A v N & anor

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).

1. Sever joint tenancy
2. 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.

1. [A] will receive the transfers in her favour of the one hundredth the interest in each of the Concord..., Leichhardt... and Summer Hill properties.
2. [N] agrees to grant a life estate in favour of [E] re Concord ... within ....... [dots as per original] weeks from today.
3. [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.
4. 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%.
5. [N] will transfer her half share in Leichhardt ...
6. [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.

2. 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.
3. 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).

1. [E] has sufficient cognitive ability to give instructions in relation to the revocation of a Will or the creation of a new Will.
2. [E] is mentally capable of giving instructions in relation to being represented in Supreme Court proceedings and also any Guardianship Tribunal proceedings.
3. [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.)

1. [E] has a progressive dementing disorder. This disorder was present in 2007 and 2008, and continues.
2. This disorder would have removed his testamentary capacity.
3. The loss of testamentary capacity occurred between June 2007 and June 2008.
4. His cognitive ability fluctuated in time.
5. When formally assessed on 26 November 2007 (Report 3 December 2007), his testamentary capacity was on the margin regarding competence.
6. 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.
7. 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:
8. 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.)

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