (2009) 14 BPR 26,923 Spokes v Banbury Board of Health (1865) LR 1 Eq 42 Sternbeck v Sternbeck (1968) 11 FLR 360 Szabo v Battye [2006] NSWSC 1351 Szozda v Szozda [2010] NSWSC 804 Temiha v Sadebarth [1997] NSWCA 308 The Juliana (1822) 2 Dods 504 Thomas v Thomas (1842) 2QB 851 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505 Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; (2007) 62 ACSR 1; [2007] NSWCA 75 Walker v Police (Unreported, Supreme Court of South Australia, Mullighan J, 19 June 1998) Watson v Foxman (1995) 49 NSWLR 315 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Whereat v Duff [1972] 2 NSWLR 147 White v Overland [2001] FCA 1333 Winefield v Clarke [2008] NSWSC 82 Texts Cited: J W Carter, E Peden and G J Tolhurst in Contract Law in Australia (5th ed, 2007) J Fonblanque, Treatise of Equity (1831) J D Heydon, Cross on Evidence (8th Australian ed) R P Meagher, W M C Gummow and J R F Lehane, Meagher Gummow and Lehane's Equity: Doctrines and Remedies (3rd ed, 1992) R Meagher, D Heydon and M Leeming, Meagher Gummow and Lehane's Equity: Doctrines and Remedies (4th ed, 2002) Myers, Australian Bar Gazette, 1967 Vol 2 p 3 P Vout (ed), Unconscionable Conduct the Laws of Australia (2006) Category: Principal judgment Parties: A (Plaintiff/Cross Defendant) N (First Defendant/Cross Claimant) E (by the NSW Trustee & Guardian (formerly Office of the Protective Commissioner) as Manager of the Estate of the Second Defendant) (Second Defendant/Second Cross Defendant) Representation: Counsel D Roberts (Plaintiff/First Cross Defendant) SS Ahmed (First Defendant/Cross Claimant) C Zucker (Solicitor) (Second Defendant/Second Cross Defendant) Solicitors Hunt & Hunt (Plaintiff/First Cross Defendant) Buttar Caldwell & Co (First Defendant/Cross Claimant) Zucker Legal (Second Defendant/Second Cross Defendant) File Number(s): 09/287664

[2]

Judgment 1HER HONOUR: At the heart of these proceedings is a dispute between members of the L family (more particularly, between A (the second wife of E) and N (E's daughter from his first marriage)) as to a deed entered into between each of E, A and N in March 2008 following a mediation of certain disputes then before this Court between E and N. 2In these reasons I will refer to the family members or extended family members (such as A's nephew and former son-in-law, NM) by their initials because E is a person in respect of whom orders under the Guardianship Act 1987 (NSW) have been made. Section 57 of that Act prohibits the publication or broadcast (except with the consent of the Tribunal) of the name of any person who is under guardianship, whether before or after disposal of the Tribunal proceedings. (I note that s 101(c) of the Act excludes from the prohibition on disclosure of information obtained in connection with the administration or execution of the Act where this is for the purposes of any legal proceedings arising out of this Act or of any report of such proceedings, but that does not necessarily apply to the present situation. Sub-s (e) permits disclosure with "other lawful excuse", which I accept would be likely to encompass reference to the parties by name in the context of the proceedings before me, but again it is not necessarily the case that publication of material contained in my reasons for judgment would fall within this sub-section.) 3In EMG v Guardianship and Administration Board of Victoria (unreported 28 May 1999, Supreme Court of NSW), Young J (as his Honour then was) observed that although s 57 clearly does not apply to the Court itself, it is difficult to comply with the Court's obligation as to publishing its judgments (especially those which deal with questions of principle) where this may involve persons in a possible breach of s 57 thereafter. His Honour noted that "the Court does not wish [to see] people who are involved in publishing the Court's judgments in the ordinary course of their business innocently breaching this section". His Honour in that case provided the parties with an appendix to the reasons in which identifying material was contained and retained a copy of that appendix in the Court's file but the published reasons did not contain that information. With respect, I will adopt that practice in the present case. 4E is (and, on the medical evidence before me, has been since about June 2008 if not before) incapable of managing his own affairs and of providing instructions in relation to the disputes the subject of these proceedings. E is represented in these proceedings by his tutor, the NSW Trustee and Guardian, who does not seek to set aside the March Deed. In practical terms, therefore, the present dispute is between A (who seeks to enforce the deed) and N (who seeks, on a variety of grounds, that it be set aside and who contends that the effect of setting aside the deed would have certain consequences as to her interest in the properties the subject of the earlier proceedings). 5The March Deed provided, inter alia, for the disposition as between the parties thereto of interests in three properties (to which I will refer, respectively, as the Concord, Leichhardt and Summer Hill properties). Before entry into the March Deed (though subject to the efficacy of certain steps that had been taken by E in 2007 to sever the joint tenancies under which ownership of the properties had been held), E and N were the owners as joint tenants of each of the three properties. What the March Deed provided for (in respect of the ultimate ownership of those properties) was that the Concord property was to be held by E and N as joint tenants in equal shares (with E entitled to occupy that property during his lifetime); N's half share in the Leichhardt property was to be transferred to A (E retaining the remaining half share in that property); and the Summer Hill property was to be sold with the proceeds of sale divided as to 35% to E and 65% to N. 6The March Deed also provided for the reversal in effect, of steps that had been taken by E in December 2007 to sever in equity the joint tenancies subject to which those properties had previously been held (those steps being the execution by E of transfers unilaterally severing the joint tenancies by transferring a small percentage interest in each of those properties, for consideration, to A). Those transfers (which had not then been registered) were to be cancelled, with A's agreement, and the then existing proceedings between E and N (in which N had challenged the entitlement of E to sever the joint tenancies, inter alia on the basis of an alleged agreement reached with E pursuant to which N asserted a half share in the properties had been transferred to her) were to be dismissed. (The March Deed contained a number of other provisions to which I will refer in due course.) These Proceedings

A's claim 7These proceedings were commenced by A by Summons in April 2010. There followed successive pleadings of her claim, the final version of which is her Further Amended Statement of Claim filed in Court on 13 February 2012, by which A seeks an order that N specifically perform, and carry into effect, the provisions of the Deed of Settlement and Release dated 28 March 2008 entered into by her (the March Deed) and a declaration that E had the mental capacity to enter into the March Deed. At one stage in the proceedings, A also sought a declaration in relation to a collateral agreement said to have been entered into between she and E very shortly after the March Deed but the claim in relation to that alleged agreement has not been pursued. (The circumstances underlying the allegation of such an agreement are, however, relied upon by N as support for her claim that, as at late March 2008, A was in a position of undue influence over E). 8A has sought, in addition, consequential relief in relation to the March Deed (including an order that N vacate the Concord property; a declaration that, by virtue of the covenants contained in the March Deed, N's interest in the Leichhardt property is held on trust for A from the date of the March Deed, so as to effect a severance of the joint tenancy between E and N in respect of that property; an order that N produce the title deed of the Leichhardt property and for steps to be taken for the registration of the 2007 transfers severing the joint tenancies). A also seeks a declaration that E had the mental capacity in January 2007 to execute (or, more precisely, register) the transfers unilaterally severing joint tenancies over the various properties then held jointly with N (those transfers having been the ones in issue in the former Court proceedings).
N's defence 9N, in her defence to A's claim, admits signing the March Deed and the relevant provisions contained therein but denies that A is entitled to have the March Deed specifically performed. She alleges that A has failed to perform the covenants in the March Deed (in particular, it being alleged that A refused N access to her father in breach of clause 3(e) of the March Deed). 10In further answer to the whole of the claim, N pleads:
first, that her execution of the March Deed was procured by A by the exercise of unconscionable conduct and duress over N (in each case those allegations being cross-referenced to matters pleaded in N's cross-claim); and
secondly, that E's execution of the March Deed was procured by A by the exercise of undue influence over E; by unconscionable conduct of A towards E; and in circumstances where A was aware of E's lack of capacity at the time of execution of the March Deed (again, these allegations being cross-referenced to matters pleaded in the cross-claim). 11N also pleads an unclean hands defence to A's claim for specific performance of the March Deed by reference specifically to her allegation as to the refusal by A of access to E and as to the various allegations of undue influence, unconscionable conduct and duress in respect of one or both of N and E (as well as the allegation of A's awareness of E's lack of capacity).

Sever joint tenancy
Will 3.P/A 4 End. Guardianship [presumably a reference to the enduring power of guardianship he then prepared]. 142Mr Moore's account of the advice he gave to E at that conference in relation to the concept of joint tenants and tenants in common in relation to land is set out in [7] of his first affidavit. He deposes that E was visibly distressed during that discussion. In summary, he deposes that (through the interpreter) E explained that it had always been his intention to give a half share of his three properties to N but had not intended that she have all the properties when he died and that it had been his understanding that he could leave his half of the properties to whomever he wished when he died. (This is consistent with the accounts given to each of Professor Dickson, Mr Nesci and Ms De Pasquale of his intentions, though I accept that there is a difference in principle between undoing the whole transaction, as E said he wanted to do at one stage, and simply severing the joint tenancy but leaving N with a half interest in the properties.) 143Mr Moore deposed, in general terms, that he considered E's responses and questions to be responsive to the discussion and to be consistent with E having an understanding of the members of his family, his interests in real estate and his understanding of title and ownership of his real estate. 144Mr Moore gave more detail in his second affidavit as to the advice that was given by him (he says on 18 December 2007) in relation to the concept of joint tenancies (and translated to E) and he says that E said in English that N had "tricked" him (evidence supported by NM). At T 283.1, Mr Moore was asked as to what questions he had put to E to test his understanding and he said: A. I asked a series of questions about him and his relationship with his son [R] and especially him and his relationship with [N], about the circumstances in which he had agreed to give half of the three properties to [N]; about the differences between a joint tenancy and a tenancy in common and his distress - he came to appreciate what he had agreed to was a joint tenancy with its right of survivorship. I have some recollection because they did not directly relate to the case but there was some property [R] had at Illawong, or something, and I recall [E], through the interpreter, saying something to the effect that [R], in [E's] mind, [R] has been adequately provided for through this property, I thought at Leichhardt, and obviously he felt he had provided for [N] when he transferred three properties to her, although not perceiving he had done it as joint tenancy. Q. Did you ask whether he had any other members of his family? You did not ask? A. I believe I asked what children he had. The focus was on the recollection and my recollection says two children. ... A. He said that he had owned or through his company owned three properties and that he had transferred a half share in those three properties to [N], the effect of which was that he retained the other half interest in those three properties. Q. And the third bullet point is his understanding of ownership of real estate. What did he say to you that led you to understand that he understood that? A. After we spoke about his decision to transfer the half share to [N], the three properties, I explained, I said to him words to the effect that when you own a property half/half, you can either own it as a tenancy in common or as a joint tenancy. This is all being done through an interpreter. I explained the effect of a tenancy in common is that when one person dies, their share goes to their estate, is governed by their will whereas in the case of a joint tenancy, when one person dies, their share goes to the survivor. I asked him whether he now understood that what had occurred when he went with [N] to a solicitor was that each of the transfers created joint tenancy. He said that he did understand that and he got rather emotional because he said words to the effect that [N] has tricked him and that he had only ever intended that she get half, half in the sense that whoever dies first or half in the sense that there would be no right of survivorship. I specifically recall that at the time when he did get emotional I spoke directly to [E] to the effect that: [E], I sense you are very upset when you realised that the half interests created give a right of survivorship to [N] if she survives you, and at that point he said, "That is right," in the English language, not through an interpreter. He broke down. He got very upset. That actually happened at least twice, once on 18 December and a second time - might have even been three times - but I know I conferred with him in January about having a mediation and I conferred with him before the mediation and at least on two other occasions something similar. 145Mr Moore says that he then (in the second of the three hours spent on 18 December 2007 at Kreisson Legal's offices) explained to A what advice he had given. In the third hour he says that he and Ms Teremi spoke to the Registrar-General's legal office and caused the documents to be prepared. (For 19 December 2007 there is 0.25 hours perusal email and advice, with no suggestion that Mr Moore was in attendance in a conference on that date.) 146Mr Moore says that he was satisfied there was no element of coercion relating to E's involvement in the first three hour conference and that A was not present during the entirety of that conference. Tested on this in cross-examination there was the following exchange: Q. Paragraph 12 of your first affidavit, you say that there was nothing which suggested or indicated to you from [E's] demeanour, "from his demeanour or from what he said to me," That there was any sense of coercion or persuasion by any other party, including [E's] wife; do you see that? A. I see that. Q. You would agree with me, Mr Moore, that you haven't put in your affidavit whether you asked [E] whether he was giving instructions from his free will? A. I didn't put that exact question to him, but a series of questions through interpretation were to the effect of, what do you want to do? It is for that reason that I felt very comfortable to put what's in paragraph 12 or the first part of paragraph 12 of that affidavit. Q. Because he responded to your question of, "What do you want to do?" A. Yes. I didn't follow it up by saying, "And when you say that, that's what you want to do, it is of your own free will?" I don't recall putting that precise follow up question to him. Q. I take it from that answer you didn't ask him whether [A] was persuading him to do certain things? I will put a timeframe on that question, as at 18 December 2007? A. I didn't ask him that, but in the course of spending a good hour plus with him on that morning to be satisfied that he understood what he was wanting to do, he made it clear to me through the interpreter, that he had a clear sense of the he was torn and he said this in as many words, he was torn between his love for his daughter and his wife and his desire was to, in his mind, do the right thing by each of them. He made it clear that he did not want to budge from the proposition that [N] should get half, but he felt aggrieved that by the right of survivorship there might be the potential she would get more than half. I formed the view this was a man who had a mind of his own and I feel very comfortable in swearing as I have, that I did not perceive him to be under any sense of coercion by his wife behind the scenes. The truth is I don't know what happens the rest the time when they are together, but he came across in the conference we had as a man who had a mind of his own and he knew what he wanted to do and he knew what he was happy about and what he was not happy about. He was not happy about there being a right of survivorship but he did want a situation where [N] had the right of half the property. 147In summary, Mr Moore's position is that he was satisfied that E had a clear understanding as to the nature of his property and the nature and effect of title to his property. He says that, with the assistance of the Italian interpreter, E's responses to his advice and questions was consistent with E having an understanding of the nature of the Court proceedings and that his responses were consistent with E understanding Mr Moore's advice as to the nature and effect of the title to his properties and ownership of the properties. 148As to what occurred at the conference on 18 December 2007, NM confirmed that Mr Moore had explained the concepts of joint tenancy and tenancy in common to E and that they were translated by the interpreter. In cross-examination he said as follows from T 462: Q. And he [Mr Moore] also explained the right of survivorship in the joint tenancy? A. He did. Q. And during that conference do you recall Mr Moore saying these words to [E], "Do you understand what happens with a joint tenancy if you die first"? A. I do, I recall that. Q. Do you recall [E] responding in the Italian language through the interpreter "[N] gets the lot"? A. No. [E], actually I remember his answer which put everybody aback and said 'I don't understand this stuff but you do what you need to do' and in English he said that. Q. I suggest to you that [E] through the interpreter put the words "[N] gets the lot"? A. No, I don't recall that, no. Q. Do you recall Mr Moore saying these words to [E] "[E], if you want to sever the joint tenancy you can sell a small fraction of all the properties to Angela, say one hundredth or one fiftieth of your share of the market price. The properties I am told are worth $3 million so she would have to pay $30,000. Do you wish to sell her that small portion of all of your properties to sever the joint tenancy with [N]." Do you recall Mr Moore saying that and the interpreter translating that to [E]? A. I recall Mr Moore saying that to the solicitor that was present, not to [E] directly, 'this is what we will do' and he set up the strategy. I do not recall that being said to the solicitor. We were then just instructed to pay the 30,000. ... Q. Of course this conference occurred well over three years ago, A. The reason I recall it so well is because I considered myself to be a little bit experienced with property and titles and things, and I wasn't following what Mr Moore was getting at with severances of titles and joint tenancy and tenants in common. I was finding it difficult to understand his concept. So I was wondering how on earth is [E] going to understand and that's why I remember it so well. [I note here that N's affidavit sworn in the 2007 proceedings deposed that [E] had understood those concepts as at September 2006 - a time at which Dr Dowla had already placed [E] on the downward path in terms of mental capacity.] ... Q. I suggest to you that in response to the explanation I have put to you about selling the one hundredth or one fiftieth or the sum of $30,000, [E] responded through his interpreter and words to the effect "yes, she should only get half"? A. I don't remember that. Q. [E] also said in the conference through the interpreter "I was very upset what I understood what I had signed meant if I died [N] would get Concord, Leichhardt, Summer Hill properties"? A. I do remember, that, yes. Q. He said, this is [E] "I agreed to give her half, I did not agree that she should get all of the properties if I die first"? A. I remember him saying that, yes. Q. And a further conversation occurred between Mr Moore and [E] through the interpreter. Mr Moore said this: "[E], are you saying that [N] was not to get all of the three properties if you died first"? A. I don't remember that. Q. Do you remember this, that [E] said to Mr Moore "that's right, she tricked me. I love [N]. I want [N] and myself to be friends. She was only to get half"? A. The first part "she tricked me", no and the last part, "she was only to get half" but the part in the middle was accurate, I do recall that, "that I love [N]" and "I want her and [A] to be friends", yes, I recall that. 149(Although NM recounts his attendance at a conference with Kreisson Legal on 19 December 2007 at [44] of his first affidavit and [10] of his second affidavit, he accepts that this must have been a reference to the conference on 18 December 2007.) NM deposed to advice given by Mr Moore to A in his presence in which he says Mr Moore said: If [E] were to pass away now, [N] would receive all the properties. In order to stop this from happening, we need you to buy from your husband 1% of each of the properties. You will need to pay him the value of that 1%, which is $30,000. This is very urgent when can you do it?" and that A asked him to help out with the funds to do so and would pay him back. He says that they drove to a bank at Rockdale and he transferred the money to E's bank account. He also accepts that A repaid him a few days later. Pausing there, if what is deposed to by NM is an accurate account of what was said by Mr Moore, the urgency there expressed by Mr Moore would seem to relate to the possibility that E might pass away before the position in relation to the joint tenancy could be resolved, ie something going to his physical condition perhaps but not necessarily to his mental condition. That said, it might well be considered that the urgency of this step was the threatened or foreshadowed application for appointment of a tutor, having regard to what was said in Windeyer J's judgment and the note on Ms Teremi's file of the request to confirm if an application had been made. 150In cross-examination, Mr Moore was tested on the question of what the perceived urgency was at this time (see T 271/272): Q. Now [NM] has sworn an affidavit in these proceedings Mr Moore and he says that in your presence, sorry, in his presence and [A], so the three of you, you said this to [A]: "If [E] were to pass away now, [N] would receive all the property. In order to stop this from happening we need to buy from your husband one percent of each of the properties. You will need to pay him the value of one percent which is $30,000. This is very urgent. When can you do it? A. I accept I said words to that effect. Q. Now the reason it was very urgent Mr Moore is because [N], if you now take your mind back, [N] was about to make an appointment for a tutor or make an application for a tutor to be appointed to [E]. That's why it is urgent, correct? A. I don't I didn't specifically recall that but as you put it to me, I am happy to accept that may well have been the case. Q. You were concerned that such an application for the appointment of a tutor for [E] might have been successful? A. I think my real concern was, it seems to me, that [E's] physical health was not very good. In other words, I think my real concern was the need to do something urgently, not because of some threatened appointment of a tutor but just because of the health of [E]. Q. When you say health, you mean physical health? A. Well, if he died before anything was effected, then there would be joint tenancies in place. Q. So you were more worried about his death rather than him losing capacity, is that correct? A. I was principally worried about his death. I was satisfied on the day that he was mentally competent. Q. I put it to you that it was very urgent in your mind because you knew that [E] was on the margin of competence and an application by [N] for appointment for a tutor for [E] might well have gone up, isn't that right? A. I do not believe that the threatened, assuming there was a threatened appointment of a tutor that that was material to the urgency that I spoke of. The urgency that I spoke of related to whether he might die principally or that his competence over time might change. Having regard to the fact that we are talking the week before Christmas and I, for one, was going away, as I think most people were, so what was not done before Christmas may not have happened until the end of January. 151At T 275 he said: A. In other words you put to me what I believe I did say outside in the reception area to [A] and [NM] on 18 December. I believe the urgency I was speaking about on that occasion was the proximity of Christmas and the need to effect the severance of the joint tenancy as soon as possible rather than being motivated by the threat of the tutor which threat was around a month earlier on 21 November it would seem from this note. Q. Because who knows what could happen over Christmas? A. Yes, but who knows what might happen over Christmas as to the physical and maybe even mental state of [E] as distinct from the appointment of tutors. Q. Yes, who knows what might happen to [E] over Christmas in relation to his mental state, that was a concern of yours, wasn't it? A. Together with concern as to his physical the fact that he may die. 152Whatever the perceived urgency, consistently with NM's account of events, it seems clear that Mr Moore gave advice as to the means of severance (in equity) of the joint tenancies by the acquisition for value of a small interest (say, a one hundredth interest) in the properties (applying the reasoning of the High Court in Corin v Patton (1990) 169 CLR 540) and steps were almost immediately taken by NM and A to obtain the funds for the payment of those moneys, which were then deposited into E's account. 153According to Mr Moore, A was not present in the conference room during the conference, but was waiting outside in the reception area. There was some inconsistency between his first affidavit (when he referred only to exchanging pleasantries with A and his second affidavit when he deposed to having explained to A what was proposed in relation to the transfers to her of an interest in the properties). In cross-examination Mr Moore explained this by reference to the focus of the questions he was asked at the time of preparation of his affidavits. 154As to the time at which the purpose of the proposed transfers was explained to A (which Mr Moore says he did after the conference on 18 December 2007 and which NM accepts that he did at that time), A records in her affidavit a discussion with E that she says took place driving back in the car with E and NM, in which he explained it to her. In her affidavit she places this conversation as occurring after an examination at Professor Dickson's rooms. (The latest such examination before the 18 December conference was the examination on 26 November 2007.) (Professor Dickson says that when E arrived for the appointment no interpreter had been booked but that he, Professor Dickson, thought one might be necessary as the report to be made was as to E's mental capacity and E returned later that day with an Italian interpreter and A.) 155A says that after a consultation with Professor Dickson in December 2007, when they were driving home in the car with NM, E told her that he had made a new will and had given N half and A half (in fact the 19 December will gave half to Rand half to A) and had referred to the instructions given to Ms Teremi to change all three properties to 50/50 between he and N and when he died A would get 50%. A deposes in some detail to E telling her how the severance of the joint tenancy (in equity) would be achieved (complete with monetary amounts to be given for the various properties). It seems to me unlikely that this level of detail was conveyed by E himself (though A insists he was good at mathematics) and more likely that this is a repetition of what Mr Moore had said to A.

Effect of December 2007 transfers 156I interpose to note that, as Mr Moore had advised, Corin v Patton is authority for the proposition that a joint tenancy can be severed at law either by registration of a dealing which severs the joint tenancy or in equity where a joint tenant sells all or part of their interest in the land. 157Mr Moore's evidence was that he particularly recalled this matter and the advice he had given because he had previously lectured in real property at university and was interested in the operation in practice of the principles in that case. His advice was that the transfer to A for valuable consideration of a one-hundredth interest in each of the properties would operate to sever in equity the joint tenancies in respect of each of them. 158The troubling aspect of this is the fact that this was done in the face of the orders that had been made by Windeyer J. The position taken by Mr Moore in that regard, as is evident from the later position paper presented for the mediation, seems to be that the orders made by Windeyer J restrained only the lodgement of further severances of the joint tenancy related to lodgement of dealings for registration which would sever the joint tenancy at law and thus that the judgment and orders were limited to lodging further severances of the joint tenancy for registration which would sever the joint tenancy at law (and not, as I understand the thrust of the submissions, restraining any severance of the joint tenancy in equity). This is also the thrust of the advice contained in the 27 November 2007 letter from Ms Teremi (which I gather was confirmed by Mr Moore in a letter of 14 January 2008). 159However, the clear intent of his Honour's orders (as readily discernible from the passages of his Honour's judgment that I have extracted above) seems to have been that there should be no severance of the joint tenancies at all pending determination of the issues in the proceedings. 160Ms Teremi herself was troubled by this, having written to Mr Moore on 21 December 2007 (Exhibit 7) expressing her discomfort about the severance in equity "given the spirit of what I feel the injunction was trying to achieve". She sought written advice that such an arrangement would not constitute contempt (and this is the advice apparently provided in January 2008). 161I emphasise that it is no part of these proceedings to opine on whether the advice so given (as to the ability of E to proceed, notwithstanding the injunction, to sever the tenancy in equity) was correct. I accept that had the issue of contempt (about which Ms Teremi was troubled) arisen for consideration then the authorities would suggest that a strict view would need to be taken of the scope of the conduct prohibited by the injunctions (and such a view ought not be informed by his Honour's reasons). In Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503, Windeyer J discussed the construction of undertakings and said: Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense. 162Southwell J approved the above passage in McNair Anderson Associates Pty Ltd v Hinch; McNair Associates Pty Ltd v 3AW Broadcasting Co Pty Ltd [1985] VR 309 and held that the principle could also be applied where injunctions, rather than undertakings, were under consideration. McNair considered whether, in construing the words of an injunction, it was appropriate to go behind the order and examine the reasons for judgment. Southwell J said at 312: For my part, I would have thought it would seldom be permissible in proceedings for contempt to go behind the order and to examine the reasons for judgment as an aid to construction of the order. Borrie and Lowe in Law of Contempt, 2nd ed, p 395 say: "It is clearly established that a person will not be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous." Accordingly, one must first look at the order and decide whether it is clear and unambiguous in its terms. If it is, then it is unnecessary to look beyond it in order to aid construction: if it is not clear and unambiguous in its terms, a break of it could not be proved. 163In Howitt Transport v Transport and General Workers' Union [1973] ICR 1, Sir John Donaldson said at 10 that: ...orders of any court must be complied with strictly in accordance with their terms. It is not sufficient by way of answer to an allegation that a court order has not been complied with for the person concerned to say that he "did his best". But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs. 164Comments to similar effects have also been made by Kindersley V-C in Harding v Tingey (1864) 12 WR 684 ("the greatest importance that either an order for an injunction or an interim order should be implicitly observed, and every diligence exercised to observe it") and Wood V-C in Spokes v Banbury Board of Health (1865) LR 1 Eq 42 ("the simple and only view is that an order must be obeyed, that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter..."). 165In the context of considering whether an injunction to enforce a negative covenant was correctly granted, the NSW Court of Appeal considered the language of injunctions in Orleans Investments Pty Ltd and Anor v Mindshare Communications Ltd [2009] NSWCA 40. Giles JA (with Spigelman CJ and Allsop P agreeing) cited various authorities emphasising the need for injunctions to be expressed without ambiguity, referring to Low v Innes (1864) 4 De GJ & Sm 286 and ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248. Relevantly, in ICI Australia it was said at 259 that: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed. 166However, Giles JA said at [97] of Orleans that: Broad statements like these may not fully apply where the question is enforcement of a negative contractual stipulation. Certainty is important because contempt of court by infringement of the injunction may bring a heavy penalty, but "[e]xcessively narrow formalism in framing the injunction may wreak its own injustice": per Callinan J in Maggbury at [104]. 167Giles JA held in Orleans that uncertainty or oppression in an injunction taking up particular terms that were not formulated with the preferred degree of precision and clarity may be taken into account as a discretionary consideration, but that less than complete clarity was not a bar to relief in and of itself. 168That injunctive relief may be sometimes framed in broader terms is also recognised in Meagher Gummow and Lehane's Equity: Doctrines and Remedies (3rd ed, 1992) at [21-100]: In some cases, the practicalities of the facts may make it impossible to frame an injunction in anything, but the most general terms; and, in any event, the danger of an order couched in overly particular terms is that it may leave the defendant at liberty to indulge in reprehensible conduct which is almost but not quite enjoined, without committing any contempt. 169In light of the above comments, particularly the concern that a precisely expressed injunction may allow the defendant to "to indulge in reprehensible conduct which is almost but not quite enjoined", it seems that the approach to construing an injunctive order is to do so strictly and that a party under an injunctive order is required to do everything required to give effect to the plain words of the order, but nothing more. 170That said, whether or not there could be said to have been any contempt arising in relation to the conduct in seeking to effect a severance of the joint tenancies in equity, in considering whether to enforce any rights arising in equity thereunder the Court would surely take into account the fact that what the transfers sought to achieve in equity was something that had been prohibited at common law. 171Insofar as the severance so effected would require the aid of equity there must be a real doubt as to whether equity would lend such aid to an act taken in apparent defiance of (or with an intention to circumvent) an order that properly understood seems to have been intended to ensure there would be no severance of the joint tenancies pending the determination of the proceedings in which it was contemplated that there would be an issue as to E's entitlement to sever the joint tenancies. 172I have little doubt that if his Honour's attention had been drawn on 9 November 2007 to the possibility that there might be an attempt to sever the joint tenancies in equity after the orders had been made precluding severance at law, his Honour would have included the prohibition on that conduct in the interlocutory relief then given.) 173However, it is not necessary to make any ultimate determination on what effect might have been given to those transfers or any claim for relief based thereon, since the December transfers were overtaken by the agreement reached at the mediation.

[A] will receive the transfers in her favour of the one hundredth the interest in each of the Concord..., Leichhardt... and Summer Hill properties.
[N] agrees to grant a life estate in favour of [E] re Concord ... within ....... [dots as per original] weeks from today.
[N], [E] and [A] agree that [N] and [E] are joint tenants at Concord ... and will remain so until the earlier to pass away proceeds the other.
Summer Hill ... is to be sold and the net proceeds after the sale to be divided after sale to be divided between: [N] as to 65%; and [E] as to 35%.
[N] will transfer her half share in Leichhardt ...
[N] will agree to allow [A] three months to move out of Concord ... should [E] pass away. 196Leaving aside the incongruity that A has an unsigned copy in her records but says that what was presented to her was signed, it is not suggested that any binding agreement was reached at the mediation and the fact that this document is clearly incomplete would tend against any such conclusion. (Moreover the first item is inconsistent with the agreed position recorded in the March Deed.)

Subsequent conference with Mr Ward 197Two days after the mediation, there was a conference in Mr Ward's offices (which he recounts in his affidavit) with E and A, in which he deposes that A said to him that E wanted to change his will. I read this portion of Mr Ward's affidavit (other than a part not read in para [22] and part of 28 and the whole of 33 which I rejected), subject to relevance (and over the objection of Mr Roberts). In summary, Mr Ward deposed that when he asked E about the then recent settlement of the case against his daughter, E said "I don't know what happened". He then recounted a tirade from A after which he said that he was ending the conference and that her conduct was unacceptable. When the couple returned a few minutes later, and Mr Ward saw E alone, E was unable to tell him what his understanding was as to the mediation and settlement that had just been finished. 198Mr Ward then deposed to A returning to the conference room, yelling to E that he must change his will and that he "give[s] everything to [his] daughter and nothing to me". He deposed that, when asked if he still wanted to change his will E said that he did not. (I note that the will as executed in December gave nothing to N and half the estate to A and hence the complaint by A that E gave everything to his daughter, as it is recorded in Mr Ward's affidavit, could only sensibly relate to the fact that under the settlement at mediation A's interest in the Leichhardt property was coming from A not E.) 199Mr Ward deposed that he considered the events of that day were so important in his mind that he immediately prepared a file note (and kept it in his safe with the will and other documents signed in December 2007). A seems largely to accept that the conversation occurred (though cannot recall with precision what was said) but she denies abusing E. She did recall personally being very upset. 200At T 223, A accepted that she had been upset at the fact that the December will shared the estate between her and R: Q. It was not [E] who wanted to change the will but you wanted to change the will? A. Listen, [E] promised me before the will "[A] what I do I do but the will will be everything after my death coming to you". He told me that. When the will came by the post there is a letter from so and so, "please, [A], open and read. I see not in the will". I said "you promised me to give me everything after your life. Now, sorry, you share between me and your son". Of course I not happy, I was not happy for that. Q. Yes. A. He said to me "[A], we will correct this, we will catch a taxi and go to Mr Ward, we talk to Mr Ward". 201I accept that the contemporaneous note of Mr Ward is the most reliable account of that meeting and that E's stated inability to recall what was said on 13 March 2008 (whatever may have been the position before or after that date) supports the conclusion that E's mental condition has deteriorated beyond that at which it was in December 2007 or February 2008 (and perhaps from that at 11 March 2008). It may well be that E did not have had capacity on that date to enter into transactions of one kind or another. (That said, the test is whether he would have understood and been able to give instructions had he had a particular transaction explained to him and it is of relevance to note that when Mr Ward asked E directly whether he wanted to change his will, E was capable of giving a response in seemingly definite terms - that he did not.) However, the fact that E was unable on 13 March to recall the details of the 11 March settlement is also not inconsistent with his mental capacity fluctuating from day to day - in Mr Ahmed's words this could have been one of the 'bad days'. Nevertheless, good or bad day as it may have been, E seems at least to have been capable of making known his view as to the changing of his will. 202That is consistent with the explanation given by Professor Dickson of the fluctuating nature of the disorder: Q. You would agree with me that in order for you to give a proper assessment of that person's capacity you would need to do so relatively soon, relatively, a short period of time before 1 December, perhaps after Christmas. Do you agree with that? A. Essentially I put it by your question you say that where someone's got a fluctuating level of consciousness or has, not so much a fluctuating level of consciousness but has a condition which can induce changes in their cognitive capacity and probably also within their legal capacity, then the timing of an examination should preferably or advisedly be within a short period before any signature to any document. I would agree with that. I also think that it puts an onus on the people who are present at the time of any such signing to assure themselves that the person placing their signature on the document was in fact aware of the situation in which they were, the importance of the document and its ramifications. So in terms of the medical advice I can give medical advice and you will note in my second report I hedged, I felt that he had to be re examined because I felt he was on the margin. I also suggested that he have, seek advice regarding power of attorney. So under those circumstances I think the people who are present at the signing of any such document have a particular responsibility.

The parties agree to the Terms of Settlement as outlined in Schedule A as attached. The Defendant's solicitor will arrange for the Term of Settlement to be filed within 5 business days of the Plaintiff signing this Deed.
In addition to the matters outlined in the Terms of the Settlement, the parties agree to the following: (a) The Concord property to continue to be owned by [E] and [N], as joint tenants. (b) Each of [E] and [A] covenant with [N] that they shall take no steps for the duration of their lives to challenge or alter [N]'s joint tenancy with [E] in the Concord property. In particular, but without limiting the generality of the above, [E] covenants with [N] that he will not file another Transfer Unilaterally Severing Joint Tenancy with the Department of Lands. The parties further note and agree that in the event of [E]'s death, [N] will take the whole of the Concord property by right of survivorship. Each of [E] and [A] expressly agree that they will not assert any reason why [N] should not succeed in title to the Concord property in the event that [E] predeceases her. (c) [A] will cancel the transfer from [E] to herself of a one fiftieth interest in [E]'s one half interests in each of the properties. (d) [N] agrees to freely give [E] and exclusive right of occupancy in the Concord Property for the duration of [E]'s life, subject to (e) below. (e) The parties agree that within 3 months from the date hereof, [N] shall vacate the Concord property save that she shall be entitled to leave small items and toiletries in the downstairs part of the property where she currently resides. [E] and [A] shall move into the upper part of the property where they have be entitled to permanently reside. The parties agree that [N shall be entitled to visit the property at least once a week to see [E]. [A] covenants with [N] that she shall take no steps to prevent such visits and shall take no step to deny [N] access to the property. Should she take such a step, [N] shall be entitled to seek relief from the Supreme Court of New South Wales and shall be entitled to right of access as co-owner of the Concord Property. This Deed may be pleaded by [N] as a complete bar to any defence that [A] may raise in such proceedings. (my emphasis) (f) [N] agrees to allow [A] to remain in the Concord Property for a period of 3 months after [E]'s death. (g) [N] agrees to allow [A], upon [A] vacating the Concord Property in the circumstances referred to in the previous sub-paragraph, to remove all furniture and personal effects at the property at the time of [E]'s death. (h) [N] agrees to transfer to [A] her (ie [N]'s) one half interest in the Leichhardt property, on the payment of one dollar by [A]. (i) Until completion of the sale of the Leichhardt property, [N] will continue to pay all income from the Leichhardt property to [E]. (j) [N] and [E] agree that the Summer Hill property be sold and that on receipt of the proceeds of sale, the proceeds will be distributed as to 65% to [N] and as to 35% to [E]. (k) Until completion of the sale of the Summer Hill property, [N] will continue to pay all income from the Summer Hill property to [E]. 208Clauses 4 and 5 contain releases by N in favour of E and A and by E and A in favour of N, both operating on execution of the deed. Clause 6 is a covenant by the parties to do all acts and things to give effect to the provisions of the Deed. 209Clauses 8 and 9 deal with default. Clause 8 provides that a party will be in default of its obligations under the Deed if it does not perform its obligations and (if that default is capable of rectification) that default is not rectified within 5 business days of it being notified in writing by a party of the default and a party does not during that period take all reasonable action that is necessary to remedy that default. Clause 9 provides that in the event of default of the Deed by a party, the releases under the Deed will have no effect and a party may commence such proceedings as it thinks fit to recover from a party all its loss and damage as a consequence of a party's default under the terms of the deed. 210Clause 10 is a warranty that the parties have read and understood the document and obtained such legal and financial advice as they consider necessary to appreciate their obligations unde the deed. Clauses 11 and 12 contain mutual indemnities. 211There then follows a confidentiality clause; mutual acknowledgments as to the accuracy of the recitals; the voluntary entry into the deed and non-reliance on any representation or warranty; and, under the heading 'miscellaneous', various boilerplate provisions including a further assurance clause and an entire agreement clause. 212There is no clause expressly making any of the provisions essential terms of the deed or providing for an automatic right of termination for breach of the deed. 213Mr Roberts notes that under the March Deed A gave up various rights, including her right in equity as assignee of the interest she held in the Leichhardt, Concord and Summer Hill properties as a result of the December 2007 transfers (for which had been given consideration in the sums of $11,000, $11,000 and $8,000 respectively) (as referred to in Recital J of the March Deed and as provided for in clause 3(c) of the March Deed). He also refers to the covenants at clauses 3(b) and (e), and the releases/indemnities, as forming part of the consideration by A for the promises in her favour in the March Deed. 214As to Recital J (in which the transfer of percentage interests in the properties to A is acknowledged), Mr Roberts submits that whether it is correct or not as a matter of law N cannot deny this recital. (I consider in due course the submission by Mr Zucker as to the potential for operation of estoppel by deed in this case - Mr Ahmed submitting that unless pleaded it cannot be invoked or taken into account.) In any event, Mr Roberts points out that equity may assist a volunteer when to decline to do so would be against the conscience of the defendant, who would be taking advantage of her own wrong (citing J Fonblanque, Treatise of Equity (1831) at pp 348/349 and relying on Patterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588 for the proposition that where a party is under a moral obligation, even though there was no consideration, that party may be bound). 215Mr Roberts also points to the judgment of Hamilton J in Silver v Dome Resources NL [2007] NSWSC 455 at [134] as addressing the question whether the practical benefit was in fact valuable to the party to whom the consideration moved. Reference was also made by Mr Roberts to Thomas v Thomas (1842) 2QB 851; Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87; and Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723.

Discussion between E and N on 28 March 2008 216There is a suggestion that there was more than one private discussion (the first described as being "for some time") between E and N on the day that the settlement deed was signed (that being noted in a letter dated 3 April 2008 from Kreisson Legal to E confirming the arrangements following the mediation). N, however, says that she did not see E until after the March Deed had been signed on that day (T 435). (In that regard, while I would have been inclined to view the contemporaneous account of what had happened in Ms Teremi's letter as more reliable than N's recollection some time after the event of what had taken place on that day (bearing in mind that in the witness box there were various matters in relation to the mediation and deed of which N now has little or no recall), the discrepancy between the recollections of Mr Moore, A and NM as to the date of the first conference with E and the contents of Ms Teremi's letter of 27 November 2007 gives me pause.) In any event, there is no evidence as to what was or was not said between E and N on 28 March 2008. 217N gave evidence as to her concerns at E's appearance on 28 March 2008 after the signing of the March Deed. At T 422, she said: A. ... [I saw him] ...at the signing of the deed, where I had time alone with my father and I asked him questions and he was unresponsive which made me really concerned because he'd just signed some legal documents. 218Ms Teremi, however, noted in her letter to E that on 28 March 2008 "Mr Moore had the Deed explained to you in Italian and we confirm that you were comfortable with the Deed and were happy to sign it". This supports Mr Moore's evidence in cross-examination that he had gone through the deed on that date - in general terms as that evidence admittedly was. Ms Teremi also expressed the opinion in that letter (surprising if E's state was as evidently non-responsive as N says it was on that day) that had the application to appoint a tutor proceeded on 31 March 2008 that it would not have been successful). 219Notwithstanding N's stated concerns, all she did at that stage (according to her evidence) was to convey them to Mr Hassett. Mr Hassett gave no evidence to confirm or contradict this. However, not only did he raise no issue as to this on the day, he seems to have been comfortable thereafter to continue to negotiate for amendments to the deed and to confirm the binding nature of the deed (in the circumstances to which I refer below). While the fact that Mr Hassett did not raise an issue of competence on 28 March 2008 might perhaps be attributable to the fact that if it was raised at all with him by N it was, on her version of events, raised after the signing of the deed, the fact that Mr Hassett confirmed the binding nature of the deed and proceeded on behalf of N to seek to negotiate amendments to it casts doubt on the assertions by N that there was a real concern as to E's competence on that date.
Alleged collateral agreement 220Some time after these proceedings commenced (when the Amended Statement of Claim was filed), A raised an allegation (and her first affidavit deposes) that a collateral agreement was reached with E (in late March 2008 and therefore, 28 March being a Friday, within a couple of business days of the March Deed) in relation to the Leichhardt and Summer Hill properties. Although by the time of the hearing that allegation was not pressed (and no relief is sought in relation thereto), reliance is placed on this allegation by Mr Ahmed as indicative of the position of influence then occupied by A. 221A's affidavit deposed to her recollection that Mr Moore had asked E what he was going to give to A and had referred to the fact that he had taken the Illawong house worth one million dollars from her. A said that E's response was that he would give her his share of the sale price of Summer Hill as well as the half of Leichhardt she had already been given in the March Deed. Mr Moore denies any such conversation and had no knowledge of such an agreement. I consider Mr Moore's denial to be more credible than the suggestion that, having acted in the course of the mediation and during the signing of the deed and taken E's instructions in that regard, Mr Moore would so immediately have taken it upon himself to seek to broker a different arrangement with A (as her evidence would suggest). 222On both 1 April 2008 and 17 April 2008, E signed handwritten documents addressed to Ms Teremi, stating that he relinquished all his property holding in Leichhardt to his wife and giving instruction to put this money into A's bank account (details of which were included). A's evidence was that E had dictated the contents of the first note to her but that NM had told her to put it in more formal terms and that NM had then dictated the wording of the second note. NM accepts that he dictated the wording of the 17 April note to A (T 455.2). (In the witness box he portrayed himself as someone "assisting" both N and A in this regard.) NM seemed to think that there was no inconsistency between his conduct in so doing and his evidence as to his belief that E did not understand what he was doing in relation to the March Deed, his response being "and what I believed was this is in the hands of professionals, Mr Moore and David Glinatsis. They will do whatever though think best and that's all. I wasn't taking sides with any one party or the other". 223I accept that the evidence as to the alleged collateral agreement suggests that at least as at the time E signed the April notes he was subject to the influence of A (and, given the presumption of undue influence that would arise out of his dependence on A at that point, it seems unlikely that A would have been in a position to rebut that presumption - since it seems that E did so without independent advice). Nevertheless, that demonstrates the difference in the position as at 28 March 2008, when E's instructions were obtained in circumstances where he had the benefit of Mr Moore's advice (and where A was not present in the conference in which those instructions were confirmed).

[E] has sufficient cognitive ability to give instructions in relation to the revocation of a Will or the creation of a new Will.
[E] is mentally capable of giving instructions in relation to being represented in Supreme Court proceedings and also any Guardianship Tribunal proceedings.
[E] is cognitively able to deal with real property or any other assets he may own. 258Strenuous objection was taken by Mr Ahmed to those reports being admitted as evidence of the opinions stated therein (on the basis that there had not been compliance with the rules for admissibility of expert evidence), a matter that had been raised prior to the hearing when the matter was before Black J for pre-trial directions. 259When admitting the documents I indicated that I read the letters in question (which were annexures to A's first affidavit) for the fact that the views expressed therein had been communicated and not as expert evidence of the opinions stated therein. As Mr Roberts later explained his position in relation to those reports he sought not to confine the use of those to the case on unconscionable conduct. Insofar as he sought to rely on those for the case on capacity, he foreshadowed a submission that an inference could be drawn from the fact that a professional doctor had communicated what has been communicated in those letters that that opinion was held and would not have been expressed if the relevant doctor did not have a reasonable belief to that effect. I do not accept that such an inference can be drawn. As Mr Ahmed complained, this would permit expert evidence through the back door, so to speak. I do not draw an inference simply by reference to the fact that an opinion has been communicated by a doctor that the opinion was reasonably held and formed on the basis of professional competence (though I hasten to add that I say this without any disrespect to the particular doctors in question). 260That said, the communication of those views may be of some relevance when considering the evidence of Mr Moore as to the views he formed of E's competence (since those views were presumably informed to some extent by the medical reports with which Mr Moore was provided) and more relevantly in assessing the evidence of Dr Dowla (who commented on both of those letters). 261As to Professor Dickson's 20 September 2007 report, there is no issue as to his expertise. Professor Dickson is the Director, Ambulatory Care, Liverpool Hospital, within the South Western Sydney Local Health Network; and Conjoint Professor of Aged Care and Rehabilitation at the University of New South Wales. However, Mr Ahmed notes that the 20 September 2007 report was not a report prepared for the purposes of expert evidence in Court. 262Professor Dickson's 20 September 2007 report notes that Dr Loutfy had referred E to him and states that "His wife wanted him examined to ensure that he had sufficient mental capacity to deal with his estate. He had become forgetful recently". After recounting E's history, past history medications and social history, Professor Dickson described the results of his examination and concluded that E: ... has cognitive blunting, but retains sufficient ability to make instructions concerning his affairs. He probably has a progressive dementia, with signs of Parkinsonism. I have advised him that, as he indicated, a power of attorney in favour of his wife, was advisable. 263Mr Ahmed notes that the social history set out in the 20 September report is in substantially the same terms as that set out in the subsequent 3 December report (though in the latter there is the added sentence that E's wife assists him with personal care). The fact that this report was not prepared with a view to its use as an expert opinion in these proceedings again does not gainsay the fact that it was made available to those advising E prior to the events in question (and is adopted, in effect, by Professor Dickson in the evidence that he did give in his capacity as an expert witness). It was also the subject of comment by Dr Dowla in the latter's expert report.

Professor Dickson's 3 December 2007 report 264The main report on which A places reliance is the letter dated 3 December 2007 in which Professor Dickson reported to Dr Loutfy as to the results of his examination of E on 10 September 2007 and again on 26 November 2007. On those occasions E was accompanied by A and by an Italian interpreter. Professor Dickson notes that A had wanted him examined to ensure that he had mental capacity to deal with his estate. 265In this report, Professor Dickson recounted the history of his examinations of E, noting that he had first seen him on 11 June 2004. Professor Dickson noted that: At his visit on 26th November 2007, he was aware that the purpose of the examination was to establish his mental capacity to conduct his affairs. He denied memory impairment. He said that he found it difficult to concentrate because he was very upset about his relationships with his son and his daughter. He said that his children wished him to leave all his property to them, and to make no financial provision for his current wife. He became tearful when relating this. He disagreed with his children's proposals, and considered that he had been deceived by them in the part into giving them property, a course of action which he regretted. 266Professor Dickson went on to note that this account was consistent with family problems that E had discussed with him in 2004. (Professor Dickson's initial report of 5 July 2004 in relation to his examination of E on 11 June 2004 did not, however, refer to family problems of that kind.) 267In his assessment, Professor Dickson concluded as follows: He has significant cognitive blunting, but retains sufficient ability to make instructions concerning his affairs, including revocation of a will or the creation of a new will, giving instruction regarding being represented in the Supreme Court and in Guardianship Tribunal proceedings, and being able to deal with real property and any other assets he might own. I consider him to be on the margin as regards competence. He has partial insight into his problems. I suggest review of his capacity in six months time. He probably has progressive dementia, with signs of Parkinsonism. His other medical conditions include osteoarthritis, prostatism, and an abdominal hernia. He has treated epilepsy. (my emphasis) 268Pausing there, Mr Ahmed notes that notwithstanding that A's legal representatives were on notice that Professor Dickson considered E to be "on the margin as regards to competence" in December 2007 they did not ensure that E was examined before the March mediation or the March Deed was signed, both those events being some 4 months after that assessment. Mr Ahmed places weight on the fact that there is therefore no medical evidence as to E's actual state at that time. (It is submitted that A was aware of the assessment made by Professor Dickson in December 2007 position and took no step to have E examined again before the entry into the March Deed. If, by that, it is suggested that there may have been a concern that the medical practitioners would not have been satisfied had a test of his competence been carried out at that stage, this was not put to A.)

[E] has a progressive dementing disorder. This disorder was present in 2007 and 2008, and continues.
This disorder would have removed his testamentary capacity.
The loss of testamentary capacity occurred between June 2007 and June 2008.
His cognitive ability fluctuated in time.
When formally assessed on 26 November 2007 (Report 3 December 2007), his testamentary capacity was on the margin regarding competence.
It is not possible for us to be dogmatic about his testamentary capacity at the time of the signing of the deed of settlement and release on 28 March 2008.
The matter rests on the judgment about the capacity of [E] by those present at the time of signing, based on his behaviour, his previously expressed wishes, and his understanding of the explanation of the provisions of the deed by the lawyers present. (my emphasis) In the following matters we are not in agreement:
Whether the loss of testamentary capacity of [E] occurred before or after the signing of the deed of settlement and release on 28 March 2008. 298What is apparent from this is that, by the time of the joint report, Dr Dowla seems to have accepted that there was a fluctuation in E's cognitive ability (as opposed to purely a progressive decline); this being explained in the witness box by Professor Dickson as a series of plateaux and valleys (and by Dr Dowla in his report as a wave). Further, points 2, 3, 5 and 6, in which they were agreed, and the one point on which they were not agreed, all speak in their terms of E's testamentary capacity. Significantly, point 7, with which both were agreed, speaks of capacity generally (or at least without the prefatory adjective 'testamentary') and refers to the question of E's "understanding of the explanation of the provisions of the deed by the lawyers present". 299In other words, the joint report does not suggest that E had no testamentary capacity as at 28 March 2008 nor does it suggest that he had no capacity to understand an explanation as to the transactions contained in the March Deed. Rather, it suggests that (subject to any contrary conclusion drawn from an observation of his behaviour on the day or from any consistency or inconsistency with his previously expressed wishes) E would have been capable of understanding the nature and effect of the deed provisions if he was given a sufficient explanation of the deed. Credibility of Witnesses 300Before turning to the credibility of the witnesses who were called to give evidence in these proceedings, I refer to those potential witnesses who were not called to give evidence and in respect of whom one or other of the parties has suggested that a Jones v Dunkel inference should be drawn. Primary among those potential witnesses was Ms Teremi of Kreisson Legal. 301Mr Ahmed submits that the matters on which Ms Teremi could have been called to give evidence include: that she had in fact advised E and what that advice had been; what view she had formed as to E's mental capacity to agree to transfer property (though Mr Ahmed's principal submission is that this would have been "of little moment" in any event as the issue of capacity was primarily "a medical question"); whether she was at the same time advising A during the mediation and on the signing of the March Deed (as opposed to whether she had a retainer with A); and if she was advising A, how she came to an understanding that she did not have a conflict of interest in that regard. 302Mr Ahmed submitted (more than once) that the failure by A to call Ms Teremi give rise to a Jones v Dunkel inference that her evidence could not have assisted A's case (and thus he submits that I cannot be satisfied as to any of the matters referred to above). 303A Jones v Dunkel inference is open to be drawn against a party where there is an unexplained failure to call evidence only if the evidence that is before the Court is sufficient to give rise to an inference as to a matter which calls for explanation by the party against whom the Jones v Dunkel inference is to be drawn. The rule in such a case would permit evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so. Thus in Commonwealth of Australia v McLean (unreported, NSWCA, 31 December 1996), Handley JA and Beazley JA said; "... The rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default" (my emphasis)). (See also Ho v Powell (2001) 51 NSWLR 572, at [16]; [2001] NSWCA 168, at [76] per Davies AJA; HML v R [2008] HCA 16; (2008) 235 CLR 334; (2008) 245 ALR 204, at [302] [303]; Brandi v Mingot (1976) 12 ALR 551, at 559-60; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, at 312, 320-321; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, at 197; (1977) 52 ALJR 189, at 197). 304A Jones v Dunkel inference, if one does arise, would do no more than permit the Court to infer that the uncalled evidence or missing material would not have assisted the case of the party against whom it is drawn; it would not permit an inference that the uncalled evidence was in fact damaging to that party's case. Hence, what the principle allows is for the more ready acceptance of evidence that might have been contradicted (but which was not). It does not permit a choice between two guesses or conjectures or to supply missing gaps in evidence (Cross on Evidence, 7th Australian ed, Butterworths, 2004, at 41 per Heydon J cited by Heerey J in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136, at [50]; [2006] FCA 446). 305In Jones v Dunkel, Dixon CJ added the following observation (at 305): ...the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 306In Ho v Powell, Davies AJA said, at [15]: ... it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970: "... [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; 179 ALR 349 at 353 [10]. 307In Gregory Paul Montfroy v Roads Corporation (trading as VicRoads) [2005] VSC 320 Gillard J (noting that the court is entitled to be bold when a party fails to give evidence on matters in issue of which it clearly has knowledge) accepted that this did not entitle the court to speculate and that the court "is only entitled to draw an adverse inference if there is some substratum of fact supporting it". 308Mr Roberts submits that there is nothing to show that N could not have called Ms Teremi herself, she having adduced evidence from at least 4 other solicitors who had acted or been asked to act for E during the relevant time. That said, it seems to me that Ms Teremi would properly be seen as someone whose evidence would more likely to have been called upon by E (for whom she acted in the very matter the subject of the present proceedings) and, by extension, A (at least in the absence of any suggestion that there was a conflict between the position of E and the position of A in the present litigation such that Ms Teremi might quite properly have been precluded by her obligations to her client from speaking with A about the advice given to him). The fact that A was able to adduce evidence from Mr Moore (who was similarly retained by E in relation to the transactions in December 2007 and entry into the March Deed) suggests that it would equally have been open to her to call evidence from Ms Teremi (whether that evidence were to be provided voluntarily or by issuing a subpoena). Therefore, I consider that Ms Teremi should be regarded as a witness whom it would have been within A's power to call. 309The question therefore is what there is in the present case for A to prove or to answer, which would call for her to adduce evidence from Ms Teremi (and hence enable an adverse inference to be drawn from the fact that she did not). In the absence of anything to suggest that Ms Teremi had given advice to E other than that in accordance with Mr Moore's advice, it does not seem to me that there is any adverse inference to be drawn from the failure of A to call Ms Teremi to confirm the advice given by Mr Moore. The giving of that advice is in any event recorded in Ms Teremi's own letter (part of Exhibit 4) and corroborated by the evidence of NM. 310As to what view Ms Teremi had herself formed as to E's mental capacity to agree to transfer property as was done in the March Deed, there is evidence of Mr Moore as to his understanding of E's capacity and since it was Mr Moore who appears to have been the principal adviser in relation to the transactions provided for in the deed, it seems to me that no adverse inference should be drawn from the fact that Ms Teremi's evidence was not called as to her separate opinion in this regard (noting, as I have done, that Mr Ahmed's principal submission is that such evidence is "of little moment" as the issue of capacity is primarily "a medical question"). 311As to whether Ms Teremi was at the same time advising A during the mediation and on the signing of the March Deed and, if she was advising A, how she came to an understanding that she did not have a conflict of interest in that regard, there is no allegation of conflict of interest that is pleaded and no basis for an inference that Ms Teremi was separately advising A (so as to enable that inference more readily to be drawn in the absence of evidence from Ms Teremi). 312Where it seems to me that a Jones v Dunkel inference may be drawn is as to the inconsistency in the evidence before the Court as to when the first conference with Mr Moore (in E's presence) took place. Ms Teremi's letter of 27 November 2007 in its terms supports the inference that there was a conference on 22 November 2007 at which E attended and at which Mr Moore gave advice as to the severance of the joint tenancies (without the presence of an interpreter and without the benefit of the doctors' reports as to competence). This is inconsistent with Mr Moore's own fee notes and, if such a conference did take place, then the advice must have been repeated on 18 December 2007 since that is when Mr Ward recalls the conference taking place at which advice of this kind was given and that is when NM recalls that A was asked to withdraw funds immediately in order to pay the consideration for the transfers as a matter of urgency (yet NM rejected the suggestion that there were two such conferences). 313But for the 27 November letter, there would be little doubt in my mind that the conference scheduled for 22 November had not proceeded and that the first conference at which the proposed course of action for the severance in equity of the joint tenancies was discussed was the 18 December meeting. The difficulty I have is that this is wholly inconsistent with the text of Ms Teremi's letter and the only person who could explain how such an inconsistency had arisen is Ms Teremi herself. That gives rise to the potential operation of any Jones v Dunkel inference - ie that I may more readily accept that Mr Moore's recollection of when the conference took place was incorrect (and hence that his evidence is unreliable in that regard). However, what the principle permits is the more ready acceptance of the inference available from the 27 November letter that the conference took place on the earlier date; it does not require such an inference to be drawn. 314Though I accept that the evidence is far from satisfactory in this regard, in the face of NM's evidence as to the advice given at the meeting in December and his evidence that he only attended the one such meeting (followed immediately by the withdrawal of funds to give effect to the transfers, which clearly only happened in December 2007), I am left to conclude that Ms Teremi for some inexplicable reason had referred in the letter to advice that had been conveyed to her by Mr Moore but not in a conference with the client present at that stage. (I note that none of Ms Teremi's file notes was in evidence though I was informed by Mr Zucker at T 242 that a subpoena had issued for those file notes.) 315As to the other witness who potentially could have given evidence and in respect of whose evidence I am similarly invited to draw a Jones v Dunkel inference, it is Mr Hassett, N's solicitor who was in attendance on the day of the mediation and who was also in attendance at the signing of the March Deed (and to whom N says she raised the question of E's competence on that date). Mr Roberts did not identify other than in very broad terms the issue or issues as to which he considered an adverse inference should be drawn from the failure of N to call evidence from Mr Hassett (or what such inference should be drawn). For my own part, I consider that the evidence Mr Hassett could usefully have given was as to his observations of E's capacity when the mediation took place (bearing in mind that there was at least one joint session at which it would have been open to Mr Hassett to observe the manner in which E comported himself) and as to what instructions he was given by N on that occasion and when the March Deed was signed. The latter seems to me to be critical when the allegations of undue influence and unconscionable conduct of A vis-à-vis N are to be considered. 316Mr Ahmed contends that it is not to the point that N had her own legal representation in relation to the mediation and entry into the March Deed. However, the inference that it seems to me to be open to draw from the fact that N had independent legal advice at the relevant times (and from the fact that she signed a deed stating that she entered into the deed voluntarily and with the benefit of legal advice) is that N's will was not in any relevant sense overborne. Rather, it seems to me that the situation is redolent of one in which N was in a position to weigh up the advantages and disadvantages of compromising her claim in the then proceedings and chose to do so of her own volition. The fact that Mr Hassett was not called to give evidence in support of the assertions by N that she had entered into the March Deed fearing that if she did not she would be harassed or intimidated or subject to violence (or would not be able to see her father) seems to me to permit an inference to be drawn that N had obtained the relevant advice necessary to allow her to make a considered choice as to whether to enter into the March Deed and did not do so under protest or having had her will overborne by A. 317The other two potential witnesses who were not called were the mediator (as to the lack of evidence from whom it is not suggested that any adverse inference should be drawn) and Mr Senat (whose role in the overall scheme of events seems to have been peripheral and in respect of whom I was again not invited to draw any inference). In relation to the mediator, it was suggested by Mr Zucker that an inference might be drawn that had the mediator been aware of matters suggesting a lack of competence on his part then he would either have raised this as an issue with one or other of the participants or not have permitted the mediation to proceed. I am inclined to agree. However, Mr Ahmed was adamant that no such inference should be drawn in the absence of evidence from the mediator himself. Ultimately, it is not necessary for me to draw any such inference in order to come to the conclusion I have reached on this matter. 318I turn then to the credibility of the witnesses who were called to give evidence and cross-examined.

Professor Dickson 319It is submitted by Mr Ahmed at the outset that the oral evidence of Professor Dickson was "laced with feelings of indignation" and that his responses to questions in cross examination were unduly lengthy. Mr Ahmed submitted that Professor Dickson defended himself staunchly, refused to make concessions even if his position was untenable, and was prepared to overstate his opinion. 320By way of example, Mr Ahmed pointed to the statement contained in his first report that, in order to opine as to capacity, there is an 'absolute' requirement that there be a personal examination of the person at the relevant time. Reference was made to the seemingly inconsistent evidence given in cross-examination on this point (a denial that he gave that opinion; a statement that "it requires a personal examination of course"; an acceptance that it did not require a personal examination - "no, well, it is not absolutely necessary to examine someone, I would agree with that"; and then a reversion to the position that it is absolutely necessary if one rejects the opinion of usual medical attendees). 321In this regard, as I understood Professor Dickson's position it was that while it is possible to opine as to capacity from a review of medical reports or records, he does not accept that it is reasonable to reject the findings of someone who has examined the person solely on the basis of medical reports. 322While I accept that the dogmatic nature of the proposition as initially put by Professor Dickson cannot be maintained, it does not seem to me that the proposition (as I understood it) was nonsensical (as Mr Ahmed characterises it). Rather, it seems to me that what Professor Dickson should be understood as taking issue with is that a professional could reject findings based on a physical examination of another professional, at least without pointing to evidence that suggests that the conclusion that had been drawn from the examination was incorrect. 323In any event, the fact that Professor Dickson was clearly indignant as to the views expressed by Dr Dowla seems to me matched to an extent by Dr Dowla's dogmatic characterisation in his first report of Dr Loutfy's December letter as "self-serving", when there is no evidence that Dr Loutfy had any personal interest whatsoever on the outcome of the view he was expressing (rightly or wrongly) in December 2007, and his own response to the criticisms made by Professor Dickson in response to his first report. 324I do not accept that there is any basis to read Professor Dickson's opinion in the letter dated 3 December 2007 as having been calculated or motivated to give A "the opinion she wanted to receive giving her a green light". It struck me that Professor Dickson had considered carefully the question of capacity and had given a measured opinion (not an overstated opinion) when he expressed the view that E was on the margin of competence but at that stage still had "sufficient ability to make instructions concerning his affairs, including revocation of a will or the creation of a new will, give instructions regarding being represented in the Supreme Court and in Guardianship Tribunal proceedings and being able to deal with real property and any other assets he might own". 325Criticism of the generality of the opinion (insofar as it listed broad matters in respect of which E had capacity without knowledge of the particular dealings in question) does not seem to me to be warranted. Professor Dickson was asked to opine as to general matters and did so. The use that can be made of that opinion is a different matter. I do not accept the criticism that Professor Dickson had a tendency to overstatement. 326Emphasis is also placed on the difference between the statement in Professor Dickson's final report (that E was "fluctuating in his cognitive abilities and slowly declining") from that in his first report (that E's "mental state was fluctuating, not slowly declining") (in both cases with my emphasis). Mr Ahmed submits that Professor Dickson refused to accept this inconsistency in cross-examination. 327By way of example, there was an exchange commencing at T 319: Q. Thank you. Now, within that paragraph, I suggest to you that the nub of your opinion on this point, which is a response to Dr Dowla, is that contained in the middle of that paragraph, which says, "In other words, his mental state was fluctuating, not slowly declining." Do you agree that that is the nub of the opinion in that paragraph? A. No. No, [E] was fluctuating and slowly declining. I have no difficulty, I absolutely agree with Dr Dowla. In fact, if you read my reports, I have never said anything about [E], apart from the fact that he has a progressive dementing disorder. My belief was that he was fluctuating and that he was slowly declining. When I examined him, [I] was concerned because of the fact he was no longer the man that I had spoken to in 2004. It was quite evident, and I made it clear in my report. I had my report further in my second report saying I felt he was on the margin of competence. Q. Come to the second report in a moment? A. No, that is not correct. I believe that he was fluctuating and declining, whereas Dr Dowla felt he had declined significantly from should say 2004, when he was seen in 2004, and he declined further. So that by the time of the March deed that he was not capable. But my examination, that's the nub of the argument. I examined him, and he was obviously much better than when he was seen in 2007 by the occupational therapist. But Dr Dowla rejects my examination. He rejects the examination of my colleague. 328When asked by me for clarification, there was the following exchange: HER HONOUR: So can I just understand that, the area of disagreement in this regard between you and Dr Dowla is Dr Dowla says that he was, that [E] was slowly declining over the period? A. Yeah. Q. And you say yes, he was declining? A. Declining, but he was also fluctuating, yes. Some days he will get worse, and then get better again. So that was a difficulty. 329And again, in answer to Mr Ahmed: Q. In that paragraph, if you read those words, "In other words, his mental state was fluctuating, not slowly declining." Do you see that? A. No, well, the slowly declining, the slowly declining there is in relation to the opinion made by [Dr Dowla]. It's there is no question I cannot state it more clearly. The man was slowly declining. There is no question about that. But he was not slowly declining in a manner made by [Dr Dowla]. He is fluctuating and slowly declining. I will you can ask me that again and again, the same thing I will say. ... HER HONOUR: So the difference is, you say it's not a situation where there was simply a progressive slow decline, there was overall a slow decline, overall a decline, but there were fluctuating episodes within that period? A. Exactly, your Honour. ... AHMED: Do you accept, Professor Dickson, that that is different to what is written in your first report, which is, his mental state was declining. I am sorry, I withdraw that. His mental state was fluctuating, not slowly declining, whereas the other one says, "his mental state was fluctuating and slowly declining". Do you accept that? ... A. Okay. Then I will take your point but if you read the whole paragraph, the paragraph in fact says that he is declining in intellectual function, so he is fluctuating and declining. If you read the whole paragraph the whole paragraph makes sense. Perhaps my words were poorly chosen there. He is slowly declining but he is declining and fluctuating. ... Dr Dowla makes the claim that because [E] had a very low score at the time of his discharge from hospital in 2007 before he saw me he could not have recovered so my findings and the findings of other people after that event were wrong but, as I say, when I examined him I found that he had improved and this is what one would expect in elderly patients with degenerative diseases who have a he's got two things going on, one was his epilepsy which caused intermittent fluctuations in his mental state and the other was intercurrent infections particularly in his urinary tract or in his chest or intercurrent problems with his health which also caused him to fluctuate. Now, I fully agree with Dr Dowla that the man had a progressive dementing disorder but Dr Dowla rejects the evidence of my examinations which indicated that the man was fluctuating in his abilities. So on some days he would very good but then he would be unpredictable, on other days he may in fact be very poor. That's the nub of the issue, and my argument with [Dr Dowla] why I was offended was ... A. My apologies. The problem with Dr Dowla is that he has no evidence to reject my findings or the findings of my colleagues. Q. Would you agree with me that the sentence "in other words his mental state was fluctuating not slowly declining" in your first report was incorrect? A. Am, yes, I think it could have been better phrased but if you read the whole paragraph I make it very clear in this paragraph that [E] was declining intellectual function, a point I made in report of 30 September 2007, and not in a manner claimed by Dr Dowla. So if you go to the end of that paragraph you see that that's what the sense of the paragraph is. So what I'm meaning by that sentence I probably wouldn't take it back now, I reject that, I will not take that back because the sentence means Dr Dowla was saying he was slowly declining, I'm saying he was fluctuating, now he also was slowly declining. Perhaps it's not as clear as it could have been but it in fact indicates the difference between myself and Dr Dowla. Dr Dowla was for a fixed poor position and then further deterioration in a slow and progressive fashion. My findings were that there was problem, then he got a bit better, then he got worse and overall he was going downhill. I can't put it any more clearly. Q. Just in relation to that last answer would you agree with me that his capacity is similar to a downward wave, would that be fair? A. Yes. Q. Or would it be more like a downward step? A. It tends to be in plateaus and they tend to, sometimes the level will again it fluctuates but generally each time I saw him he was worse. Q. His level of improvement when you saw him never reached the previous level? A. That's correct. 330My impression (and I mean no disrespect to the Professor) was that Professor Dickson was genuinely confused at the semantic dissection of the two reports in this regard and had not intended to suggest a relevant difference - the issue in his first report, as I understand it, being that Professor Dickson did not and does not accept that the deterioration in E's mental state can be described as a relentlessly downward path (slow or otherwise) but, rather, that the decline was marked by a series of stages, at some of which there was a plateau and from time to time there was some improvement (though inevitably his mental state was declining and with each decline E would not improve to the previous level). 331Mr Ahmed also suggests that more weight should be placed on the perceptions of E noted in the examination records than in the subsequent reports (and points to the fact that on some occasions Professor Dickson's own notes record that he had no "old notes"). Professor Dickson agreed in cross-examination that the delay in this regard was not desirable and that it was generally desirable to have old notes before him, but his explanation as to why he recalled E seemed to me to be logical, as was his explanation of the notes themselves. 332Insofar as there was criticism of the fact that the 'history' section of his report was a "cut and paste" of earlier reports, and Mr Ahmed notes that (while one's social history does not change) the issue is whether E is able to recall his history during his examination (Mr Ahmed suggesting that reliance on what was in previous reports as to social history weakens the value of the 20 September 2007 report), Professor Dickson's handwritten notes themselves confirm that during his examinations of E he was testing his recollection as to matters relevant to social history (though not all of that history on each occasion). I see no significance in this aspect of the reports. 333Mr Ahmed submits that the failure to record the results of the MMSE performed on E in September 2007 is telling. If, by this, it is suggested that there has been some deliberate or selective recording of the information by Professor Dickson, then I do not accept there is a basis for that submission. Professor Dickson readily conceded that it would have been better had he included all the results. However, there is nothing to suggest that there was any intentional omission from the notes. Insofar as Mr Ahmed says that Dr Dowla's opinion (based on the results that were recorded for the MMSE), namely that E did not have capacity on 10 September 2007, must be accepted as unchallenged, I note that Professor Dickson explained logically the use that he made of MMSE as a screening not diagnostic stool and his explanation as to the need to synthesise various matters in forming a view as to capacity does not strike me as unsound. I consider in due course the weight to be attached to Dr Dowla's opinion in circumstances where that was not challenged in cross-examination. 334As to the report dated 3 December 2007, again Mr Ahmed points to the delay between examination and report (this time 7 days) and to the fact that the section on social history is a product of cutting and pasting the information from previous reports (noting that there is no evidence that E actually recalled this information at the time of examination - other than as recorded in the notes themselves). Mr Ahmed notes that the results of the MMSE on this occasion are again incompletely recorded and that Dr Dowla gives his opinion that, on the results that are recorded, E did not have competence on that date. 335My observation of Professor Dickson in the witness box was that once he had expressed his views (with a degree of indignation, I accept) as to the fact that Dr Dowla had rejected the findings of his examination of E based solely on the medical data, Professor Dickson was more measured in his answers and gave clear and logical explanations as to the basis on which he had formed the opinions to which he had deposed. Some of the sequence of questions and answers which Mr Ahmed characterises as inconsistent and as a refusal to accept criticism seemed to me to be a product of confusion as to the semantic significance of the question (and perhaps imprecision in the language in which some of the reports were couched - such as that to which I have referred above). I do not accept that his evidence warrants the caution that Mr Ahmed suggests. 336I do accept that the forensic decision of Mr Roberts not to cross-examine Dr Dowla meant that I was left having only had the opportunity to hear directly from one of the expert witnesses and I bear that in mind in assessing the respective reports. (In other words, the fact that Professor Dickson was able helpfully to articulate and explain the medical assessment of capacity in the way that he did, and in a way that I would expect of an expert as the witness of the Court, does not mean that Dr Dowla could not equally have been able to explain the process by which he came to a different view as to capacity.)

N's cross-claim 14The substance of N's various allegations of undue influence, unconscionable conduct, duress and the like is to be found in her Third Further Amended Statement of Cross Claim filed in Court on 21 November 2011. N seeks declaratory relief and orders setting aside or rescinding or terminating the March Deed on various bases (namely, that E did not have the mental capacity to enter into the March Deed; that N signed the March Deed under duress from A; that it is unconscionable for A to insist upon performance of the March Deed and to retain the benefits to be provided by N and E thereunder; that the execution of the Deed by each of N and E arose from the exercise of undue influence by A over both N and E); and, alternatively, by way of relief under the Contracts Review Act 1980 (NSW) or on the basis that A breached an essential term of the March Deed. I set out in due course the basis on which those allegations are made. 15A declaration is sought by N that the Leichhardt Transfer and the Transfers Severing Joint Tenancy (both terms as defined in the Third Further Amended Cross-Claim) are void. The Leichhardt Transfer is defined in [11] of the Third Further Amended Cross-claim as a transfer signed on or about March 2008 by N and E "purporting to transfer their interest in the Leichhardt Property to [A]" (ie this a reference to a transfer signed in accordance with the March Deed). The "Transfers Severing Joint Tenancy" are defined at [5] of that pleading as the transfers described as having been signed by E on 8 January 2007 "purporting to unilaterally [sic] sever the joint tenancies between [E] and [N]" in relation to the three properties respectively (the reference to those transfers thus being a reference to the Real Property Act 1901 (NSW) Notice of Unilateral Severance of Joint Tenancy that the Registrar-General was restrained in the earlier proceedings before Windeyer J from registering and not, as I understand it, the transfers to A of an interest in the properties executed in December 2007, which it is contended for A operated in equity to sever the joint tenancies.) 16A, in her defence to N's cross claim, broadly denies or puts in issue the allegations made by N as to mental capacity and the like. The NSW Trustee and Guardian, as E's tutor in these proceedings, pleads in defence to the cross-claim that E now suffers such medical condition that he is unable to provide instructions or evidence in the proceedings; says that the various medical reports speak for themselves; does not admit or deny whether E had mental capacity to enter into the March Deed and does not plead to the allegations of duress, unconscionable conduct or the like.

Potential outcome of proceedings 17In summary, from a property perspective, the outcome (if A is successful in her claim) is said by her Counsel (Mr Roberts) to be that A will then own half of the Leichhardt property (as tenant in common with E); N will be required to vacate the Concord property (though I interpose to note that on any view she would remain a half owner of that property as joint tenant or perhaps tenant in common with E); and the Summer Hill property is to be sold with the proceeds being apportioned as to 65% to N and 35% to E. 18Counsel for N (Mr Ahmed) maintains that the March Deed should be set aside. (Mr Zucker, as I say, has urged me (if the claims by N are established) at least to uphold the March Deed insofar as E is concerned.) That said, in the course of closing submissions Mr Ahmed appeared to concede that the setting aside of the March Deed will not necessarily of itself result in the overall outcome for which N contends (since, if the parties are to be put back into the position in which they were prior to the March Deed, this would require recognition to be given to the fact that the transfers in favour of A that were executed in December 2007 might still be relied upon as effecting a severance of the joint tenancies in equity and there would remain a question as to the registrability of the January 2007 notice of severance). The ability of E to sever the joint tenancies at law, as he had sought to do in January 2007, was in issue in the proceedings that had been commenced by N and that were ultimately dismissed by consent pursuant to the March Deed. 19The setting aside of the March Deed would not, of itself, encompass any conclusion as to the mental capacity of E in late 2007. At the very least, this would leave to be determined the position as to the effect of the transfers in late 2007 (and A's ability to register those transfers, had they not been cancelled pursuant to the March Deed). 20It was agreed between E's tutor and N, when the issue was raised by me as to what would be the effect of the setting aside of the March Deed on the parties' respective property interests, that the prospect of a resumption of those earlier proceedings would not be a ground upon which I should decline to set aside the March Deed. (From that somewhat cryptic statement, the logical inference seems to be that, if the March Deed were now to be set aside, N would no longer press as against E the claims previously made by her in those proceedings.) Issues 21As will be apparent from the above, a broad range of issues were raised in the proceedings. These may be summarised as follows: (i) E's mental capacity as at 28 March 2008 to give instructions and to enter into the March Deed; (ii) whether E's entry into the March Deed was procured by unconscionable conduct by, or the undue influence of, A (or in the knowledge by her that he did not have the mental capacity to do so); (iii) whether N's entry into the March Deed was procured by duress or unconscionable conduct by A; (iv) whether, if E did not have the mental capacity as at 28 March 2008 to enter into the March Deed, the March Deed is void ab initio or should be set aside and, if so, on what terms; (v) whether N is entitled to the relief claimed under the Contracts Review Act 1980 (NSW) in relation to the March Deed; (vi) whether the covenant in relation to N's access to E (clause 3(e))was an essential term of the March Deed (breach of which would entitle N to terminate that deed) and whether A in fact breached that term; (vii) whether A should be granted relief in the nature of specific performance of the covenants contained in the March Deed (and, in particular, whether she is disentitled to such relief by reason of a lack of clean hands); (viii) what declaratory relief, if any, should be granted. Summary 22For the reasons set out below, on the above issues I am of the view that: (i) mental capacity

Relationship between A and E 26E (who it is not disputed no longer has the mental capacity to manage his affairs or to enter into transactions such as those the subject of the March Deed or to provide instructions in relation to the conduct of these proceedings) has two children from his first marriage (R, who is not a party to these, nor was he a party to the earlier, proceedings, and N). 27E was born in Italy in 1932. He left school at 11 years of age and hence it can be inferred that his education was limited. E worked first in the timber industry when he emigrated to Australia and then as a concreter. He established a concreting business and invested in real estate through his company [E L company] in which he held the controlling share. N was, from 1979 (thus apparently from the age of around 14), a director of that company. She later (on 2 January 1985) became a shareholder of that company. 28In 1993, E married A (whom he had met when she was a tenant at his Leichhardt property). A had earlier immigrated to Australia from Egypt after her first husband's death. She has three children from her first marriage: two sons (who feature in this dispute mainly because of N's claim that A threatened her with violence from them) and a daughter, who was formerly married to A's nephew, NM. NM was called to give evidence in N's case and was described by Mr Ahmed as a longstanding friend of N's. 29Exhibited to N's first affidavit in these proceedings is a copy of a pre-nuptial agreement entered into by deed (which I read subject to relevance) by E and A prior to their marriage. It discloses E's ownership of the Concord, Summer Hill and Leichhardt properties (without any suggestion that it was his company that then owned the Concord property). It was entered into with the express acknowledgment that the parties had not sought independent legal advice. 30E and A lived at the Concord property as their matrimonial home until 1999 on a fulltime basis. During their marriage, other properties were acquired (A says with financial contribution from her) including a property at Illawong, a property at Cabramatta (the proceeds from the sale of which were then used to acquire a property at Chipping Norton) and a property at Padstow. A says that, from 2001, for her convenience, they lived during the week above the Chipping Norton from which she operated a childcare business and on weekends at the Concord property. (She also referred to visits by E on his own to the Concord property from time to time while she was at Chipping Norton.) For some time during the course of the disputes with N (namely, from around January 2007 to March 2008), it seems that the couple lived at an address in Liverpool (this being the period during which N and NM say that E and A were at an undisclosed location). 31From around 2003, N lived in a flat downstairs at the Concord property. (A says that E agreed to this at her (A's) behest. N disagrees with A's account of events on this and many other aspects of the matter.) 32E and A returned to live fulltime in the Concord property on 18 November 2008 (in circumstances to which I will later return) until May 2009 when E was admitted to a nursing home. He now resides in full time care at another nursing home and it is not envisaged that he will ever be in a position to return to live at the Concord property. (N, having lived elsewhere for a 12 month period, has been resident at the Concord property for some time since 2010.) 33N deposes that, in early July 2000, E and A separated and that in this period E resided at the Illawong property and she saw her father every day. She says that the couple reconciled in about December 2002. I admitted, again subject to relevance, a copy of a binding financial agreement signed by E and A (the copy in evidence seemingly being undated but which N says was dated 29 November 2002). (In the recitals, E and A depose to having lived together since their marriage (Recital C), which is inconsistent with the allegation by N that there had been a period of separation in 2000. However, A herself accepts that there was at least a two to three week period in about July 2000 when the two lived apart after a disagreement and a later time when they lived apart for three weeks in mid 2002.) In that agreement, E's assets are stated as including properties at Illawong, Leichhardt and Summer Hill, his shares in his company and a share in the Padstow property; A's assets are stated as including the Chipping Norton property and kindergarten and a share in the Padstow property. 34Mr Roberts submits that, from approximately 2004 through to 2007, E was engaged in a process of estate planning. That may be so. Nevertheless (and whether that estate planning process was at E's own or at others' instance), it seems fair to say that both N and A took an active interest (and from time to time played an active role) in that process (R's involvement being limited to events at an earlier stage in that period when he accompanied E to solicitors in 2006). Unfortunately, the facts of this case bear the hallmarks of an attempt by both A and N to ensure E's estate planning was favourable to them.

Creation of joint tenancies in respect of the properties 37As at October 2004, E's company (in which N was a shareholder) owned the Concord property. On 20 October 2004, the company transferred the Concord property to E and N as joint tenants (hence the right of survivorship referred to above). N says that the transfer was with a life estate to E, though this is not noted on the transfer. The transfer acknowledges receipt of consideration in the sum of $980,000. It is stamped as to no duty being payable thereon. It does not seem to be disputed that there was no actual payment to the company of the stated consideration for that transfer. (This transfer may have been explicable on the basis that it was at a time when E was contemplating retirement and the company was de-registered not long thereafter. However, by reference to the codicil referred to above, which was executed shortly after the transfer of shares, it seems that the transfer of the property out of the company may also have coincided with concerns by E and/or N as to attempts by R to interfere with the company.) (N, in her affidavit in the earlier proceedings, deposed to concerns she says E had expressed that Rand/or A might challenge E's will.) 38On 28 December 2005, E signed transfers of two other properties that he then owned in his own right (at Leichhardt and Summer Hill) in favour of himself and N as joint tenants, for no consideration. The execution of those transfers was witnessed by a Mr Devine (who I understand to be a real estate agent, not a solicitor). N, in her affidavit, does not explain by whom those transfers were prepared. 39E later told a number of third parties that he had not understood at that time that the effect of holding ownership of those properties with N as joint tenants, rather than as tenants in common, would operate automatically to give his half interest in those properties to N (by way of a right of survivorship) in the event that he predeceased her and, in particular, that this meant he would not have the ability to dispose of his half share of those properties under his will. (N asserts in her affidavit in the 2007 proceedings that the concept of ownership under a joint tenancy was explained to E by Mr Macdonald but any such explanation by Mr Macdonald was presumably not given until September 2006 as it would seem to have been inconsistent with the earlier action in relation to the will in 2004 and hence had it been raised at an earlier time by Mr Macdonald one might have thought a different step would have been taken in relation to the then codicil.) 40From instructions given to Ms Therese De Pasquale (one of the various solicitors with whom E and A had conferred in relation to the dispute with N that arose in 2006), it seems that either or both of E and A was (or were) then of the view that N had encouraged E to execute those transfers due to a concern on N's part that otherwise her brother R would obtain more than a fair share of her father's assets on his death. Whether or not that be the case, there is evidence to indicate that, by the time E later sought to sever these joint tenancies, he was doing so in order that his half interest in the properties would not pass automatically to N on his death but would be able to be dealt with in accordance with his will (and in that regard I note that the will he executed in December 2007 left his estate equally to his son, R, and his wife, A.) 41Over the Easter weekend in April 2006, E suffered a seizure and was admitted to Concord Hospital. There was a dispute between A and N as to the extent to which the latter had visited her father in hospital during this time. A says that N visited for only a short time on the Easter Monday (and that this upset E and led to him disclosing to her that he had made the 2004/2005 transfers and that this had been a mistake). N, on the other hand, says that she was with her father most of the visiting hours during his stay in hospital and that she stayed overnight with A at her place on the first evening of her father's stay in hospital. (That evidence is noted by Mr Roberts as being inconsistent with N's assertions as to an apprehension at least at that time of violence on the part of A (or A's sons), though I note that the principal allegation of threats seems to relate to conduct in September/October 2006, some months after E's hospitalisation in April.) In any event, N is adamant that she did stay with A (and says that this was at A's request). 42A's evidence was that it was at this time (after E had become upset that N had not visited him in hospital for more than a brief stay) that E told her (for the first time) that he had given N half of his properties at Concord, Leichhardt and Summer Hill (and the whole of a property at Abbotsford). A says that E then said he wanted her to take him to a solicitor to take back the property. 43N was adamant in the witness box that her father had told her in a telephone conversation in March 2006 (ie, before his hospitalisation) that he had told A about transferring the Leichhardt and Summer Hill properties to N and that A "has gone crazy and doesn't want me to see you anymore". A, as noted above, says that she first learnt about the transfers to N after E's admission to hospital in April 2006. (A's timing of events is consistent in this respect with the version of events to which N seems to have deposed in [20] of her affidavit in the earlier 2007 proceedings - Exhibit H - at least to the extent that she says that A had spoken to her in an "angry voice" about this in about May 2006.) It might be thought that if A had heard before May about the transfers (and had been as anxious to pressure E into giving them to her as N asserts she was) then A would have spoken to N about them or taken action of some kind at that time. Whereas, the first steps taken to reverse the transfers were after E's hospitalisation, which is consistent with A's recollection of the timing of events. 44Pausing there, the timing of the discovery by A of the transfers was one of a number of inconsistencies, highlighted in the course of N's cross-examination, between N's affidavit in the 2007 proceedings (Exhibit H) and her affidavit sworn in the present proceedings. Another was the statement at [20] that "[A] found out [about the 2004/2005 transfers] in circumstances which I do not know, a few months after the 2005 transfers" (my emphasis) - whereas in the current proceedings N deposes to having found this out in the telephone conversation with E in March 2006. (Another inconsistency is as to the circumstances in which the September 2006 documentation attempting to reinstate the joint tenancies was signed - to which I refer in due course.) 45N deposes to attempts to speak with E by telephone in the period from March to May 2006 in which she claims N restricted her access to E ([47]-[54] of her first affidavit in these proceedings. (A denies having restricted N's telephone access to E.)

First attempt to sever joint tenancies 46In June 2006, A (according to her, in compliance with E's request) took E to her own solicitor in Parramatta (Mr Rami Attia). Her evidence is that E had told her he wanted to fix a mistake he had made in transferring all the properties into N's name (although by that stage it is not clear that E had yet received any advice as to the relevant difference between joint tenancies/tenancies in common in this regard, hence the "mistake" might have been the transfers per se). A says that she was not present during the conference with Mr Attia. Following that conference, A says that E told her Mr Attia had explained the difference between joint tenants and tenants in common and had said that he was going to send N a letter. 47On 27 June 2006, documentation was signed by E (prepared by Mr Attia) for the unilateral severance of the joint tenancies in respect of each of the Concord, Leichhardt and Summer Hill properties. Therefore, Mr Attia (who did not give evidence in the proceedings) must have understood his then instructions to be that, whatever "mistake" had been made, it was one to be rectified simply by severing the joint tenancies. 48N recounts a conversation with her father in mid July 2006 at the Concord property in which she says that her father told her that he had left A and that she was demanding money or the Illawong property. N says that in that conversation E told her that two weeks ago A had forced him to go to her lawyers and "give her half of everything". I interpose to note that the Transfer Unilaterally Severing Joint Tenancy that was signed by E and witnessed by Mr Attia, would on no version of events have operated to give A "half of everything". All it purported to do was to sever the joint tenancies, thus making it possible for E to avoid the operation of the right of survivorship attaching to joint tenancies and thus to dispose under his will of his half share of the Concord, Leichhardt and Summer Hill properties. However, there was no suggestion of any attempt by E at that stage to change his will. Therefore, the suggestion by N that E had told her otherwise, seems to me to point either to E not having an understanding at that stage of what the severance of the joint tenancies would do or that N's recollection of events is unreliable or otherwise tainted by her suspicions of A. I am inclined to think the latter, given the suspicion N seems to have attached to A's motivation in accompanying E to the various solicitors for the severance of the joint tenancies (even in the face of later communications by E's lawyers in October 2006 conveying his instructions that this was to permit the disposition of his interests by will to R, not A).) 49At least as at late July 2006 (whether or not there had been a separation, as N says, or whether E was simply spending time at Concord, as A says was his wont), E was staying at the Concord property. On 30 July 2006, E was admitted to the Emergency Department at Concord Hospital. The Registrar's notes record that the diagnosis was seizure and that E's daughter (N) had found him confused, disoriented and "talking gibberish". The notes record that it was about one hour before E was normal again and that he had been referred to his "usual neurologist", Dr McDougall. On his discharge from hospital, it appears that E returned to the Concord property. 50N then alleges that, on 1 August 2006, A forcibly removed E from the Concord property, dragging him into her car, and that E did not return for the entire month of August. A seems to accept that E did leave the Concord property with her but A says that she did not forcibly remove him. (A says her sister-in-law rang to say E was sick and that she should take her husband home; and that she did.) 51From August to September 2006, E and A were living at Chipping Norton. (N's evidence that E had separated from or was going to leave A at around this time seems inconsistent with any submission that at this time E was under pressure, or at a disadvantage, from A due to a fear that he would be left alone by her.) N says that on one occasion around August/September 2006, when E and A visited the Concord property, her father asked her to book an appointment with the solicitor to put the properties back to joint tenancies (and that he told her that A did not allow him to make phone calls, something A denies). 52On 11 September 2006, N took E back to Mr Macdonald (the solicitor who had drafted the 2004 codicil to E's will). Mr Macdonald prepared a transfer form for the transfer of the three properties back into the names of E and N as joint tenants. N says in her affidavit that the transfer was signed by E and by her and was witnessed by Mr Macdonald. It is dated 11 September 2006. 53In Exhibit H (N's affidavit sworn in the 2007 proceedings), she deposed that the day after the transfer was signed Mr Macdonald called her and said that there was a requisition on the notice severing the joint tenancy; that it had not in fact been severed and that all that was required was for E to sign a letter (which he then emailed to her) withdrawing the transfer of the joint tenancy. In that affidavit she swore that she went to the Chipping Norton property with the draft letter that Mr Macdonald had sent to her and that A "physically prevented me from entering the house" and "actually blocked my entry" stating that "As a result my father had to come out of the house to sign Mr MacDonald's document in the car". In her evidence in the current proceedings N accepts that she did enter the Chipping Norton house on this occasion but denied that anything had been signed by E in the car (thus her evidence was inconsistent with that to which she had earlier deposed on two counts). (I add that it is not clear whether the 2007 affidavit was ever formally read in the earlier proceedings, but it was tendered by Mr Roberts in these proceedings and relied upon by him, as I understand it, as containing inconsistent statements earlier made on oath by N.) 54A's version of events is that on 13 September 2006 N attended at her Chipping Norton residence (where E and she were living at the time), above the childcare centre where A operated a business, and she saw N and E sitting in the car and E signing a paper. A says (but N denies) that N said to her "Cry as you like, I've taken everything from him". N's version in these proceedings of the encounter on that day is that A sought to prevent her having access to her father and was screaming at her and said words to the effect "You are going to pay for this N, you are really going to pay for this. I have two sons behind me you are going to pay for this" (which she interpreted as threats and which she says were repeated over the telephone two days later) and that it was only after those threats that she and E sat in the car talking. 55A then deposes to a visit from R to the home at Chipping Norton during the evening of 13 September 2006 and to a conversation he had with E in which she says E asked R to take him to a good solicitor. (How R became involved at that stage is otherwise not clear.)

Second attempted severance of joint tenancies in late 2006/early 2007 56On 14 September 2006, E attended the offices of Nesci Lawyers with his son R (which supports A's account that E had asked for R's assistance in that regard since otherwise there seems no explanation for R's attendance on that occasion). 57Mr Bruno Nesci, a solicitor as at September 2006, practising as the principal of Nesci Lawyers, gave evidence that for over 20 years up to August 2007 he had acted for E in relation to various matters (family dispute proceedings, conveyances, work related litigation and general advice). Mr Nesci said that his dealings with E were conducted mainly in the Italian language (in which his observation was that E felt most comfortable conversing in relation to such matters). (I pause there to note that the fact that in 2004 N took E first to Mr Cassab and then to Mr Macdonald, rather than to the solicitor who had by then acted for E for a number of years, seems to indicate that N was the moving force behind the 2004 transactions, since had E been the decision-maker in this regard, it might be thought that he would have chosen to go to Mr Nesci. That said, it also does not explain why E would, as at September 2006, have needed R's help to find a good solicitor if E already had a professional client relationship with Mr Nesci.) 58Mr Nesci deposed ([5] of his affidavit sworn 15 November 2011) that in about 2006 "[E] came to appreciate that he had executed certain documents which as he explained to me, were not fully understood by him" as a result of which he had transferred certain proprietary interests to N. The giving of whatever instructions had led Mr Nesci to form this view were not expressed in Mr Nesci's affidavit but his understanding of E's intention is consistent with the action E had earlier taken June 2006 when he saw Mr Attia (and I note that Mr Nesci, who gave evidence called in N's case in the proceedings, does not seem to have had a concern at that stage as to E's competence to give such instructions). 59Mr Nesci was apparently unavailable at the time E and his son arrived at his office on that occasion and they conferred instead with a solicitor then employed by Nesci Lawyers (Ms Therese De Pasquale). (Ms De Pasquale from October 2006 became the principal of the firm now known as Nesci De Pasquale Lawyers, with whom from that time Mr Nesci has been a consultant.) (A was not present at the conference.) 60Ms De Pasquale had not previously met either E or R and was unaware that E had previously been a client of Mr Nesci. She has deposed that R was present during the conference but says this was at E's request. 61According to Ms De Pasquale ([6] of her first affidavit), during this conference (at which there was a discussion as to the three properties (Concord, Leichhardt and Summer Hill), E said to her words to the effect "I think I may have signed over all my properties to N, my daughter". Ms De Pasquale says that she conducted a number of searches and explained to E that the properties were in his and N's name as joint tenants. She says that she explained that this meant that when E passed away the properties would automatically pass to N and that E said to her, in effect, that he wanted to transfer his (half) share in the properties to his son R but that he did not want R and N to kick him out and that he wanted to get the rental from the properties. Ms De Pasquale says that she explained that the way the properties were held at that time meant that this could not be done and that an application would have to be made to sever the joint tenancy (and she foreshadowed a problem if N did not agree thereto). Ms De Pasquale further says that E told her that he wanted her to prepare a will leaving everything to R "just in case something happens to me and then we can deal with the situation with [N]". 62As noted, A does not appear to have accompanied E to this conference (indeed Ms De Pasquale deposes that she did not meet A until 14 November 2006), although A accompanied him on other occasions to various solicitors' offices. Furthermore, the transactions then contemplated would not have benefited A (at least directly). Rather, the benefit from what was there being discussed, consistent with Ms De Pasquale's initial communications with N in October 2006 would seem to have been to R's account. (I also note that while the properties remained held by E under a joint tenancy with N, a will leaving E's half share of the properties to R would not have had the effect of giving him an interest in those properties if E were to pre-decease N.) 63Ms De Pasquale deposes that during the initial conference (and thereafter) she spoke with E in Italian but that on occasion he would speak to her in English and she would reply in English. 64On 21 September 2006, Ms De Pasquale had a further meeting with E, which she says was primarily in order for him to sign the will she had prepared. (It is not clear who accompanied E, if anyone, on that occasion.) They had a conversation in which she tested E's recollection as to what he had said the week before and as to what he wanted in his will. (Her account of what E said as to his wishes in respect of the transfer of his share in the properties to R and as to the will indicates that his recollection was then consistent with what had been discussed the previous week). Annexed to Ms De Pasquale's affidavit is a copy of her file note of those instructions. Relevantly, that file note of the meeting (recorded as being of one hour's duration) was as follows: 21/9/06 Meeting with [E] Instructions: He wants to tsf [which I read as an abbreviation for transfer] his share of the properties to [R] so that [R] & [N] hold properties as tenants in common in equal shares. he wants a life estate he wants rent until death & will be responsible for expenses Read will to him - he said that he could understand English enough to read it in English where he appeared not to understand I read [deleted] translated it to him in Italian Expressed concern that [A] get nothing that she is a blood sucker and he has given her so much that if he gives her anymore in terms of property/money she will kick him out if he has nothing else that she can get from him. She is apparently harassing him for $ & property. 65Ms De Pasquale, in her first affidavit of 14 November 2011, deposes that, at the meeting on 21 September 2006, E also explained to her how it came about that he had signed the documents that N had given him. That explanation is not set out in her affidavit. However, annexed to her affidavit is a chronology that Ms De Pasquale says she prepared (but never completed) "in accordance with [E's] instructions" (Annexure D), in which there is a description of events that suggests that the context in which E had signed the documents was pressure from N (in circumstances where N was concerned that her brother was attempting to get hold of all of his father's properties). If that chronology did accurately record E's instructions to Ms De Pasquale, then the fact that he had communicated this to her (whether or not it was true) would indicate his belief at the relevant time. 66However, the source of the information contained in that chronology is not clear (Ms De Pasquale denied having prepared the document, in a supplementary affidavit that I gave leave to be filed in the course of the hearing). It appears that Ms De Pasquale received a document headed "[A]'s Testimony" by facsimile transmission from a fax number used by one of A's sons and that this may have been the source for some of the information there contained. (Mr Ahmed noted in some detail the close similarity between the "testimony" document and both the draft chronology and draft affidavit prepared by Ms De Pasquale.) A denies preparation of the chronology document but says that she gave her account of events orally to Ms De Pasquale. That said, as I understood Ms De Pasquale's evidence she had satisfied herself that the documents she prepared reflected instructions from E (whoever may have prepared the "testimony" document). 67In that (admittedly incomplete and seemingly draft) chronology, Ms De Pasquale sets out a description of various events (commencing from an entry for 29 November 2002 that E and A had entered a binding financial agreement pursuant to Part VIII(a) of the Family Law Act), part of which agreement provided for the transfer of A's share in the property at Illawong to be transferred to E's son R (the only relevance of which seems to be to explain references later made to the property transactions in 2007 as amounting to an attempt by A to have a 'second bite of the cherry'). (A denies that she is seeking a 'second bite of the cherry'. In her affidavit of 7 February 2012, A deposes to the purchases made with E after her marriage of properties at Illawong, Cabramatta (the proceeds of which she says were used to purchase Chipping Norton) and Padstow. A maintains that when E gave R half of the Illawong property in 2004 (and the other half of that property in 2007) E promised to give her an amount equal to Illawong from his other properties.) 68The incomplete chronology which is annexed to Ms De Pasquale's statement records what seems to have been Ms De Pasquale's understanding of her instructions as to the suggestion by N that her brother had forged E's signature on a will and was seeking to get all of E's properties as the context in which the joint tenancies were created in the first place. While I consider that little weight can ultimately be placed on this chronology, given the difficulty of determining from whom the instructions recorded therein had been obtained (since it is not clear whether the chronology reflected or recorded instructions given or confirmed by E or, as the case may be, from others), the assertion that the 2004/2005 transfers were executed in the face of concerns in relation to a challenge by R or A to E's will is one that was made on oath by N in an affidavit sworn by her in the first proceedings commenced in this Court in relation to the 2007 transfers (Exhibit H). 69In any event, Ms De Pasquale then proceeded to prepare a draft deed between R, N and E in relation to the proposed transfer of E's half share to R. She wrote, by letter dated 13 October 2006, to N, advising her that she had been instructed that, at the time of transferring his half interest in the three properties, E's understanding was that the property would be transferred as tenants in common and that it was never his intention that the property be held as joint tenants. The letter noted E's wish to sever the joint tenancy and stated that "We also note that this had previously been attempted to be done by other solicitors in July of this year. At some stage thereafter [E] signed a document of which he was not aware of the precise contents but which we assume reinforced the joint tenancy". At this stage, it must have been clear that what E was proposing was a transaction that would benefit R. There was no suggestion in the letter that A would benefit from the severance of the joint tenancies. 70The letter sought N's acknowledgment as to the severance and the receipt of independent legal advice in relation thereto; and stated that the relevant forms would be submitted for lodgement if Ms De Pasquale did not hear from N or her legal advisers within 14 days. 71N says that on 28 October 2006 (thus after the expiry of the 14 day period), A and E came to the Concord property and that A demanded that she sign some legal documents relating to the properties and threatened that if she did not then A would get E to kick her out of the house and would take N to the Supreme Court. (It is not clear whether these were the documents that Ms De Pasquale had prepared but as those are the only documents that N had been requested to sign at that stage, it seems to me likely.) N says that her father was "vague, could barely walk, expressionless and motionless" on his arrival and stayed in another room during the discussion as to the signing of the documents. A says that E was present in the kitchen at the time with them at the time the request was made and was his "normal self". N refused to sign the documents. (A admits that on a Sunday in October 2006, she called N. She says she asked her to sign the documents that Mr Nesci had given E and that she made that request because E had asked her to do so). 72An application unilaterally to sever the joint tenancy in respect of the Concord property was then signed by E (whose signature was witnessed by Ms De Pasquale) on 1 November 2006 (suggesting that Ms De Pasquale was then taking steps to make good the action that had been foreshadowed in the October letter). However, this application was apparently not sought to be registered until 8 January 2007, that being the handwritten date at the bottom of the form. (This therefore seems to be the document referred to in N's pleading and the subject of her claim for declaratory relief as to lack of capacity on the part of E at that time.) 73On 8 January 2007, as adverted to above, E lodged for registration the notices of intention unilaterally to sever the joint tenancies in respect of the three properties.

2006 AVO application by N 74Meanwhile, on 10 November 2006, N had lodged an application for an apprehended violence order against A. (This was the second time N had lodged such an application, the first being in 2000.) The Complaint and Summons issued on that date describes the circumstances of the complaint as relating to the incident on 13 September 2006 and in that complaint N says that she fears further harassment abuse and violence. The complaint refers to attempts by A to get N to agree to sign a legal document "that would allow A to inherit [E's] property after his death" (the document in question seems, however, to have been the document prepared by Ms De Pasquale that would have benefited R not A). N deposes to the threats made to her by A in paras [73], [77], [81]-[84] of her first affidavit. (In those, she says that A referred to her as "rubbish" and "garbage", among other things. A, in her evidence, used not dissimilar language.) That summons was returnable on 18 December 2006 and apparently stood over for a mediation to take place on 15 January 2007. 75On 15 January 2007, N and A participated in a mediation at the Community Justices Centre in relation to the apprehended violence application that had been lodged by N. E was apparently present on that occasion. N says that E sat through the whole mediation without saying a word and that he appeared very ill. A handwritten agreement was signed by A and N following the mediation between A and N, in which A agreed to certain arrangements (namely, that "she will ensure that [N's] telephone calls are received by her father or if he is unavailable that he is informed that [N] has called and wants him to return the phone call"; that if N knocks on the door she would inform N's father "who can then join [N] outside the flat"; and that neither A nor any of her family would contact N except in the case of an emergency concerning N's father "and then only [A] will contact [N]") and N in turn agreed that she would not enter the premises of her father's flat except in the case of an emergency concerning her father. On the basis of those undertakings, N agreed to withdraw her application for an apprehended violence order. (She says that she did not see her father after this occasion until the mediation on 11 March 2008. For some time between January 2007 and March 2008, E and A resided at a place in Liverpool. A admitted that there was no landline at that residence. She says that she and E shared one mobile telephone.)

Concerns about E's health 79Ms De Pasquale deposes that by April 2007 she had become concerned that E was not in the best of health "and potentially did not have capacity". She explains that at times he appeared confused and did not appear to understand either Italian or English. Due to those concerns, Ms De Pasquale obtained authorisation to the release of E's medical records. It is not apparent that she obtained any such records before ceasing to have the conduct of the proceedings. (From late April 2007, after she had raised those concerns with Mr Nesci, until around August 2007, it was Mr Nesci who had the carriage of the matter.) 80Mr Nesci has deposed to a meeting on 1 May 2007, in which E came to his office accompanied by A. Mr Nesci says that E started relating to him what appeared to him to have been information previously provided to Ms De Pasquale (though it is not apparent from this whether Mr Nesci is suggesting that E did not remember having already given the instructions or whether he was confirming them - the latter would of course indicate that E's memory was consistent in relation to those instructions). Mr Nesci deposes that A became annoyed that E was speaking in Italian (and had said it was important that "we stop [N]" and that she wanted to understand and to correct him when he was not right). A denies being annoyed but agrees that she may well have asked E to speak English in her presence (as she does not speak Italian). Mr Nesci asked A to wait outside. 81Mr Nesci deposes that after A was outside the room E told him that he had signed a number of documents that he thought were to transfer half of his properties to N but that he had found out went further than that and that if he died before her the right of survivorship meant that she would get the whole of those properties. Mr Nesci deposes that E told him that N had taken him to a solicitor to do so and that there had been no explanation in Italian. He says that E said words to the effect: I have been tricked. I want everything to be undone and put back the way it was. 82Mr Nesci says that he pointed out to E that undoing the whole transaction was different from what he had tried to do the previous year (when he had wanted to change the tenancy such that if he died he could do what he wanted with his half share), E had said to him: That's right, but I have changed my mind and I really want the whole thing undone. It hurts me a great deal that I am fighting with my daughter, but that is what I want done. 83Mr Nesci says that he also explained that for the whole thing to be undone it would be necessary to reinstate the company that had been deregistered and that E said he understood that. In the witness box Mr Nesci gave evidence as to how he had explained the concept of deregistration in lay terms and there seems no reason to think that a person in E's position would not have understood that. 84The significance I draw from the above is that E seems to have been able (unprompted by A at the time since this conversation was not in her presence) to have recounted his concerns as to N's conduct and as to what he then wanted to do in a manner consistent with what he had earlier apparently indicated both to Ms De Pasquale and to Mr Attia. Furthermore, Mr Nesci seems to have been sufficiently comfortable as to E's understanding that he continued to act for him (notwithstanding the concerns that Ms De Pasquale had raised). 85A defence and cross-claim were filed on behalf of E in these proceedings in May 2007. 86In late May 2007, E was again admitted to Concord Hospital for a period of 8 days suffering from epilepsy and confusion. (It is "as of June 2007" that the consultant neurologist who prepared an expert report at N's request, Dr M S Dowla, says that E was no longer capable of managing his affairs.)

August 2007 Conciliation conference 87Mr Nesci has deposed to E's wish, by August 2007, to make peace with N and to the making of statements by E to the effect that "...provided I can do what I want with my half share of the properties then I do not want to fight with her". (To this point, E's expressed concern as to what had happened and his desire to undo what had happened, at least so as to be able to deal with his half share of the properties under his will, is consistent and there is no suggestion that he was then intending to benefit A in relation to his half interest in those properties - indeed his instructions to Ms De Pasquale suggest to the contrary.) 88Mr Nesci's evidence is that he proposed a conference to see if the matter could be resolved and, in August 2007, a conference took place in Mr Nesci's office at which E, N, N's solicitor (Mr Hassett) and Mr Nesci were in attendance. A was present in the offices of the firm but not in the conference room. Ms De Pasquale says she observed that A was sitting outside the door and had her ear up to the door at times and that A said to her that she hoped E did not make any decisions in there and that "[E] doesn't know what he is doing. He has to check with me before he does anything". (A denies that her ear was to the door but accepts that she was sitting on a chair in the corridor outside Mr Nesci's office during the conference.) 89Mr Nesci says that he translated everything said at the conference in Italian to E and that E seemed to understand the nature of the proceedings and what was requested at the conference. Mr Nesci says that at the conclusion of the conference (after N and her solicitor had left - by which time presumably A cannot have been sitting with her ear to the door as she would then have been physically obstructing their exit), A said she wanted to know what had happened and that E had asked him to explain what went on in the conference as "she is not going to leave me alone unless you explain to her what went on in the conference". 90Pausing there, it is by no means surprising that, as his wife, A would want to know what had transpired in such a conference (whether or not she had a personal interest in the outcome) or that E might find it easier to Mr Nesci to explain what had been discussed. 91Mr Nesci says that E restated his desire to resolve the matter and said that he would be happy to do so on the basis that the properties remain in both names but he could do what he wanted with his share (again, consistent with his earlier instructions and something not wholly dissimilar from the situation for which provision was made in the March Deed, although I accept that went further and made provision as to how the particular properties were to be dealt with). 92Mr Nesci says that A then said she was not happy with that and later telephoned him with instructions (albeit instructions then confirmed separately by E) that E wanted to put a proposal to N that Concord and Summer Hill be transferred to her but that E would keep any rent and do what he wished with the properties in the meantime and for the Leichhardt property to be transferred back to E "or whomever he wishes". (A's recollection is that she said "The Leichhardt property is to be transferred to me" but she says that this was conveying what E had told her he wanted to have happen.) Mr Nesci clearly inferred from this course of events that E's change of instructions had been prompted by A's unhappiness with the proposal that had been put at the meeting. Nevertheless, he spoke with E (in Italian) and E confirmed those instructions. 93A settlement offer was then put to N on a without prejudice basis by letter dated 15 August 2007 (again, Mr Nesci presumably having formed the view that there was a proper basis on which he could act on those instructions). What seems then to have caused Mr Nesci a difficulty (and which it might perhaps be inferred played a part in him no longer being prepared to act in the matter, though Mr Ahmed was adamant that I could draw no such inference) was that subsequently he was asked (he says by A, whose instructions were again then confirmed by E, but also it seems by Mr Ziade, a new solicitor who acted briefly for E around this time) to withdraw the offer. Mr Nesci's evidence was that he did so with misgivings as it was against his practice to withdraw an offer during the time it had been stated to be open for acceptance. Mr Nesci had clearly formed the view that the withdrawal of the offer was at A's instigation (though confirmed by E, who he says said to him "I am not going to have peace unless that is done").

Approach made to another solicitor, Mr Ziade 94Meanwhile, Mr Nesci had received a telephone call on 24 August 2007 from another solicitor (Mr Tony Ziade) who had by then been approached to advise E in relation to the proceedings. 95A says that in about August or September, E told her he was not happy with an agreement that Mr Nesci was suggesting between he and N and had said he was going to ring Ms De Pasquale to collect the papers from Mr Nesci. In that context she says that NM suggested that they approach Kreisson Legal but that, after speaking to someone at that firm, an appointment was made to see Mr Ziade. 96Mr Ziade, in his affidavit of 24 November 2011, deposes that he has been in practice for over 35 years and that his area of practice includes wills, estate and family provisions. He deposes that on or about 24 August 2007, NM referred E and A to him to have him take over a matter being conducted by Mr Nesci (whom he had known for a considerable time). Mr Ziade says he saw E and A in conference and that A did most of the talking. He asked her to leave the room. (A denies that she prevented E from speaking at that conference and says that E had asked her to speak on his behalf. She cannot recall being asked to leave the room or whether she did so.) 97Mr Ziade deposed that E then told him about the Supreme Court proceedings his daughter had commenced and said he wanted, if possible, to have the Summer Hill property in his name. Mr Ziade said that during the conversation at one stage E said that he did not remember (although it is not clear to what question, if any, that was the response) and had lost a lot of his memory. Mr Ziade formed the view that E "did not understand what was going on". Mr Ziade also deposed that, during that conversation, E told him he did not trust his son or his daughter and that, when asked about his wife, E said the following and then broke down into tears: She makes me suffer. She wants to know everything. She threatens to leave me. I gave my wife the kindergarten. She collects rent of about $1,000 a week. I gave her land and the building which I purchased for about $1.5million and a small mortgage. I gave her another block of land. I am glad I gave her the properties. But I am scared to be left alone. I pray so many times to die. 98Mr Ziade said that later in that conversation E said that he wanted respect from his wife "She is rough with me. I don't want her to threaten to leave me. She makes me suffer". His contemporaneous notes record a statement to that effect. When asked by Mr Ziade if he trusted Mr Nesci, E's response (as recorded in the file note) was both yes and no, E referring to an incident he apparently understood had occurred between N and Mr Nesci (but as to which there was no corroboration). E at this stage thus seems to have expressed doubts as to his ability to trust anyone close to him, including not only A but also N and his hitherto apparently trusted legal adviser. 99Despite Mr Ziade's stated doubts as to E's capacity to understand what was going on and what was involved and the increasing discomfort he says he felt at acting for E, on 27 August 2007 Mr Ziade nevertheless acted on instructions conveyed by telephone from A (those instructions being to call Mr Nesci and not sign any documents in relation to the court case or to call off the settlement), Mr Ziade conveying to Mr Nesci's office the message that the offer should be withdrawn and to hold off for now. He says he advised that "Bruno is not to settle because [A] doesn't want him to".

Withdrawal of Mr Nesci/Mr Ziade 100Mr Nesci withdrew that offer. He deposes that, after withdrawal of the offer, he spoke with Mr Ziade and informed him that he proposed withdrawing from the matter in circumstances where he said it was untenable that Mr Ziade was being instructed on one hand but not instructed to take over the matter; he received instructions one day and they were changed the next; he did not like to be in a position where an offer was made and he then received instructions to withdraw it before the time was up; and he did not believe that E was exercising his own free will. (That evidence supports the inference that part of the reason Mr Nesci ceased to act for E was his discomfort at the position in which he had been put in relation to the withdrawal of the settlement offer.) Mr Nesci and Mr Ziade at that stage seem to have been in furious agreement that the relevant instructions were coming from A, not E, and both said they were uncomfortable about acting for E in those circumstances. 101By letter dated 29 August 2007 Mr Nesci wrote to E advising that he had difficulty in acting on his behalf "because of this ever-changing attitude (though the only change in this regard seems to have been as to the making and withdrawal of the settlement offer other perhaps as to the involvement of Mr Ziade). Mr Nesci also noted in the letter that Mr Ziade was not willing to take on the case (though that was not the position Mr Ziade himself was then taking, at least in his communications with E and A) and suggested that E seek another solicitor's services without delay. 102By letter dated 30 August 2007, Mr Ziade wrote to E and A jointly, referring to the conference with them and confirming that he would take instructions only from E (though stating he appreciated that A may have firm ideas about how the matter is to be run). His costs letter was addressed to both of them, noting A's instructions that she would be prepared to pay his costs and disbursements "because you have apparently far greater substantial means than [E] at the present". On 6 September 2007, E, A and NM again attended at the offices of Mr Ziade. 103By 11 September 2007, Mr Ziade seems to have changed his mind as to acting for E. He wrote to E on 11 September 2007 that he was "unable to take on your matter having regard to the complexity of the issues involved and my inability to devote the appropriate time, care and attention to it having regard to my other commitments" (no reference there being made to any concerns as to E's competence or susceptibility to outside influence). He noted that he had handed to A and NM (presumably on 6 September) the bundle of documents previously provided to him. A's evidence is that Mr Ziade had told her (again presumably on 6 September) that he was sick (which he denies) that he had four big cases and did not have time for E's case. (The latter at least seems to accord with his letter and his evidence in the witness box.) What seems clear is that Mr Ziade did not expressly decline instructions on the basis of any concern as to E's mental capacity or A's influence over him. 104Ms De Pasquale deposes that she filed a Notice of Ceasing to Act in the proceedings following a discussion with Mr Nesci on about 12 September 2007 when he expressed to her concerns as to whether E was exercising his own free will.

Further notice of severance 106By this stage, whatever view is taken of A's attitude or dominating position in conferences, the situation seems to have been that there was a pressing need to find solicitors prepared to act for E if he were to be able to defend the claims made by N in the Supreme Court proceedings (and, as he had told Ms De Pasquale a year earlier, to remedy the "mistake" he had made in transferring the properties to N for ownership under a joint tenancy). 107In late September 2007, E and A attended a conference with NM present at a solicitor's office at Punchbowl (Mr Vincent Senat). A says this was at NM's introduction (after Mr Ziade had said that he could not take the case). (A also said she was not aware of the reasons why the professional relationship with Mr Senat did not later continue.) 108It seems that Mr Senat then prepared and lodged on 19 September 2007 a further Notice of Severance of Joint Tenancy (acting on what he understood were E's instructions) but shortly afterward learnt from the Department of Lands that there had been previous notices of severance lodged and that these were not processed because of the Court proceedings. (It might perhaps be inferred that Mr Senat concluded from this that he had not been told the full story as to the matter and may not have wished further to be involved, but that is to a large degree speculation on my part.) 109N deposes that, on 4 October 2007, she received a letter from the Department of Lands enclosing a copy of a Notice of Severance of Joint Tenancy in respect of the land at Leichhardt, Summer Hill and Concord and of the Department's intention to register the dealing within 30 days. On 5 October 2007, her solicitors received a letter from Senat & Associates, confirming, inter alia, their oral advice to Mr Hassett that they had received instructions to prepare and lodge such a Transfer, that it had been lodged on 19 September 2007, and that by letter dated 21 September 2007 the Department of Lands had advised its decision not to register the dealing. (In that letter the Department of Lands had noted that previous dealings lodged to sever the joint tenancy had not proceeded to registration because of Court proceedings and that to date the Department had not been instructed that the Court proceedings had ended. The letter advised that until evidence had been produced that the court proceedings had ended the transfer that had been lodged in September 2007 would not proceed.)

Interlocutory judgment of Windeyer J on 9 November 2007 112The matter came before Windeyer J on an application by N for interlocutory relief on 9 November 2007. His Honour granted an interlocutory injunction, on N's undertaking as to damages, restraining the Registrar General from registering the transfers that E had signed in respect of the severance of the joint tenancies and restraining E from lodging any further notice of severance. 113In his ex tempore reasons, his Honour said at [3]: These proceedings are, to put it shortly, taken to restrain [E] from proceeding with an application for severance of a joint tenancy... The application for severance has been lodged with the registrar-General. Unless the court makes an order restraining the registration of that document the severance will take place. (thus making it clear what the consequence of the orders there being made was understood by his Honour to be). 114His Honour also noted that N had put forward evidence raising a case of contract pursuant to which the joint tenancy would not be severed and observed that it was important that the existing state of affairs be maintained until the proceedings were properly determined by the court. 115During the course of that interlocutory hearing, Windeyer J had stepped down from the bench and asked questions directly of E, clearly with a view to enabling his Honour to assess E's mental capacity to give instructions in relation to the proceedings. (A accepts that his Honour said at that time that this was "hopeless".) At [4], his Honour said: There may be problems as to the ability of [E] to conduct this litigation himself. I am not stating that there are problems; I am just stating that it might be possible that there will be problems. The court of course can always appoint a tutor, if that becomes necessary, and the plaintiff can apply for appointment of a tutor. I am not saying this is a proper or a necessary course, I am only pointing out what might have to happen. 116His Honour later in the judgment noted that the solicitor for the plaintiff intended to make an application for the appointment of a tutor for the first defendant (hence the likelihood of this would have been present to the mind of Counsel later briefed for E when reviewing his Honour's reasons, such as Mr Moore). 117At [5], his Honour said: The appropriate way to proceed at the moment is to ensure that any severance does not take place until these proceedings are determined. The determination of the proceedings will, of course, determine whether or not the defendant is entitled to sever the joint tenancy. (my emphasis) 118The orders then made were, in their terms, to restrain the Registrar-General from registering the transfers unilaterally severing joint tenancy and to restrain E "until the final determination of these proceedings or earlier order from lodging any further severances of joint tenancy in respect of the land the subject of the transfers referred to in [the above] order". (my emphasis) 119On 15 November 2007, N instructed her solicitor (Mr Hassett) to make an application in the Supreme Court proceedings for the appointment of a tutor to E. A Notice of Motion seems to have been filed on that date, returnable on 21 January 2008, and evidence in support of that application was prepared by her solicitor.

need copy of will and pre-nuptial 124There is a dispute as to when the first conference attended by E with Mr Moore took place, namely whether that be on 22 November 2007 or on 18 December 2007. Other than insofar as it goes to the reliability of Mr Moore's recollection of events, there is no significance attaching to the date of the first conference other than the fact that if the conference took place on 22 November, then it did so in advance of the medical evidence which Mr Moore considered was necessary (presumably to give him a level of comfort as to the competence of E). 125At the time of swearing his first affidavit, Mr Moore did not have before him the brief of instructions initially received by him nor copies of the documents briefed to him in the course of his retainer. From copies of tax invoices rendered by him, he deposed that he had first conferred with E on 18 December 2007, at which time he says he had been briefed with documents received from various medical practitioners (namely, a letter of 3 December 2007 from Professor Dickson to Dr Loutfy (E's general practitioner); a letter dated 6 December 2007 from Dr McDougall; and a letter dated 7 December 2007 from Dr Loutfy). 126In his second affidavit, Mr Moore explains that a conference had initially been scheduled on 22 November in his chambers with Ms Teremi but that this did not occur because he had advised Ms Teremi to obtain independent medical evidence as to E's medical competence. Mr Moore points to his memorandum of fees for that period (Exhibit 6) and notes that the only work recorded on 21 November 2007 was "Perusal of documents and telephone conference with Ms Teremi - 0.5 hours" and on 22 November 2007 "Settling letter" [that reference being to what he considers was a letter of 23 November to Hassett Dixon] and telephone conference with Ms Teremi - 0.25 hours. Mr Moore's evidence is (not surprisingly) that his practice is to charge for time spent in conferences. There is no reference in his memoranda of fees to any conference with E on 22 November 2007 or indeed until 18 December 2007. 127Had the evidence rested there, I would have had no reason to doubt that what had occurred was that the conference arranged for 22 November with E had been re-scheduled until after the medical reports were received. However, that does not explain how Ms Teremi on 27 November 2007 came to write a detailed letter of advice to E, referring not only to a meeting with E at Kreisson Legal's offices with [NM] on 21 November but also to a conference in Mr Moore's chambers and the advice there said to have been given on 22 November. (As I was reminded more than once by Mr Ahmed, Ms Teremi was not present in Court to shed any light on this discrepancy). Further, I note that 0.5 hours was billed by Mr Moore for perusal of documents settling letter and telephone conference with Ms Teremi on 27 November 2007, thus suggesting that the 27 November letter (containing the reference to the 22 November conference) was settled by him though Mr Moore was not questioned on this in cross-examination. 128Ironically, in his written submissions prepared in advance of the hearing, Mr Roberts contended that the background to the drafting and entry into the March Deed by the parties (from E's part) arose from Mr Moore's retention by Kreisson Legal, there referring to two initial conferences between Mr Moore and E at which it is said that NM was present being those on 22 November 2007 and 18 December 2007. However, as I understand it, Mr Roberts' position is now that Mr Moore's evidence should be accepted that he held his first conference with E at Kreisson Legal after he had been briefed with the medical reports of Professor Dickson, Dr McDougall and Dr Loufty and in the presence of an Italian interpreter. 129The 27 November letter itself has some internal inconsistency in that paragraph 22 contains a recommendation that Counsel be briefed to assist in the matter (referring to Mr Moore and a proposed Senior Counsel in that regard) which speaks in prospective terms (though the letter suggests that at least Mr Moore had already been briefed). It confirms that a meeting "was convened" with Mr Moore on 22 November. That of itself would not be inconsistent with the meeting having later been re-scheduled but the paragraph goes on to confirm that NM "attended with you at this meeting". 130Paragraphs [26] - [27] of the letter then set out in detail Ms Teremi's account of what Mr Moore had advised in the conference (said to have been attended by E with Mr Moore, NM and her) on 22 November 2007 and to what was discussed at that conference. There are numerous references to what was said or discussed at the conference with Mr Moore. By reference to the detail of the letter, ordinarily I would have assumed that as a contemporaneous document it could be relied upon as Ms Teremi's recollection of what had happened. 131Tested on this in cross-examination, Mr Moore said at T 271: Q. Mr Moore, could it be possible do you think that you have forgotten about this entire conference? A. No, I don't think so because of several reasons; (1) I do not believe I ever met [E] in my chambers as distinct from at Kreisson Legal's then offices in Chifley Tower; (2) I believe the first time I met with him was for an extensive period and it culminated in the execution of the transfers; and (3) looking at my memorandum of fees I am not in the habit of not billing for conferences that took far in excess of, well, indeed, the only thing billed on the 22nd of November was a quarter of an hour settling a letter, which I believe to be the letter to Hassett Dixon dated 23 November. Q. Mr Moore, could it be that your recollection of all of these events that happened in those proceedings came from this memorandum of fees A. No. Q. And that's because let me finish my question, please and because could it be that you had not in fact recorded a conference on 22 November 2007 and that is why you forgot it? A. I don't believe that's correct because I have an independent recollection of the things I have indicated, that I only ever met [E] at Kreisson Legal's office and the first time I met [E] was the day by the end of which the transfers had been executed. I accept that I outlined to Ilona back in November how I thought we might proceed, subject to mental competence being determined, but I was adamant we had to get the expert, independent expert medical reports first. 132In this regard, it seems to me that the fact that Ms Teremi was not called to clarify the discrepancy is of some significance. Nevertheless, A had no recollection of ever having attended a conference in Mr Moore's chambers (and I considered her confusion at the whereabouts of his chambers to be genuine in this regard) and, more significantly, NM himself denied having attended any conference in Mr Moore's chambers in relation to this matter and said that the first meeting he had attended was in December at Kreisson Legal's offices. 133At T 453.3, in cross-examination by Mr Zucker there was the following exchange with NM: Q. If I suggest to you that you visited the office Kreisson Legal on 18 December the day before when you were present to give instructions to Kreisson Legal? A. I wouldn't object to that. I would say it's possible, yes. Q. Would it be correct to say that so far as you're concerned the visit to Kreisson Legal on 18 December was the very first conference you had conducted or you'd participated in at Kreisson Legal, paragraph 43? A. It would have been the first yeah, time I attended the office with A and [E]. I believe so, yes. and at T 453.44: Q. In relation to this case it was the first time you'd met Mr Moore? A. Correct. Q. You'd certainly not been to Mr Moore's chambers, private barrister's chambers had you? A. In relation to this, no. 134Mr Ahmed has invited me to accept NM as a truthful witness. If so, then his evidence clearly supports that of Mr Moore as to when the first conference at which E was advised by Mr Moore of the possibility of a severance in equity of the joint tenancies took place in December 2007, not the month before.

18 December 2007 136There seems to be no dispute but that, on 18 December 2007, there was a lengthy conference held at Kreisson Legal. Mr Ward deposes that present at that conference were E, Mr Moore, NM and Ms Alison Raco (an Italian interpreter). Mr Moore confirms that there was a conference with E at that date and that Ms Teremi, Mr Ward and an Italian interpreter were present. Mr Moore deposes that the conference was for a period of three hours. 137Mr Ward deposes to his understanding at that meeting that there were concerns about E's capacity, that understanding being based on the fact that Ms Teremi gave him two medical reports (the letter dated 7 December 2007 from Dr Loutfy and the letter dated 3 December 2007 from Professor Dickson). Mr Ward deposes that he based his belief that E had competency on those two reports. 138Mr Ward's observation of that part of the conference when all persons were present (which he says lasted about 30 minutes) was that E appeared "overwhelmed". (He says that there were a barrister, two solicitors and about 5 other people present at that stage - if so, then there must have been 3 others present to whom he was not introduced or who have not otherwise been identified in [8] of his affidavit.) 139Mr Ward also formed the view (seemingly based this on the fact that he was asked to prepare the documents overnight) that there was a sense of urgency at the meeting (when ordinarily this would have taken 2 or 3 days). (I have considered elsewhere Mr Moore's perception as to the urgency of the steps then being proposed in relation to the severance of the joint tenancies.) 140Mr Ward deposes that he discussed with E, in the presence of Ms Teremi and with the assistance of interpretation from Ms Raco, what E wanted in his will (noting that Mr Moore walked in and out of the boardroom from time to time) and discussed his estate planning requirements. His handwritten file note records, relevantly, that: 1 Appt Public Trustee exec 2 Give whole estate to wife [A] 3 If she predec the whole estate to son [R] 141The file note also refers to a power of attorney appointing "wife and [NM] jointly". The note also includes dot points as follows:

19 December 2007 174On 19 December 2007, Mr Ward attended again at the offices of Kreisson Legal. He says that E, Ms Teremi, Ms Raco and he were the only persons in attendance at the conference (consistent with Mr Moore's evidence that he was not present on that occasion) and that "A again sat outside" (which suggests that she was present sitting outside on the earlier occasion although his affidavit does not state that). He deposes that he explained to E the contents of the will, power-of-attorney and appointment of enduring guardianship with the assistance of the interpreter and that E did not ask any questions. (I note that the generality of the manner in which he recounts this explanation is similar to that with which Mr Moore recounts his explanation of the March Deed at the time of its signing, with which Mr Ahmed nevertheless takes issue.) 175Significantly, Mr Ward on that date signed a certificate under s 19 of the Powers of Attorney Act 2003, certifying that he had explained the effect of the power of attorney to the principal (E) before it was signed and that the principal appeared to understand the effect of the power of attorney. He also witnessed the execution by E and A of the Appointment of Enduring Guardian instrument in favour of A and certified that those persons "executed the instrument voluntarily and appeared to understand the effect of the instrument". 176I regard this as of significance because it means that, as at December 2007, an experienced legal practitioner (with a speciality in elder law) was prepared to certify matters that he clearly could not properly have certified had it then been apparent that E lacked mental capacity at least to make the testamentary and other decisions there involved (yet Mr Dowla was in his report, adamant that E had no such capacity "as of June 2007" and relies on the downward spiral of the dementia disorder for his conclusion as to the lack of capacity in March 2008). 177Under the will dated 19 December 2007, E gave the whole of his estate equally to A and R, or to the survivor of them. A was not happy about this when she later realised what had been done (as to which I refer later). A was also not happy (at least later when there was a falling out with NM) when she realised that the effect of the joint power of attorney meant that the power had to be executed jointly. Her evidence in this regard is redolent of a desire to be in a position to control what was to be done with E's estate or affairs (but again it must be noted that any attempted exercise of influence in this regard was unsuccessful). From T 204 there was the following evidence: Q. Do you agree that it was [E] that appointed [NM] as a power of attorney as well as you? A. No, after I understand what power of attorney is and I did big mistake to accept [NM]l and [NM] push himself in there and after that he will be "if you do not give me my wife I destroy your auntie". I said: "[NM]l the fight is between you and your wife, it's your subject. Between me and you we have to finish together because [E] sick now." He said: "Never, I will never sign", and he have that paper to wave in front of me. Till now [NM] never do one positive step. He hit me, he hit my daughter and he comes always against me with [N]. He told me: "I go against you and your daughter. You will see, I will destroy you." (my emphasis) ... Q. As far as you understand it was [E's] decision to appoint both you and [NM] as his powers of attorney. Correct? A. Excuse me, Mr Ahmed, if I understand in that time what the meaning was power of attorney me and [NM] I refuse, I refuse because I am the sole wife. Why you put [NM] with me, why you did that? [NM] push him in that, "I will be your power with [A]" and tell me "[A], don't worry and you sign the paper and I fix that all" and he never do that. Q. What date were you both appointed power of attorney? A. Don't tell me date. I don't remember. Probably end of December when [E] put the will, I remember now, end of December because it is very important to me when he called Mr Ward to put the will and [NM] come and told me power of attorney, I have no idea what power of attorney. If I know there is power of attorney I never do that, I will never do it. Q. Did you say A. Because [NM] has bad trust between him and his mother and she Q. When you say you would never do it do you mean by that A I never do it. Q. Do you mean by that that you were controlling let me finish my question you were controlling who was going to be [E]'s power of attorney? A. It must be his wife, not [NM] with me. Why [NM] with me, because I don't understand in that time what is meaning of power of attorney. I never go to Supreme Court, I never go to Family Court. I go with [N] three, four or five times, I have no experience. If I know I tell Ilona I am not accept, I tell the barrister I am not accept. For [NM] to give decision about [E] future about her position, what is his position, he is just son of my sister, he separate from my daughter. I said probably by good deal between me and him probably he correct him and go back to his wife. Four years they separate and never go back to his wife. I shut my mouth but [NM], [E] come and told me "let [NM] enter to sign beside me", [NM] two years, I haven't, I never accept Q. What do you mean you will never accept? A. Never accept what position he is power of attorney, I am only the sole wife. Why [NM] because I don't understand what is the power of attorney. If I understand like now I said "I'm sorry, I am his wife". What [NM] inform in that? Q. Are you saying you would never allow it? A. I not allow him to sign it between me and Ms Ilona and between me and Mr Moore, why [NM] say to himself Q. So it was a mistake for you to allow [NM] A. Because I couldn't understand. Q. Let me finish my question, please. You now know it was a mistake A. Big mistake. Q. You now know it was a mistake for you to allow [NM] to be a power of attorney with you? A. Well, big mistake, yes, if you do or not come to me back. I said "would you like to come back", she said "no life". She stay with me, stay and discuss, he swore as he like. He said "I am not going to go back to her, I destroy you, I destroy your daughter. I go to help [N]" and that's what he did. Q. You are the one who had influence about who would be [E]'s power of attorney, didn't you? A. I told you I don't know what the meaning of power of attorney at that time and if I know that happen to me I never accept but I don't know what the meaning of that. I never go to Supreme Court or Family Court or anything, I never, so the point is it's "auntie I help you, me and you we send the paper. Don't worry, auntie, get me my wife back". [NM's ex-wife, A's daughter] said "no, I fear you". He say "I destroy you, I destroy your daughter". (my emphasis) ... Q. Did you tell Ilona Teremi and Geoff Moore that you and [NM] should be the powers of attorney? A. I never said that. He said to me "Auntie, [E] put me and you as power of attorney and we fix things". I don't know in the time what power of attorney, I told you I have many times I have no idea about that. If you know as the wife you accept, he accept as person with her against me and my house, not why [NM] involve. He push. 178In that regard, A's evidence can be read as A asserting that she had a position of control over E or simply that she would not have agreed to accept the position of attorney under a joint power of attorney had she realised that it could lead to difficulty with NM when it came to the exercise of the power of attorney. Either way, redolent as it is of a desire to control or influence the outcome of events, it is another instance where A was not actually able to influence events in her favour.

Mediation 181E and N had agreed to proceed with a court-appointed mediation of their disputes in the then proceedings before this Court. Mr Moore prepared the position paper to be relied upon by E at the mediation and a conference took place with Mr Moore and E on 6 March 2008 at which Mr Moore says that he went through the mediation position paper, paragraph by paragraph, paraphrasing what was said therein to E and it was translated to him (T 297), then correcting that to state that he had gone through each paragraph under the heading summary of position and had given a global summary of the effect of severance of the joint tenancy. (N annexed both her and E's position papers to her affidavit in these proceedings and had acknowledged in her position paper E's concerns as to a reconciliation between N and A.) Mr Moore says that, through the interpreter, E confirmed that he had accepted each of the paragraphs as so paraphrased to him and that Mr Moore understood this to be more than mere platitudes (see T 297). Mr Moore said that he also confirmed with E his understanding of what the effect of the transfers to A had been and what would happen if the matter did not settle at mediation. 182On the following day the parties exchanged position papers for a court appointed mediation. N's position paper asserts that she paid the stamp duty and valuation fees for the transfer of the three properties in her name on the basis of an agreement made with her father. She there refers to a conversation with her father (to which she has not deposed in her affidavit in these proceedings) as to his wish to make provision for her when he died and his concern that there would be a challenge to his will and a fear of weakening capacity "whereby I will fall into dependency on A". The position paper noted that the motion to appoint a tutor was listed on 31 March 2008 and that the plaintiff's doctor had not yet examined E. It concluded that : .......The Plaintiff desires to be reunited and reconciled with her father, in a most ardent and heartfelt way. As the Plaintiff perceives it, given her father's complete dependence on [A], this is not possible unless supported by [A]. On this basis, mediation is sought. 183E's position paper asserted, inter alia, his belief that his daughter had tricked him into the position whereby the properties were held on the joint tenancy basis and maintained his intention had not been for the transfers to have that effect. The legal consequences of the December 2007 transfers in relation to the severance of the joint tenancies in equity were also set out. 184Mr Roberts notes that on 11 March 2008 a short conference took place between Mr Moore, Ms Teremi and E prior to the commencement of the mediation, at which A was not present and that A was not present at the mediation itself (though it seems that she was in the building). 185The mediation was held (with the Hon J E Brownie QC acting as mediator) at the Institute of Mediators and Arbitrators in Sydney (A accepts that she had initially incorrectly deposed that it was held at the offices of Kreisson Legal) on 11 March 2008. E was in attendance, with his legal representatives (Mr Moore and Ms Teremi). N was in attendance with her solicitor, Mr Hassett (another solicitor whose absence from the witness box has been noted and in respect of the failure to call evidence therefrom is said to give rise to a Jones v Dunkel inference). A was in attendance in a waiting area but may have joined at least the private sessions with E for at least part of the mediation (N says she joined the mediation after lunch; A denies joining the mediation but gave evidence that she observed the attendance of others at the meeting). 186Mr Moore confirmed that the mediation commenced (in the usual fashion) with a joint session at which the parties and their legal representatives were present with the mediator but that only the legal representatives spoke during that session. Mr Roberts notes that during the mediation both E and N met with the mediator in private session and this seemed to be confirmed by N (T 422). The mediation also took the not uncommon course that there was negotiation as to the basis on which a settlement might be reached, as also confirmed by N: Q. But just come back to 11 March, the mediation? A. Yes, sir. Q. There was a number of offers backwards and forwards between Mr Hassett and Mr Moore? A. That's correct. When I did see my father, when he saw me and I saw my father we both broke down in tears and after that we separated so I actually wasn't in the room when he was negotiating. 187Mr Moore expressed the opinion that E did not appear to be under any influence in any way, including duress or special disadvantage, at the mediation. Objection was taken to this as an opinion based on unstated facts. To the extent that Mr Moore in his second affidavit has deposed to certain conversations he had with E during the mediation as the basis of which it was his perception that E "knew exactly what he was proposing", Mr Ahmed submits that reliance cannot be placed on such evidence it not having been contained in his earlier affidavit. I considered that this was a matter of weight, but that the evidence should be read in any event as a statement that nothing had occurred at the mediation to caused Mr Moore to form the belief that E was affected by any influence, duress or special disadvantage at the mediation. 188Mr Moore explained the position as to E's change of mind in relation to the Leichhardt property by reference to the discussion at the mediation: Q. Did you find he changed his mind from time to time from December 2007 to March 2008? A. The only time it could be said he changed his mind was at the mediation himself, when he was faced with a situation where he didn't want to give up rights to Concord and neither did [N], and that led to the ultimate outcome negotiated at the mediation which started with what happened to Concord and then filtered down to what happened with Leichhardt and Summer Hill. There was no change in his position prior to the actual day of mediation. There was no change to his position, for instance, in the week before the mediation when I met with him and I ran through with him paragraph by paragraph my position paper, which was then in draft. To answer your question precisely, I would say there was no change in his position between 18 December and the morning prior to commencing the mediation. 189In relation to the conversations attested to by Mr Moore as having occurred during the course of the mediation (not set out in his first affidavit) there was the following exchange at T 297: Q. Is your honest recollection that, during the mediation, you said to [E], "[N] doesn't care what happens to Leichhardt"? A. That is my recollection. That I said to him words to that effect. Q. And you are certain about that sentence? A. I am certain. She wanted Concord. She didn't care about the other properties. She wanted Concord, and she wanted more than half. Q. Do you recall A. But sorry, but it extended to what I have said there. She didn't care about Leichhardt. Q. At the mediation? A. I recall [E] saying, in response to the proposition, that [N] on the one hand wanted Concord, didn't care about Leichhardt; that he would like to keep his half of Leichhardt, but that the other half, rather than coming to him, should go to [A]. I recall that. Q. Yes, but in relation to his half of Leichhardt? A. His half, the half that he already had. Q. Yes. In relation to his half, do you recall him saying sorry, do you recall being present at a conversation between [E] and [A], where [E] agreed to give his half of Leichhardt to [A]? A. No. I recall being present when he suggested that the other half currently held by [N] might end up with [A]. But Q. I am not asking about the other half. I am asking about his interest? A. I have answered. 190In summary, Mr Moore deposed that there was nothing that suggested or indicated to him from E's demeanour or what he said that there was any sense of coercion or persuasion by any other party as to the instructions that were being given. He observed that E became upset at the proposition that should he predecease N she would become the sole owner of he properties by the right of survivorship and from the fact that his daughter N had commenced the court proceedings. 191Mr Zucker observes that the mediation was presided over by a retired judge of the Court of Appeal in this Court and that the lack of any reported interference by him in the process of mediation raises the question as to whether he had observed anything in the conduct of E that would raise concern to him. While it is accepted by Mr Zucker that the mediator might have taken the view that E was advised by a solicitor and Counsel, it seems to me improbable that a mediator of such standing would sit back and do nothing in the face of any concerns as to capacity at the very least. (Concerns about the influence of A might be another thing. However, there is no evidence to suggest that she was present during the negotiations that took part in the course of the mediation.) I consider the significance of this in due course. 192As to her recollection of what occurred at the mediation, at T 422.3 N gave the following evidence in cross-examination: Q. I take you to subparagraph (e) of paragraph 65. Having heard the evidence of Mr Moore and noting your own evidence of the mediation and the negotiations that occurred, you indicated that at the mediation both you and [E] were adamant that you wanted to keep your respective interests in the Concord property, weren't you? A. Am, it was more I wanted to, my concern was that I wanted to remain living there so I could have access to see my Dad. Q. And you were also adamant that you wanted to maintain the joint tenancy on that property? A. Am, perhaps. 193In relation to the position adopted at mediation in respect of the Concord property, N's evidence at T 392 was: Q. During the course of the morning of 11 March various offers and counter offers were made by your solicitor and Mr Moore on [E]'s behalf, weren't they? A. Yes. Q. And the position of you and [E] changed significantly during the course of the day in the sense that you both expressed significant desire to retain the Concord property? A. I don't really recall much, sorry. That may be the case. Q. Do you recall that you indicated to your solicitor that you would agree to the sale of the Leichhardt property? A. That's correct. Q. And that you would agree to the sale of Summer Hill? A. That's correct. Q. That was a position different from the position you had started the day with, wasn't it? A. Yes. ... Q. But the position nonetheless as it was that you both had different points of view; he was upset with your attitude, rightly or wrongly, and you were upset with [A]'s attitude, rightly or wrongly. That was one of the matters in dispute? A. That's correct.

March Deed 203On 19 March 2008, a draft Deed of Settlement and Release was prepared. It seems (though there was some inconsistency in the evidence given in Mr Moore's first affidavit and that given by him in cross-examination having refreshed his memory from his fee notes) that this was prepared by Ms Teremi (though likely with input from or settled by Mr Moore) and forwarded to N's solicitor for review approval on 24 March 2008. It was clearly not the case that N had no opportunity to obtain legal advice on the document. N's solicitor (Mr Hassett) not only gave her advice in relation to the draft Deed (in which he somewhat surprisingly asserted that as a matter of law recitals are not binding and only for background), but he also drafted the proposed clause on which N's position in relation to visitation/access to her father was founded. 204The wording of what ended up being clause 3(e) in relation to access was drafted by Mr Hassett and was put to Ms Teremi on the basis that "The whole point of this settlement is to reconcile the family and have N visiting E at Concord. That is the sole reason she is moving out, to facilitate this". The email noted that "We want to do this deal and have a family reconciliation, but that can't happen if there is either going to be another challenge to what has been agreed with Concord or N is going to be shut out of Concord". (Pausing there, this supports N's contention that the access clause was important to her, but it also supports Mr Moore's recollection that what was to happen to the Concord property was a point of contention during the mediation.) 205There was a meeting on 28 March 2008 with E and Mr Moore (and an Italian interpreter) at which Mr Moore says the deed was explained to E and signed by him. Mr Moore's fee notes record such a conference and that it took 1.5 hours. 206The Deed contained the following recitals: ... B [E] contends that it was his intention to transfer the above properties as a tenant in common, while [N] contends that a joint tenancy arrangement was intended. C At the time of the transfers of the Properties referred to above, the parties understood that [E] was causing [N] to receive by way of gift a one half interest in each of the Concord, Leichhardt and Summer Hill properties D At the time of the execution of the three transfers giving [N] a one half interest as joint tenant of each of the Concord, Leichhardt and Summer Hill properties, [E] asserts that he did not understand that [N] would become entitled, should [E] predecease her to the whole of the interest in the Concord, Leichhardt and Summer Hill properties, pursuant to the right of survivorship. E In 2004 and 2005, [E] asserts that he only intended to give [N] a one half interest in each of the properties as tenant in common, with no right of survivorship F At all times from 2004 to date, [E] asserts that he wished to retain control over the other one half interest in each of the Properties and to give the ownership of his one half interest in each of the Properties to whomever he determined to give these interest in the properties. G When [E] transferred the Concord property on 3 September 2004 to [N] as joint tenant, [E] asserts that he did not understand that the effect of a joint tenancy was that should he predecease [N], then his half share would go to [N] as the surviving joint tenant rather than his half share forming part of his estate. [E] asserts that he did not understand the concept of the right of survivorship which attaches to a joint tenancy. H Likewise, when [E] transferred each of the Leichhardt and Summer Hill properties on 28 December 2005 to himself and [N] as joint tenants, [E] asserts that he did not understand that the effect of a joint tenancy was that should he predecease [N], then his half share would go to [N] as the surviving joint tenant rather than his half share forming part of his estate. [E] did not understand the concept of the right of survivorship which attaches to a joint tenancy. ... J On 18 December 2007, [E] transferred to [A] a one fiftieth interest in [E]'s one half interests in each of the Concord, Summer Hill and Leichhardt properties, in consideration for the payment by [A] to [E] of the sums of $11,000, $11,000 and $8,000 respectively. K [N] and [E] have now agreed to dismiss the Proceedings with no order as to costs. L The parties have otherwise agreed to resolve the dispute between them, including the subject matter of the Properties and all matters referred to in the recitals (Dispute) on the terms and conditions set out in this Deed (Settlement). 207The operative provisions of the March Deed then included:

Access to E after mediation and subsequent events 224After the mediation, at some time early in April 2008, N had dinner with her father and A. There is a dispute as to the conversation that there took place. N says (at [14] of her affidavit of 14 November 2011) that she said it would be a shame to sell Summer Hill and that A then suggested that N should buy it and pay the money into A's account and that, in return, she would get E to transfer his half share of Concord to N. N says that A said "I can put anything under [E's] nose and he will sign it". N says that her response was "I will need to think about all of that". This conversation is relied upon by N as evidence of A's asserted control over E. Mr Roberts points out that there was no response by N at that stage to suggest any issue over the then binding nature of the deed. N said in the witness box that she was astounded by the suggestion but her first response seems to have been not to raise with her solicitor the assertion by A that she controlled E but, rather, to ring her solicitor and ask why money should be going to A's account. 225In any event, at least as at around May 2008, there was a suggestion apparently made on behalf of N that there be an amendment to the March Deed in relation to the way in which the Summer Hill property was to be dealt with (and reference was made in that regard to delay on the part of a bank loan officer). Although at T 431.33, when cross-examined by Mr Zucker, N could not recall whether she had requested a further loan from the bank around this time, she accepted that she had raised with Mr Hassett the possibility of buying out her father's interest in Summer Hill rather than selling it (then said she could not recollect but that may have been the case). 226Exhibit F is a copy of an email from N's solicitor, Mr Hassett, to Ms Teremi forwarding an Amending Deed, in which email Mr Hassett asserts, apparently to provide assurance as to the delay in implementation of the March Deed, that: However, we have a binding agreement - which you can enforce at any time. I think that gives you the comfort you need, at least for [E] to move out etc. Even if we never did this Amending Deed, and still sold Summer Hill as per the original agreement, it's your choice entirely. One or the other has to happen ... 227There was no suggestion in that email that there had been any breach of the obligations contained in clause 3(e) at that stage; nor that there was any issue about E's capacity whether that be to enter into the by then executed March Deed or any later amending deed. 228As to N's ability to see E, she agrees that she saw him on at least 3 occasions in the period following the signing of the March Deed - on the occasion referred to above and then on successive Sundays in June 2008 (1 and 8 June 2008) - T 424. (At around this time, Professor Dickson expressed the opinion that E had lost the capacity to manage his own affairs.) 229Under the terms of the March Deed, N was to vacate the Concord property within 3 months (ie by June 2008). She did not do so until around March 2009 (by which time E was already in a nursing home) (T 432.32). (She returned to live in the Concord property in around June 2010 - hence the application by A for an order that she vacate it.)

Medical Examinations 235Throughout the period from 2006, there were various occasions when E's mental capacity and/or physical condition was the subject of assessment by medical practitioners. The records of those examinations are relied upon by Mr Ahmed (and were the subject of close review by Dr Dowla). The first of the hospital notes reviewed by Dr Dowla dates back to 2003. However, this particular hospital admission (as confirmed by Dr Dowla) was unrelated to E's cognitive abilities. Therefore, the relevant records date from E's admission to hospital in April 2006. I summarise below the relevant events. 236On 15 April 2006, E was admitted to Liverpool Hospital. He was in hospital for 4 days. The diagnosis was that he had suffered a seizure and the hospital notes refer to him being "disoriented on arrival amnestic for recent events; anxious and tearful". 237On 28 June 2006, E was examined by Dr McDougall, a specialist neurologist/neurophysiologist. Dr McDougall noted some cerebral atrophy. 238On 30 July 2006, E was admitted to Concord Hospital (this was the occasion on which N had found him unresponsive). 239Dr Dowla notes that on 16 November 2006 E's general practitioner (Dr Loutfy) made reference to treatment for depression. 240On 13 December 2006, E had a follow-up EEG at Liverpool Hospital. 241On 31 May 2007, E was again hospitalised. He remained in hospital for 8 days, being discharged on 7 June 2007. While he was in hospital there was another EEG and a CT scan. During his stay, the hospital administered a RUDAS (Rowland Universal Dementia Assessment Scale) test (on which E scored 15/30). (Dr Dowla's report states that a normal score is 30/30 and that there is suspected impaired cognition where the score is below 22/30 or 23/30.) The hospital notes include an occupational therapist's report on 6 June 2007 as to concerns regarding decreasing cognition and assistance required for self care. The 7 June 2007 nursing report was that he was "still much confused" and it was noted that E was always saying he wanted to go home. 242On 10 September 2007, E was examined by Professor Dickson. A report of his examination was forwarded on 20 September 2007 to Dr Loutfy. In Professor Dickson's notes there is reference to E saying he had become forgetful recently. A Mini-Mental State Examination was performed. (Dr Dowla states that on the results recorded, which were incomplete, E had lost at least 6 points on this test. He notes that a RUDAS test was not administered.) Professor Dickson's handwritten notes of 10 September 2007 include the following: No old notes Accompanied by wife - wants report for solicitor attesting to his mental state ... [notes as to major physical problem at present; condition including "no memory problems"; past surgical history; medication; and generally as to his social history; there were notes as to his responses to questions such as the present Prime Minister and counting backwards by 7's from 100 - which I understand to be part of the standard mini-mental examinations;] Assessment Dementing illness and features of Parkinsonism Able to instruct solicitor ... (my emphasis) 243In cross-examination, Professor Dickson said, of the September 2007 examination: Q. Now, you say that [E] retained sufficient ability to make instructions concerning his affairs. That is your assessment of the 20 September 2007 meeting? A. That's correct, that is what I wrote. Q. Now, when you say "concerning his affairs" I think you gave an answer before, correct me if I am wrong, you mean ordinary business affairs, is that correct? A. No. Essentially we talked about what he wanted to do and he repeated to me essentially the same story that had come out in 2004 and what he wanted to do was to ensure that his wife had a share in his property and he had become very upset in 2004 because he believed that his children had cheated him. He was very distressed about this and spoke to me at length about his relationships with them and the possible motivations they may have had for him to have signed the papers that he did. He deeply regretted having signed the papers but at the same time wanted to indicate to his children that he respected and loved them and that he wished to make some form of gift to them, but at the same time he did not wish to leave his wife out, and what he had realised that he had done, and that's what he told me, was that in his affairs by signing the papers he had essentially excluded his wife from his properties and he did not wish this to occur. She wished him to reject the children's claims completely and say "I'll have nothing to do with them and take the properties back". He wished to give them something but at the same time he wished to protect his wife and allow her a share in the properties. He repeated this story to me in detail when I asked him about what he wanted to do. Again he became upset but not unduly so; it was within much the same sort of bitterness that he had in his voice in 2004. Under those circumstances seeing that what he was saying then was in fact very similar to what he was saying in 2004 and that he felt that he wished to instruct a solicitor to arrange a system whereby he could put that into place, I felt that he had a reasonable grasp of his affairs and how he wanted to dispose of them. 244On 26 November 2007, Professor Dickson again examined E and reported on this examination in his 3 December 2007 report. His handwritten notes of 26 November 2007 refer to "needs review again for mental state examination - will require Italian interpreter" and later, with the interpreter, again the handwritten notes record matters as to his history and his responses to questions as to where he is and his knowledge of current events: Trouble with children - wanted him to leave all the property to them and make no provision for his current wife Poor relationships with family have caused him to be upset - found it difficult to concentrate at the time. ... I love my wife ... Find a wallet? -> look for identification - contact owner - if no identification - nearby shop - police station if not too far No change in ... apart from Point + Easily moved to tears his discussion of his family 245Also in December 2007 brief reports as to E's capacity were prepared by E's general practitioner and Mr McDougall. (Dr Dowla says that the purpose of the December reports was to establish that E had sufficient mental capacity to deal with his estate. If by this it is suggested that the reports were prepared with the aim of establishing that which the practitioners ultimately concluded - ie that they commenced the preparation of the reports with a pre-determined view of what the outcome would be in order to assist E or A to prove his capacity at that date, I do not think such a conclusion is warranted. On the face of the reports, it would seem that the practitioners had been asked to opine as to E's capacity and that they did so (ie to address the question whether he had capacity not that he did). Dr Dowla is critical of Dr Loutfy's report for failing to disclose the cognitive problem that Professor Dickson had described.) 246Professor Dickson's notes of an examination of E on 4 January 2008 record that there were "no old notes", refer to 2 falls previous week; to E refusing to take medications; decreasing memory; poor sleep; a reference to "Hallucinations? - confused about .. & is talking to his mother"; "most likely cause - worsening Parkinsons disease". (In his 13 October 2011 report responding to criticism by Dr Dowla, Professor Dickson says these notes of 4 January 2008 indicated that E had deteriorated cognitively from the review on 26 November 2007; but he says that E appeared to have improved when reviewed again on 11 February 2008, as his ability to provide a history of the recent past had by then improved. Professor Dickson's notes of 11 February 2008 refer to E still having episodes of chest pain and having been referred to a cardiologist but that he did not attend that appointment.) 247On 14 May 2008, Dr McDougall reported that E was being treated for depression. He noted that E's memory impairment had improved; that he had solved his problems with his daughter that had been in court; that he had had no seizures; and that his Parkinson's disease was worse and under treated. 248On 17 June 2008 and again on 20 June 2008 Professor Dickson examined E. On 23 June 2008, Professor Dickson wrote to Kreisson Legal reporting on E's condition, noting that his short term memory was significantly impaired had that he had demonstrated a "global decline" in his cognitive ability since his last assessment in 2007. Professor Dickson's view in that report was that E no longer had the capacity to manage his affairs. He stated that he had advised A that E should not sign legal documents. Dr McDougall concurred with that assessment in a letter dated 25 June 2008 in which he referred to E's hospital admission for two seizures. 249On 31 July 2008 Dr Parmegiani, a forensic psychiatrist, examined E (and then prepared what was described as a medico-legal report on 6 August 2008). He noted that E had been unable to say why he was there; was unable to describe the nature of his problems with N as to the ownership of the properties; was unable to describe what these properties were where they were located or approximate value; and had said that his wife was his only heir. Dr Parmegiani concluded that E suffered from "a recent episode of delirium on the background of slowly progressive dementing illness". 250On 6 August 2008, E and A attended at Professor Dickson's office (apparently without a prior appointment). Professor Dickson's notes record that E had been brought in by his wife who said that E "recently has been insisting constantly on seeing a truck driver who moved furniture for him last year - wife unable to deflect him ...". "Has seen Dr P for medico-legal opinion regarding competence & appointment of wife as power of attorney". "Wife distressed by his continued mental deterioration & difficulty in managing him ... considering move to house in Concord to avoid [E's] daughter [N]". On 15 August 2008, Professor Dickson reported on that attendance to Dr Loutfy, noting that A had been concerned with repetitive dialogue of E; that E had poor memory of recent events and was oblivious to his wife's distress. Professor Dickson noted that A was concerned about the continuing conflict between E and his children over ownership of property and was considering moving him to avoid contact with his daughter. Professor Dickson noted that A was concerned about E's deterioration and her ability to manage him physically. 251On 17 September 2008, E was admitted to Liverpool Hospital after a fall (the admission report making reference to numerous earlier falls that were not investigated). 252On 28 February 2009, E was admitted to Concord Hospital following a fall from stairs, suffering a fracture and pulmonary embolus. The notes report agitation, seizure and depression. 253In May 2009, E was admitted to a nursing home in Chipping Norton and on 20 August 2009 he was admitted to Liverpool Hospital after a grand mal seizure in the nursing home. He remained there for 11 days and his condition was described as severe. 254On 12 November 2009, E was admitted to St George hospital where he stayed for four days following further seizures in the nursing home. Expert Medical Evidence 255Prior to the hearing, by letter dated 13 December 2011, A's solicitors advised the defendants that they intended to rely on the following medical evidence: a report dated 6 December 2007 from Dr McDougall; a report dated 7 December 2007 from Dr Loutfy; and two reports from Professor Dickson, those being dated 20 September 2007 and 3 December 2007 respectively, as well as medical evidence subpoenaed from the Sydney South West Area Health Service produced. 256The letter of 6 December 2007 from Dr McDougall, a neurologist/neurophysiologist, addressed "To Whom it May Concern", stated: ...These conditions [idiopathic epilepsy and early Parkinson's disease] do not affect his intellectual or mental capacity. [E] has full mental capacity in regards to giving instructions in relation to changing a previous will or creation of a new will. He would also have full mental capacity to give instructions in regards to being represented in the Supreme Court proceedings or Guardianship Tribunal proceedings. He is also able to deal with any property or other assets. His medical conditions or medications do not affect his intellectual capacities. 257The letter of 7 December 2007 from Dr Loutfy, E's general practitioner, to Ms Teremi (somewhat surprisingly headed "Without Prejudice") stated: [E] has been a patient of this practice since 13/5/2002.

Dr Dowla's report 269N relies on the expert report of Dr Dowla. He was asked to provide his opinion on a series of questions. Relevantly, question 3 was "Whether, in light of my examination and the materials briefed to me, E had the mental capacity to enter into the March Deed....". 270Dr Dowla had not examined E in 2007 and did not conduct an examination in 2011 prior to giving his report. He considered, not surprisingly, that an examination at that stage would be of no value due to the very advanced level of E's underlying neurodegenerative disorder. Having reviewed the materials referred to above, Dr Dowla concluded that the clinical notes of the April 2006 hospital admission showed bilateral abnormalities in EEG and an already developed atrophy of the brain on MRI scan and said that: These certainly indicate an underlying neurodegenerative process (which is almost certainly a combination of Parkinson's plus syndrome and alcohol related)... In relation to the 30 July 2006 when [E] was confused and disoriented, talking 'gibberish' I say that his underlying neurological condition was progressing relentlessly and possibly affecting his frontal lobe functions. [The recently developed depression referred to in 16 Nov 2006 report]... reinforce the findings in the previous paragraph and added a new dimension that [E] now has a drug-resistant depression and insomnia as part of his underlying progressive neuro-degenerative disorder. 271Dr Dowla concluded from the RUDAS test conducted on E in hospital in June 2007 that he "did not have the mental capacity to look after his affairs as of June 2007" and asserts that "There is no doubt Professor Dickson's assessment [of 3 December] underestimated E's cognitive dysfunction". He opined that Professor Dickson would not have reached the conclusion he did had he had before him in December 2007 the June RUDAS result and said, in dogmatic terms, that: There is no doubt [E] did not have sufficient ability to make instructions concerning his affairs in view of the cognitive impairment that Professor Dickson has himself described in his letter dated 20th September 2007. (my emphasis) 272Dr Dowla considered that the fact that by 3 December 2007 E required a professional interpreter "which he did not require 3 months before" indicated a "further decline in his language function, a marker of cognitive decline and frontal lobe dysfunction in the current setting". 273Dr Dowla was critical of both Mr McDougall's December report and that of Dr Loutfy. As to the former, Dr Dowla says "I believe [E] developed a seizure disorder with a very significant EEG abnormality ... almost concurrently with his dementing (Neuro-degenerative) illness and Parkinsonism" and considered that this certainly pointed to a "Parkinson plus syndrome", which he says is much worse than Parkinson's disease particularly in terms of cognitive decline. As to the latter, he described the report from Dr Loutfy report as a self serving report "which gives a complete unequivocal view of E's cognitive ability" and that it failed to disclose the mild cognitive impairment that Professor Dickson had described to Dr Loutfy in the 3 December report. 274Dr Dowla was critical of the reports later issued by Mr McDougall in May and June 2008, the first as failing to specify the severity of the depression and memory impairment and as to the second: It is interesting to note that in less than three months after signing the March Deed now he does not have the capacity to look after his affairs. The description of his cognitive degeneration dates back to year 2006 and well proven in 2007. It is difficult to accept from the medical, neurological or scientific point of view that he would be compus [sic] menus three months ago and not now. I would conclude that he was certainly not compus [sic] mentus a long time before the signing of the March deed. ... I would conclude that given the slow rate of cognitive deterioration that he has been manifesting over the last two years (or at least one year) he must have been at least "moderately impaired when he signed his "March deed" just three months ago. 275Dr Dowla's conclusion was that: ...this gentleman has shown signs of severe dementia, parkinsonian manifestations and seizure indicative of a severe neurodegenerative illness which has become very florid during 2008 and 2009 having first manifested in 2006. ... It is very likely that he has had significant cognitive impairment by the time he entered this deed on 28/3/08. It is also very likely that he would have had difficulty in comprehending the true significance of the Deed of Settlement and Release that he was performing. I conclude after careful consideration of all relevant available information that predates the "March Deed" that [E] did not have the mental capacity to look after his affair [sic] as of June 2007 and certainly not on 28.3.2008 the date he signed the March Deed. 276(I have referred in some detail to Dr Dowla's conclusions in this report as the submission made by Mr Ahmed is that this is the only evidence as to the relevant capacity of E - ie the capacity to enter into the transactions contemplated or provided for by the March Deed, as opposed to his testamentary capacity - and that as Dr Dowla was not cross-examined I must accept that evidence as unchallenged. I consider this submission in relation to issue (i) in due course.)

6 May 2011 Professor Dickson comment on report of Dr Dowla (at request of NSW Trustee and Guardian solicitors) 277Professor Dickson was requested by Mr Zucker, in his capacity as solicitor for the NSW Trustee and Guardian to comment on Dr Dowla's report and Professor Dickson did so in his report of 6 May 2011. Mr Ahmed points to the tenor of Professor Dickson's response as indicating a lack of objectivity or a sensitivity to criticism inconsistent with the role of an expert witness. In his 6 May report, Professor Dickson wrote that: I find the report unusual, in that I have not previously encountered a situation when an expert medical witness has made a judgment about the mental capacity of a patient in direct contradiction to the reports of the usual medical attendants, without himself ever having examined the patient during the period of time in question, and where the matter in question, the ability of the patient to manage his affairs, absolutely requires a personal examination at the relevant time. 278Professor Dickson disagreed with Dr Dowla's conclusion that E did not have the mental capacity to look after his affairs as of June 2007 and on 28 March 2008. He faulted Dr Dowla's reasoning in a number of respects. 279First, he criticises the reliance placed by Dr Dowla on the results of the RUDAS testing on 7 June 2007. 280In this regard, Professor Dickson notes that E was admitted to Liverpool Hospital on 31 May 2007 with a delirium secondary to seizure disorder (which delirium he says had later resolved given E's improved performance on 10 September 2007). Professor Dickson does not dispute that at the time of the RUDAS examination E was not capable of managing his affairs (noting the report that on 4 June 2007 E had said he wanted to die and that on 5 June the hospital notes indicated that he was "confused disoriented and wandering") but says that E's "demeanour, ability to discuss his affairs and his performance on testing on the occasions that I examined him in 2007 showed none of his confusion or labile emotional state". Professor Dickson says that had E been functioning at the level recorded in the June RUDAS when he later examined him in September E would not have been able to discuss his affairs (as he says he then did) in a sensible manner. Professor Dickson adhered to the clinical opinion he had given on that occasion. 281Professor Dickson also commented on the comparisons between the RUDAS test (in the development of which test he had personally been involved) and the standard MMSE test. He said that the RUDAS is less likely than the MMSE incorrectly to suggest cognitive impairment when none is present (since it reduces the effect of factors such as education, ethnicity and language) but that it had not undergone extensive validity testing beyond the Liverpool research team (of which he is part) at that stage and that is why he had not used the RUDAS test. He referred to it as a pilot multicultural cognitive assessment scale. 282Professor Dickson said that a score of 15 on the RUDAS test correlated well with a score of 18 on the MMSE test and disputed that a score of 24/30 in the MMSE is "clearly abnormal". Professor Dickson said that the "cut-point" for cognitive impairment is frequently given as 23/30 and that, given his age and educational standard, a more precise cut-point for E would be 22. 283In any event, Professor Dickson emphasised that the RUDAS/MMSE tests are screening tools and not diagnostic tools. He placed weight on his clinical examination of E and said that "because I had known [E] since 2004, even though his score did not fall below the cut-point of 23, I judged that his cognitive function was reduced compared to his previous level of function". Professor Dickson explained his practice in assessment of the mental state of a patient as being to make a synthesis of performance, stating that an opinion whether someone is capable of managing his or her affairs (or is mentally competent) is dependent on the judgment of the examiner. He cited academic authority for the proposition that the process of assessing capacity is dependent on the history given by the patient, their close relatives or relative "and a subjective assessment of the insight and reasoning capacity of the patient with regard to their affairs". 284Insofar as Dr Dowla considered the presence of an interpreter at the examination on 3 December 2007 as indicating a further decline in language function and a marker of cognitive decline and frontal lobe dysfunction, Professor Dickson emphasised that he had not booked the interpreter on that occasion; that he considered the services of the interpreter to have been superfluous on that occasion; and that the presence of an interpreter had no relevance to the conclusion he had reached that E had declined in cognitive function from the previous examination. 285Professor Dickson confirmed that his clinical examination indicated that E retained sufficient ability and insight "to make reasoned decisions about his affairs" (hence it seems clear that Professor Dickson was not restricting his opinion as to capacity at this stage to E's testamentary capacity). He also commented that E's behaviour in becoming upset when discussing the relationships between his children, himself and his wife was the same as when he had discussed the issue with Professor Dickson 3 years earlier. 286The second main area of dispute identified by Professor Dickson in this report was as to the statement by Dr Dowla that "given the slow rate of cognitive deterioration that he has been manifesting over the last two years (or at least one year) he must have been at least moderately impaired when he signed [the March Deed]". Professor Dickson says this ignores the evidence that there was a sudden decline in cognitive function in May 2007, improvement by September 2007, slight decline by November 2007, slight improvement by May 2008 and sudden decline again: "In other words, his mental state was fluctuating, not slowly declining." 287Professor Dickson further notes that the report of Dr Parmegiani indicated that E's MMSE performance at June 2008 was at or above the level of May 2007. 288The third area in which Professor Dickson found fault with Dr Dowla's report was as to what he refers to as unsubstantiated statements by Dr Dowla (an area of debate in which I do not propose here to enter). 289What seems to be clear from the above is that there is no dispute between the respective experts as to the conclusion that E's mental state was declining and that he had a progressive dementing disorder; rather the dispute is as to the manner in which that decline was occurring and/or manifesting itself. What is also clear from the reports of Professor Dickson is that he is writing variously (and seemingly interchangeably) as to the capacity to manage one's own affairs and as to testamentary capacity.

Dr Dowla report (Ex 10) 21 December 2011 290Dr Dowla then prepared a report in reply to that of Professor Dickson's 6 May 2011 report. In summary, Dr Dowla said that his rejection of Professor Dickson's assessment was not due to the poor RUDAS score that was achieved by E on 7 June 2007 but was based on all the matters set out in his answer to question 3. 291Dr Dowla rejected the assertion of a fluctuation as opposed to a progressive decline of E's mental faculties over time and said: There is no doubt that [E] was deteriorating in his cognitive capacity with each attack of delirium. In light of the above well known research and my analysis of documents provided to me, in my opinion [E] never returned to his previous level of cognitive functioning after each episode of delirium or intercurrent illness. While it may be correct that [E]'s mental state was fluctuating due to numerous intercurrent illnesses including delirium, there is no doubt that he was slowly and relentlessly declining and he did not have testamentary capacity at March 2008. (my emphasis) 292As to the MMSE scores, Dr Dowla referred to the score of 18/30 achieved by E in August 2008 noting that this was only three months after March Deed, and criticised Professor Dickson's MMSE test as incomplete. He expressed surprise that Professor Dickson did not accept a MMSE score of 24/30 as abnormal and consistent with mild cognitive impairment but says that in any event one does not know what E would have scored as the test was incomplete. (Dr Dowla's view as to what would have been an acceptable MMSE, having regard to E's age and prior education, was that 24/30 would be deemed abnormal.) 293Dr Dowla also criticised use of the expression "cognitively blunted" as an "obsolete non-clinical description which has no definite scientific meaning that can be useful or translated in practice", stating that "One can use this term in any way they wish. It is imprecise and unhelpful". (Given the tenor of comments such as these it is perhaps not surprising that Professor Dickson expressed indignation at the challenge to his professional opinion.)

Mr Moore 337In relation to the evidence of Mr Moore, it was submitted by Mr Ahmed that little weight ought to be placed on the second of Mr Moore's affidavits (filed by leave during the course of the hearing in order to address objections that had been made as to the form in which his evidence had been given in his first affidavit and to provide the factual basis for conclusions that had been expressed in his first affidavit in general terms). This submission was made for a number of reasons. 338First, it was submitted that as a barrister of a number of years' standing, it should be inferred that to the extent that the first affidavit was expressed in generalised conclusions or in summary form it might be inferred that this was because that was the limit of Mr Moore's recollection (hence it is suggested that the more detailed evidence of conversations in the second affidavit was the outcome of a process of reconstruction). As to this, it seems to me that there are a number of possible explanations for the manner in which the first affidavit was drafted that would not be consistent with an inference of the kind Mr Ahmed invites me to draw (including that Mr Moore was fulfilling the role of witness, not Counsel, in this case and his evidence was that he did not have primary responsibility for the drafting of the first affidavit and was responding to questions put from those who did have the conduct of the case; and that there might have been an expectation on his or the draftsman's part that a more narrative or summary form of affidavit would be acceptable). 339Secondly, Mr Ahmed points to the reason given by Mr Moore as to why he recalls this case in particular (out of the many in which he has been involved before and since then), namely that as someone who has lectured in real property the case was significant in that it presented an opportunity to apply the principles outlined in Corin v Patton. Mr Ahmed draws from this, and the fact that the only conversation as to the content of which Mr Moore deposed at [7] of his first affidavit related to the advice on this issue, that there can be no confidence that the other conversations deposed to in the second affidavit are ones of which Mr Moore has actual recall. The difficulty with this submission is that at least some parts of the conversations deposed to in the second affidavit are ones that NM also recalls. Therefore, although NM does not recall other parts of the conversations (such as [9] and [15]) and (as Mr Ahmed notes) does not recall the conversation deposed to by Mr Moore in relation to the transfer of N's half of the Leichhardt property or the sale of the Summer Hill property, that simply suggests a difference in the ability of each to recall the particular conversation not that one of the two (Mr Moore) has reconstructed the conversation. Moreover, the particular significance of the case for Mr Moore does not seem to me to make it unlikely or less likely that he would recall the way in which he had explained the concepts or issues associated with the severance of the joint tenancies or what was to happen in the settlement of the dispute thereafter. 340Thirdly, Mr Ahmed submits that the Court cannot be comfortable that Mr Moore has an actual recollection of any of the conversations that are deposed to in the second affidavit by reference to the inconsistency in the evidence as to the date of the first conference with E (having regard to Ms Teremi's letter of 27 July 2007) and the inconsistency between Mr Moore's initial affidavit evidence as to the preparation of the March Deed and what is disclosed by his fee note for that time. 341As to the first of those matters, I have referred above to the first conference date and the inconsistency between Ms Teremi's letter and Mr Moore's recollection. I accept that Mr Moore genuinely believes that there was no conference until 18 December 2007 (notwithstanding that one had earlier been scheduled) and this is consistent with his fee notes. (I do not accept that an inference should be drawn, as seems to have been suggested by Mr Ahmed, that this evidence was in some way tailored in order to avoid the conclusion that a conference had taken place before medical reports of competency had been obtained and without an interpreter present in circumstances where Mr Moore had deposed to having given advice that this should not occur.) 342For the reasons set out earlier, in the absence of an explanation from Ms Teremi as to how her letter of 27 November could have contained such a detailed note of advice given to E in a conference attended by him with Mr Moore, I accept that an inference might more readily be drawn that Mr Moore is mistaken in his recollection of the date of the meeting. That of itself would not mean that the reliability of the whole of his evidence would be in doubt. However, Mr Moore's recollection of events (inconsistent though it is with Ms Teremi's letter) is supported by NM's evidence and seems to me the more likely having regard to the circumstances in which the transfers were executed almost immediately following the advice given as to severance. Therefore, the difficulty adverted to in Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117 does not arise. There, Handley JA said that where the veracity of part of a witness' evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (that being a case where a finding of perjury had been made on one part of the evidence). Though this does not mean that the balance of that witness' testimony can never be accepted without corroboration (per Heydon JA, as his Honour then was, in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at 719), it does mean that the remaining evidence should be closely scrutinised. 343As to the second, this relates to the evidence given by Mr Moore in his first affidavit (which by reference to his fee notes he said in the witness box was incorrect) as to the preparation of the March Deed. I think little can be drawn from this, particularly given the vagueness of what is meant by 'preparation'. 344By reference to the above matters, Mr Ahmed invites me to infer that Mr Moore's recollection of all matters other than those deposed to in his first affidavit is unreliable on the basis that Mr Moore has simply "reverse engineered" what 'must' have occurred (having been briefed with further documents that were not available to him when he swore his first affidavit), rather than having deposed to his recollection of what actually occurred. I do not accept that such an inference should be drawn. I accept Mr Moore's explanation as to why he recalls the conversations deposed to in his second affidavit (and as to why they were not in his first affidavit). The fact that he has refreshed his memory of the timing of events from his fee notes does not warrant an inference that he has "reverse engineered" his recollection of the relevant conversations. 345Finally, Mr Ahmed submits that not much weight should be placed on Mr Moore's evidence as to E's capacity because Mr Moore was adamant that E's capacity to understand did not materially decline in the meetings he had from December 2007 to March 2008, whereas the medical evidence is that E's condition fluctuated. In this regard, Mr Ahmed seems to accept Professor Dickson's explanation of a fluctuating condition as being that E would have had both 'good days' and 'bad days' in that period. Mr Ahmed submits that either Mr Moore's recollection as to E's capacity to understand matters was not reliable or (which Mr Ahmed submits is more likely) Mr Moore is not a very good judge of such matters (the former based it would seem on the improbability that on each occasion he saw E it was a 'good' day; the latter on the basis that this was the first case in which Mr Moore had seen the need to advise a solicitor to obtain medical evidence regarding capacity of a client). 346I accept that the medical evidence is that E was declining progressively over the period but that there were fluctuations in his mental ability (such that on some occasions he would not have capacity, eg 24 January 2008, and even relatively shortly thereafter he may have capacity, such as February 2008). I cannot draw any inference as to the statistical probability or otherwise of a person in E's position having periods of relative stability that coincided with conferences with his barrister, nor do I consider that the evidence permits any conclusion that Mr Moore was not a good judge of a person's capacity to understand explanations of legal matters (compared with, say, another barrister of his experience), though I accept that someone who regularly advised in matters relating to issues of mental competence might be more familiar with the manner in which mental incompetence presents itself. 347My conclusion is that Mr Moore gave his evidence in the witness box carefully and in a measured way. I do not consider that the inconsistency between his recollection (and fee note), on the one hand, and Ms Teremi's letter of advice to her client (that Mr Moore from his fee notes may himself have settled), on the other hand warrants a conclusion that his recollection as to matters in general relating to the dispute between N and E is unreliable. Nor do I consider that I should infer that his ability to judge a client's understanding of legal advice is poor simply because he may not previously have had occasion to recommend that a medical opinion on competency be obtained. As to the submission, unsupported by any evidence, that barristers are less capable of such perception than solicitors, apart from the fact that this is a matter as to which I am reluctant to suggest I should take judicial note, it seems to me far too generalised a proposition to warrant an adverse view of Mr Moore's evidence.

Lay witnesses 348As to the lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McLelland CJ in Eq (as his Honour then was) in an oft-quoted passage in Watson v Foxman (1995) 49 NSWLR 315 (at 318), as follows: ... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 349His Honour noted (at 318-319) that: Each element of the cause of action [there for misleading and deceptive conduct though his Honour expressly noted that the principles so espoused were true also for claims based on contract and equitable estoppel] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action ..., in the absence of some reliable contemporaneous record or other satisfactory corroboration. 350Here, the relevant events occurred during 2006/2008, although the initial transfers to N took place even earlier (in 2004 and 2005). Therefore, it is by no means surprising that there may be differences in recollection between the parties as to what was said on particular occasions (and especially when the circumstances in which at least some of the conversations took place were clearly stressful). It is by no means unlikely that persons such as A and N will have put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only, as recognised in Jackamarra v Krakouer [1998] HCA 27 at 29; (1998) 195 CLR 516, do memories fade with time, so also may particular perceptions or impressions of events become accepted as fact (as was recognised in Watson v Foxman). 351Thus the fact that there are differences in the recollection of, say, NM and Mr Moore as to the conversations in December 2007/March 2008 is not surprising (particularly where NM accepted that he found the advice given by Mr Moore to be confusing). Still less is it surprising that there are glaring inconsistencies in the evidence as between N and A (each of whom, no doubt, is convinced of the righteousness of her own position). It seems to me difficult not to draw the conclusion that one or both of A and N has put (subconsciously or otherwise) a favourable gloss on particular events (such as the incident on 13 September 2006). Both have a clear self-interest in the characterisation to be put on the relevant events. 352With that in mind, I consider the various lay witnesses. I consider that each of the solicitors was a reliable witness, whose evidence (particularly where supported by contemporaneous file notes or other documents) should be accepted over A's version of events. That said, the fact that one or more of them had a perception as to the influence being (or able to be) exerted by A over E does not establish that such a perception was correct. Moreover, to some extent the perception of a number of the witnesses may have been influenced or reinforced by their discussions with the others at the time of the events in question - and I note here that there were discussions between Mr Nesci and Ms De Pasquale and between Mr Nesci and Mr Ziade as to their respective concerns in which no doubt the views of the one reinforced the views of the other. Where there is a conflict between the evidence of what occurred in the relevant conferences as given by the solicitors, as opposed to the version of events recounted by A, I accept the former as the more reliable. 353(I note that insofar as Mr Ahmed seemed to submit that I should accept Ms De Pasquale as a witness who was thoughtful but not perceptive - in suggesting that weight should not be placed on her evidence that the instructions she had received came from E - that does not seem to me to be warranted in light of Ms De Pasquale's overall evidence. She appeared to me to be quite properly concerned to ensure that she was acting with her client's instructions and that those instructions were given by someone competent to do so and not acting under the influence of another. Ms De Pasquale cannot be criticised for the manner in which she acted and it is of some relevance to note that at least up until late April when she raised her concerns with Mr Nesci, Ms De Pasquale seems to have been comfortable that E was capable of giving her instructions and was doing so of his own accord even if this was with the assistance of a chronology prepared by A). Ms De Pasquale struck me as a careful and considered witness and as a solicitor conscious of her professional obligations (as did each of the solicitors, even though there seemed to me to be some overstatement in the general conclusions expressed in some parts of the affidavit material to which objection was taken by Mr Roberts). 354Mr Ziade's evidence as to his conversations was supported by contemporaneous file notes (from which his memory was no doubt refreshed when preparing his affidavit). I accept that Mr Ziade was not confident as to the source of his instructions and not willing to act for E in that situation. (Insofar as it is suggested that his version of what he said when he informed A and E that he could not act in the matter should be accepted over that of A, where it is conflicting, I note that Mr Ziade's own letter accords with A's version of events at least to the extent that it gives as a reason the complexity of the matter and his inability to devote time to it - not with what Mr Ziade now says was, and may well have been, the real reason.) 355As to Mr Ward, Mr Ahmed invites me to accept Mr Ward's evidence as to what occurred during the 13 March 2008 meeting (as recorded in his contemporaneous file note). I do. However, I also accept his evidence as to the circumstances in which he was able to certify in December 2007 that E appeared capable of understanding what he was doing when he executed his will and granted the power of attorney and enduring power of guardianship (and I consider this to be significant in assessing not only E's competence as at that time but also Dr Dowla's criticism of Professor Dickson's assessment of E's competence at around that time). NM 356Mr Ahmed submits that NM (whom he described as a long time friend of E called by N to give evidence as to the interaction between family members and his observation of the "marked decline" in E's understanding prior to March 2008) gave his evidence in a forthright and honest manner. I accept that NM made concessions and was prepared to accept propositions that indicated a consciousness of the need to give truthful evidence. 357I should note that at least at the outset of cross-examination it seemed to me that NM may have had a misunderstanding of his role as a witness (in that he queried the relevance of a date that was put to him in cross-examination and then sought to preface an answer by way of commentary). Mr Ahmed submits, in effect, that NM should not be seen as having sought to adopt the role of advocate (explaining that when NM had queried the relevance of a question as to what happened in 2005 he was confused about the date). I accept that explanation for the query that NM had made. My intervention had been in order to steer NM away from the path he seemed to be heading down towards the making of submissions rather than the answering of questions. Mr Ahmed points out that a similar observation could be made as to both A and, to an extent, Professor Dickson. While there is some force in that observation, in A's case this was attributable to the fact that A had a tendency to be loquacious and voluble in her speech (and, as a party, and one of her age some latitude was permissible); in Professor Dickson's case that is something to be expected of an expert witness when explaining or defending his or her professional opinion. NM fell within neither category. That said, I draw no adverse inference from his apparent eagerness to put forward his point of view or to comment on questions that were posed to him. 358I accept that, when asked questions about what he recalled Mr Moore saying at the conference on 18 December 2007, NM made concessions as to what was said that would have been inconsistent with someone taking the role of an advocate for N and that in broad terms his evidence was given in a co-operative manner. 359It was suggested that NM had given evidence in this matter with a view to being vindictive to his former mother-in-law. A has deposed to a conversation with NM (which he denies) in Easter 2008 in which A says that NM asked her if she had persuaded her daughter (his wife) to come back to him and A said that she could not persuade her daughter to do so. A says that NM then said "I will destroy you. I will go to N and work against you. I am not going to help you." NM maintains that no such conversation took place and, in effect, says that it would not have been in his interests to do so at a time when A was a prospective witness in his Family Court proceedings. 360There is no basis, other than A's mere assertion, on which I can make any finding to the effect that NM's evidence was motivated by acrimony towards his former mother-in-law. I consider it likely that A's evidence on this issue was influenced by her perception that NM was taking N's side against hers. 361Nevertheless, I also note that NM cannot necessarily be considered an objective independent witness to events, having on his own version of events seen himself as "assisting" both sides in the disputes and no doubt having his own subjective views based on the family history. (The fact that he was prepared to assist in the execution of the December 2007 transfers and then later to dictate the 17 April note signed by E in favour of A, at a time when he now seems to suggest there were real concerns as to E's competence or freedom from A's influence, casts doubt on his ability objectively to view the events in question.) The very family interactions that NM was apparently called upon by N to depose to are interactions in which he played a role. Looked at objectively, it might be thought that the steps he took in 2007/8 were unlikely to have been taken by someone with the level of concern as to E's competence that is now suggested. Parties 362This brings me to the two protagonists in this dispute - A and N. A 363Mr Ahmed submits that A's oral evidence demonstrated her true character - as an aggressive woman (to use Professor Dickson's words). (I interpose to note that insofar as Mr Ahmed has no qualms as to the perception Professor Dickson had of A's character, that must be seen in the context that Professor Dickson also formed the view that E was a stubborn man and said that at times E was curt with A.) Mr Ahmed notes that each of the four solicitors who gave evidence deposed as to A's overbearing nature (and as to their suspicions of the control she wielded over E in their absence - something that amounts to little more than speculation). 364Mr Ahmed submits that A's evidence for the most part cannot be accepted with any confidence and that A was prepared to say whatever it took to gain an advantage in the proceedings. In relation to the latter submission, Mr Ahmed submits that A attempted to gain a tactical advantage in seeking the assistance of an interpreter when giving evidence. In that regard, Mr Ahmed submitted that her evidence that in conferences with her legal representatives in preparation for this case she could only understand about 50% of questions was clearly false because she was able to answer 98% of questions without the need for an interpreter during cross examination. In this regard, it was my observation of A that the times she referred to or sought help from the interpreter during cross-examination (after it had become apparent that A was able to understand the general run of questions put to her and hence the services of the interpreter were to a large degree dispensed with) were where there were words of legal import or where A was unsure of the precise meaning of he particular word in the context of the question. I accept that this was a genuine need for assistance and not contrived to gain an advantage in the proceedings. I draw no adverse inference from this. 365Mr Ahmed also pointed to the answer given by A when she was asked on the second day of her cross-examination if she had discussed her evidence with her son after the adjournment. It was submitted that her answer was a "bizarre story" or "invention" ("My son came and talk with me. What's wrong. I not angry. He talk with me. I never opened my mouth. He was angry, not angry. He came to take me home. What's wrong." ... "He said nothing. I have business. I am not coming any more. I said, all right. I come by myself. The boy is working. He has no time to come. What's the matter. What's wrong."). However that submission was based on the fact that her son came to Court every day thereafter. (In fact, my observation was that on the day on which the above questioning took place A's son was not in the courtroom until towards the end of the afternoon session, presumably again to take his mother home.) Insofar as it is submitted that this exchange reflects poorly on A's overall credit, I do not agree. 366My observation of A was that she was voluble and inclined to exaggeration and/or speculation. She gave long narrative answers (often referring to herself in the third person) and posed numerous rhetorical questions of the cross-examiner. As the course of her lengthy cross-examination continued, her answers seemed to become less focussed and more difficult to follow. Overall, it seemed to me that A had a tendency to say the first thing that came into her mind (as illustrated by the number of occasions on which she would preface answers by "probably" and then relate something in which she was not herself involved) rather than giving considered answers to questions. A was clearly upset at any suggestion that she was not a good wife and mother. 367It seems to me that the most useful assessment of the relationship between A and E was that given by Professor Dickson and that theirs was a relationship in which both spoke their own mind and each may have wanted to get his or her own way. Nevertheless, A seems to have supported her husband in her continuing attempts to have his health issues diagnosed and treated. Insofar as she seems to have considered that she was protecting him from what she saw to be attempts by N to 'trick' him or from continuing conflict with his daughter, her concerns seem not to have been without some foundation (whether or not, at the end of the day, they would have been established). I thought A was sincere in her emotion in the witness box. 368A was certainly emphatic in her manner and gestures. I have little doubt that in conferences with the solicitors she would have been likely to interrupt and to seek to put across her own point of view (just as she did in the witness box). I accept that she may well have spoken for or over E and put what she understood to be his point of view (whether or not she was correct in that understanding being a different matter). Therefore, I can well understand that there may have been difficulties for those acting for E to ensure that they obtained his instructions and were satisfied as to what were his instructions free of outside influence and free, in particular, of influence from A. (However, as Mr Zucker points out, each of the four solicitors who were called to give evidence in N's case quite properly took steps to satisfy himself or herself that E was giving the relevant instructions as to what he wanted (in the absence of A) and, to the extent that any continuing concerns were harboured in that regard, it is relevant to note that none continued to act for E.) Mr Moore was also clearly conscious of the need to ensure that E's instructions were ones upon which he could properly act. 369Where A's evidence is inconsistent with the evidence of the four solicitors who gave evidence, I find their evidence to be the more reliable (particularly where there are contemporaneous notes of the relevant conversations). However, I did not consider that her evidence was so implausible overall as to warrant a conclusion that she was fabricating her evidence. Her evidence as to what E wanted to do in relation to the properties jointly owned with N is consistent with what he told a number of other people over a relatively long period of time. 370As to the aspects of her evidence that are inconsistent with the version put forward by N, I consider that caution must be shown in preferring any particular version of events over another (at least where there is no independent corroboration) - such as in relation to N's visitations to the hospital in April 2006 and the incident on 13 September 2007. I am left with the impression that both A and N have put a gloss on events to suit their respective positions (and that these proceedings are the culmination of a lengthy history of dispute between them, in which E has unfortunately become embroiled, and in which their views as to the rights and wrongs of what happened are likely to have become entrenched over time). N 371As to N, Mr Ahmed submits that the emotions expressed by her in evidence gave a ring of truth to what she said. I accept that N, too, was genuine in the emotions she showed in the witness box. (I note that A, too, was tearful at least once in the course of giving her evidence.) 372Issue was taken by Mr Roberts as to inconsistencies in N's evidence - in particular as to the apparent inconsistency between [35] of N's 24 January 2007 affidavit in which she deposed that A was pressuring E into signing documents he did not understand and was "attempting by all means possible to prevent my access to him with a view to firstly placing properties into tenancy in common and then secondly pressuring him to make another will leaving his share of three properties to her" and the fact that she had only a couple of months before that received Ms De Pasquale's letter of 13 October 2006 in which they conveyed E's intention to sever the joint tenancy and benefit R with the share that he owned of the three properties. Tested in cross-examination on this, N's response at T 420 was that she just did not recall that at the time (though she was taken to a letter of 6 November responding to that letter). 373N accepted that it may be the case that she had known at the time she swore her affidavit in the earlier proceedings that E's intention as stated through his lawyers was to sever the joint tenancy in order to benefit R(something inconsistent with the assertion in her affidavit as to the pressure by A). 374Mr Ahmed submits that precisely what documents were referred to in her 2007 affidavit are not before the Court (hence may be of little importance) and that N "may be forgiven for not recalling" that draft letter. It seems to me that whether or not a failure to recall a particular draft letter is understandable is not to the point. The inconsistencies in question point to a potential unreliability of recollection and to an apparent predisposition at least in early 2007 to attribute an avaricious motivation to A in the absence of any concrete basis so to do (and where E's lawyers had asserted a completely different motivation for the severance of the joint tenancies). Ultimately, however, I do not draw anything adverse to N's credit from the fact that there may not have been a concrete basis of the suspicions she espoused in her first affidavit (indeed, as events transpired, A subsequently did seek to have at least some of the properties transferred to her). 375It is submitted that N's evidence should be preferred because she made concessions where appropriate (accepting that she received proper legal advice prior to signing the March Deed; that she saw draft deeds; that she had input into parts of the deed; and that she understood the deed). I accept that N gave those concessions (and, importantly, conceded, in essence, that in substance her complaint in these proceedings is not as to the transactions contemplated by the deed but that A should be able to enforce them when she believes that A did not comply with the deed). However, that of itself does not mean that her evidence is the more credible where there are directly conflicting versions of events (such as the making of the alleged threats or the like). 376N gave her evidence in a timorous manner and I can readily accept that in a confrontation between N and A, N might well find A intimidating. Nevertheless, any suggestion that her claims in these proceedings are not self-motivated could not be accepted in light of the benefits sought to be preserved from the restraint on severance of the joint tenancies. 377In summary, I accept that N was genuinely distressed as to her father's condition and as to the pressure she believed he was under from A. However, there are instances where her recollection was not reliable and she has a large self-interest in the present proceedings. Where there is a conflict between the two versions of the same event (and no evidence from which I can objectively infer that one or other account is the more likely) I am left with the view (as expressed above) that both A and N have recounted events from their own perspective and having placed their own gloss on those events (consciously or otherwise) and I can accept neither account as the more reliable one. Issues 378I turn then to the issues for determination. (i) E's mental capacity as at 28 March 2008 to give instructions and to enter into the March Deed 379Mr Ahmed identifies the issue of mental capacity at being at the heart of these proceedings. Certainly, most of the claims relating to the position of E turn at least to some degree on his mental capacity to enter into the March Deed. 380As to the alleged lack of mental capacity on the part of E, N relies on the medical evidence and events occurring from April 2006 onwards (described above) and the expert medical report dated 30 October 2010 (Exhibit 9) from Dr MS Dowla, a consultant in neurology and clinical neurophysiology. As noted above, Dr Dowla has reviewed the hospital and medical reports and other reports and has given an opinion as to E's mental state based on that review (he not having examined E at the relevant time and having confirmed that in his opinion there would now be no value in any such examination due to the advanced stage of E's neuro-degenerative disorder). N pleads (at [38]) that on this basis (alone) the March Deed "ought to be set aside void ab initio". Onus 381N accepts that there is a 'presumption of sanity' and that she has the onus of proof to displace this presumption. (I interpose here to note that insofar as A herself seeks positive declarations as to E's mental state (namely, a declaration that E had the mental capacity to enter into the March Deed and to execute the transfers unilaterally severing the joint tenancies in 2007), then A would bear the onus attendant upon an application for positive declaratory relief.) 382In Hume v Munro (No 2) (1943) 67 CLR 462 at 474, Latham CJ, there talking of a negative declaration, said that: ... In an action for a declaration that a right alleged to be claimed by the defendant does not exist the onus rests upon the plaintiff of establishing first that a claim sufficiently definite and intelligible in its terms to be a proper subject of adjudication has been made against him by the defendant. . . Next, the plaintiff seeking a declaration denying any possible foundation for the alleged claim of right must exhaust the possibilities and show that the claim cannot possibly be supported. It is not for the defendant in such a proceeding to make a claim and to justify that claim. 383In Massoud v NRMA Insurance Ltd (1995) 8 ANZ Insurance Cases 61-257 (75,873) (as cited by Young CJ in Eq (as his Honour then was) in Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241, 62 NSWLR 653), McLelland CJ in Eq said: ...in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought (even if in proceedings by that party for relief of another kind, or in proceedings by the other party, that matter would not arise unless raised (and the burden of proof consequently assumed) by the other party). (my emphasis) 384Therefore, at least to the extent that the declaratory relief sought by A goes beyond the allegations of mental incapacity made by N, it would seem to me that A bears an onus of disproving lack of capacity and cannot simply rely on the presumption of sanity (this is of particular relevance to the relief sought as to the capacity at the time of execution of the transfers in 2007). 385However, to the extent that the declaratory relief sought by A is not necessary to her defence of the cross-claim by N, then the issue as to any onus borne by A need not arise. 386In Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 (at [176]) Campbell J (as his Honour then was) said: Where, as in the present case, the only remedy the plaintiff seeks is a declaration, the plaintiff's cause of action (in the sense of the facts which it must allege and prove to make out its entitlement to the relief claim - cf Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 610-611 per Brennan J) depends on the precise form of the declaration which it seeks. 387His Honour, having referred to the principles outlined in Massoud, went on at [178] to refer to Hume v Monro (No 2) as having made clear in particular, that "if the claim which a plaintiff makes is for a declaration that some particular right does not exist, the onus is on the plaintiff to exhaust the possibilities of how such a right might exist, and show that a claim that such a right exists cannot possibly be supported". 388Where allegations by A as to E's mental capacity go to the defence of the cross-claim, therefore, her denial of any lack of capacity would not relieve N of the onus of displacing the presumption of sanity and making good the allegations she has made in that regard. In Sanpine, at [180], Campbell J noted that McLelland CJ in Eq in Massoud had contrasted a prayer for relief seeking a negative declaration with a prayer for relief seeking a positive declaration (that the insurance policy remained in full force and effect). Campbell J went on to say, in the context of the claims in Sanpine (where, inter alia, a declaration sought was that a particular joint venture agreement remained on foot), that the fact the plaintiff had made an "unnecessary" allegation (as to whether the defendant had been justified in the purported termination of the agreement) did not make any real difference on the question as to what it was required to prove (since all it had to do to obtain a declaration that the agreement remained on foot was to prove that the contract was entered into, that its terms were such that it had not come to an end through effluxion of time, and otherwise to rely upon the presumption of continuance); and that, if the defendant wished to prove that the contract had come to an end through being validly terminated, it would be for the defendant to allege and prove that matter). At [182], his Honour (likening the situation to that in Lush v Russell (1850) 5 Exch 203) said: I do not see how the plaintiff having made the unnecessary allegation makes any real difference. Of course, having made it, if at the end of the case the plaintiff is still urging the Court to make a declaration, or a positive finding, that there was no justification for the termination of the contract, the plaintiff would bear the onus of establishing it. But if it fails to discharge that onus, or if, as happened here, the plaintiff was asserting from the time of its opening submission at the hearing that it was the defendant who had the onus of proving there was a justification for termination of the contract, so far as obtaining a declaration that the contract is on foot, an injunction to restrain a breach of it, or damages for its breach, the plaintiff is back in the same situation it would have been in if it had never made the allegation in the first place. (my emphasis). Capacity 389Turning then to whether N has established that as at 28 March 2008 E lacked capacity to enter into the transactions contemplated or provided for by that deed, reliance is placed by Mr Ahmed on the adoption by Forster J in Johnson (by her tutor Smith) v Johnson [2009] NSWSC 503 of what had been said in Gibbons v Wright (1954) 91 CLR 423 at 438. Forster J at [88] said: ..the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained. As Hodson LJ remarked in the last-mentioned case, "one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case". Ordinarily the nature of the transaction means in this connection the broad operation, the "general purport" of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out. (my emphasis) 390The test for capacity is "issue specific" (Masterman-Lister v Brutton & Co [2003] 3 All ER 162 and see Dalle-Molle (by his next friend Public Trustee) v Manos BC-200402709). Capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage. In Gibbons v Wright, the principle was expressed as follows: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. ... any test of the requisite capacity ... whether the person concerned is capable of understanding what he did by executing the deed when its general purport was explained to him. The principle ... appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. (my emphasis) 391Thus, had the question of capacity in the present dispute related to the conduct of litigation (as would have been the case when considering whether E was capable of giving instructions in the proceedings before Windeyer J or whether a tutor should have been appointed), there would be a different test from that applicable to the question whether E had testamentary capacity (even though the answer might have been the same). So also is there a different test where the question is as to the capacity to enter into the transactions contemplated by the March Deed. 392Hence, Debelle J, in Dalle-Molle, noted that the question whether a person has the capacity to give sufficient instructions in a litigious matter does not turn on whether or not the person has the requisite mental capacity to make some other legally effective decision. 393Insofar as Professor Dickson had opined as to the capacity of E in September 2007 and December 2007 in the context of E being a party to litigation, the relevant test to be satisfied would have been that in Dalle-Molle, namely whether E was able to give sufficient instructions to take, defend or compromise legal proceedings (the latter being precisely what was in issue when the matter was the subject of mediation - namely, the giving of sufficient instructions to compromise the proceedings). As to what was meant by the qualification "sufficient" in that context his Honour considered it meant instructions of a quantity, extent or scope adequate for the purpose or object of those instructions. His Honour said: When qualifying the noun 'instructions' it is signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise. (my emphasis) 394His Honour did not agree in absolute terms with the comments of Chadwick LJ in Masterman-Lister to the effect that: ... a person should not be held unable to understand the information relevant to a decision if he can understand the explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decisions which he does, in fact, make is a decision which would not be made by a person of ordinary prudence. 395Rather, Debelle J considered evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but must be weighed with other evidence as adduced; and, secondly, that even if the condition suffered by the person was one which rendered him or her vulnerable to exploitation or at risk of making rash or irresponsible decisions, it did not necessarily follow that he or she was unable to give sufficient instructions: The fact that the person is vulnerable to exploitation or prone to rash or irresponsible decisions may be relevant to a determination of the question whether he is able to give sufficient instructions but it must be considered with other relevant evidence. 396His Honour noted that the question whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant. His Honour concluded that: A person will not be under a disability, if after careful advice and explanation and time to consider the advice and explanation, he then gives instructions. 397According to his Honour, the level of understanding of legal proceedings involves an ability "to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes." (In Murphy v Doman [2003] NSWCA 249, Handley JA considered that the test of capacity for a litigant in person would be higher than that for a litigant retaining a solicitor, the latter being the situation that would have applied in relation to E.) This is of some relevance when it is appreciated that the March Deed was a document setting out the basis on which the parties agreed to compromise the proceedings then on foot. 398By contrast, the test for determining testamentary capacity is that set out in Banks v Goodfellow (1870) LR QB 549 at 565 by Cockburn CJ (which Mr Ahmed notes was applied recently in Frizzo & Anor v Frizzo [2011] QSC 107 at [21]). 399In Bull v Fulton (1942) 66 CLR 295 at 341-2, Williams J noted that "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants (Burdett v. Thompson)". Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3) adumbrated the three "R's" in the context of considering testamentary capacity, those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. ... It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other. 400The relevant principles that a Court must consider, when determining whether a person has testamentary capacity (and as to which Professor Dickson and Mr Ward were both disposed to agree that E had as at December 2007), are therefore whether the testator is aware, and appreciates the significance, of the act in the law upon which the testator is about to embark; whether the testator is aware "at least in general terms" of the nature, extent and value of the estate over which the testator has a disposing power; and whether the testator is aware of those who may reasonably be thought to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons; and the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons. 401What is in issue in the present case, of course, is not E's testamentary capacity but whether E had the mental capacity to enter into the March Deed, containing as it did various agreements as to the disposition of property interests held by him and by N as well as other matters. 402Mr Ahmed notes that in Szozda v Szozda [2010] NSWSC 804, Barrett J (as his Honour then was) noted the importance of considering the nature and complexity of the document in question (there, a power of attorney) when assessing the capacity of a party to execute a particular document. 403In relation to the submission that the transactions encompassed within the March Deed were of a degree of complexity (such that there would have been required an explanation in a "most comprehensive and punctilious way"), I am by no means satisfied that the property concepts involved in the March Deed were of an extraordinary degree of complexity beyond the concepts involved in the difference between joint tenancies and tenancies in common. 404The basis on which Mr Ahmed submits that the March Deed is a complicated document is that it deals with many issues "such as the legal distinction between joint tenants and tenants in common; the rights of survivorship; events between [E] and [N] from 2004; previous Supreme Court proceedings; the concept of transferring 1/100th of a property to a third party in order to sever joint tenancy; right of occupancy; where [E] will live; sale of properties; transfer of properties; rental income; mutual releases; covenants to effect the Deed; default provisions; and mutual indemnities amongst other things". 405Pausing there, a number of those matters, such as where E would live; the distribution of the proceeds of sale of properties in a particular proportion; or what was to happen to the rental income of the properties, are not of any particular complexity (and E's ability to understand the concept of rental income seems to have been evidenced by his instructions from time to time that he wanted the benefit of the rental income from the properties during his life). As to the mutual releases and indemnities again, they were of no particular complexity. Nor do the boilerplate provisions to which Mr Ahmed has referred seem to me to require any especially complicated explanation. 406Mr Ahmed seeks to support his submission as to the complexity of the March Deed by reference to the breadth or complexity of the 'transaction' contemplated by the document, referring to what was said by Flick J in Kazar, in the matter of Frontier Architects Pty Ltd (in liq) [2010] FCA 1381 (an unfair preference case) as to the notion of a 'transaction'. It is submitted that the broad approach to the definition of a transaction highlights the complexity of the March Deed. 407I do not consider that the March deed was unduly complex once the concept of the right of survivorship was in principle understood. That was a concept that, by 28 March 2008, had been explained to E on a number of occasions and that he appears to others to have understood (at least as at the times that he gave instructions to Ms De Pasquale, Mr Nesci and, most relevantly, Mr Ward). While Mr Ahmed submits that a higher cognitive ability would be required to understand the March Deed than what would be required for transactions such as entry into a will or the grant of a power of attorney (or, as in Johnson, the signing of cheques), I am not satisfied that there is a material difference between understanding the nature of property held by E for the purposes of its disposition by will and understanding the nature of the property transactions comprised by the deed in the present case. What was in substance necessary for E to understand was the consequence that would flow (if he predeceased N) from the right of survivorship and the means by which interests in property could be transferred in order to prevent that happening and then, by the time of the March Deed, to understand how the interests in the properties were to be divided). Mr Moore's account of E's position in relation to the particular properties during the course of the mediation suggests that E was well capable of expressing a view as to what he was prepared to agree to in that regard. 408Apart from the expert medical evidence (and lay observations of E at the relevant time), Mr Ahmed points to the following as supporting the conclusion that E lacked capacity to enter into the March Deed: first, that in the period from August 2007 to September 2007 three firms of solicitors (those with whom Ms De Pasquale/Mr Nesci; Mr Ziade and Mr Senat were associated) had refused to act for E (this being attributed by Mr Ahmed to concerns as to E's ability to manage his own affairs and whether he was free from the influence of A; and, secondly, that the Guardianship Tribunal made an order on 20 November 2008 based on its finding that E did not have the capacity to manage his affairs. As to the first, I do not draw an inference from the circumstances in which a number of firms refused to act for E that he lacked the capacity to give instructions. As to the second, there is of course a temporal issue to be considered here. 409Reference was made by Mr Ahmed to Szabo v Battye [2006] NSWSC 1351 (noting that Dr Rowland, one of those who had developed the RUDAS test, had there given evidence), where the Court considered the import of a RUDAS test and accepted that 23/30 was a 'pass mark' or cut-point. In that regard, emphasis is placed on the 15/30 RUDAS score that E achieved in June 2007. Mr Ahmed notes that at [64] in Szabo (where the document in question was a will) the Court said: ... mere proof of serious illness, great age or reduction in mental powers below the ordinary standard are, of themselves, insufficient to establish testamentary incapacity; although they and such matters as personal stresses and linguistic problems are relevant matters to take into account. 410He submits that, when determining whether E had the mental capacity to enter into the March Deed, the Court must be cognisant of the evidence that E reverted to his mother tongue from time to time and that the March Deed dealt with matters that were highly stressful for E. I do not discount those facts (although the weight to be placed on the reversion to Italian by E must be balanced against the fact that it seems he had used the services of Mr Nesci for a number of years at least in part because the latter spoke Italian and it may well be that E felt more comfortable that he would understand legal concepts when they were spoken in Italian (just as A sought the assistance of an interpreter from time to time to translate legal or technical terms in the witness box) not simply when he was stressed). 411I have referred above to the expert reports provided by both Professor Dickson and Dr Dowla and to their joint report. From Dr Dowla's reports, Mr Ahmed points to the fact that Dr Dowla opined that E's confused state and 'gibberish' from mid July 2006 evidenced that "his underlying neurological condition was progressing relentlessly and possibly affecting his frontal lobes." (p 15); and his conclusion at p 21 that: It is very likely that he has had significant cognitive impairment by the time he entered into this Deed on 28/308. It is also very likely that he would have difficultly in comprehending the true significance of the Deed of Settlement and Release that he was performing. I conclude after careful consideration of all relevant available information that predates the March Deed that [E] did not have the mental capacity to look after his affairs as of June 2007 and certainly not on 28 March 2008 the date he signed the March Deed. (my emphasis) 412Mr Ahmed submits that the reports of Professor Dickson are seriously flawed and do not establish that E had the necessary capacity as at March 2008. He bases this submission on the asserted failure of Professor Dickson (as gleaned from his examination notes) to ask questions of E as to what properties he owned, the values of those properties, how they were owned (say, through a corporate vehicle or in trust), and who the competing claimants were (though it is not clear whether Mr Ahmed is suggesting here an enquiry as to competing claimants to the properties or to E's testamentary bounty). Dr Dowla's similarly made no such enquiries. 413In particular, emphasis is placed on the fact that Professor Dickson's opinion (as reported in December 2007) that E then retained "sufficient ability to make instructions concerning his affairs, including revocation of a will or the creation of a new will, give instructions regarding being represented in the Supreme Court and in Guardianship Tribunal proceedings and being able to deal with real property and any other assets he might own" was given without reference to the complicated nature of the March Deed (not surprisingly, I might add, since the deed was not then in existence). 414Mr Ahmed submits that it could not comfortably be concluded that E would have understood any of the matters comprised in the March Deed as at March 2008. Mr Ahmed submits that even though E may have understood the concept of severing joint tenancy and the impact that this would have, that is a different question as to whether he understood the "myriad of transactions" contemplated by the March Deed. Those transactions were, however, capable in my view of explanation in simple terms. 415Relevantly, as I apprehend his closing submissions, Mr Ahmed submits that testamentary capacity is not the relevant test in the present case and that as the joint expert's report, in its terms, goes only to that issue, it is of no utility in the present case and the only evidence to which regard can be had is the expert evidence of Dr Dowla. 416Mr Ahmed submits that it is of great significance that Dr Dowla, who was available for cross examination, was not called. He submits that this was a deliberate forensic decision by the plaintiff (noting that it had the effect that the only oral expert evidence that was heard was that during the course of Professor Dickson's cross-examination. Mr Ahmed stresses that Dr Dowla's evidence was unchallenged, as was his opinion as to E's mental capacity as at 28 March 2008. This raises a question as to the weight of uncontradicted evidence, which I consider below. Weight of uncontradicted evidence 417The authorities clearly stand for the proposition that a trial judge is not bound to accept evidence that is not cross-examined, although that evidence may be given more weight. In Temiha v Sadebarth [1997] NSWCA 308, Powell JA said (with Beazley and Stein JJA agreeing): Although some of the older cases (see, for example, Davis v Hardy; Richards v Jager, Swinburne v David Syme & Co) seem to proceed upon the basis that, as a general rule, where a witness is unimpeached in his general character and his evidence is probable and uncontradicted by evidence on the other side that evidence should be accepted, more recent authority makes it clear that there is no rule of law that a court or judge must accept evidence because it is all the one way (see, for example, McPhee v S Bennett Ltd ) and that while the absence of cross-examination enables a tribunal of fact to regard the relevant evidence with a greater degree of assurance than might otherwise have been the case, it does not require the acceptance of that evidence (see for example Douglas v Tiernan; Taylor v Ellis; Cole v Commonwealth of Australia; Bulstrode v Trimble; Poricanin v Australian Consolidated Industries Ltd; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation; Paric v John Holland Constructions Pty Ltd ) 418In Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, the Court of Appeal considered whether a trial judge was bound to accept the evidence of a witness whom the trial judge considered "an honest and reliable witness" and whose evidence was not cross-examined in any way. Samuels JA (with Hutley and Priestly JJA agreeing) said at 507: The matter was left entirely as it stood at the end of his evidence in chief. While I do not think that it would be right to conclude that the absence of cross-examination entails the acceptances of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case. 419As explained in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, the rule relating to the weight to be given to evidence not cross-examined traces back to Browne v Dunn (1893) 6 R 67 (HL). Samuels JA considers at 587-8 that: The rule established in Browne v Dunn, as Hunt J pointed out in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 18, has two aspects. First, it establishes a rule of procedural fairness and secondly, a rule relating to the weight or cogency of evidence not challenged by cross-examination. ... I am not aware of any decision of a court in Australia...to the effect that Browne v Dunn or Precision Plastics Pty Ltd v Demir establishes a legal rule of the kind to which I have referred [that a judge is bound to accept any evidence which is not challenged by cross-examination] or that any such rule can be derived from any other source. ... The matter is very fully dealt with in Cross on Evidence, 3rd Aust ed (1986) at 436 and following, where many cases are referred to and where (at footnote 483 par 9.66 at 440), the view is expressed that it is not "Australian law" that evidence unchallenged by cross-examination must be accepted, an opinion in which I respectfully agree. Accordingly, I reject the argument that his Honour, in refusing to accept what the appellant said, fell into an error of law. 420In Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 the weight to be given to uncontradicted evidence that was not cross-examined was considered in relation to evidentiary burdens, the Court of Appeal holding that such principles regarding evidentiary onus do not compel the trial judge to come to a particular conclusion and a finding to the contrary of the evidence given was not a mistake of law. Hope and Glass JJA said (at 426): A tribunal of fact may, and indeed generally should, have regard, in deciding what its findings of fact should be, to the failure of a party to cross-examine his adversary upon evidence which the adversary has given to satisfy the onus which lies upon him. As Browne v Dunn shows, it may be wrong in many cases for a party to suggest that the other party's evidence should not be accepted, if there has been no relevant cross-examination; and, if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable: cf. Precision Plastics Pty Ltd v Demir, or even a perverse finding of fact. However, even if, in the circumstances, a tribunal ought to accept evidence upon which there has been no cross-examination, its failure to do so is not a mistake of law. A finding of fact based upon a rejection of that evidence will be one which an appellate tribunal having jurisdiction to deal only with errors of law cannot touch. 421Reynolds JA agreed at 429 that a "failure to find in favour of a party in whose favour a shifting or evidentiary onus may be said to be left" was not an error of law, though it may make the finding "unreasonable or perverse as being against the evidence". In that case, the error was one of fact and the remedy was that of a new trial. 422While the above cases consider witness evidence in general, and make no distinction between lay and expert evidence, Desmond Michael Walker v Police (Unreported, Supreme Court of South Australia, Mullighan J, 19 June 1998) specifically considers the weight of expert evidence not contradicted by another expert witness, holding that a tribunal of fact is not bound to accept that evidence. Mullighan J said that: The fact that the evidence of an expert witness is not contradicted by the evidence of another expert witness does not mean that the evidence must be accepted. Like any type of evidence, expert testimony must be considered along with all of the other evidence in the case. ... In my view the decision of the prosecutor not to seek to adduce evidence in rebuttal contrary to the opinions of Dr McLeave is of no significance in the present circumstances. The prosecutor was entitled to have the evidence of Dr McLeave assessed in the context of all of the other evidence. The failure to contradict his evidence in cross-examination or by other expert evidence could not give it a probative value beyond its true worth. 423Similarly, Chan PJ in Nina Kung v Wang Din Shin [2005] HKCFA 54, to which approach reference was made by Young CJ in Eq (as his Honour then was) in Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505, at [245] - [248], in a case in which the question was as to the authenticity of a signature on a will, chose to decide this issue not solely based on the expert evidence alone. Reference was made to cases in which, despite clear evidence from experts to the effect that the handwriting in question was forged, courts had refused to accept that evidence and had favoured other pieces of direct evidence. 424Of course, where uncontradicted evidence or evidence not cross-examined upon is rejected, the reasons for its rejection must be stated (Temiha v Sadebarth per Powell JA; see also Read v Nerey Nominees Pty Ltd [1979] VR 47, per Marks J at 52). Nevertheless, the reasons for rejection of uncontradicted evidence need not necessarily concern the credit of the witness (it may be an assessment of the evidence against all the other evidence in the case, lay and expert, as in Walker v Police). 425Further, insofar as the criticism by Mr Ahmed of the joint expert report was as to its failure to address the relevant capacity (ie the capacity to enter into a document such as the March deed given the nature of the transactions provided for therein rather than to make testamentary dispositions) (and hence the submission that I am only able to take into account Dr Dowla's conclusions as to that capacity), I am troubled by the fact that the parties proceeded to obtain a joint expert's report on what Mr Ahmed now submits is a incorrect premise as to the type of capacity in issue. 426If that was appreciated at any time prior to the hearing (whether at the time any instructions for the preparation of the joint expert's report were given or after the joint expert's report had been received) then I consider it was incumbent on the party forming that view to draw to the other party's attention the issue (so as to permit the experts jointly to confer and report on what were then said, or recognised, to be the real issues before the Court). There is nothing to tell me when the issue raised at the hearing as to whether the experts had jointly opined as to the particular capacity of E was in fact appreciated. However, if it were to have been in advance of the hearing then I would be most concerned at the apparent forensic decision not to raise it until closing submissions. 427It does not seem to me that it is in accord with the manner in which litigation is expected to be conducted in this Court for expert witnesses to be permitted to concur and answer questions on issues other than the relevant issues before the Court or (if this was not realized until later) for the matter not to be clarified with them until after the matter had effectively been heard. I note that in White v Overland [2001] FCA 1333, at [4], the public interest in the open identification of the issues in proceedings was recognized by Allsop J (as his Honour then was) who observed that "In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone", a passage which has since received the approval of the New South Wales Court of Appeal in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, at [28] and [46]. See also Baulderstone Hornibrook v Gordian Runoff [2008] NSWCA 243 at [6]. 428I should note that I am by no means satisfied that the joint report should be read as addressing no more than testamentary capacity (since the terms in which point 7 are expressed relate to understanding of matters in the March Deed, which was not itself a testamentary document). I note that Mr Ahmed concedes that some parts of the joint report can in any event be relied upon. For present purposes, I have considered not only the joint report but also the expert reports of Professor Dickson and Dr Dowla as to the issue of capacity (and the testimony given by Professor Dickson in the witness box). Relevance of evidence as to explanation of March Deed 429Mr Ahmed stresses the importance placed by Professor Dickson on a careful explanation being given to E in order for him to be able to understand the March Deed. It is submitted by Mr Ahmed that there is no evidence that any drafts of the March Deed were discussed with E (and that, in the absence of evidence from Ms Teremi. the inference may be drawn that Ms Teremi did not do so). As noted earlier, Mr Ahmed submits (but I do not accept) that I cannot place much weight on the evidence given by Mr Moore as to the explanation given on 28 March 2008 - particularly having regard to the general terms in which it was expressed. (Mr Moore's evidence that he went through the deed with E is supported by the reference in Ms Teremi's letter to E after the settlement, confirming that this had been done.) 430Mr Ahmed submits that in the absence of evidence that the terms of the March Deed and its import were carefully explained to E, there is no basis for this Court to conclude the E had capacity to understand and enter into the March Deed (as opposed to having some form of general capacity). In this regard, he places weight on what was said in Szozda (where there was evidence that solicitors had explained the relevant power of attorney in question, though apparently only in general terms) at [119], namely that: Each received from Mrs Szozda a generalised statement of acceptance or understanding of what was said to her. Neither, however, referred to any particular things that the attorney could do or to particular aspects of the family companies and family trusts in relation to which the attorney could act; nor did either probe Mrs Szozda by, for example, asking her to repeat what had been said to her or putting questions about aspects of her property and affairs answers to which might have formed a basis for specific questions or comments designed to ensure that an informed understanding had been received and was held. 431It is submitted by Mr Ahmed that there is no proper evidence as to what was explained to E by his legal representatives, through the interpreter, about the effect of the March Deed, let alone any of the matters referred to in Szozda. That submission seems to be premised on the rejection of Mr Moore's evidence as what occurred at the mediation on 11 March 2008, since an explanation of the transactions agreed in principle on that date may have obviated the necessity to go through those transactions again in detail on 28 March 2008. I accept Mr Moore's evidence (supported by Ms Teremi's letter sent after the deed was signed) that he had taken E through the deed and (having regard to the fact that 1.5 hours were spent with E on that occasion and the manner in which the previous matters were said to have been explained to him), I accept that it is likely that E received an explanation of the transactions encompassed by the deed before it was signed. 432Mr Ahmed further submits (in what again seems to me to be a very broad generalisation of something as to which I should not attempt to take judicial note) that solicitors (and I assume he intends by this also to include barristers given the earlier submissions in that regard) are not qualified to form a view as to whether a person with progressive dementia understands a document and that it would be very difficult for a solicitor (when assessing the answers given by a client to questions of the kind it was suggested should have been posed in Szozda) to distinguish between mere platitudes and a true understanding. With respect, there is no basis for me to draw such a conclusion (and it seems inconsistent with the views expressed not only by Professor Dickson but also by Dr Dowla in point [7] of the joint expert report). It cannot surely be the case that a solicitor or barrister is necessarily incapable of testing whether an answer to a question posed of a client reveals an understanding or lack thereof as to the subject matter of the question, even if the level of mental competence as would appear from a medical examination cannot be assessed. Non est factum 433Mr Zucker notes that, by executing a deed the party whose act and deed it is becomes, as a general rule, conclusively bound by what has been stated in the deed to be effected, undertaken or permitted by that party and is, as a rule, estopped from averring and proving by extrinsic evidence that the contents of the deed did not in truth express that party's intentions or did not correctly express them or that there are reasons why that party should not be obliged to give effect to the deed (citing Halsbury 4th edn Vol 12 [1353]). Relevantly, Mr Zucker made clear that the NSW Trustee was proceeding on the basis that there was no plea of non est factum on behalf of N (noting that there is no assertion that E had no capacity at all). 434J W Carter, E Peden and G J Tolhurst in Contract Law in Australia (5th ed, 2007) observe at [22-02] that: Where the elements of a binding contract are present, and the parties appear to have had an intention to contract, the courts are reluctant to treat the contract as void merely because some vitiating factor, such as mistake or misrepresentation, has impaired the decision of one party (or both) to contract. 435This is consistent with the other common law pleas, such as duress (Sternbeck v Sternbeck (1968) 11 FLR 360; Dimskal Shipping Co SA v International Transport Workers Federation (The Evia Luck) [1992] 2 AC 152). Carter, Peden and Tolhurst explain the basis on which the contract is treated (at [22-03]) as voidable as being that: Notwithstanding that an element of duress is present, there is, ex hypothesi, an element of 'willingness to contract'. That is to say, acts which normally give rise to a binding contract have occurred with knowledge that a contract is being entered into and of what it is says. It is therefore difficult to say that there is an absence of contractual intent sufficient to make the contract void. 436Undue influence and unconscionability are doctrines of equitable origin and there is more remedial flexibility with respect to these two doctrines, as stated in Bridgewater v Leahy (1998) 94 CLR 457 at 493 [124] per Gaudron, Gummow and Kirby JJ: In some cases, the equity that arises by reason of an unconscientious or unconscionable dealing of the nature with which this appeal is concerned may be satisfied only by setting aside that dealing in its entirety. The dealing may be embodied in the one instrument which contains several provisions or in several instruments. In other circumstances, of which this case is an example, the equity may be satisfied by orders setting aside some but not all of these instruments or some but not all of the provisions thereof. 437The exception is where the plaintiff pleads non est factum, which, if successfully made out, results in the contract being held as void ab initio, rather than merely voidable. The plea non est factum ('it is not my deed') is a defence by which a person seeks to disown a deed or other document which it is alleged he or she sealed or signed. The classic statement of the plea, as it applies to documents which the pleader has actually signed, is given in Petelin v Cullen (1975) 132 CLR 355; 6 ALR 129 at 133: The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has no brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one "which must necessarily be kept within narrow limits" (Mushkam Finance Ltd v Howard [1963] 1 QB 904 at 912; [1963] 1 ALL ER 81 at 83) and in the qualifications attaching to the defence which are designed to achieve this objective. The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society [1971] AC 1004, especially at 1019; [1970] 3 All ER 961 at 965-6. 438The onus is upon the document signer to produce clear and positive evidence that the signer was under a disability and that there was a fundamental or radical difference between the document as it was and what the signer believed it to be (Saunders v Anglia Building Society [1971] AC 1004; [1970] 3 All ER 961). Hence, in Baburin v Baburin [1990] 2 Qd R 101, a non est factum defence was not made out where the trial judge was satisfied that the person signing the document understood the explanation of its effect by an accountant. Where both the actual and supposed documents are legal documents dealing with the same property or rights, it seems unlikely that the difference would be sufficient to sustain the plea of non est factum. Thus, in Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242; [1964] 3 All ER 592, a defence of non est factum failed where the defendant signed blank hire purchase forms in blank and gave them to her agent, which the agent subsequently used fraudulently to obtain money from a finance company, on the basis that the defendant knew she had signed documents of a similar legal effect. (See also O'Brien v Australia and New Zealand Bank Ltd (1971) 5 SASR 347 and Saunders,) 439Where the plea is made out successfully, the contract or deed that is impugned is expressed as void (Petelin v Cullen; PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643). As opposed to a document which is expressed as voidable, there is no right vested in the pleader to elect to rescind or affirm the bargain, nor is the 'minimum equity necessary' approach as expressed in Bridgewater v Leahy available. 440The plea non est factum is, however, recognised to be distinct from a plea of mental incapacity (and no plea of the former has here been made). Some cases have been read as expressing the view that the two pleas are incompatible, for the reason that the former plea denies the signature, while the latter plea admits the signature (Crago v McIntyre [1976] 1 NSWLR 729; PT v Maradona). However, this view was rejected by NSW Court of Appeal in Ford v his Tutor Watkinson v Perpetual Trustees Victoria Ltd [2009] NSWCA 186 (Allsop P and Young JA, Sackville AJA agreeing). Allsop P and Young J closely considered the previous cases on non est factum and came to the conclusion at [71] that: The two pleas (non est factum and incapacity) must be distinguished, as is clear from Gibbons v Wright (at 443). Each may be seen to occupy distinct areas and each is theoretically distinct from the other. But it goes too far, in our respectful view, to say that the two pleas are "incompatible" cf Crago v McIntyre [1976] 1 NSWLR 729 at 737. Facts which, if known by the other party, would make the deed voidable may also, if sufficient in themselves, found a conclusion that the document was not signed. The two please may be made in the same case (as they were here). Nothing in Gibbons v Wright is support for the conclusion that incapacity cannot be a ground for a plea of non est factum if the facts as to the incapacity are sufficient to enable a conclusion to be drawn that the document was not signed. 441In Gibbons v Wright, the High Court had considered the law regarding pleas of incapacity. In relation to contracts with a 'lunatic', the Court said at 443-444: But if the case made is only a case of incapacity to understand the nature of that to which admittedly the signature was affixed, no analogy exists with cases in which a seeming contract is held to be completely void for want of intention that the signature shall apply to any contract of such a kind. Indeed, after Molton v Camroux, whatever doubt may have persisted as to what must be proved in addition to mental incapacity in order to avoid a contract, it was the settled doctrine of English law that the contract of a lunatic was not void but was voidable only. 442Then, in relation to conveyance contracts, the Court said at 449 that: We ought to regard it as settled law that an instrument of conveyance executed by a person incapable of understanding its effect, in the sense of its general purport, is not on that account void, though in the circumstances it may be voidable by the conveyor or his representatives. 443Therefore, while the plea of mental incapacity may be based on similar facts as a plea of non est factum, the consequences of each plea being established successfully are different. Incapacity, much like the pleas of mistake, misrepresentation and duress, would result in the contract or deed being voidable and not void, as Mr Zucker submits. 444I note that there was no demur from Mr Ahmed to the proposition that, non est factum not having been pleaded, any finding of incapacity would do no more than render the March Deed voidable. Conclusion as to capacity 445I accept that the critical question is whether E had capacity to enter into the transactions provided for in the March Deed (not whether he had general capacity or testamentary capacity at that time). That capacity is measured by whether E would have understood the nature and effect of the transactions then being contemplated had such an explanation been given to him. By analogy with the authorities in relation to testamentary capacity, the question as to capacity is not whether he in fact understood (though that would be of relevance when considering the allegations of undue influence or unconscionable conduct and the like) or whether he acted in a rational manner in making the decisions that he did, but whether he was capable of understanding had an appropriate explanation been given. 446There is no doubt (and both experts accept this) that E had a progressive dementing disorder. Dr Dowla's report seems to proceed on the premise that the progression of the disorder was linear (hence the emphasis placed on whether E had capacity as of June 2007 and the time that he was confirmed as having lost capacity in June 2008. Professor Dickson explains that the progression of the disorder was not linear but that his capacity fluctuated over the relevant period (which I take as being from June 2007, when he accepts E did not have capacity on the day of his RUDAS test at Liverpool Hospital, and June 2008, when he considered that E no longer had capacity). Professor Dickson's explanation in this regard is consistent with the conclusion reached by Mr Ward that as at December 2007 E had the capacity to enter into the will certified by Mr Ward and to enter into the other guardianship/power of attorney documents. Therefore, to the extent that there is an issue between the experts as to the linear or fluctuating nature of E's disorder, I consider that the evidence of Mr Ward supports the conclusions drawn by Professor Dickson. (And therefore, to the extent that Mr Ahmed is critical of the proposition that E improved after the RUDAS examination, I do not accept the suggestion that there was no basis to Professor Dickson's clinical observation that E showed an improvement after the June 2007 date on which Professor Dickson accepts that E was not capable of managing his affairs.) 447The significance of this seems to me that over the period (and particularly over the period from December 2007 to March 2008) it must be accepted that there are likely to have been times when E's state was such that he may not have had capacity to understand the nature of the transactions contemplated in the March Deed and others when he may well have had such capacity (even if he would have needed a careful explanation to be given to him for him in fact to have understood what was there being done). Professor Dickson's professional opinion in December 2007 was that E should be reviewed again for capacity in six months' time. As I understand it, this was based on the likelihood that over that period there would be a significant loss of capacity such as to warrant re-testing at that time. Professor Dickson's estimate was proven correct insofar as E had lost capacity when he was reviewed again in June 2008. The critical question is when that occurred. 448In that regard, Professor Dickson did not in my opinion show the tendency for overstatement of which he is criticised by Mr Ahmed. Rather, E quite candidly expressed the view that the odds were 50/50 that he was competent as at March 2008. 449Mr Ahmed submits that there can be no confidence that E had improved after the January consultation because of the scant nature of Professor Dickson's notes of the February consultation. I disagree. Professor Dickson explained the basis on which he had formed the view that E had improved after the January consultation. It was largely based on his observations in examination of E but also his improvement since the January 2008 examination. He quite fairly accepted that he could not be dogmatic about E's mental capacity at that point and said that this was characteristic of the condition - that E would lose cognitive abilities from time to time and then regain them. 450There is support in my view for the conclusion that E showed an improvement after January 2008 (though I accept that the extent of this cannot be tested and that the improvement may or may not have been to his December 2007 state) by reference to the fact that as at March 2008 E cannot have been in the same labile and confused state as he was in January or he surely would not have been able to attend and give instructions at the mediation on 11 March or in the conference that preceded it. 451In this regard, Mr Ahmed was adamant that no weight could be placed on the absence of any evidence of any concern having been raised by the mediator as to E's capacity. (Certainly, I accept that no inference can be drawn one way or another as to the fact that the mediator was not called to give evidence, since I take judicial note of the fact that standard form mediator appointments commonly preclude the parties from so doing, at least in the absence of complaint as to the conduct of the mediator.) However, it seems to me that an inference can be drawn from the absence of any evidence, from those attending the mediation, as to the issue of E's competence having been raised by the mediator, that either the issue was not raised at all or that it was raised and the mediator was satisfied as to that issue so as to permit the mediation to proceed. 452It beggars belief that an experienced former judge of this division would have been comfortable to allow the parties to proceed with the mediation if it had been obvious that one of them was not mentally competent to do so, whether or not that party had legal representation at the time. In this regard I note that there was no evidence at all from either of the solicitors who attended the mediation (Ms Teremi or Mr Hassett). I do not suggest that the fact that the mediation proceeded without any reported issue as to E's capacity is decisive. However, in the absence of evidence from any of the other legal practitioners present at the mediation, Mr Moore's account of the proceedings is unchallenged. I accept that he was satisfied (no doubt being conscious that the circumstances in which the mediation had arisen were ones in which E's capacity had been queried and an application for appointment of a tutor was 'in the wings', so to speak) that E could and did understand the advice that had been given in relation to the nature of the transactions for the severance of the joint tenancies and as to the proposals for the settlement of the proceedings (and in relation to the latter, I have already noted the relatively low threshold for capacity to give instructions to compromise proceedings). 453While the unsatisfactory and inconsistent nature of the evidence as to when the first conference with E occurred, I do not accept that this should cause me to reject as having no foundation the evidence from Mr Moore that he was satisfied as to E's understanding of the matters the subject of the mediation at that time. 454In effect, the submission by Mr Ahmed requires me to assume that the legal practitioners who had acted for or advised E from at least June 2007 (including the four solicitors who gave evidence in N's case and Mr Moore) as well as those present at the mediation who did not give evidence and the mediator himself, were all either oblivious to the lack of mental capacity that Dr Dowla considered evident from the medical records or were prepared to proceed regardless. 455(In saying this, I accept that there was a point at which each of the practitioners called by N refused to continue to act or to accept instructions from E, but as noted earlier, it is by no means clear that this was a decision based on capacity and even then the fact that those solicitors formed that view would establish no more than their perception as to that issue at the relevant time(s).) 456In the case of Ms De Pasquale, this was based on Mr Nesci's view as to the matter (since she had referred the conduct of the matter, and the decision as to E's capacity to give instructions, to him as at April 2007). Mr Nesci's concern seems to have been directed more to A's perceived influence over E and the professional embarrassment that had caused him than to E's capacity per se. Mr Ziade similarly had concerns as to A's influence but not apparently as to capacity, insofar as he was prepared to act at least to the extent reflected in his $6,000 fee note before advising that he could not accept instructions for other reasons. 457Mr Ward was prepared as at December 2007 to certify the capacity of E to deal with his property in a testamentary sense (on the basis of what seems to have been a similar understanding of the complexity or otherwise of E's property holdings as had those who advised in relation to the March Deed). True it is that the circumstances in which he ceased to act in March 2008 give rise to a concern as to E's capacity to recall what had happened in a mediation just two days before. However, there is also the possibility that this was a further example of his fluctuating mental state. Moreover, if the test of capacity is one measured by reference to whether, had the subject matter of the settlement been explained to E carefully again on 13 March, he would then have understood and confirmed his instructions, then it does not seem that what occurred on 13 March enables me to assess that issue. 458Mr Ahmed submits that reliance cannot be placed on the submission that the March Deed records what E had said to Professor Dickson and to Mr Moore, at times prior to the entering of the March Deed, that he wanted to do. He makes this submission in relation to Professor Dickson's evidence on the basis that there was no evidence that Professor Dickson had considered the terms or operation of the March Deed (though by the time Professor Dickson gave evidence in which he maintained his position in relation to E's capacity he had seen the deed and had given consideration to E's capacity to understand the transactions contemplated therein) and had not recorded anything about E's wishes with regards to his properties other than reference to a family dispute (though there was reference to E wishing to be even-handed and to make provision for his wife); that he saw E only a few times at the end of 2007 and 2008 (which is not disputed) and the discussion was not then about what E wanted to do with the properties (which does not seem to be disputed); and that at times E had been in a labile state (which Professor Dickson accepts). 459In relation to Mr Moore, even apart from Mr Ahmed's criticism that E's intentions regarding his properties are not referred to in Mr Moore's first affidavit (explained by Mr Moore by reference to what he had been asked to focus on at that time - that not being the 'entirety' of the three hour conference), it is submitted that as a barrister (rather than a solicitor) Mr Moore "was removed from regular contact with E and had less of an insight into what E truly wanted" (a submission of such level of generality that I cannot accept it without evidence that the role of Mr Moore as a barrister in this matter was in fact so limited) and that as this was the first matter which had required him to advise a solicitor to obtain medical evidence as to capacity, Mr Moore was not experienced to understand persons such as E and their true wishes, particularly given his fluctuating mental state (again, I cannot accept this submission for the reasons set out earlier). (I would have expected that barristers were required in the course of their professional activities to satisfy themselves on a regular basis that their advice was understood by those to whom it was conveyed, but I accept that this is a generalisation and not all may be in a position or choose to do so.) 460Mr Ahmed stresses that what was said by E to both Professor Dickson and Mr Moore was that he wished to be even-handed in his dealings with N and A and that the March Deed goes beyond this in conferring an immediate benefit to A (whereas severing the joint tenancy alone would leave E's half share to his estate) and that, given that the 19 December 2007 will divides the estate between A and R, the conferring of an immediate benefit to A takes property away from R. Of course, the relief sought by N would also not accord with that intention insofar as it seems to be contemplated that it would leave her with the right of survivorship to all three properties. In any event, the explanation for the change may well be explicable by the fact that in the course of a mediation parties may well be encouraged to consider avenues for resolution of disputes that go beyond their pre-conceived ideas. 461Insofar as Mr Ahmed submits that Professor Dickson's evidence cannot be accepted because he did not test E's capacity by reference to E's understanding of the particular transactions contemplated by the March Deed, logically this means that Dr Dowla's evidence should similarly not be accepted (since he clearly was not in a position to test that, not having examined E at the relevant time or at all). 462Mr Ahmed's response to this was to assert that Dr Dowla's opinion must be accepted because Dr Dowla had read the March Deed when he gave his opinion (as I note Professor Dickson by the time he was cross-examined had also done) and because Dr Dowla was not challenged in cross-examination. On that latter point, I have noted above the authorities that point against such a dogmatic conclusion. In any event, if the issue turns on whether E was tested as to whether he understood the transactions contained in the March Deed then cross-examination of Dr Dowla could go nowhere other than to establish an opinion that someone suffering the dementing disorder suffered by E was or was not likely to be able to understand transactions of this kind if explained to him carefully - something that Professor Dickson would equally be able to opine upon in the absence of specific testing. 463I am left with the situation that:

N (in whose interests it is now to assert mental incompetence) was prepared (acting with the benefit of independent legal representation, to participate in the mediation and to enter into the March Deed and, having had the ability to speak with her father and to form at least to some extent her own assessment of his mental capacity both as at 11 March and at 28 March), to enter into the deed (and later gave instructions in relation to the proposed amendment of the deed for her benefit, seemingly choosing not to raise her concerns as to capacity or the like with E's legal representatives until the commencement of proceedings against her to enforce the deed). 464In the circumstances, while I consider that there are doubts as to what precisely was E's mental capacity as at 28 March 2008, I am not satisfied that N has discharged the onus of proving on the balance of probabilities that he lacked the mental competence on that date to understand, if the transactions contemplated under the March Deed had been carefully explained to him, what was provided for under that deed and to enter into it. Accordingly, I cannot find that E lacked the mental capacity to enter into the March Deed. 465(Whether he did in fact understand it is a different issue and would go to the allegations of unconscionable conduct, undue influence and unjustness of the contract. On that aspect of the matter, I am not satisfied that it has been established that E did not, when he reached agreement in principle at the mediation or later when he signed the March Deed, do so without having had the terms of the agreement explained to him or without understanding the purport of and agreeing to those terms.) 466Much was made as to the complexity of the transactions referred to in the March Deed. However, N had asserted as at January 2007 that her father understood the difference between joint tenants and tenants in common and, if her evidence as to the entry into the 2004/5 transfers and the September 2006 transfer is accepted then E had had the difference between those methods of ownership explained to him by no less than 4 lawyers (Mr Macdonald, Ms De Pasquale, Mr Nesci and Mr Moore - not to mention the written advice of Ms Teremi) and potentially more (depending on what advice was given by Mr Attia and Mr Senat, who did not give evidence, and Mr Alissandi, who witnessed the first of the transfers and also did not give evidence). The fact that NM himself may not have understood the advice as to severance of joint tenancies is not, with respect, to the point. 467I do not accept that a lay person with E's level of education could not have understood the transactions there contemplated (at least if explained in simple terms) and I accept Professor Dickson's assessment that had the transaction been carefully explained E would have been capable of understanding it. Further, I accept Mr Moore's evidence that he went through the deed with E on 28 March 2008 (having earlier taken E through the advice on 18 December 2007, reaffirmed it on 6 March 2008 and highlighted the principal points of the mediation position paper on 11 March 2008). In saying this, I do not place weight on Mr Moore's assessment of E's competence or ability to understand what was said on those dates (particularly given the generalised way in which the advice given on 28 March was described even in Mr Moore's oral evidence). Nevertheless, the time recorded for 28 March 2008 is consistent with a careful explanation of the deed having been given at that time. 468(By the same token, I am not satisfied that on the evidence adduced by A that the possibility of a lack of mental capacity has been excluded and I would therefore not be prepared to grant declaratory relief that he positively had capacity as at 28 March 2008. However, that is not determinative of the issue in N's favour, having regard to the onus she bears.) 469For completeness, I consider that the evidence would support a declaration as to E's capacity as to the execution of the transfers severing the joint tenancies in equity as at 19 December 2007 and as to the execution at that time of the will and other guardianship/power of attorney documents (based not only on Professor Dickson's evidence as to his assessment of E's capacity following his examination on 26 November 2007 but also, and significantly, on Mr Ward's evidence as to the events of 18/19 December 2007). (ii) whether E's entry into the March Deed was procured by unconscionable conduct by or the undue influence of A or in the knowledge by her that he did not have the mental capacity to do so 470It is alleged (at [53]) that, (further to [46] - [52] in which the unconscionable conduct by A vis-à-vis N is pleaded), E suffered from a special disadvantage vis-à-vis A that (at [54]) seriously affected his capacity to judge and protect his own interests and (at [55]) of which A was aware. The particulars of the alleged special disadvantage are his age, dementia, poor physical health, difficulties understanding English, dependence on A, and that he lived under the "close guidance and control" of A and "did not have the opportunity to consult and did not consult with his legal representation and receive their advice without [A] being present". (As to the last, the evidence simply does not support the proposition that E did not have the opportunity to consult with and obtain advice from legal practitioners without A being present. As Mr Zucker submits, there may well be a conclusion to be drawn of attempted influence by A in the various conferences. However, consistently (and including at the mediation) A was excluded from conferences in which E's instructions were sought.) 471Not only is it alleged that A unconscionably took advantage of that special disadvantage ([56] - [57]) and that it is unconscionable for her to insist on performance of the March Deed and retain the benefits to be provided by E thereunder ([58]), but also it is alleged that for those reasons it is unconscionable for A to seek an order for specific performance against N ([59]). 472As to the alleged undue influence, paras [61] - [62] simply repeat paragraphs [46] - [60] and assert that arising from the "special relationship" between E and A (on the one hand) and between N and A (on the other) A exercised undue influence over each of them to procure them to form the intention to sign the March Deed. 473I consider the allegations of unconscionable conduct and undue influence in turn, though not in the order that they were pleaded. Undue influence 474As to the allegation of undue influence, Mr Ahmed acknowledges that there is no presumption of undue influence between husband and wife but submits that the relationship between E and A may raise the presumption that undue influence has been exercised in the sense referred to as a 'class 2B undue influence' (citing Browne-Wilkinson LJ in Barclay Bank Plc v O'Brien [1993] 3 WLR 786 at 792). Mr Ahmed accepts that the allegation of undue influence in the present case requires proof of the relationship between E and A being such that A had influence over E in relation to the transaction in issue so as to invite the protection of equity. 475Undue influence is presumed where there is a sufficient relationship of dependency upon (or ascendancy exercised by) the donee. This is the kind of relationship described by Sir Anthony Mason (writing about the doctrines of undue influence and unconscionable dealing in the Anglo-American Law Review 1998) as a class 2B relationship (using the terminology adopted by the English Court of Appeal in Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23): My understanding of undue influence, not altogether fashionable in the light of modern English decisions, is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party (Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447 at 461,474). In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence (See Peter Birks and Chin Nyuk Yin, On the Nature of Undue Influence, Ed. J. Beatson and D. Friedmann, "Good Faith and Fault in Contract Law" 57 et seq.). The list of the old relationships of influence from which undue influence was presumed supports this view: solicitor and client, doctor and patient, spiritual adviser and novice or parishioner, parent and child, guardian and ward and possibly express trustee and beneficiary (See Meagher, Gummow and Lehane, Equity, Doctrines and Remedies, 3rd edn (1992) s 1519). In these relationships, called class 2A relationships in Barclays Bank plc v. O'Brien ([1994] 1 AC 180 at 189), the weaker party, dependent on the stronger party, is not likely to bring to bear a free, voluntary and independent judgment to a transaction involving the parties to the relationship, whether it is a contract or a gift. Class 2A relationships are to be distinguished from class 2B cases where a de facto relationship of trust and confidence will raise a presumption of undue influence. (My emphasis). 476In Johnson v Buttress (1936) 56 CLR 113 Latham CJ at 119 said: The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised (Dent v. Bennet (1839) 4 My & Cr 269; 41 ER 105; see also Smith v. Kay (1859) 7 HLC 750; 11 ER 299). Where such a relation of what may be called, from one point of view, dominion, and from another point of view, dependence, exists, the age and condition of the donor are irrelevant so far as raising the presumption of undue influence is concerned. It must be affirmatively shown by the donee that the gift was (to use the words of Eldon L.C. in the leading case of Huguenin v. Baseley (1807) 14 Ves Jun Supp 372; 34 ER 1138) "the pure, voluntary, well-understood act of the mind" of the donor (my emphasis). 477The question is whether there was a sufficient relationship of dependence such that A "stood in a position of undue influence towards" E as was the case in Winefield v Clarke [2008] NSWSC 82. 478It is submitted that there was such a relationship of ascendancy or trust to give rise to the presumption, arising from E's infirmity of mind, his poor physical health, his dependence on medication (and tendency to fail to take his medication), his advanced age, his lack of education, his poor English, his inability to drive, his dependency on A, A's threats to leave him and A's aggressive and domineering character. 479I accept that there was on the evidence a situation where, from at least around 2006/7, E was in a position of increasing dependence on his wife. After his seizure he was not supposed to drive (although there is evidence that he did continue to do so from time to time) and at least for some period he was living with A in a home with no landline and dependent on the shared use of the one mobile telephone for contact with N. I am prepared to accept that there was a relationship of increasing dependence on A (though I note from Professor Dickson's evidence that this was not always likely to have been the case, he describing situations in which E had been curt and dismissive of A). There is also evidence of E having expressed concerns to others that A might leave him and a fear of being on his own (see Ms De Pasquale's affidavit evidence and Mr Ziade's evidence in this regard). 480In circumstances where I am satisfied that there was a relationship of dependence, the presumption of undue influence would require the recipient of a benefit (here A) positively to justify the retention of the benefit conferred, as noted by Barrett J (as his Honour then was) in Winefield v Clarke. It is not necessary for there to have been an actual use of influence for the purpose of obtaining the benefit; ie that undue influence be proved as a fact, rather, as Asprey JA in Whereat v Duff [1972] 2 NSWLR 147 says (at 167): ... where the relations between the donor and the donee have at, or shortly before, the making of the gift been such as to raise a rebuttable presumption that the donee had an undue influence over the donor. ... the court sets aside the gift unless the donee rebuts the presumption. The court does not act on the ground that any wrongful act has been committed by the donee, but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused: Allcard v. Skinner (1887) 36 Ch D 145 at 171 (my emphasis) 481This would require that it be shown that the conferral of the benefit was the independent and well understood act of someone in a position to exercise a free judgment based on information as full as the recipient. In Allcard it was said that once the facts are established from which the court will infer that a situation exists where undue influence may have been exerted, then the presumption arises and the onus then falls upon the donee to rebut the presumption by proving that "in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the court in holding that the gift was the result of a free exercise of the donor's will". 482When undue influence is raised, one looks to the quality of the consent or assent by the weaker party (Deane J - Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447). The fact that the donor may have expressed the intention to make a gift is not sufficient. The question is how that intention was produced. It was said in Huguenin v Basely (1807) 14 Ves Jun Supp 273 at 299-300: Whereas in those cases where there is a claim by a living person that he has received a gift in the hands of a deceased person the court should carefully scrutinize the evidence to ascertain whether that the living donee puts forward is a probable and credible account of what really happened. 483In Whereat, Asprey JA said (at 168-169): The question of intention is basic in the law of undue influence. The fact standing by itself that there is evidence that the donor stated that he intended to make the gift does not rebut the presumption ... The ability of the donor to understand and intend that he is making a gift will not by itself necessarily operate as a bar to equitable relief. 484Mr Ahmed therefore submits that if undue influence is not disproved, then the March Deed would be set aside merely by proof that E reposed trust and confidence in A without it having to be proved that A exerted actual undue influence or otherwise abused the trust and confidence reposed in her when he entered into the March Deed. 485Mr Ahmed places some weight on the fact that, even though Mr Nesci had known and acted for E for a number of years, he nevertheless withdrew from the case (seemingly as indicating the strength of Mr Nesci's perception as to A's influence over E), suggesting that "when [A] got involved in the former Supreme Court proceedings... this was enough for him to withdraw from the case on the basis that he was not confident that [E's] instructions were not coming from [A]". While Mr Nesci did depose to a concern that instructions were coming from A, it seems to me that it would be simplistic to conclude that this was the only operative factor behind Mr Nesci's withdrawal when his own evidence relayed other concerns as to his role in the matter. Moreover, Mr Nesci was on notice of Ms De Pasquale's concerns as to E's capacity and/or vulnerability to outside influence (and in this regard the particular instructions being given to Ms De Pasquale and others were consistent with a vulnerability of E to influence from N herself) from late April 2007, yet he met with E and was sufficiently comfortable to continue acting for him until August 2007. What precipitated Mr Nesci withdrawing from the case may well have included what seems to have been his professional discomfort at being asked to withdraw a settlement offer before the time specified for it to lapse (irrespective of from whom those instructions emanated). 486Mr Ahmed goes further and submits that there is evidence of actual undue influence, referring to the evidence of the four solicitors who gave evidence as to the interactions between A and E in 2007 (Ms De Pasquale, Mr Nesci, Mr Ziade and Mr Ward). Mr Ahmed places weight on the fact that each deposed to concerns as to E's capacity and/or his vulnerability to outside influence. In particular, reliance is placed on evidence as to the tendency of A to interrupt E or talk over him in meetings with the solicitors or to talk for him or convey instructions on his behalf, as well as the circumstances in which the settlement offer conveyed by Mr Nesci to N's lawyers in August 2007 subsequently came to be withdrawn. 487So, for example, Mr Ahmed points to the evidence at [18] of Ms de Pasquale's affidavit (that in or about April 2007 she handed over the file to Bruno Nesci because she was concerned that E did not have capacity or was being influenced by someone, who she suspected to be A); to [8] of Mr Nesci's affidavit of his initial conversation with the two in May 2007 in relation to the matter; to Ms De Pasquale's evidence at [22] of her affidavit regarding A sitting outside Mr Nesci's office door during the August conciliation conference and A's words that "he has to check with me before he does anything"; Mr Nesci's evidence as to A's uninvited entrance into his office in August 2007 (denied by A), together with her insistence that she be told what had occurred in that settlement conference; the evidence at [14] of Mr Nesci's affidavit, deposing to A saying "no, no, no I'm not happy with that", and [20], deposing to A telling E "You tell Bruno to withdraw the offer. I am not happy"; the evidence at [4] of Mr Ziade's affidavit he gave evidence of A's interference when E tried to give instructions and at [15], where Mr Ziade deposes to A calling him to give him instructions. In relation to Mr Ward's evidence, Mr Ahmed refers to [20] where A said "stop talking and just change his will. I will tell you what he wants" as direct evidence of A's undue influence over E. 488Mr Ahmed places weight in this regard on A's oral evidence at T 223 that she was very upset that she did not get what was promised to her and that E agreed, to keep her happy, to go to Mr Ward. Mr Ahmed notes that they went to see Mr Ward and that, when asked by Mr Ward in A's absence whether he wanted to change his will E said 'no'. (While Mr Roberts submits that this shows that E was a man who could stand his own ground, consistent I might add with Professor Dickson's observation of him, Mr Ahmed submits that A's shouting at E (to which Mr Ziade deposed) that "you must change your will. You give everything to your daughter and nothing to me" is significant in that although E did not ultimately change his will, on A's version of events she achieved her wish shortly after by the collateral agreements she says were reached after the March Deed was signed.) Mr Ahmed points to the abandoned collateral agreements claims as indicative of the extent of the position of influence A held over E at the relevant time. 489I accept that the evidence is that E had told others that A was harassing him for money and property (and A's own evidence appears to support the conclusion that she considered that E had promised to compensate her for the giving of the Illawong property, to which she said she had contributed, to R). She did not deny that she was unhappy that E's December 2007 will had left his property half to R rather than wholly to her as she considered she had been promised. E's concerns as to the family members seeking to gain an advantage in respect of his property nevertheless extended also to his daughter N (whom he is reported as having described as greedy). Similarly, I accept he had expressed concerns as to A's treatment of him but note that this was at a time when he seems to have been concerned as to who he could trust in general. He also communicated a fear that A would leave him (though in the context that this was a reason not to give her more property - not a reason to accede to demands by her for money or more property). (In fact, as Mr Zucker emphasises, attempts by A over the period to obtain what she wanted seem to have been consistently defeated by the ability of E to express his views to his lawyers in meetings in the absence of A.) 490Mr Ahmed also submits that A's control over E is evidenced by NM's evidence that A controlled which solicitor E would see. The difficulty with that submission is that NM's evidence is consistent with A asking for advice as to who could assist in relation to the proceedings (in circumstances where the solicitors approached seem to have been reluctant to act or to continue to act in the matter). I do not accept that A "forced" E to go to any particular solicitor. 491Mr Ahmed's submission seems to be that an inference can be drawn from the fact that A took a forceful role in the conferences with the solicitors and/or that she also attempted to control what instructions were given to the solicitors that she later influenced E behind closed doors. As to this, the fact that A was overbearing or aggressive or intimidating in conferences with lawyers does not seem to me to support an inference that E was in fact overborne by her (particularly where E was capable of conveying his own view to the solicitors as he did with Mr Ward and as must have been the case when he spoke in Italian with Mr Nesci or Ms De Pasquale, since A did not speak Italian). 492Insofar as Mr Ahmed submits that there is a common theme of the changing of instructions, the main example of that seems to be the settlement offer to N. I accept that there is a change between undoing the whole transaction and simply severing the joint tenancies but it does not seem to me that this is of real significance in the overall context of the matter. I also accept that the ultimate settlement (which involved a transfer of N's interest in Leichhardt to A) goes beyond the contemplation that the tenancies would be severed with E able then to dispose of his share in the properties by will. However, this is a change that occurred well after the former solicitors had ceased to act; and it is by no means uncommon that in the course of a mediation or settlement discussions other settlement options may be discussed and agreed. I therefore draw no inference from that change. As to A's attempts to persuade E to change his will in her favour (if that is how the 13 March conference with Mr Ward is properly to be characterised), those were singularly unsuccessful. Her desire to obtain a transfer of E's interest in Leichhardt after entry into the March Deed might well be an example of undue influence, but it goes nowhere in the context of this dispute as A no longer presses any claim in that regard. While it is suggestive of an ability on the part of A to influence E when he was not independently advised, I do not consider that it supports a finding that the entry into the agreement reached at the mediation and its documentation in the March Deed was similarly procured. 493While I accept that the fact that E gave instructions as to the transactions in the March Deed and hence expressed an intention to benefit A, the question is how that intention was procured. In that regard, the fact that E had for some time expressed the wish that the effect of the joint tenancies be reversed (so that he could leave his share in the properties under the will) and hence the consistency between his earlier instructions and the transactions provided for under the March Deed supports the conclusion that in relation to this aspect of the March Deed, E's instructions were not procured by any undue influence on the part of A (and that, in fact, any influence that she had exerted behind closed doors had been mitigated by the independent advice made available to him in the conferences in which she did not participate). 494Relevantly, those aspects of the March Deed that went beyond E's earlier instructions relate largely to aspects of the settlement in which N agreed to compromise and to give a benefit to A (in particular the transfer of her interest in the Leichhardt property) or in which N was to receive a benefit at E's expense (in relation to the share of the proceeds of sale of the Summer Hill property). It is difficult to see why A would seek to influence E to agree to the latter, at least insofar as the Summer Hill property is treated in isolation from the overall settlement. As to the former aspect of the March Deed, this is not a situation where the party presumed to be under the undue influence of another has himself made any gift to that person. Rather, what E has done has been to enter into a settlement whereby the claims made against him are dismissed in consideration for N giving a benefit to A of her interest in a property in which E maintained his half interest. The suggestion that A has received a gift at the hands of E must be seen in that context. (Moreover, A has given at least some consideration for that interest, having given up her claim to a one-hundredth interest in each of the properties.) 495It is also relevant to note that E (through his tutor) does not allege any undue influence nor does he seek to set aside the transactions in question (from which it can be inferred that, overall, his tutor accepts that the transactions contemplated under the March Deed are to his benefit, as was submitted by Mr Zucker). 496In the circumstances, I find that the entry by E into the March Deed was not procured by the undue influence of A and that any presumption of undue influence arising from the relationship of dependency between them has been displaced. Unconscionable conduct by reason of taking advantage of special disability 497In Johnson v Johnson, Forster J quoted from Commercial Bank of Australia v Amadio: 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, supra, at 823; Fry v Lane; Blomley v Ryan at 428-9). 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 at 193-4; Morrison v Coast Finance Ltd at 713). 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 (supra, at 405) 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". 498Mr Ahmed relies on the handwritten letters dated 1 April 2008 and 17 April 2008 in which E directed that his share of the proceeds of the Leichhardt property be paid to A as part of the res gestae. He submits that these can be considered, not only in relation to the question of capacity, but also as evidence that A, being the stronger party, displayed conduct to enforce, or retain the benefit of, a dealing with E, a person under a special disability or vulnerability in circumstances that it is not consistent with equity or good conscience that she do so. The disabilities suffered by E (advanced age, infirmity of mind, limited education) certainly existed and I accept that these may have made him vulnerable to exploitation by those not suffering from such disabilities (that category of persons not being limited to A but also including N). 499However, I do not accept that N has established that there was unconscionable conduct on the part of A (in the sense of exploitation of E's special disabilities) in relation to the negotiation and implementation of the settlement reached at the mediation. (There may well have been unconscionable conduct in this sense had A sought to enforce the alleged collateral agreements. She has not done so.) I find this allegation fails for the same reasons as the undue influence claim fails. I should add that if the manner in which the unconscionable conduct claim has been pleaded is intended to include (in the allegation that A has behaved unconscionably towards E) the allegation that A had also behaved unconscionably towards N, this would require evidence that the alleged pressure/duress over N had impacted directly on E and on his entry into the March Deed. There was no evidence of this. (iii) whether N's entry into the March Deed was procured by duress or unconscionable conduct by A 500As to the allegation of duress on the part of A against N, reference is made by Mr Ahmed to an application made by N in September 2006, seeking an apprehended violence order on the basis of alleged verbal abuse and threats by A (and resulting in an "agreement ... on terms that purportedly allowed N access to E" [40], one term of which was that neither A nor her family would contact N except where there was a medical emergency and that, even then, only A could contact her). It is alleged at [41] that at all times after these threats (particularised as statements by A to the effect that "you are going to pay for this") were made, N had reasonable grounds to believe and did believe that "A was unwilling to engage in conduct the subject of the AVO proceedings and cause physical violence to N, if N did not comply with A's wishes in relation to E's property including signing the March Deed". It is further alleged at [42] that, in the premises, A used "psychological pressure" [that if N did not sign the March Deed she would be subject to harassment, abuse and violence] that was illegitimate in order to compel N to sign the March Deed. 501It is alleged that the said pressure caused N to consent to signing the March Deed [43]; that N had no reasonable alternative but to do so [44]; and that, in the premises, the March Deed is voidable and ought to be rescinded [45]. 502As to the allegation of unconscionable conduct vis-à-vis herself, N alleges at [46] that at the time of signing the March Deed she suffered from a special disadvantage vis-à-vis A, of which A was aware [48], and that this seriously affected N's capacity to judge and protect her own interests [47]. The special disadvantage particularised was that, in essence, A controlled E's movements and had denied N access to her father; and that N "understood that unless the proceedings [that she had herself commenced] were finalised by execution of the March Deed, she would not be able to see her father, [E]". 503It is alleged [49] that A took advantage of the opportunity presented by the special disadvantage and pressed N to enter into the March Deed with conditions favourable to A (reliance there being placed on the transfer to A of N's half interest in the Leichhardt property for $1 "despite A not being a party to the Supreme Court proceedings" and the assertion - that on its face must be incorrect - that A gave up no rights or property under the March Deed). (A at the very least gave up the ability to seek to enforce a one-hundredth interest in the respective properties by reference to the December 2007 transfers.) Duress 504The common law plea of duress is established in a contractual context where the pleader is able to show that their consent was given due to illegitimate pressure. The coercion need not be the only cause. It has now been well established that even where the pleader had other good reasons to consent to the contract, if the pressure can be shown to be a contributing cause, then duress can still be established (Barton v Armstrong [1976] AC 104; (1973) 3 ALR 355; Crescendo Management v Westpac (1988) 19 NSWLR 40). 505The language of 'overborne will' is frequently used to describe duress, although the House of Lords in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 rejected the notion that it must be shown that the person's will must be shown to be completely overborne and said (at 695) in the speech of Lord Simon of Glaisdale "that duress is not inconsistent with act and will, the will being deflected, not destroyed." This statement was approved by the NSW Court of Appeal in Crescendo Management (at 45) where McHugh JA (as his Honour was then) went on to say that: Indeed, if the true basis of duress is that the will is overborne, a contract entered into under duress should be void. Yet the accepted doctrine is that the contract is merely voidable. In my opinion the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. (my emphasis) ... It is unnecessary, however, for the victim to prove that the illegitimate pressure was the sole reason for him entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement. Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement. 506In the context of considering economic duress, a later Court of Appeal decision in this Court (Australia & New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149) recognised the inherent vagueness in the term "illegitimate pressure" and said at [66] that: The vagueness inherent in the terms "economic duress" and "illegitimate pressure" can be avoided by treating the concept of duress as limited to threatened or actual unlawful conduct. The threat or conduct in question need not be directed to the person or property of the victim, narrowly identified, but can be to the legitimate commercial and financial interests of the party. Secondly, if the conduct or threat is not unlawful, the resulting agreement may nevertheless be set aside where the weaker party establishes undue influence (actual or presumptive) or unconscionable conduct based on an unconscientious taking advantage of his or her special disability or special disadvantage, in the sense identified in Commercial Bank of Australia Ltd v Amadio. ... Pursuant to both provisions of the Trade Practices Act (Cth) and the Contracts Review Act, the relative strengths of the bargaining positions of the parties, and their ability to negotiate terms, will be relevant. However, it does not follow that because, for the purposes of s 9(2)(a) of the Contracts Review Act, there was a material inequality of bargaining power, a contract between such parties will necessarily be set aside. Most "contracts of adhesion" will fall into that category, but most will be valid. 507In Karam it was suggested that duress be limited to unlawful acts or conduct, within the schema of vitiating factors available to be pleaded in defence of a contractual. There has not been much consideration given to this point in the existing case law. In Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2007] NSWSC 12 and A Little Company Ltd v Peters [2007] NSWSC 833 the above passage is quoted without criticism in discussing duress, although neither case gives consideration as to the constraint proposed in Karam. Other references to Karam have considered it in relation to the question of unconscionability (see Canon Australia Pty Ltd v Patton (2007) 244 CLR 759; Clarke v Lopwell [2008] NSWSC 615; Spina v Conran Associates Pty Ltd [2008] NSWSC 326; and Australian and New Zealand Banking Group v Aldrick Family Company Pty Ltd [2010] NSWSC 1000). 508Some consideration has, however, been given to the Court of Appeal's proposal in Mitchell v Pacific Dawn Pty Ltd [2006] QSC 198 by Chesterman J. His Honour quotes the relevant passage, at [20] of his judgment, and goes on to say (at [21]-[22] that: In the passage I quoted the court did not (as I read it) recommend abandoning 'economic duress' as a doctrine or concept, but sought to confine it. The court was critical of the use 'illegitimate pressure'. I respectfully agree that the term 'illegitimate pressure' should be abandoned. It has always begged more questions than it pretended to answer and its use by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporations (1988) 19 NSWLR 40 (at 46) has always been unhelpful. 509If Mitchell and Karam are correct, then the concept of duress in New South Wales, if not Australia (noting that Mitchell was decided in Queensland), is now limited to unlawful conduct. This limitation is not difficult to reconcile with the classic cases on duress to the person. In Barton v Armstrong, the 'duress' was constituted by several death threats. In McLarnon v McLarnon (1968) 112 Sol J 419, the threats were of incarceration. In Saxon v Saxon [1976] 4 WWR 300, death threats were made against not the signer, but the signer's children. The threatened acts in each of those cases are unlawful. Moreover, even if Karam is incorrect is limiting duress to unlawful acts, the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure, as these cases all exhibit a high degree of threatened violence. 510The duress here is said to relate to the psychological pressure attributed to former threats of violence (albeit in generalised terms, such as "you will pay for this" or a reference to A's sons in this context) and to the non-verbal threat that N would be refused access to her father unless the deed was signed. In cross-examination, N expressed her view as to the unfair pressure at T 420 as follows: Q. What unfair pressure was put upon you between the time you instructed Mr Hassett and the mediation in March? A. My lack of being able to see my father. It was just if there was nothing to hide then why couldn't I just see my father as usual? Here is a sick man who has, you know, maybe not much longer to live, why couldn't any of us see him; not only myself but, my brother saw him for a short period but then after that he didn't know where he was or had no contact number or no address. Why was he in hiding if we all, if there was, I just don't know. I disagree, sorry, sir. ... Q. And was there any other unfair pressure or unfair tactic that you say was exerted against you to bring you to enter the March deed? A. Am, there was threats on my life. It was expressed in the meeting with my Dad and Bruce Macdonald. [those being the threats the subject of the September 2006 incident as I understand it] ... A: And then there were continued threats. It was, am, when [A] tried to get me to sign some legal documents and from that Saturday onward I continued to receive threatening phone calls where she said that I must sign these documents. I didn't say I was going to sign it, I didn't say I wasn't going to sign them, all I asked [A] was "my solicitor will need to see these documents" and she refused and, sorry, I'm going a little bit back and forwards but those phone calls, the first set of phone calls in one day of which there was about seven she actually threatened my life. [this being the incident in around October 2006 in relation to the signing of the deed prepared by Ms De Pasquale] 511As to the claim of duress, Mr Roberts emphasises that N was represented by Mr Hassett (who was not called to give evidence) in respect of all negotiations relating to the March Deed and the mediation. The fact that N had the benefit of legal advice would not necessarily preclude a finding of duress, particularly where the "overborne will" concept is no longer the test. However, it raises some doubts as to whether any psychological or other pressure was in fact operative at the time. 512Insofar as Mr Roberts suggests that E's instructions to Ms De Pasquale indicated that N was the provocateur in the dispute with A, I am simply not in a position to determine who may be at fault in what was clearly an acrimonious relationship between A and N. (In this regard, I consider that little weight can be placed on the draft chronology and draft affidavit prepared by Ms De Pasquale given the doubt as to the source of those instructions.) 513In cross-examination by Mr Zucker, N (at T 398.1ff) accepted that her signing of the March deed was "entirely of [her] own free will" and that "no pressure was placed upon [her] in the meeting on 28 March to sign the deed". While N herself readily accepted that her will had not been overborne in the sense that she agreed that she had entered into the March Deed of her own free will, I accept that this is not the test of duress. Nor does the fact that N had independent representation during the mediation and in the negotiation of the settlement deed that followed make it impossible to find that N had entered into the March Deed due to illegitimate pressure or unlawful acts sufficient to meet the test in Karam (though the acknowledgements contained therein are expressly disclaim to the contrary of such a claim). I note that the authorities referred to above make it clear that it is sufficient that illegitimate pressure (Crescendo) or unlawful acts (Karam) be one of the reasons for entry into the particular transaction. 514Of the two kinds of acts relied upon as duress, the making of threats of physical violence would clearly be sufficient to give rise to relief under the doctrine of duress. However, A denies the making of the alleged threats and there is no evidence of them but for N's assertion that the threats were made. It is submitted by Mr Roberts, and I agree, that the fact that there were allegations made in the apprehended violence order proceedings and that those were determined by agreement on certain terms, does not establish duress. Nor does the agreement in its terms amount to an admission of duress. Mr Ahmed submits, and I accept, that it is abundantly clear from the evidence that there has been an acrimonious relationship between A and N at least from mid 2006. It is said that this led to N seeking an apprehended violence order against A. That application may or may not have been warranted. It was never the subject of a final determination. 515Moreover, the threats on which N relies to allege duress were threats said to have been made over a year before the mediation (and in relation to the signing by E of the documents in September 2006 at N's instance). They did not relate to the March Deed or the mediation and it is difficult to see how they could be said to have been regarded in any rational way as continuing to operate on N's mind in the absence of evidence as to the making of fresh threats or reference to the past threats. Indeed, it would be expected that if N had genuinely held a fear for her physical safety at the time of the mediation or the signing of the March Deed, she would have raised it when she had an opportunity to do so. She seems to have had no difficulty in the past making allegations of this kind (there having been apprehended violence order applications in both 2000 and 2006). 516In summary, the only evidence of the making of the threats was N's testimony. N referred to telephone recordings of the threats. None was in evidence, leaving aside the question as to whether it would have been admissible. A denies the making of the threats. The apprehended violence order applications are not evidence that the threats were in fact made; just that they were alleged. Nothing can be drawn from the fact that A was prepared to compromise those proceedings. If anything, the apprehended violence order applications suggest that N was perfectly capable of seeking legal redress if she felt that her interests were being threatened or if she were being subjected to unlawful conduct and she did not do so in March 2008. 517As to the second form of conduct said to have amounted to duress, this is the conduct that led to the perception that N would be denied access to her father if she did not sign the March Deed. There is evidence (albeit in general terms) that for a period from January 2007 to March 2008 N (and others in the family) did not know where E was living and N perceived this as A hiding E away from her. However, there is no evidence of any enquiry to the solicitors acting for E as to his whereabouts and there is no evidence that A in fact threatened N with denied access to her father. N certainly alleges that she was denied access to her father but this is based on the allegations that when she telephoned her calls were not passed on to him or not returned (as to which there is a clear conflict in the evidence between A and N and as to which on any particular occasion there might be a reasonable explanation for the fact, if it be the case, that E did not come to the phone). 518It must be remembered that during this time there were proceedings on foot that she had commenced against her father (and there was evidence from Professor Dickson and Mr Nesci, as well as later from Mr Moore, that E found it distressing or upsetting that there was an ongoing dispute with N. It would not be surprising if there were tension between the family members consequent upon the fact that there was litigation on foot. I am not satisfied that N has established any unlawful conduct of A in this regard, whether in the sense of any restraint of E against his will (indeed, the evidence relied upon by N was that he was afraid that A would leave him; therefore it might be surmised that he was willingly residing with A at the relevant time) or in not making N welcome in her home (if that is what she did). 519The evidence as to what transpired during the negotiations at mediation (albeit solely from Mr Moore, in circumstances where N was seemingly unable to assist with any independent recollection of the negotiations) was that N's position had been to insist upon a particular outcome in relation to the disposition of the Concord property, which belies to some extent the importance now placed on the visitation or access provision. Nevertheless I accept that the importance placed by N on the agreement for unimpeded access to her father on a weekly basis is confirmed in the correspondence issued by her solicitor at the time of negotiation of the terms of the March Deed. 520Assuming for the moment that what A had done was to refuse N access to premises in which A and E were then living (whether because of concerns as to the litigation then on foot or concerns as to the influence N might have over E or otherwise), I am not satisfied that this is an unlawful act of the kind considered to be necessary in Karam, nor that it amounts to unconscionable conduct of the kind that might otherwise amount to duress (bearing in mind that duress is here pleaded as a separate allegation from the allegation of unconscionable conduct). 521For the reasons above, I am not persuaded that N has established that there were unlawful acts of a kind sufficient to give rise to a finding of duress. Unconscionable conduct 522At [46] to [52] of the Cross Claim, N pleads that she was at a special disadvantage vis-à-vis A; that it arose from the relationship between N and A (stepmother and step daughter), in circumstances where her stepmother was living with and controlled the movements of her father. Mr Ahmed submits that A was aware of N's special disadvantage and took advantage of it by forcing N to sign the March Deed with the understanding that if she did not do so, she would continue to be denied access to her father. There is no evidence of any such threats. Indeed there were arrangements agreed in January 2007 by which such access could be obtained. N says she was unaware of E's whereabouts from 15 January 2007 to 11 March 2008. However, as stated above, there is no doubt that during that period there was litigation on foot between the parties and that, had N sought to press for contact with her father (leaving aside the difficulty that she was at that time engaged in litigation with him) she could have requested this through the solicitors acting for him. 523I accept that a motivating force behind N's entry into the March Deed was the arrangement for access set out in clause 3(e) (which she had requested and the importance of which her solicitor had emphasised). However, this does not establish the existence of threats of denial of access. The reality may well have been that N realised that while she continued to litigate with her father access to him would be problematic. With respect, I would have assumed that would be likely to be the case whether or not E had been suffering from a progressive dementing disorder and whether or not his movements were for practical purposes controlled by those on whom he was dependent for transport (primarily A but presumably he could also have turned to NM or R for assistance - and there is no suggestion that either of them could not have made contact with A). 524I cannot draw from the fact that there was provision for access to E contained in the March Deed that A had threatened to deny N access to him unless N agreed to the transactions contained in that deed for A's benefit. It seems to me that the situation is one where N formed a view as to what would be likely to achieve her objectives in relation to access and, with the benefit of legal advice, was prepared to make concessions to achieve that. That is not redolent of unconscionable conduct or exploitation of any special disability of N's in my view. 525Although N withdrew the apprehended violence order proceedings in January 2007 (after reaching an agreement with A that N that neither will contact each other) it is submitted that "the hallmarks of the threats of violence continued in N's mind up until March 2008" and that it was this psychological pressure that was placed upon N by A was that, if N did not sign the March Deed, she would be subject to harassment, abuse and violence. I find these allegations not established. (iv) whether, if E did not have the mental capacity as at 28 March 2008 to enter into the March Deed, it is void ab initio or should be set aside and, if so, on what terms 526As noted above, Mr Zucker emphasised that no defence of non est factum had been pleaded (and Mr Ahmed did not demur from the proposition that no such case had been put). Therefore, it is said that the March Deed is at best voidable. I agree. 527As to the question of discretion, had I found that E lacked the mental capacity to enter into the 28 March Deed, Mr Zucker raised the import of the provisions in that deed that were for E's benefit and the question whether N was estopped from seeking the relief she has sought. Mr Zucker submits that the March Deed represented a compromise of the then Supreme Court proceedings under which N retained an unchallenged joint tenancy of the Concord property (and hence the benefit of the right of survivorship) and was to receive 65% of the proceeds of sale of the Summer Hill property; and E obtained the benefit of the settlement of the Court proceedings (and the severance of the joint tenancy in respect of the Leichhardt property). A gave up her claim to a limited interest in all three of the properties and was to receive N's half interest in the Leichhardt property. There were mutual releases and indemnities. (There can be no dispute as to those matters.) 528As Mr Zucker notes, under the March Deed N warranted that she had obtained such legal and financial advice as she considered necessary, acknowledged that the recitals were accurate and that she did not rely on any representation or warranty concerning the subject matter and agreed that the deed embodied the entire agreement between her and the other parties and set out the only conduct relied upon by them. 529Insofar as the effect of the recitals is concerned, it is submitted that while N may have been advised that the recitals in the March Deed were merely by way of background (as Mr Hassett seems to have advised), she nevertheless cannot be heard to deny that she entered into the deed understanding the transactions provided for under the deed. She knew that A was to receive some benefits under the deed and was prepared to accept that as part of the overall resolution of the claim (and, as a result of which, if she survived E - which on an actuarial probability must have seemed likely - she would obtain the whole of the Concord property by right of survivorship). Mr Ahmed's response is that N does not deny that she signed and understood the provisions of the March Deed. However, he submits that, in the absence of a plea of estoppel, the acknowledgments and provisions referred to by Mr Zucker should not be taken into account on the exercise of discretion. 530Mr Zucker refers to what is said in "Unconscionable Conduct the Laws of Australia", Paul Vout ed, Law Book Company 2006 in relation to the basis of estoppel by deed (noting the statement by Pollock CB in Ashpifel v Bryan (1884) 122 ER 999 that "for the purposes of the transaction in question, the parties agreed that certain facts should be admitted to be facts as the basis on which they would contract, and they cannot recede from that" and the statement by Isaacs J in Dabbs v Seaman (1925) 38 CLR 538 at 548-549 that estoppel "simply means that the conveyance or lease or other instrument is based upon a conventional state of facts and therefore to dispute that conventional state of facts in order to set up another state of facts is an attempt to destroy the very basis of the transaction"). It is suggested that wherever an assumption forms the conventional basis on which the parties have entered into legal relations, an estoppel may arise to preclude an unconscionable departure from that assumption (p 146). 531Mr Zucker submits that the effect of the application of the principles of estoppel by deed may therefore be that, absent a non est factum defence, N may be estopped from denying that she is not bound by the March Deed or that in any event it should not be set aside (leaving N to her claim under the Contracts Review Act). 532(In the overall context of the disputes, although Mr Zucker noted that, as a matter relevant to the Court's discretion, setting aside the Deed would potentially return N and E to their contested litigation which was settled pursuant to the March Deed, it was submitted that this did not remain an issue following the concession I have noted earlier.) 533As to the question whether reference can be made to any estoppels arising by deed in circumstances where no estoppel was pleaded as such, I note as follows (though, given the findings I have made on the issue of capacity, nothing turns on this). 534It is clear is that what is required is that there be a clear pleading of the material facts on which the cause of action is founded and that any matter that may take the other party by surprise must be pleaded. 535In Re Bega Co-operative Society Ltd & Anor v The Milk Authority of the Australian Capital Territory & Anor [1997] FCA 200, at [24], Neaves J summarised the relevant principles and noted that not only must all material facts be pleaded (those being all facts necessary for the purpose of formulating a complete cause of action) but they must be pleaded with a sufficient degree of specificity, having regard to the general subject matter of the claim, to convey to the opposite party the case that party has to meet (there citing Ratcliffe v Evans (1892) 2 QB 524, at 532; Charter Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413, at 417. 536There are occasions when parties may by their conduct of the case acquiesce in a departure from, or may disregard or enlarge, a pleaded case (or, as it was put by Spigelman CJ in Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; (2007) 62 ACSR 1; [2007] NSWCA 75, at 17 [57], may choose to fight the case on a different basis). However, in the absence of this, as made clear by the Court of Appeal in Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; (2008) 252 ALR 659; (2008) 68 ACSR 595; [2008] NSWCA 206, Ipp JA any departure from the pleadings would be permitted only where adherence to them would be unjust or unfair (citing Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11, per Mason CJ and Gaudron J (at CLR 286-7; ALR 58-9)). His Honour there noted that the rule that, in general, relief is confined to that available on the pleadings is a rule that secures a party's right to a basic requirement of procedural fairness. 537I note that Lander J in Arthur Young v Tieco International (1995) 182 LSJS 367 at 370 (approved by McDougall J in Ingot v Macquarie [2004] NSWSC 1136 at [46]): Whether the material facts and whether sufficient particulars have been pleaded must depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case. None of those matters can be considered in isolation any more than each of the paragraphs of the pleading can be considered in isolation. When the Court considers a pleading it will not consider the pleading with the same degree of scrutiny which the courts are required to give to an Act of Parliament. With the complexities of modern litigation, a pleader can usually point to some deficiency in the opponent's pleadings. One can usually, if one approaches the matter with a critical eye, identify some failing in a pleading. But that is not the approach that in this age ought to be adopted. A court would not sit down in the manner of a nineteenth century pleader seeking to find an error capable of sending a party away to re-plead his claim or defence. Such a technical approach is inconsistent with modern litigation and inconsistent with the court's function which is to try to arrive at a just result. A successful result, if arrived at, after too great an expense may not be considered by even the successful party to be a just result. A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise. (my emphasis) 538Here, there can be no suggestion that the defence to N's cross-claim by A (construed technically or otherwise) raised an estoppel defence. That said, the provisions (and recitals) of the March Deed to which Mr Zucker points were in evidence and it must have been apparent to N's legal representatives that what N was seeking by way of relief (at least in terms of duress/unconscionable conduct) was to some degree inconsistent with the position she had acknowledged in the March Deed itself. It seems to me that (while not determinative of the position) the contents of the March Deed and the fact that N signed it with the benefit of legal advice can be taken into account in assessing the evidence she now puts forward as to duress and as to unconscionable conduct by reason of the exploitation of the special disadvantage under which she now says that she was, even if not giving rise to an estoppel as such. 539As Mr Zucker observed, the evidence was such as to permit an argument that N was estopped from pursuing her claims on a number of levels - not simply, estoppel by deed (by reference to the matters recorded in the recitals or by reference to the acknowledgements contained in the deed as to the basis on which N had entered into the deed, to which I have referred above) but also an estoppel arising out of the conduct of N in delaying the commencement of the incapacity proceedings until the specific performance case was brought and by reference to the affirmation of the March Deed by N through her solicitor in late May 2008. Nevertheless, no plea of estoppel was made by A and it is clear that Mr Ahmed did not accept that the issues on the pleadings could be expanded to include any estoppel claim (although, in relation to any estoppel that might have been said to arise from the provisions of the March Deed, the only prejudice that was identified as likely to be suffered if the issue of estoppel was raised on the evidence already before the Court in that regard seemed to be the prejudice that a different view might have been taken as to the prospects of N's claim and different forensic decisions might have been taken - matters that I would have thought went at most to costs, since the terms of the March Deed and whatever inferences or conclusions might be drawn from the fact that N signed the deed in those terms and with the benefit of legal advice have clearly been in issue from the outset). 540As to the relief claimed by A, Mr Ahmed submitted that, even if E had the capacity to enter into the December transfers, A is not entitled to have the orders made on 9 November 2007 "discharged". The effect of those orders (ie the injunctions granted by Windeyer J on a temporary basis pending the determination of the proceedings) following the dismissal by consent of the proceedings was not been addressed in submissions. However, the injunctive relief granted against E was in terms limited until the determination of the proceedings and hence the dismissal of the proceedings (by consent following the mediation) must have had the effect that all interlocutory orders then in force were discharged. 541Mr Ahmed seemed to submit that if the March Deed were now to be set aside, the ownership of the three properties would revert to being held by N and E as joint tenants. That assumes the unenforceability of both the December 2007 transfers and the January 2007 transfer. If the March Deed were now to be set aside ab initio, as Mr Ahmed contends should be the case, then it seems to me that as a matter of restitution the parties would need to be restored to the position in which they were prior to its execution. In that context the fact that steps have since been taken that may be unable now to be undone (such as the cancellation of the December 2007 transfers) would be a matter to take into account. 542The nub of N's objection seems to be that if A's claim is successful, A will own half of Leichhardt (where she previously had no interest - other than by reference to the December 2007 transfers) and N may be required to vacate the Concord property (though that may be a matter as to which there is some discretion as to the relief to be granted since, in the events that have transpired, the current position does not seem to have been contemplated by the March Deed). 543In cross-examination by Mr Zucker, N admitted that she would have been happy with the transactions provided for under the deed but for what occurred in relation to access. The following exchange between Mr Zucker and N is relevant in that regard (T 432.47- T 433.18): Q. That's the clause that was really important to you, wasn't it? A. The clause that was really important to me is my visitation to my father. Q. Do you agree that clause 3E is about visitation to your father? A. Let me read it more closely sorry. Yes. Q. If there had not been any problems with visitation to your father, am I right in suggesting that there would not have been any problems with the rest of the deed? A. Absolutely. Q. We would not be here today? A. Actually, I wouldn't have signed the deed at all if I had free access to my father. Q. I understand that. And if, after signing the deed, you had had free access to your father, would you have been content to go ahead with the transfers of title and the rest of the deed? A. Absolutely. Absolutely. 544The effect of what N seems to be seeking in the relief claimed by her is, however, not simply to set aside the March Deed and restore the position to that in which it was as at 28 March 2008 but to put herself in the position in which she would have been had the January 2007 transfers not been executed and had the December 2007 transfers to A not occurred or not been enforceable so as to sever the joint tenancies in respect of the particular properties. She is, in effect, doing more than seeking ex post facto to protect her father against the perceived undue influence or unconscionable conduct of A or the unjustness of the contract into which he entered. She is seeking to be placed in a position where it is no longer possible for her father to sever the joint tenancies (and hence to have the result for which she contended in the earlier proceedings without having had any determination of the merits of those proceedings) and in circumstances where E's tutor does not complain of any unconscionable conduct or undue influence against E and seeks to maintain those provisions of the March Deed which are clearly for his benefit - including, in practical terms, the severance of the joint tenancies. Whatever else may the case (and whether E rightly or wrongly thought that N had "tricked" him at the time of the 2004/2005 transfers) E had (apart from the visit to Mr Macdonald which was arranged by N) consistently maintained that his intention was that N should only obtain a half interest in the properties and not the whole of the properties on his death and where it is clear that on more than one occasion what was concerning him was resolution of the conflict within his family as to his assets. 545In all the circumstances, had I formed the view that the deed was voidable, I would nevertheless not have set it aside. I place weight on the fact that E's tutor has argued against such relief insofar as the deed benefits him (seeking not to disturb clauses 2, 3(a), 3(b) (also of benefit for N), 3(i), 3(j), 3(k), 4, 5 and 7). I note in this regard that Mr Ahmed confirmed that N's case had never been anything other than that she had been competently represented and that she knew what she had signed and had in fact signed it; her case rather being that there was duress because "extenuating circumstances" forced her to sign it. I do not accept that the decision made by N to enter into the agreement (in the knowledge that her father's capacity was in issue) was made under duress and where, having expressed concern as to her observation of her father's condition immediately after the deed was signed, she nevertheless acted in a manner consistent with an affirmation of the deed I see no reason now to exercise any discretion to disturb the arrangements into which she had then entered. (v) whether N is entitled to the relief claimed under the Contracts Review Act 1980 (NSW) in relation to the March Deed 546Paragraphs [63] - [67] of N's Third Further Amended Cross-Claim plead N's Contracts Review Act claim. The allegations contained in [15] - [62] (hence all of the allegations of mental incapacity, duress, unconscionable conduct and undue influence referred to above) are repeated (at [63]), by reason of which it is alleged (in [64]) that the March Deed is unjust. 547Further, or in the alternative, the March Deed is alleged to be unjust "when considering the specific provisions of s 9(2) of the Contracts Review Act" particularised in [65]. Of those, particular emphasis is placed by Mr Ahmed on three:

9(2)(l) - on the basis of the commercial or other setting, purpose and effect of the March Deed. 548I consider each in turn in due course, together with the remaining sections to which reference is made but on which the same degree of emphasis is not placed. 549It is alleged that the March Deed should be set aside pursuant to s 7 of the Act ([66]) or varied in such manner as the Court thinks fit ([67]). 550Insofar as N seeks to set aside the March Deed based on the unjustness of the contract vis-à-vis E (and not on the basis of unjustness vis-à-vis herself, though that is also pleaded), the unusual nature of the present proceedings is that E himself seeks no such relief. Mr Ahmed submits, however, that there is standing for N to seek relief based on unjustness of the contract vis-à-vis E. 551Under the Contracts Review Act, the court may grant relief in respect of unjust contracts where the court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made. As to the question of standing that may be raised in the circumstances noted above, it is to be borne in mind that the Act does not specifically deal with the question of standing. Section 11 deals with applications for relief and subsection (2) simply states that "Proceedings may be commenced in the Court for the purpose of obtaining relief under this Act in relation to a contract" without identification of the class of person who may make such an application. 552Section 9 of the Act, which sets out the matters to be considered by the Court in granting relief, directs the enquiry to whether the contract was "unjust in all the circumstances" and not as to whether the applicant suffered any "injustice" within the meaning of the Act. 553In Smith v Elders Rural Finance Pty Ltd (1995) Aust Contract R 90-054, Bryson J considered an application for relief to modify the obligations of a person not a party to the proceedings (namely obligations under a loan agreement entered between several members of the Smith family who were in partnership together and Elders Rural Finance. Under the agreement, the members of the Smith Family Partnership incurred personal liability and gave security over properties that the family members already owned. One of the borrowers died before the action commenced and the remaining Smith family borrowers are the plaintiffs. Due to his death, his executors, who were also members of the Smith Family Partnership, sued on behalf of his estate. It was contended by the defendant that it was not possible under the CRA to grant relief in respect of the deceased for liability incurred by the deceased personally under the loan agreement and that his cause of action did not survive death under the Law Reform (Miscellaneous Provisions) Act 1994 (NSW). 554Bryson J started from the position that the Act "does not in its terms confer a cause of action or a right to apply for relief on any person" and went on to say: The Act by subs11(2) authorises the commencement of proceedings - "Proceedings may be commenced in the Court for the purpose of obtaining relief under this Act in relation to a contract." It is not explicitly stated by whom the proceedings may be commenced. The orders which the Court may make appear principally from subs7(1), which authorises the making of orders of a number of different kinds which would have effects on the provisions of contracts. The legislation does not limit such orders to effects which provisions of contracts have upon the persons applying for an order. The processes which the Court is to follow in deciding whether or not to make an order are such that it is not possible to say before an order is made that any applicant is entitled to an order; there are no facts or circumstances on the proof of which an order will follow as of right. In my opinion the opportunity to make an application to the Court under the Contracts Review Act s not a chose in action which any person owns, or a cause of action vested in a person or extinguished by the death of that person under the law as it stood before 1944, or continued in existence under the Act of 1944. It is not possible for the Court to accord or withhold standing to applicants on the basis of recognising whether or not they have a prima facie right to relief. A decision on standing must be based on an appraisal of whether, prima facie, the applicant has rights which may be affected by a possible outcome. By authorising commencement of proceedings for orders modifying obligations the Act impliedly authorises persons whose rights may be affected by an order to apply for one; the Act means nothing unless the orders can be sued for. The question of standing of the plaintiffs to claim an order under the Contracts Review Act does not involve any complexities such as beset standing in public law: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. This is not a case where the claim is adjectival to some remedy under a law for the protection of the public. The Act is, as its terms make obvious, for the protection of persons who incur contractual liabilities and such persons need no explicit enactment to make clear their rights to claim under it. There is no need to examine the subject completely, and it is enough to say that in my opinion persons have standing to apply to the Court to make orders under the Act if rights of theirs would be directly affected by orders which could be made. In my opinion the power of the Court extends to modifying the obligations of one debtor under a contract on the application of another debtor; that power could be exercised if there were a good reason to exercise it constituted by a direct effect on the interests of the applicant in the modification of the obligations of the other debtor." (emphasis mine) 555Bryson J held that the plaintiffs' rights were directly affected by the personal liability of the deceased and, if their liability were modified and his were not, they would have contribution liability to his estate. His Honour noted that the deceased's executors had a direct interest in modifications of his liability, as did the three residuary beneficiaries and held that the plaintiffs could bring a claim seeking relief with respect to the deceased's obligations. 556Applying Bryson J's test for standing, that is, whether or not the application has rights that may be affected by a possible outcome, N would appear to have standing to apply for relief under the Act to argue that the March Deed was "unjust" due to the alleged conduct of A toward E even though E himself does not contend that. 557Pursuant to s 9, the matters to which the court is to have regard in determining whether a contract is unjust include whether there was any material inequality in bargaining power; whether or not the contract provisions were the subject of negotiations; whether or not it was reasonably practicable for the parties seeking relief to negotiate for the alteration of any of the provisions of the contract; whether or not the provisions of the contract imposed conditions with which it was reasonably difficult to comply or which were not reasonably necessary for the protection of the legitimate interests of any party to the contract. They also include those matters itemised in sub-ss9(2)(g), (h) and (i) - namely, the physical form of the contract and the intelligibility of the language in which it is expressed; whether or not and when independent legal or other expert advice was obtained by the parties seeking relief; and the extent, if any, to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the parties seeking relief and whether or not that party understood the provisions and their effect. 558In addition to the factors set down in s 9(2), to which the court must have regard, to the extent relevant in determining whether a contract or a provision of a contract is unjust, s 9(1) provides that the court must have regard to the public interest and to all the circumstances of the case (West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 621, per McHugh JA as his Honour then was). 559In West v AGC (at 620), McHugh JA recognised that a contract can be unjust "because of the way it operates in relation to the claimant or because of the way in which it was made or both." His Honour contrasted "substantive injustice", arising because the terms of the contract or its consequences or effects were unjust and "procedural injustice", arising because of the unfairness of the methods used to enter into the agreement, though recognizing that there could be both substantive and procedural injustice. At 621, his Honour observed that a contract could be "unjust" even if it not unconscionable, harsh or oppressive. However, it does not follow from the fact that a contract is unjust that relief will automatically be given (particularly where the injustice derives by reason of circumstances not known to one of the contracting parties). 560McHugh JA (making it clear that what the Act regulates is contracts and not investments) said: If a defendant has not been engaged in conduct depriving the claimant of a real or informed choice to enter into a contract and the terms of the contract are reasonable as between the parties, I do not see how that contract can be considered unjust simply because it was not in the interest of the claimant to make the contract or because she had no independent advice. [621G] A contract will not be unjust as against a party unless the contract or one of its provisions is the product of unfair conduct on his part either in the terms which he has imposed or in the means which he has employed to make the contract. [At 622B] 561In Agricultural and Rural Finance Pty Ltd & Anor v John Edward Atkinson & Ors [2010] NSWSC 635, Einstein J noted that analogous situations may be a useful guide in determining whether a contract is unjust and in maintaining consistency in the application of the Act, citing Spina v Permanent Custodians Ltd (2009) 14 BPR 26,923 per Young JA (Tobias and Campbell JJA agreeing). His Honour said: It is also necessary to remember that the mere fact that a party to a contract can point to circumstances that fall within the words of one or more paragraphs in s 9(2) of the Act does not mean that there is an arguable case for relief under the Act: Hogan v Howard Finance Limited (1987) ASC 55-594 at 57, 539 (Hope JA, Street CJ agreeing); Australian Guarantee Corporation v McClelland (1993) ASC 56-230 at 58, 389. 562His Honour observed that the relevant test involved two questions, as set out in Riz v Perpetual Trustee Australia Ltd (2008) NSW ConvR 56-198; [2007] NSWSC 1153, at [51], per Brereton J: The first is whether the contract was unjust in the circumstances in which it was made, having regard to the factors referred to in s 9. This is a conclusion of fact, albeit one of ultimate fact involving a broadly based value judgment [Antonovic v Volker (1986) 7 NSWLR 151 at 154-155 (Samuels JA, Kirby P agreeing); Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 at 270E (Samuels JA); Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [34]-[40] (Spigelman CJ), at [106]-[111] (Basten JA)]. The second, which arises only if the first is resolved in the affirmative, is whether any and if so what relief should be granted; this involves the exercise of a judicial discretion [Khoshaba at [34]-[36] (Spigelman CJ), at [109] (Basten JA)]. 563In Kowalczuk v Accom Finance Pty Ltd (2008) 252 ALR 55, at [87], Campbell JA approved the summary set out in Riz and, at [70] outlined the framework of the Act with regard to the question of contract which is unjust. His Honour noted that s 4(1) provides a non-exhaustive definition of "unjust" as including unconscionable, harsh or oppressive, and that injustice was to be construed in a corresponding manner. Other assistance in ascertaining the intended content of "unjust" is to be derived from s 9. 564The point to which the court must look, when determining whether a contract is unjust within the meaning of the Act is the time at which the contract is made (s 7(1) referring to in the circumstances relating to the contract at the time it was made) as reinforced by 9(1). In Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296, Mahoney P, at 297 said: The central question to be addressed in any application under the Act is whether the contract or a provision of it ... was, at the relevant time, unjust. 565McHugh JA in West v AGC said at 620: ...the court may have regard to any circumstance existing at the time of the contract whether or not a party was aware of that circumstance. But the court cannot have regard to any injustice arising from a circumstance that was not reasonably foreseeable at the time when the contract was made. 566Section 9(5), in Einstein J's view in Agricultural and Rural Finance, made clear that the parties' post-contractual conduct was only to be considered at the second stage of analysis in considering whether it was just to grant relief in respect of the contract or the provision of the contract. Here, the fact that N did not ultimately obtain the benefit envisaged from the access/visitation clause (because E did not return to the Concord property before November 2008) does not render the March Deed unjust. 567As to the general allegation that the contract is unjust, Mr Roberts submits that it cannot be said that E was the weaker party in circumstances where the transfers of the Leichhardt, Concord and Summer Hill properties in favour of N were effected in 2004 and 2005 without any consideration (and she was thus a volunteer in respect of those transactions, though I note the evidence that she paid stamp duty); the transactions initiated by N constituting the original transfer of the Properties and subsequently reinstating the joint tenancies, occurred in circumstances where she had accompanied E, she had drafted documentation on the initial transfers, and E did not have the benefit of independent legal advice and thus failed to understand the nature and effect of the transactions. 568Mr Roberts contrasts this with the position in respect of the transfers severing or attempting to sever the joint tenancies where E had independent legal advice and the documents were signed in the presence of independent solicitors (and where A was not present). 569Applying these principles and the matters set out above, it is submitted by Mr Ahmed that relief ought to be granted under the Contracts Review Act to set aside or vary the March Deed particularly having regard to the factors specified in sections 9(2)(c), (j) and (l).

As to 9(2)(i) - the allegation that E did not understand the effect of the March Deed, reliance is placed on the evidence of Mr Moore that he explained the deed. While that evidence was general in nature, I am not satisfied that the evidence establishes that E did not understand the effect of the deed. 571For the reasons given above, I find that the claims made under the Contracts Review Act have not been established. (vi) Whether the covenant in relation to N's access to E was an essential term of the March Deed (breach of which would entitle N to terminate that deed) and whether A in fact breached that term 572As to breach of the March Deed, it is alleged ([68]) that it was an essential term of the March Deed that A not prevent N from visting E (reliance being placed in this regard on clause 3(e) of the deed). (All that is relied upon for this allegation is the terms of clause 3(e) themselves). It is further alleged that, in breach of that essential term of the March Deed, A "refused or denied N access to her father" [69] and that by virtue of that breach N is entitled (and by her pleading does so) to terminate the March Deed and hence that A is not entitled to have the deed specifically performed ([71]). 573Mr Ahmed submits that A breached this essential term in that "she in fact prevented N, actually and constructively, from seeing her father" (my emphasis). Mr Ahmed submits that in the event that the Court finds that the March Deed should not be set aside for any of the reasons submitted above, the March Deed should be rescinded on the basis of A's breach of this essential term of the contract. I consider below the allegation of breach. I do not accept that any breach has been established but even had it been established I do not accept that it would give rise to a right to treat the deed as having been terminated or to rescind the deed. 574A taxonomy of contractual terms was considered in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 7. With respect to essential terms, which are also referred to as "conditions" (Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26), the plurality (Gleeson CJ, Gummow, Heydon and Crennan JJ) approved the test set out by Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-642: The test of essentiality is whether it appears from the general nature of the contract considered as whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promiser. (my emphasis) 575The High Court plurality noted at [48] in Koompahtoo that Jordan CJ's comment regarding substantial (rather than strict) performance should now be understood in light of later developments in the law, which now embraces an 'intermediate term' as developed in Hong Kong Fir and approved by the plurality in Koompahtoo at [52]. Regarding essential terms or conditions, their honours in Koompahtoo then said at [48] that: It is common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract and (in a case such as the present) the commercial purpose it served, that determines whether a term is "essential", so that any breach will justify termination. (my emphasis) 576As to the consequences of a breach of an essential term, Jordan CJ in Tramways said: If it is a condition that is broken, ie, an essential promise, the innocent party, when he becomes aware of the breach, has ordinarily the right at his option either to treat himself as discharged from the contract and to recover damages for loss of the contract, or else to keep the contract on foot and recover damages for the particular breach. ... If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight. 577Similarly, in Hong Kong Fir, Lord Diplock described the consequences of the breach of a condition as being a breach that relieved the innocent party of the obligation to perform in the future. 578As I understand it, Mr Ahmed relies for the essential nature of clause 3(e) on the last line or sentence of that clause (T 613). I have extracted above the clause in full. Relevantly, it provides for N to vacate the Concord property (other than that she was entitled to leave small items there) within 3 months (ie by 28 June 2008) and for E and A to move into the upper part of the Concord property (at an unspecified time but it might be inferred that this would be after N moved out) and that they were to be entitled permanently to reside there. The clause went on to record the parties' agreement "that N shall be entitled to visit the property at least once a week to see E" (my emphasis) and A covenanted that she "shall take no steps to prevent such visits and shall take no step to deny N access to the property" (again, my emphasis). There is no provision for visits or access to any other property (as Mr Ahmed accepts). The clause concluded: Should she [A] take such a step [ie to prevent "such vists" namely weekly visits to the property to see [E] or to deny [N] access to the property], [N] shall be entitled to seek relief from the Supreme Court of New South Wales and shall be entitled to right of access as co-owner of the Concord Property. This Deed may be pleaded by [N] as a complete bar to any defence that [A] may raise in such proceedings. (emphasis as per Mr Ahmed's submission re essentiality of clause) 579I do not accept that the term in question should be construed as an essential term on the face of the document or having regard to the surrounding matrix of facts. There is no clause in the agreement providing that it, or another other clause, was to be an essential term and the fact that the clause itself specifies the relief that N would be entitled to seek if there were to be a breach by A of the covenant in question (and does so otherwise than by providing a right of termination of the March Deed) suggests that it was intended to continue to operate even if there were to be a breach of the clause. There is not suggestion that N sought to invoke that relief or that the parties contemplated that a breach of the clause would give rise to an automatic termination of the March Deed. The last sentence of the clause simply precludes A relying on any defence A might raise to a claim for relief in respect of the breach of the March Deed. However, it would remain for N to establish that there had been a breach. 580Was there a breach by A of the covenants contained in clause 3(e)? The fact that N may have had no access to her father in the relevant period can have been no breach of the agreement for N to have access to the property to see her father. The obligation on E and A to move back to the Concord property did not specify a time within which that was to occur. In light of the acrimony between A and N (to which Mr Ahmed has referred in the context of the allegations of unconscionable conduct and duress by A), it seems likely that the clause was intended to operate such that N would vacate the property and E and A would then move into the property. N chose, for whatever reason, not to vacate the Concord property. 581I do not consider that any breach of the agreement to permit N weekly access to the property to see E can be established when N was living at the property at the time (having failed to comply with her obligation to vacate it) and when E was not living there. The question is whether it can be said that the failure by A to move back into the Concord property with E was a step taken by A to prevent weekly visits of the kind provided for under the clause. (Of course, that assumes it was A's decision not to move back into the property and not that of E but by June 2008 Professor Dickson had determined that E did not have capacity to manage his affairs, so any such decision must realistically have been made by A - and Professor Dickson's notes reflect as much.) In one sense the decision not to move back into the Concord property until November 2008 had the necessary consequence that N could not visit E at the property in that time. However, the clause clearly contemplated that N would first vacate the property insofar as it speaks of access to the property. So, notwithstanding the ability of N to plead clause 3(e) as a bar to any defence by A for a claim for relief in respect of the provision for access to the property, it does not seem to me to preclude A relying upon N's breach of the obligation to vacate the property as, in effect, extending the time within which she and E were to move back into the property (meaning that until then no obligation to give access to the property could have arisen). 582I am not satisfied that there has been a breach of clause 3(e) by A in all the circumstances. Even had I been so satisfied, I would not have found that it entitled N to rescind the March Deed or relieved her from performance of her obligations thereunder. (vii) Whether A should be granted relief in the nature of specific performance of the covenants contained in the March Deed (and, in particular, whether she is disentitled to such relief by reason of a lack of clean hands) 583The unclean hands defence requires that the conduct in question have an immediate and necessary relation to the equity sued for (Black Uhlans Inc v NSW Crime Commission & Ors [2002] NSWSC 1060; Carantinos v Magafas [2008] NSWCA 304; Kation Pty Limited v Lamru Pty Limited [2009] 257 ALR 336). Hence, equity would not enforce the March Deed at the suit of A if there was unlawful or unconscionable conduct on her part in relation to the entry into the deed or the transactions sought to be performed thereunder such that specific performance would enable her to benefit from, or reward her for, that conduct. However, to the extent that a refusal to compel N to comply with her obligations under the March Deed would prejudice E, then that must also be taken into account when determining whether the conduct of A is such as to warrant a denial of the relief sought. 584Further, to the extent that N's conduct involves N resiling from obligations entered into by her after she had had an opportunity to observe E and to obtain her own independent legal advice, there is a flavour of N now seeking to resile from an agreement that is no longer as favourable to her - ie, while it served a purpose in securing for her the arrangements as to access N was prepared to agree to the benefits provided for A under the deed and now that such arrangements are of no use (because of E's mental condition) N is seeking to deprive A of those benefits. 585Mr Roberts does not dispute that as at late 2007 there was an issue as to E's capacity to participate and give instructions in the proceedings then before the Court, noting that Mr Moore had advised that medical evidence be obtained concerning E's capacity. He also points out that this evidence was served upon N's solicitors and N's solicitors were invited to have E independently examined prior to mediation on 11 March 2008. In effect, this seems to be a submission that N must be taken to have assumed the risk that E may not have been mentally competent at that time. While I do not accept that this conclusion should be drawn, I am concerned that this is a situation where E's tutor does not raise any issue as to this - but N seeks to rely upon it to avoid the separate obligations imposed on her under the deed. 586Mr Zucker emphasises that the March Deed does not require E to do anything other than to participate in the sale of the Summer Hill property and receive 35% of the proceeds of sale (clause 3(j)) and that the NSW Trustee in the interests of E is ready to proceed with that sale and distribution and there is no evidence that E would not have done so but for this litigation. 587I am not satisfied that the allegations as to the conduct said to amount to unclean hands has been made out in relation to the orders for specific performance that have been sought. (While I consider that there would have been a real issue as to whether relief should be given in equity that would reward the conduct in executing transfers that would effect a severance in equity where a severance in common law had been the subject of injunctive restraint, the issue does not arise. Here what is sought to be enforced is the result of a compromise entered into with the benefit of independent legal advice and in circumstances where the complaints now made go to issues that were known or the possibility of which was known at the time.) 588N asserts unclean hands on A's part in that A has failed to comply with the access provisions contained in clause 3(e) of the March Deed. As noted earlier, insofar as the access provisions related to visitation rights at the Concord property from which N had yet to depart and I am of the view that such conduct is likely to have contributed to the decision by A and/or E not to return to the Concord property at that time, I consider that there is no lack of clean hands on the part of A which can be relied upon by N in her defence to the claim for an order requiring the transfer of her interest in the Leichhardt property to A. In relation to the entry into the March Deed, for the reasons given above in relation to the allegations of undue influence and unconscionable conduct, I find that the unclean hands defence has not been established. Conclusion 589I consider that A has made out her claim for relief by way of an order to compel performance of the obligation of N to effect a transfer of her half interest in the Leichhardt property to A. (It is not an order for specific performance strictly so-called as the deed has been executed and so performance is not being ordered of an executory contract (see Meagher Gummow Lehane's Equity: Doctrines and Remedies (4th ed, 2002) at [20-010]-[20-015]). Thus the principle that specific performance is awarded in whole and not in part does not apply.) 590N has failed in her claims for relief against A. As to declaratory relief, I consider that E had capacity when he executed the transfers in December 2007 but a declaration as to this was not sought (and it would seem to be of no utility in the light of the relief I propose otherwise to grant). In the circumstances there is also no utility to any declaration as to capacity as at the time of the January 2007 severance of the joint tenancies. 591Where I consider that there is a question is as to whether A has made out her claim for an order for the vacation of the Concord property by N. True it is that N was obliged under the March Deed to vacate the property within 3 months and failed to do so; and that E was entitled to live there for his lifetime. However, what the March Deed did not address was the circumstance that E would leave the Concord property due to ill health (as has now happened). The March Deed provided for A to vacate the property within 3 months of E's death but this seems to have been premised on the assumption that E and A would be living there up to his death. Mr Ahmed submitted that if the March Deed were to be upheld or parts of it not disturbed, then N should be permitted to remain in the Concord property. 592I note that in the context of the negotiation of the March Deed concern was expressed by N's solicitor that there be no ongoing dispute as to the Concord property. Ironically, that concern being uppermost at least in his mind, it seems to me that the situation is that the parties did not address what was to happen in the events that have now transpired. It is not for me to re-make their deal in that regard. The position is that E is not capable of exercising his right to remain in the Concord property (and it is accepted that he will not be in a position ever to return to live in that property). As N is his co-owner under the subsisting joint tenancy, she would have an entitlement to occupy the property but for any arrangement between the two of them and the only circumstance in which that right was suspended no longer applies. While there might potentially be an issue as to the payment of an occupation fee to E for the benefit obtained by occupying the whole of the property to his exclusion, no such issue has been raised by the NSW Trustee and Guardian and I do not consider it further. 593Therefore, while I will grant the relief sought in relation to the transfer of N's half interest in the Leichhardt property to A, I do not consider it appropriate to order that N vacate the Concord property. As to the Summer Hill property, Mr Ahmed had instructions to agree to a trustee sale of that property. I will direct that N and the NSW Trustee and Guardian submit signed consents to act by proposed trustees (as agreed between them or otherwise as each contends would be appropriate) in order to permit such a trustee sale to be effected. Orders 594For the reasons above, I propose to order as follows: 1.Order that the first defendant take all steps and execute all documents necessary (including delivery to the plaintiff within 14 days of the title deed to the Leichhardt property) for the transfer into the plaintiff's name of the first defendant's interest in that property. 2.Declare that, by virtue of the covenants contained in the March Deed, the first defendant's interest in the Leichhardt property has been held on trust for the plaintiff from the date of the March Deed, so as to effect a severance of the joint tenancy between the second defendant and the first defendant in respect of that property; 3.Direct that the first defendant and the second defendant by his tutor file within 14 days signed consents to act by proposed trustees to be appointed as trustees for the sale of the Summer Hill property (with the proceeds of sale to be distributed as to 35% to the second defendant and 65% to the first defendant). 595I will then re-list the matter for orders to be made for the appointment of trustees for sale of that property in due course. (Failing agreement between the defendants as to the persons to act as trustees for sale, each is to file within the 14 day period consents to act by the persons he or she nominates and submissions as to why those persons should be appointed.) 596I will hear submissions as to the costs of the proceedings at a time convenient to the parties and the Court.

A v N & anor

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Cases Cited (91)

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