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[2025] NSWSC 1606
General information, not legal advice.
Supreme Court of NSW
2025-12-23
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Arambatzis v Cristian [2025] NSWSC 1606
Hearing dates: 2-5 December 2024, 27 February 2025
Date of orders: 23 December 2025
Decision date: 23 December 2025
Jurisdiction: Equity
Before: Meek J
Decision: Summons and amended statement of claim dismissed.
Catchwords: EQUITY — ADVANCES OF MONEY — GIFTS — Purposes — Claim by the plaintiff to recover land purchased in the name of the defendant and other amounts of money transferred to the defendant — Recovery of the property is said to be justified in various ways, including a resulting trust, express trust, a common intention constructive trust and money had and received — Presentation of the plaintiff’s case permeated by alternative claim that he, in vulnerable circumstances under a ‘special disadvantage’, was prevailed upon by the defendant and her husband (alleged to be a Sovereign Citizen) as leaders of a cult through undue influence and unconscionable conduct to pay over moneys for the purpose of promoting an illusory ‘Kindom Motherland’ being allegedly a cockamamie purpose — Claims that defendant and husband were cult leaders and that the husband was a Sovereign Citizen rejected — Claims of alleged undue influence and unconscionable conduct rejected — Finding that funds were gifted with the primary purpose of development of a community consistent with a charitable trust, and an incidental purpose to benefit the Cristian family — Held property accordingly unrecoverable by the plaintiff
WORDS AND PHRASES — ‘Sovereign Citizen’ — ‘Cult’— ‘Gift’
EQUITY — ADVANCES OF MONEY — GIFTS — Principles discussed — Capacity requirements — Various purposes discussed distinguishing predominant purpose and incidental purposes
EQUITY — Trusts — Resulting Trust — Purchase money trusts — Contest regarding purpose, if any, of provision of funds used to purchase a farm — Defendant and husband under the name ‘Love for Life’ espouse ideas regarding ‘Kin Domains’ (a form of family homestead) and aspire to build a community on land ‘where no one owns the land’, growing enough food and maintaining the land such that they and others can leave ‘the System’ and benefit the broader community through provision of free food — Plaintiff first emailed the defendant and her husband in 2008 expressing interest in their ‘Kindom’ — Plaintiff later messaged defendant’s husband from 2017, making the first payment into the defendant’s account — From April 2022, communications between the plaintiff and defendant’s husband along with payments into the defendant’s account heavily increased — Plaintiff initially transferred $100,000 in April 2022 and, consequent upon the parties locating a suitable property, wrote a cheque for $575,000 in September 2022
EQUITY — Trusts — Charitable trusts — Charitable purposes — Whether the identified purpose is a valid charitable purpose — Discussion of the fourth head of Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531 — Held purpose is within the spirit and intendment of the Statute of Elizabeth — Whether the public benefit element — Held it meets the public benefit test — Held valid charitable trust
EQUITY — Trusts — Charitable Trust — Trusts with mixed purposes — Discussion of Charitable Trusts Act 1993 (NSW) s 23 — Determined that incidental benefit to the Cristian family did not invalidate the primary charitable purpose
EQUITY — Trusts — Charitable Trust — The trust does not fail for impossibility or impracticability
EQUITY — Unconscionable conduct and undue influence — Alternative submission by plaintiff that the defendant procured the purchase funds from the plaintiff by exercising undue influence — Plaintiff submits defendant and her husband threatened him and others with physical violence, manipulated him into providing further funds as the only way to ‘save’ the $100,000 he had transferred, and by generally targeting and exploiting him — Submissions rejected
CIVIL PROCEDURE — Litigants in person —Distinguishing between submissions and evidence
Legislation Cited: Conveyancing Act 1919 (NSW)
Electronic Transactions Act 2000 (NSW)
Evidence Act 1995 (NSW)
Property Law Act 1958 (Vic)
Cases Cited: Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42
Allcard v Skinner (1887) 36 Ch D 145
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Attorney-General v National Provincial & Union Bank of England [1924] AC 262
Ballenden v Bryant [2012] NSWSC 1471
Ballenden v Bryant (No 2) [2013] NSWSC 454
Balout v Touma; Dobro Dosle Pty Limited t/as Amalgamated Investments Trust v Balout [2025] NSWSC 459
Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316; [1937] HCA 64
Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566; [1998] HCA 59
Bauskis v Liew [2013] NSWCA 297
Bosanac v Federal Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Brisbane City Council v Attorney General for Queensland [1979] AC 411
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales (2024) 116 NSWLR 314; [2024] NSWCA 30
Clarke v Terry (1859) 1 Legge 753
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474; [1983] HCA 14
Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 53
Commissioner of Taxation of the Commonwealth of Australia v McPhail (1968) 117 CLR 111; [1968] HCA 13
Coshott v Sakic (1998) 44 NSWLR 667
Davies v Perpetual Trustee Co (Ltd) [1959] AC 439; [1959] 2 All ER 128
Downing v Commissioner of Taxation (Cth) (1971) 125 CLR 185; [1971] HCA 38
Downing v Federal Commissioner of Taxation (1971) 125 CLR 185; [1971] HCA 38
Equity Trustees Executors & Agency Co Ltd v Epstein [1984] VR 577
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128
Flynn v Mamarika (1996) 130 FLR 218
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17
Goodman v The Mayor of Saltash (1882) 7 App Cas 633
Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925
Hamod v New South Wales [2011] NSWCA 375
Harmony – The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276
Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111; [1930] HCA 26
Hickey v Attorney-General (NSW) [2021] NSWSC 772
In re Macduff [1896] 2 Ch 451
In re Pleasants; Pleasants v Attorney-General (1923) 39 TLR 675
Incorporated Council of Law Reporting (Q) v Commissioner of Taxation (Cth) (1971) 125 CLR 659
Inland Revenue Commissioners v Yorkshire Agricultural Society [1928] 1 KB 611
Johnson v Buttress (1936) 56 CLR 113
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Latimer v Commissioner of Inland Revenue [2004] 4 All ER 558; [2004] UKPC 13
Leahy v A-G (NSW) [1959] AC 547; (1959) 101 CLR 611; [1959] 2 All ER 300
Leary v Federal Commissioner of Taxation (1980) 47 FLR 414; [1980] FCA 134
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Matouk v Matouk (No 2) [2015] NSWSC 748
Maxwell v Maxwell [2022] NSWSC 1028
McGovern v Attorney-General [1982] Ch 321
McWhinney v Melbourne Health (2011) 31 VR 285; [2011] VSCA 22
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Monds v Stackhouse (1948) 77 CLR 232
Muschinski v Dodds (1985) 160 CLR 583
New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47
Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121
Ogilvie v Littleboy (1897) 13 TLR 399
Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; [1951] 1 All ER 31
O’Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40
Papas v Co [2018] NSWSC 1404
PF 473 Pty Ltd v Qasim [2024] NSWSC 874
Potter v Potter [2003] 3 NZLR 145
Randwick City Council v Fuller [1996] NSWCA 444
Re Centrepoint Community Growth Trust [2000] 2 NZLR 325
Re Compton [1945] Ch 123; [1945] 1 All ER 198
Re Foveaux [1895] 2 Ch 501
Re Income Tax Acts (No 1) [1930] VLR 211; (1930) 36 ALR 192
Re Saxone Shoe Co Ltd’s Trust Deed [1962] 2 All ER 904
Re Tree [1945] Ch 325
Reeves v State of New South Wales [2024] NSWCA 125
Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396; [1938] HCA 39
Scottish Burial Reform and Cremation Society Ltd v Glasgow Corporation [1968] AC 138
Thompson v Commissioner of Taxation (1959) 102 CLR 315; [1959] HCA 66
Verge v Somerville [1924] AC 496; [1924] All ER Rep 121
Wheatley v Peek [2025] NSWCA 265
Whereat v Duff [1972] 2 NSWLR 147
Ying v Song [2010] NSWSC 1500
Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51
Texts Cited: Alberro, Heather, “Utopia isn’t just idealistic fantasy – it inspires people to change the world”, The Conversation (21 June 2019)
Andreeva, Julia, “Traditions and the Imagined Past in Russian Anastasian Intentional Communities” (2021) 2 Journal of Ethnology and Folkloristics 25
Andreeva, Julia, “Verbal Cliches of Followers in the ‘Anastasia’ New Religious Movement” 57(2) Anthropology & Archeology of Eurasia 88
AU Stadiums, “Accor Stadium” (Webpage) (see endnotes for accessible link)
Britannica Dictionary, online ed
Cambridge Dictionary, online ed
Dal Pont, GE, Law of Charity (3rd ed, 2021, LexisNexis)
Davidov, Veronica, “Beyond Formal Environmentalism: Eco-Nationalism and the ‘Ringing Cedars’ of Russia” (2015) 37(1) Journal of Culture & Agriculture 2
FIC, “Author” Saul of-Hearts” (Webpage) (see endnotes for accessible link)
Foundation for Intentional Community, “How a Mystical Novel Spurred the Ecovillage Movement in Russia” (15 September 2016) (Webpage) (see endnotes for accessible link)
Fulton, Helen, A Companion to Arthurian Literature (2012, John Wiley & Sons)
Goodreads, “The Ringing Cedars of Russia Series” (Webpage) (see endnotes for accessible link)
Heydon, J D and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 8th ed, 2016)
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Category: Principal judgment
Parties: Sotirios Arambatzis (Plaintiff)
Fiona Cristian (Defendant)
Representation: Counsel:
P Newton SC (Plaintiff)
Solicitors:
Rockliffs Lawyers
File Number(s): 2023/250875
Arthurian literature involves a body of stories and medieval romances centring on a legendary King Arthur, and tales of epic battles and quests. [1] There is debate regarding whether “Arthur” existed as a historical person. [2] Whether or not there is some skerrick of historicity, fascination with the Arthurian character has galvanised many authors, including the great John Steinbeck, [3] to recount the legend. The tales transcend cultures, with great variation of themes, events and characters in each text.
This case tests the bounds of the notion that “truth is stranger than fiction”. [4] It requires examination of the beliefs, activities and objectives of an Arthur Cristian and his wife, Fiona Cristian (defendant), alleged by Sotirios Arambatzis (plaintiff) to be the cult leaders of a ‘Kindom Motherland’.
In mundane terms, the proceedings involve an attempt by the plaintiff to recover land at Temagog (Ironbark Farm, Farm or Property) purchased in the name of the defendant and other amounts of money transferred to the defendant.
The plaintiff’s asserted routes to recovery of property are said to be justified in a number of ways, including, principally, by means of a resulting trust. Alternative routes of recovery including claims based on an express trust, a common intention constructive trust and money had and received, have been propounded. [5]
However, the normality of those paths has been overshadowed by a final alternative claim by the plaintiff that he, in vulnerable circumstances under a “special disadvantage”, [6] was prevailed upon by the defendant and her husband as leaders of a cult through undue influence and unconscionable conduct to pay over moneys for the purpose of promoting a ‘Kindom Motherland’: [7]
as the church for their cult where members will congregate in the church of nature and not the church of concrete, plastic and steel that most worship in the "System".
(a) it is ridiculous and accordingly there was a fundamental failure of any meaningful or legally permissible purpose; and (b) the plaintiff was induced to part with his property for such a ‘cockamamie’ [10] purpose.
The defendant disputes that she and her husband are a cult. [11] She denies that the funds were held on trust [12] and says that, rather, the funds were gifted [13] by the plaintiff pursuant to an arrangement between Arthur and the plaintiff [14] for the purpose of creating a “community on the land”, [15] described as a ‘Kindom village’ [16] and a “benevolent community endeavour” [17] . Such an endeavour, she contends, has been in the public knowledge and public domain since 2006. [18] Ultimately, she disputes the plaintiff is entitled to transfer of the land or return of his monies.
Along with employing the terminology of ‘kindom’, the community envisioned is also referred to as a ‘Do No Harm Community’ [19] (including by the plaintiff in his early email communications). [20] The defendant says these ideas were developed and espoused by mainly Arthur [21] but also herself since 2006. [22] The defendant registered the business name ‘Love for Life’ in 2006 [23] which was then used as a vehicle to promote the community they envisioned, [24] through a Website, [25] and on Facebook. [26] They uploaded videos and articles, [27] some of which the plaintiff says he viewed, [28] including various series under a “Love For Life Insight Video(s)” heading.
Significantly, the payments made by the plaintiff to the defendant (outlined below) were made to a bank account in her name associated with ‘Love for Life’, [29] which was published on the ‘Love for Life’ Website. [30]
Ultimately, I reject the plaintiff’s claims that that defendant and Arthur were cult leaders and Arthur was a Sovereign Citizen and also reject his claim that the payments made by him were infected by unconscionable conduct for vague and illusory purposes.
I have determined that the funds were gifted with the primary purpose of development of a community (detailed below) consistent with a charitable trust and an incidental purpose of benefiting the Cristian family by providing them with a place to live. Accordingly, the plaintiff is not entitled to recovery of the land or monies. Discernment of that outcome has been a prolonged and difficult task, due, in part, to the unusual nature of the events that gave rise to the plaintiff paying monies over to the defendant, the less than ideal evidentiary materials, and aspects of the way the case was presented.
The unusual nature of the plaintiff’s contentions really called for some introductory and contextual material to explain details of the parties, their beliefs and objectives and how those matters impacted the claimed entitlement to relief or resistance of such claims.
However, unhelpfully, there was little or no ordered recounting by the parties of their biodata, upbringing or other basic familial history to contextualise or make sense of the evidence.
To use the colloquial, aspects of the evidence were “all over the shop”. It required an effort greater than usual to glean snippets from the ‘four corners’ of the evidentiary landscape, being the Court Book, bundles of documents and the Transcript. This made fact-finding difficult.
The plaintiff is of Greek heritage and appears to be based in Melbourne, at least as of May 2024. [31] He commenced living with a partner, Elly Zandi (Elly), [32] in a de facto relationship [33] seemingly from on or about 30 March 2018 [34] in a unit at Edithvale, Victoria [35] (a beachside suburb 28 km south-east of Melbourne's CBD). The Edithvale property had been purchased in December 2017 for $915,000 with a Bank Australia mortgage, and it appears, when they began living together, they jointly contributed to the mortgage. [36] As will be recounted below, he eventually separated from Elly and the Edithvale property was transferred to her for an agreed sum.
By October 2023, a few months after the commencement of the proceedings, the plaintiff described himself as a Systems Engineer and was living at Mentone [37] (another beachside suburb about 7-8 km closer to Melbourne CBD). The defendant understood that the plaintiff worked as a Software Engineer in the financial field. [38] He banked with Bank Australia. [39]
Detail of the plaintiff’s age is elusive. However, the defendant asserted that the plaintiff was 48 years old, [40] seemingly at the time of the critical events. [41]
The defendant is married to Arthur Cristian, [42] who is also of Greek heritage. [43] Arthur previously went by the name “Athanasios Bouradas”. [44] They have 4 daughters, the youngest being Xanthe, who, at the time of the hearing was their only child living at home. [45] In 2022, they had a number of pets, including 3 dogs, one named Meg. [46] Some of the defendant’s family appear to be overseas. [47]
Likewise, the ages of the defendant and Arthur are not readily disclosed in the evidence. However, in 2008, the defendant was raising small children [48] and in November 2023, Xanthe was nearly 17 [49] and accordingly it is likely that the defendant is at least in her 40’s or perhaps older.
The defendant at some stage in her adult life taught English for four years. [50] Currently, she works five days a week externally (i.e. not on the Property), [51] composed of gardening work for clients [52] and two mornings of administration work for her old employers in the Southern Highlands, [53] possibly at Braemar. [54] Altogether, she earns an income [55] which amounts to about $1,500 a week. [56]
Generally, in her words, she engages in commerce, runs a business and has commercial interests. [57] She has an individual/sole trader ABN [58] which was active at least from 7 February 2017. [59] However she is not registered for GST. [60] She has a bank account in her own name [61] with the Australia and New Zealand Banking Group Ltd (ANZ). [62]
The defendant spends her income on day-to-day living expenses as well as on the Property. [63]
Arthur works ‘on the land’ (i.e the Property). [64] He, according to the defendant, has no commercial contracts, bank accounts [65] or other means.
The plaintiff’s contact with Arthur appears to date from about 2008. The defendant asserts that the plaintiff was the one who initiated contact, in a context in which he was interested in ‘freeman sovereignty law’. [66] She claims the main contact was between the plaintiff and Arthur rather than herself. [67]
I accept the defendant’s indication, [68] supported by email records, that the first contact between them was made by the plaintiff on 20 September 2008 regarding a Love for Life campaign. Within his email, he stated “I was pleasantly surprised to find someone is continuing to educate people in Common Law in Australia” and expressed interest in being notified of the next scheduled workshop presentation by Mark Pytellek (who appears to be or has been involved in the Sovereign Citizen movement) [69] in Melbourne or being added to his distribution list. [70]
Shortly after, he sent another email on 24 September 2008 in which he stated: [71]
I am certainly interested in Mark's training materials. This is the first time I have heard of anyone in Australia implementing what I have read and heard other doing in the US and Canada. Once a price has been set on the materials. please advise. Some of my thoughts below:
Your Kindom (Do No Harm Communities) sound great …
Contact between the plaintiff and Arthur for the next decade appears to have been somewhat sporadic. Indeed, the defendant asserts that the first time she can recall speaking with the plaintiff was in early 2022 when he and Arthur had started to talk more by message and on the phone. [72]
The defendant contends that the communications that led to the plaintiff making a few payments in 2017-2019 and many payments in April-October 2022 occurred in a context where the plaintiff was very interested in and aware of the idea of community and also freeman sovereignty law (though she says her and Arthur are not interested in freeman sovereignty). [73]
There is a miscellany of other persons referenced in the evidentiary material. For present purposes, it is not necessary to reference all of them. However, the following may be briefly noted.
Leaving aside the plaintiff, there are a number of other people who appear to have been associated with Arthur and the defendant’s enterprise, including Bruno Ferro (Bruno) and Hannah Louise Bennet Wood (Hannah). [74]
Bruno, who had at some stage worked at the Commonwealth Bank in IT, lived in Sydney, and was known by Arthur since around 2007. [75] Arthur described by him as being a “strong close friend” and a “fantastic supporter of our kindom dream work and our lives”. [76]
Hannah has known the defendant and Arthur since the beginning of 2011. [77] She helped them when they were living in the Southern Highlands with gardening, preparing meals, babysitting, cleaning and other household duties. She has also financially supported Love for Life.
Notably, it seems Hannah and others, through their financial support of the ‘Kindom dream’, incidentally supported the Cristian family more broadly. Arthur refers to Bruno’s contributions as follows: [78]
He has gifted us tens of thousands of dollars over the years to be sure we had food on the table, roof over our heads, clothes, gear we need, cars, etc.
Ironbark Farm [79] is zoned as rural property, [80] located on the Temagog Road, approximately 31 km north-west of the main township of Kempsey. It is within the boundary area of Kempsey Shire Council and is subject to various rates and charges issued by the Council. [81] The Property is 10.75 ha in size, though presents more like an isosceles triangle in shape rather than a quadrilateral. [82]
To give some conception of the size of the area of the Farm, it is approximately 4.8 times the size of the arena dimensions [83] of the stadium at Sydney Olympic Park. Having said that, it is far from evident that all of that area is habitable or arable land.
The defendant (albeit in submissions) described the topography of the land in the following terms: [84]
The land has gentle north facing slopes, wooded areas for shade as well as open grass areas, now that we’ve slashed it all, two large dams, one small dam, excellent water catchment potential from the road, good runoff, and protection from the southerlies.
The plaintiff asserts he made payments totalling $784,459.99 to the defendant from 17 August 2017 to 17 October 2022. [85] Mr Newton SC submitted that the figure is admitted on the pleadings. [86] The funds are set out in what is described as a ‘Schedule of Payments’ [87] (Plaintiff’s Payments Schedule or PPS, attached at the end of the judgment). The PPS lists payments over a period from 17 August 2017 to 28 October 2022. But the total in the PPS is $785,060.99 being a different total to the $784,459.99 cited above. The listed figures in the PPS were prepared by the plaintiff based on his recollection and bank statements held by him and, [88] subject to some matters that I will note below, represents a more precise total.
The relief sought in the Amended Statement of Claim (‘ASC’) relates to recovery of the Property and certain funds. It is essentially grouped as follows:
relief in the form of declarations, orders, judgment for possession and leave to issue a writ in respect of the Property; [89]
claims for declarations and judgment or repayment of various sums of money, including a loan of $50,000, [90] and sums of $109,459.99 [91] and (in the alternative to the claims regarding the Property) $784,459.99, [92] all plus interest; and
costs and other associated relief. [93]
There is a degree of doubling up in all those figures. The sum of $784,459.99 is, as noted above, said to be the total amount paid. The purchase price of the Property was $625,000. It is not clear why the sum of $109,459.99 has been claimed (that sum is $675,000 less than $784,459.99) in addition to the $784,459.99. It is clear that the total of $784,459.99 also includes the sum of $50,000 said to be lent.
Broadly speaking, the defendant denies that the Property is held on trust for the plaintiff. [94] She disputes that any of the orders proposed by the plaintiff are appropriate, because they are inconsistent with the agreements made by the plaintiff and Arthur regarding the purpose for the purchase of the Property and all other financial gifts. [95] Particularly, she argues that the land is held in trust by her for the community. In her written outline of submissions (DOS) and in her oral closing submissions, she raised a sweep of legal concepts, including: clean hands doctrine, duty of care, unjust enrichment, constructive fraud, contract law, and the doctrine of illegality. Some of the arguments regarding those principles appear to be misunderstood and thus incorrectly deployed.
Mr Newton SC on behalf of the plaintiff read 3 affidavits from the plaintiff. [99] The defendant had initially prepared 4 affidavits. [100] Eventually, only the first and fourth of those affidavits were read. [101] On the fourth day of the hearing, the defendant sought to read a further affidavit from Hannah which, subject to some objections and my subsequent rulings, was permitted. [102]
A mostly chronological bundle of documents (exhibit JP1 or Court Book or CB), drawn in part from affidavit materials and otherwise supplemented by the parties, was tendered and admitted without objection. [103] The plaintiff tendered without objection a number of invoices in respect of the sheds (exhibit P1), [104] an assessment report in relation to an insurance claim regarding the Property (exhibit P2), [105] and a claim's finalisation statement (exhibit P3). [106]
The defendant tendered without objection a folder of materials (exhibit D1), [107] a bundle of photos showing the Property when first purchased and various aspects of work done on the Property (exhibit D2), [108] and a further bundle of photos disclosing improvements to it and work done in the Property and in respect of efforts to protect the Property from a bushfire (exhibit D3). [109]
I will cite the evidence in the proceedings, as I already have, by reference to the Court Book, transcript pages (T) and exhibit numbers. I will cite the submissions by reference to: the plaintiff’s outline of submissions dated 28 November 2024 (marked MFI-2) (POS); the defendant’s outline of submissions dated 28 November 2024 (marked MFI-3) (DOS); the plaintiff’s supplementary submissions dated 17 January 2025 (PSS); the defendant’s supplementary submissions (DSS) dated 16 January 2025 and the plaintiff’s submissions in reply (PRS) dated 21 January 2025.
The difference between submissions and giving evidence can be a difficult distinction for litigants in person to make. [110] Particularly when litigants in person are relying mainly or solely on their own affidavit evidence, as is the case here, the lines can blur with giving evidence from the bar table. [111] Further, due to the nature of the evidence and the terminology used by the parties, at times, I asked clarifying questions which were answered mostly by the defendant from the Bar table. Mr Newton SC did not object to questions I asked or to answers or statements from the defendant. Further, this mainly occurred at the beginning of the hearing before her cross-examination, giving Mr Newton SC a chance to cross-examine her on anything raised in that introductory dialogue. Nonetheless, in my regard to statements or assertions she has made from the Bar table, I have been conscious to consider it only in light of the evidence formally before the Court. [112]
2022-07-22 18:28:26 Arthur Lolllll well done on you taking your stance, of your doing, and of your conviction.
2022-07-23 11:16:29 Soti Got your back if you need it [heart upon heart emoji]
There are certain consequences that flow from the lack of any evidence from Arthur.
First, the Court has to assess the parties’ evidence regarding conversations with Arthur without the benefit of Arthur’s position as to whether conversations occurred and the content of the alleged conversations.
Secondly, it raises the question of whether a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel) inference ought to be made. During the hearing, I asked Mr Newton SC whether he intended on making submissions regarding that and he confirmed that was his intention. [115] Later on in the hearing, I raised with Mr Newton SC whether that principle applies in circumstances where a litigant in person is not necessarily aware of the possible adverse inference that might be drawn if evidence is not adduced from a particular person. [116] Mr Newton SC indicated he would address the issue in further submissions. Ultimately, in the PSS, Mr Newton SC at [99] stated that “Having regard to the admissions evidence, allegations and submissions referred to in paragraphs [56] to [98] above, it is unnecessary to consider whether the court may draw a Jones v Dunkel inference”.
The inferences permitted to be drawn under the ‘rule’ are not ‘at large’ but explained by the High Court in many cases including Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64] per Heydon, Crennan and Bell JJ.
As noted by Payne JA recently in Wheatley v Peek [2025] NSWCA 265 at [63] (Bell CJ at [1] and Mitchelmore JA at [80] agreeing)
- The limitations of the principle were addressed in SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175 where Stern JA, with whom Ward P and Price AJA agreed, said the following:
[161] As is well established, Jones v Dunkel cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference: see eg Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2] (Allsop P, Macfarlan JA agreeing). It does not permit a court to infer that the uncalled evidence would have been positively damaging to a party’s case, nor does it supply missing gaps in the evidence: RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Ward JA, as her Honour then was, Basten and Meagher JJA agreeing).
Potentially, Ms Robinson could have given some relevant insight as to the disclosed purpose of purchase of the Property and the parties’ intentions.
However, she was not called to give evidence and as far as I can detect no subpoena has been issued to her firm for its file and, apart from a few emails with Ms Robinson, [117] none of the correspondence with her appears to have been otherwise included in the Court Book. In any event, Mr Newton SC did not make any Jones v Dunkel submission regarding the absence of Ms Robinson.
The parties were unable to agree on a list of issues.
The plaintiff presented a list of issues for hearing constituting 11 issues. [118] The defendant for her part raised 5 further issues which, according to Mr Newton SC, the plaintiff did not agree contained admitted facts or raised real issues. [119]
The plaintiff’s list of 11 issues (as expressed by Mr Newton SC) is as follows:
Whether the defendant holds all her right, title and interest in the Property on trust for the plaintiff?
Whether the plaintiff and the defendant agreed that the Property be purchased for the purpose of creating a community on the land with no one owning the land?
Whether there was an intention to create a trust for the purpose of creating a community on the land with no one owning the land?
Whether the alleged agreement and/or trust that the Property be purchased for the purpose of creating a community on the land with no one owning the land fails for uncertainty?
Whether the failure to satisfy section 23C of the Conveyancing Act 1919 (NSW) (Conveyancing Act) renders the alleged agreement and/or trust that the Property be purchased for the purpose of creating a community on the land with no one owning the land ineffective?
Whether by reason of section 54A of the Conveyancing Act no action or proceedings may be brought on any alleged agreement that the Property was purchased for the purpose of creating a community on the land with no one owning the land?
Whether during the period from or about 17 August 2017 to on or about 17 October 2022 the defendant requested money from the plaintiff?
Whether the defendant agreed to borrow $50,000 from the plaintiff in or about October 2022?
Whether the total amount of $784,459.99 paid by the plaintiff to the defendant was gifted by the plaintiff to the defendant?
In the event the Court finds that the payments were gifted by the plaintiff to the defendant:
(a) Whether the payments were procured by the exercise by, or on behalf of, the defendant of undue influence over the plaintiff? (b) Whether each gift of money ought to be set aside? and
(a) Whether it is unfair or unconscientious that the defendant procure or accept and retain the payments? and (b) Whether each gift of money ought to be set aside?
The defendant’s list of issues is as follows (using the defendant’s terminology):
Whether all gifts from the plaintiff were actually to Arthur Cristian, husband of the defendant and a legal alien, for the benefit of community, and not to the defendant who was acting for Arthur Cristian as an assigned agent to accept the gifts on his behalf and be a trustee holding the land for the community?
Whether the arrangement between the plaintiff and Arthur Cristian was one of the heart, in good faith, and not a commercial arrangement due to the fact that Arthur Cristian is a legal alien who has not operated in commerce since 2005, to the full knowledge of the plaintiff?
Whether the plaintiff is using constructive fraud under false pretences to deceive Arthur Cristian and the defendant in order to obtain unfair advantage and unjust enrichment by his intention to benefit from all the maintenance and improvements to the Property carried out by Arthur, the defendant and others over two years, when none of them consented to be in servitude for his benefit but were rather working for the benefit of a benevolent community endeavour that is in the public knowledge due to the website www.loveforlife.com.au that has been in the public domain since 2006 (International Covenant on Civil and Political Rights)?
Whether the plaintiff is unconscionably using the Court of Equity knowing he is committing fraud when equity cannot aid a fraud and his argument of constructive trust should fail as an equitable remedy?
Whether the defendant can be held accountable and discriminated against for the actions of her spouse in making agreements and arrangements with the plaintiff regarding gifts for the creation of a benevolent community because the defendant is an assigned agent for Arthur Cristian who is an alien in right of independent sovereignty from the state and gains no personal benefit from the state and has not since 2005?
There is no dispute (subject to a small number of payments) that the plaintiff paid over to the defendant a sum approximating $784,000, a large degree of which funds were used to purchase the Farm.
Certain of those funds were borrowed by the plaintiff from Liberty Financial. The fact that they were borrowed is per se not disputed. However, the defendant disputes that the monies the plaintiff borrowed from Liberty Financial were the subject of any agreement by herself or Arthur to repay the sum. [120]
A central point of contention evident throughout the respective lists of issues, the pleadings and evidence, is the purpose for which the plaintiff made the payments and, in particular, whether it was for creating a community on the land.
The plaintiff in the list of issues and in submissions made great play of the fact that land was purchased “with no one owning the land”. Indeed, the plaintiff’s second to sixth issues contain that wording. The notion of “no one owning the land” was derived from the defendant’s defence in the matter. [121] In substance, the defendant asserted that the money had been provided by the plaintiff to: [122]
be used to purchase a property for the express purpose of creating a community on the land with no one owning the land.
The plaintiff’s reply picked up and emphasised a dispute that there was no intention of creating a community with “no one owning the land”. Indeed, it pervaded the reply. [123]
It seemed as if the plaintiff was effectively saying that it was nonsensical that there can be land that no one owns. However, the defendant’s notion that the Property had been given for purposes of community raises the prospect, or at least possibility, that the Property had been given for a charitable purpose. If there were a charitable trust, it is entirely conventional that no one in the sense of an individual would beneficially own the land. Rather, someone in the position of what lawyers describe as a trustee would hold the title to the Property on a trust for purposes.
It will be necessary to identify the payments that were made, given that they were made in piecemeal fashion over a period of time. The fact that they were made is not disputed. Rather, the context and purpose for which they were made is, broadly speaking, the issue.
The failure of the parties to agree on issues led to an initial absence of engagement by the plaintiff regarding charitable purpose which was raised in the DOS. [124] By the time that the matter became part heard and had to be adjourned for further hearing, I gave the parties express opportunity to address the question of the purpose of the payments more fulsomely and in particular to address questions of whether a charitable trust was created. To that end, I made directions on 5 December 2024 permitting further submissions on those issues.
Overall, having regard to the above matters, it seems to me that the real issues in the matter are effectively:
With what purpose(s) did the plaintiff make the payments?
Was the plaintiff under a ‘special disadvantage’ in dealing with the defendant and or Arthur and were the payments procured by undue influence or unconscionable conduct or are liable to be set aside on some other basis?
Do the disclosed purpose(s) create a valid charitable trust, such that the presumption of resulting trust is rebutted?
If charitable, has that purpose failed for impossibility or impracticability?
Did the defendant agree to borrow $50,000 from the plaintiff in or about October 2022?
Is there any reason the Property purchased with the payments should be returned to the plaintiff whether by means of a resulting trust or some other basis?
Prior to addressing the above-mentioned issues, it is necessary to consider a number of matters which bear upon determination of those issues, including:
what evidence I accept;
The assessment of witnesses’ credit requires reference to and analysis of any evidence independent of the parties which is apt to cast light on the probabilities of the situation. [125] When the Court is asked to find facts in relation to disputed events which occurred many years ago, contemporaneous documents generally furnish the most reliable source of evidence as to what occurred. [126] This is invaluable for the broader fact-finding task, which involves a proper understanding of the chronology of events, in light of their context. [127]
Accordingly, in assessing the credit and reliability of the parties’ evidence (especially the plaintiff), I have had regard to the contemporaneous communications in the form of text messages provided to the Court.
As will be seen below regarding my assessment of the credit and reliability of the plaintiff and defendant, where there is particular conflict on some issue between them, I have preferred the evidence of the defendant.
The plaintiff’s evidence was not entirely satisfactory. He had a tendency to ask questions of the cross-examiner and volunteer comments, [128] seemingly more concerned with enunciating his own views regarding matters rather than directly responding to questions.
Here I will assess his credit generally and refer to a few aspects of the plaintiff’s evidence as other examples of instances where I reject his evidence. More particularly below, I will address his evidence regarding the alleged undue influence and unconscionable conduct.
Throughout his cross-examination, the plaintiff was at times non-responsive and offered information that was irrelevant to the questions asked. Both in his affidavit evidence and during his cross-examination, he made very serious accusations without a reasonable basis.
After the plaintiff asserted that Arthur threatened to shoot him in his back twice, the defendant asked him in cross-examination whether Arthur owned a gun. The plaintiff’s first response was “his weapon is his mind and his tongue” and his second response was “I don’t know if he does own a gun, but I do recall asking you some questions about him, whether or not he was a paedophile, and you didn’t explicitly say no”. [129] The plaintiff went on and Mr Newton SC objected to his client’s answer. I indicated it will be assessed as part of the entirety of the evidence. [130]
Later in addressing issue two, I deal with the plaintiff’s evidence regarding alleged undue influence or unconscionable conduct. However, it is relevant briefly at this point to note part of the plaintiff’s evidence in response to a relatively simple question regarding whether he had any evidence that the defendant or Arthur acquiesced to him ruling with an iron fist. [131] The plaintiff commenced a lengthy diatribe containing much material that was not directly responsive to the question. [132]
Further, certain of the plaintiff’s responses in cross-examination were simply gratuitous assertions maligning Arthur. Thus, towards the end of the plaintiff’s cross-examination the following occurred:
Q. Did you trust me?
A. Could you--
Q. Did you trust me?
A. Wholeheartedly, no. I trusted Arthur.
Q. Okay. Do you believe that Arthur trusted you?
A. I believe Arthur manipulated me.
Q. That wasn’t the question. I said “Do you believe Arthur trusted you?” Yes or no?
A. No, I don’t.
Q. Okay, do you believe I trusted you?
A. (No verbal reply)
Q. Yes or no?
A. No.
Q. No?
A. I don’t. Not in consideration with everything that’s transpired.
Q. No, just in general. Did you - did we trust you?
A. No.
Q. Did we consider you a friend?
A. No, you considered me a victim and a target for exploitation.
Many of the answers the plaintiff provided to questions were unsatisfactory. He did not answer questions in a straight-forward way and it seemed to me he cherry-picked things to present himself in a light he thought would be least harmful to his position.
One example of this was when the defendant had asked about gifts of money and directly opened her questioning by stating that she was moving to the purchase of the Property in question. She asked the plaintiff whether he knew the Property was being bought for the purpose of creating a community on the land, to which he responded, “Which property are we talking about?” He attempted to explain his apparent lack of clarity by suggesting that there were two other properties that had been referred to in messaging. However, it was obvious which property was being referenced. [133] When the defendant pressed the question, he asserted that the Property was being purchased for him: [134]
Q. Were you aware that the Temagog property was being purchased for the purpose of creating a community?
A. Was I aware?
Q. Yes.
A. I stipulated to you the purpose; that that property was for me.
His evidence that the Property was purchased for him is inconsistent with his stated intentions in the messages below regarding the reasons for purchase and I reject it.
A connected example is when the plaintiff elaborated on that and asserted that the purpose of the Property was “for my partner at the time and myself to construct a food forest” or ‘garden’ to be “something of beauty for my partner and myself”. [135] I reject the plaintiff’s evidence. The defendant challenged him in respect of this, indicating that he had separated from Elly at the time, to which he indicated that he had not “fully separated” from her at the time. [136] The documentary evidence shows that they had in fact separated by 16 April 2022 even though they continued to live under the same roof. [137] The practical reality is that the plaintiff and Elly were in the throes of working towards formalising separation and a property settlement. There is no reference in the text messages to a ‘food forest’ or ‘garden’ for the plaintiff and Elly being the reason for the purchase. Further, such a reason appears counter to the state of the relationship between the plaintiff and Elly at that time. There is no obvious reason why he would use funds to buy something like that for himself and Elly when they were separating from one another and the very funds that would be used to purchase the Property would come from the sale of their Edithvale property.
A further example is that, in response to a question as to his interest in the Love for Life work, the plaintiff responded that he was interested in gardening and history. [138] Even after being taken to emails of the plaintiff to the Love for Life email address saying “Your Kindom (Do No Harm Communities) sound great” and raising various questions about the movement, he maintained his resistance to the idea he had an interest in it. [139] He attempted to support that position by saying that he never received a response to the questions he raised and thus ceased contact for a significant period of time, saying he found everything they had written to be questionable. [140]
Later I deal specifically with issues on which I make findings regarding the plaintiff’s evidence. However, it suffices to note at this point that on material issues, I am reluctant to accept the plaintiff’s evidence unless it is otherwise corroborated.
2022-07-19 09:11:42 Soti My response to the lawyer – low maintenance:
2022-07-19 09:12:04 Soti I will keep this brief and simple. This is a private matter to be deal privately without delay and minimal expense…
…
2022-07-22 17:56:27 Soti Kindly please forward an audio recording copy of our conversation from the other day when you hung up on me mid-conversation. Recall you issuing an order and seek to clarify that. Did you issue me with an order? Happy to engage into a commercial agreement with you and your firm directly, however there presumed charges and conditions associated that which are quite costly. For instance, the fee for seeking a commercial engagement with my person is $12,500,000 ... and those aren't only charges. For the man to act as a person the fee is another $12,500,000 ... then I charge by the millisecond tor with land folio and volume, that's 1,000 pieces of Crown land per second, charged in hourly blocks. There's still more which I can clarify if you wish to proceed. Did you make an order? Are you certain to wish to make any orders?
2022-07-22 17:57:30 Soti Today – Cure clear as fuck after creating entitlement:
2022-07-22 17:58:41 Soti Please find attached a non-negotiable private binding financial agreement that includes all of Elly’s intent and my own… Do you (Deanna) still intent to presume to order me like an imbecile, make false accusation that I am wrong about the private and that I require third parties to administer my private estate? If so, would you care to put that in writing and test my conviction in seeking damages to the sum of 50 million against you? That doesn’t include the 100 million I will seek against the principal for allowing an underling like yourself to run amok and mess with me…
Q. Did you think that’s crazy?
A. Yes. We, Arthur and I told him many times that we were not interested in this kind of stuff…
Q. Did you form a view that the plaintiff was at time a little crazy?
A. No, he’s very intelligent. Did you know there’s a, there’s a whole network of people who talk like this?
Obviously at first blush, the above-mentioned message appears absurd.
However, contextualised, the messages do not demonstrate, at least decisively, that the plaintiff was at the time delusional. Rather, the context suggests that he was engaging in a type of rant and using grandiose and absurd language to perhaps lambast Elly’s lawyers’ fees or otherwise get across his point. It is unclear whether the plaintiff then actually sent the proposed messages to Elly’s lawyers. In any event, Elly’s lawyers continued to deal with the plaintiff for some period of time. There is no suggestion that they considered him to be under a legal incapacity or so delusional that they would refuse to deal with him. Some days later, on 27 July 2022 the following messages were sent as between the plaintiff and Arthur: [143]
2022-07-27 10:06:23 Soti We keep it all in Fiona's name from onset by having me s a guarantor and anyone else as additional guarantors. That way title is clean. No one has rights or assets or interests, only liabilities.
2022-07-27 10:33:26 Arthur You are an awesome brother [heart emoji x 3]
2022-07-27 10:53:45 Soti It means Fiona need to chat to banks for loan. I can supply guarantor info or paperwork. You just need a lender to work with that.
2022-07-2710:54:51 Soti In the unlikely event I'm targeted there's noting for anyone to take.
2022-07 -27 10:58:24 Arthur Best we wait and uy a property outright, no finance loans required. Straight out cash buy.
From time to time when the defendant or Arthur requested money from me, the defendant or Arthur said to me: "Whenever you send funds to the defendant [or me] use the term gift as a reference". My understanding was that Arthur and the defendant requested the term Gift on all transfers to avoid tax liability and scrutiny, by having a paper trail that appears to be non-taxable.
Contrary to the plaintiff, the defendant in my estimation gave her evidence in a very clear and straightforward way, making appropriate acknowledgements and qualifications. Her answers were responsive to the questions asked. She demonstrated clear recollection of key events but was candid when she could not recall specific details. [146] I had the impression that she remembered clearly what was said by Arthur or likely said by Arthur in the conversations that were raised.
Further, she admitted facts that might at first blush appear potentially unfavourable to her position, even where there were a lack of contemporaneous documents recording the claimed facts. For example, the plaintiff in his affidavit evidence deposed to a telephone call in which him, Elly, the defendant and Arthur were present. The defendant accepted that the conversation occurred and that Elly had expressed disapproval regarding the plaintiff providing the money to herself and Arthur: [147]
Q. In that conversation do you recall that Elly said to you words to the effect "Stop damaging and destroying our relationship"?
A. Well they had already split up, separated from that time, and, and I recall in that conversation the plaintiff arguing with Elly in, in favour of what we were all talking about.
Q. This conversation was about mid-August?
A. I can't remember when it was.
...
Q. And Elly said words to the effect, "Stop damaging and destroying our relationship"?
A. I don't know, I don't remember that, I remember her talking about saying "Oh you know you shouldn't be taking his money to build a better property and", I think, but I don't remember her saying "You're damaging the relationship".
Q. She said to you words to the effect, "Leave Soti alone"?
A. Possibly, but he was claiming that he wanted to be part of this.
Generally, her recount of events remained consistent throughout the cross-examination. She did not alter her story when challenged or pressed with contrary suggestions. There were no material contradictions in the account of events and timeline she gave during cross-examination with that of her affidavit evidence or the contemporaneous documents before the Court.
I generally accept her evidence. As I indicated above, where there is conflict between her evidence and that of the plaintiff’s, I prefer hers.
There are many legal principles which may be called in aid to analyse and then characterise an advance of money from one party to another.
The plaintiff claims that there exists a presumption of resulting trust over the Property which has not been rebutted essentially because there was no agreement regarding purpose. Alternatively, if there was such an agreement, the defendant’s position is that it is not: an absolute gift to the defendant; a valid gift to an unincorporated association or some other body; or a valid gift for purpose (whether charitable or otherwise). The fallback submission, if the payment of monies constituted a valid gift or created a valid trust, is that such payment was procured by undue influence or unconscionable conduct.
I will address the relevant principles, being: capacity; loans; presumption of resulting trust; gifts generally; charitable gifts; and trusts with mixed charitable and non-charitable purposes.
A loan is ordinarily understood to be an advance of money coupled with a contract for its repayment. [149] The intention of the parties to such a loan, usually, is that ownership in the funds passes to the borrower and the lender is left with an in personam right, secured or unsecured, of repayment. [150]
The burden of proving the fact that an advance of money was made by way of a loan is borne by the person who makes the advance. [151] Once it is admitted or established that an advance was made by way of a loan, the onus of proving that the loan has been repaid is borne by the borrower. [152]
The principal way that the plaintiff frames his claim is through the presumption of a resulting trust. [153]
Where a person purchases property in the name of another (or provides the purchase price), unless there is such a relationship between the purchaser and other person as gives rise to a presumption of advancement, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchase. [154]
Ward CJ in Eq considered the principles regarding the presumption in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 (Amit). At [110], her Honour addressed the proper function of the presumption:
It is in the identification of the relevant factual matrix that presumptions have a role to play, in that a particular “presumption” may assist in the face of deficiencies or gaps in the evidence. So understood, it has been said that presumptions are “the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts” (Mackowik v Kansas City St J & C B R Co 94 SW 256, 262 (1906), quoted approvingly in Neilson v Letch (No 2) [2006] NSWCA 254 at [26]; Mason P, with whom McColl and Basten JJA agreed).
The burden of rebutting a presumption of resulting trust (once the facts giving rise to the presumption have been established) lies on the party denying the existence of the trust. [155]
A resulting trust may also arise where there is a failure of an express trust. [156]
In the rich tapestry offered by the gift laws of the world, one of the few commonalities lies in the striking and confusing fact that a systematic definition of gift is hard to find.
A ‘gift’ is a monosyllabic old English noun of Norse derivation which designates a descriptive category of transfer of property. [158] Ordinarily, the term conveys a transfer of property voluntarily and not as the result of a contractual obligation to transfer it with no advantage of a material character received by the transferor by way of return. [159]
The onus to establish the making of an effective gift is on the donee according to the ordinary civil standard on the probabilities. [160]
Generally speaking, in the absence of a deed of gift or declaration of trust, the essential elements of a valid inter vivos gift are: [161]
intention on the part of the donor to make a gift, usually expressed by words of present gift (donative intention);
intention on the part of the donee to accept the gift (acceptance); and
delivery.
‘Donative intention’ is characteristically accompanied by words of gift which evince the intention and delineate the object and extent of the intended benefaction. [162]
Different standards apply in legal systems throughout the world regarding gift capacity. In some systems, the requirement is capacity simply to dispose of property, in other jurisdictions it is the capacity to make a Will, in yet other jurisdictions gift capacity “differs so markedly from both contractual and testamentary capacity that it is best understood as a separate regime”. [163] It is not necessary to explore deeply the rationale for this. Nonetheless, it is said that the “principle of general gift capacity competes with the law’s interest in protecting individuals from their desire to give and their eagerness to receive”. [164] In some cases, protection is achieved by requiring forms for the validity of the gift, in other cases there are prohibitions on certain individuals transferring property and receiving gifts. [165]
Though it has been said that the test for testamentary capacity provides a useful analogy to inter vivos gifts, Ward P in Maxwell did not accept that to necessarily be the case. I confess that, prima facie, I have the same reaction as Ward P in respect of that. However, whilst Mr Newton SC has on a number of matters assisted the Court in reference to legal authority, and the defendant has, to the extent that she is able, assisted the court, I have not had the benefit of legally qualified practitioners on each side acting as contradictors to legal propositions and, at least on this matter, I refrain from expressing a concluded view. I am prepared to proceed on the basis that the ability to understand, assess and weigh matters as would apply in that respect of a testator making a Will are considerations which may bear upon an assessment of capacity for a gift of property .
… A condition annexed to a gift may be of either of two kinds: a condition involving a forfeiture for non-fulfilment or a condition creating merely a personal obligation to fulfil it. A done who takes a gift to which a condition of the latter kind is annexed incurs an equitable obligation to perform the condition: Countess of Bective v. Federal Commissioner of Taxation. Lindley LJ in In re Williams; Williams v. Williams, said:
“… there is no difficulty in disposing of one’s own property upon condition express or implied that the person who takes it shall do something himself, e.g., shall dispose of his property in a particular way indicated by the owner of the property which he accepts. Moreover, a condition of this kind is enforceable in equity, and need not amount to a common law condition – i.e., a condition involving a forfeiture of the property taken subject to eh condition – if that condition is not performed.”
A condition which creates a personal obligation may be enforced in equity by an order for compensation or, where appropriate, by a decree of specific performance: Gill v. Gill; Gregg v. Coates; In re Hodge; Hodge v. Griffiths.
Whether a condition is such that its non-fulfilment involves forfeiture of the property given depends upon the intention of the donor communicated to the done at the time when the latter accepts the property, that is, the intention which the done reasonably understands to be the donor’s intention from what the donor has said or done: cf. Calverley v Green. In this case, it is by no means easy to determine whether the condition was one which involved a forfeiture of Mr. Dodds’ interest if the condition were not fulfilled…
… I also agree with Brennan J., for the reasons given by him, that it is possible to regard the beneficial interest in the property which Mrs. Muschinski gave to Mr. Dodds as subject to a condition that he would improve the property in the manner contemplated and that it should be so regarded, although the result in this case, having regard to the claim made by Mrs. Muschinski, is to afford her no relief.
Such a condition, whilst not a condition of forfeiture and falling short of creating a trust or charge, may give rise to a personal equitable obligation analogous to a contractual obligation, enforceable by compensation or, in an appropriate case, by specific performance. The precise basis in principle of this doctrine may be debatable but it is firmly founded in precedent and affords a convenient means of reflecting the equity of the situation: see Messenger v. Andrews; Gregg v. Coates; Rees v. Engelback; Gill v. Gill; In re Ho**dge; Hodge v. Griffiths; Countess of Bective v. Federal Commissioner of Taxation, per Dixon J.
- Though their Honours were in dissent, these passages show that there is no difficulty in principle about an equitable personal obligation arising that requires a transferee of property to perform a condition that benefits the transferor that is imposed upon a transfer of property.
Historically, a trust is an institution developed by equity and cognisable by a court of equity. [167] In basic terms, a “trust” may be described as a relation between trustee and beneficiary in respect of certain property. Specifically, a trust exists when the owner of legal or equitable interest in property is bound by an obligation recognised by or enforced in equity to hold the interest for the benefit of others, or relevantly in this case, holding the interest for some object or purpose permitted by law. [168] Legislative intervention has created forms of trusts which may, according to their terms, depart from traditional equitable notions.
A charitable trust (also sometimes referred to as a public trust) exists when a trustee owns property held for a purpose recognised by the law as charitable. [169] There are various ways of creating charitable trusts. A charitable trust of land may be created at private law by the unilateral act of its owner, by Will or deed which either transfers the land to a trustee for a charitable purpose or declares that the owner holds the land as trustee for a charitable purpose. [170]
In deciding whether or not a purpose is charitable, the indications contained in the preamble to the Statute of Elizabeth 1601 and the classifications in Lord Macnaghten’s speech in Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531 (Pemsel) at 583 are to be observed. [171] The preamble refers to various matters. Broadly speaking, they reflect four categories of purposes identified by Lord Macnaghten in Pemsel being: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads.
All charitable trusts must have some ‘public’ as distinct from ‘private’ purpose. [172] The fact that a trust for purpose is restricted so that only a limited number of persons may benefit from it because of residential or other qualifications will not necessarily render that purpose non-charitable. [173] But the possible beneficiaries (i.e. objects who might benefit) must not be numerically negligible and the quality which distinguishes from other members of the community, so that they form by themselves a section of it, must be a quality which does not depend upon their personal relationship to a single propositus or to several propositi. [174]
The requirement that charitable objects be defined by impersonal characteristics rather than personal relationship was explained by Lord Greene MR in Re Compton at 129-130:
… if there is a gift to relieve the poor inhabitants of a parish the class to benefit is readily ascertainable. But they do not enjoy the benefit, when they receive it, by virtue of their character as individuals but by virtue of their membership of the specified class. In such a case the common quality which unites the potential beneficiaries into a class is essentially an impersonal one. It is definable by reference to what each has in common with the others, and that is something into which their status as individuals does not enter. Persons claiming to belong to the class do so not because they are AB, CD, and EF but because they are poor inhabitants of the parish. If, in asserting their claim, it were necessary for them to establish the fact that they were the individuals AB, CD, and EF, I cannot help thinking that on principle the gift ought not to be held to be a charitable gift, since the introduction into their qualification of a purely personal element would deprive the gift of its necessary public character. It seems to me that the same principle ought to apply when the claimants, in order to establish their status, have to assert and prove not that they themselves are AB, CD, and EF, but that they stand in some specified relationship to the individuals AB, CD and EF, such as that of children or employees.
In Re Tree, Evershed J articulated the relevant question as: is the class, from which the persons who may benefit will be drawn, a section of the public or of the community; or is it what has been called in the language used in Goodman v The Mayor of Saltash (1882) 7 App Cas 633 and Verge a trust for private individuals, albeit a fluctuating body of private individuals? [175]
In Re Income Tax Acts (No 1) [1930] VLR 211; (1930) 36 ALR 192 (Re Income Tax Acts), Lowe J considered the nature of the ‘public’ requirement:
It may not be easy or even possible to enumerate in advance the differntiae of a “section of the public” within this rule, but I illustrate along what lines a conclusion may be arrived at. Having regard to the composition of the public, certain large groups may readily be recognized, the members of which have a common calling or adhere to a particular faith or reside in a particular geographical area. There is no bar which admits some members of the public to those groups and rejects others. Any member of the public may, if he will, follow a particular calling, adhere to a particular faith, or reside within a particular area…
His Honour then explained that a club, a literary society, a trade union, whilst they all have numerous members, could not properly be called a section of the public because of their power to admit or exclude members of the public “according to some arbitrary test which it sets up in its rules or otherwise”. This passage was referred to and applied by Dixon CJ in Thompson v Commissioner of Taxation (1959) 102 CLR 315 at 323 (Fullagar and Kitto JJ agreeing at 325); [1959] HCA 66.
Yet, not every purpose which is public in nature or beneficial to the community will be a charitable purpose. In ICLR, Barwick CJ emphasised at 667:
Not every purpose beneficial to the community is a charitable purpose but only those which are within the equity of the preamble to the Statute of Elizabeth. The purpose must not merely be beneficial: it must also be charitable…In this connexion however we are reminded by Lord Wrenbury in Chesterman v. Federal Commissioner of Taxation that “the word ‘charitable’ in the Elizabethan sense is larger and more comprehensive than the other words in the context”.
Yet it must be considered whether that benefit is charitable in the Elizabethan sense. Out of certain of the instances given in the preamble to the Act of 1601 a broad concept emerges of the kind of object of public utility which will satisfy the quality of charity. Any notion that that concept is of an eleemosynary nature is seen to be untenable by some of those very instances themselves, e.g. the repair of bridges, havens, causeways, seabanks and highways and the setting out of soldiers. Further, these instances seem to regard the provision of some of the indispensables of a settled community as charitable. The ability to move from place to place and to do so without let of rivers and streams, protection of the land from the ravage of the sea, security against enemies, are fundamentals of the society seen to be within the concept of charitable public benefit as much as assistance to the needy and as education of the generations. Consistently with the spirit and width of this concept of charity the promotion of agriculture is seen to be charitable (Inland Revenue Commissioners v. Yorkshire Agricultural Society (1)): and even the promotion of horticulture (Re Pleasants (2)). Agriculture partakes of that fundamental social quality which can give a charitable nature to a trust or purpose relating thereto which is beneficial to the community. So it would seem does horticulture. On occasions, a benefit of that kind to a section of the public less than the whole community by the trust or purpose may be enough…
Not all philanthropic purposes are charitable. Thus, in In re Macduff [1896] 2 Ch 451 at 464, Lindley LJ noted “purposes indicating goodwill to rich men to the exclusion of poor men” would not be considered charitable. His Lordship further opined at 466-467 that Lord Macnaghten in Pemsel did not mean to say that every object of public general utility must necessarily be a charity.
Lord Cave LC expanded on this limitation in Attorney-General v National Provincial & Union Bank of England [1924] AC 262 at 265:
My Lords, it has been pointed out more than once, and particularly by the members of the Court of Appeal in In re Macduff (2), that Lord Macnaghten did not mean that all trusts for purposes beneficial to the community are charitable, but that there were certain charitable trusts which fell within that category; and accordingly to argue that because a trust is for a purpose beneficial to the com munity it is therefore a charitable trust is to turn round his sentence and to give it a different meaning. So here it is not enough to say that the trust in question is for public purposes beneficial to the community or for the public welfare you must also show it to be a charitable trust.
The decision of the Privy Council in Brisbane City Council v Attorney-General (Q) is illustrative of two relevant principles: that the spirit and intendment of the Preamble to the Statute of Elizabeth should be given no narrow or archaic construction, and that the understanding of judges in the community in which they live of what a particular activity (in that case the conduct of shows for agricultural and other purposes) involves may be accepted as a proper understanding of the nature of that activity.
It has been found impossible to give an exhaustive definition of what amounts to a charitable purpose, but the authorities indicate the attributes that are to be looked for. The gift must proceed from altruistic motives or from benevolent or philanthropic motives. It must be directed to purposes that are for the benefit of the community or a considerable section or class of the community. The purposes must tend to the improvement of society from some point of view which may reasonably be adopted by the donor. The manner in which this tendency may be manifested is not defined by any closed category. It is capable of great, if not infinite, variation. It may be by the relief of misfortune; by raising moral standards or outlook; by arousing intellectual or aesthetic interests; by general or special education; by promoting religion; or by aiming at some other betterment of the community. The purposes must be lawful and must be consonant with the received notions of morality and propriety.
The purposes in question, to be charitable, must be shown to be for the benefit of the public, or the community, in a sense or manner within the intendment of the preamble to the statute 43 Eliz. 1, c. 4. The latter requirement does not mean quite what it says; for it is now accepted that what must be regarded is not the wording of the preamble itself, but the effect of decisions given by the courts as to its scope, decisions which have endeavoured to keep the law as to charities moving according as new social needs arise or old ones become obsolete or satisfied.
A purpose contrary to the established policy of the law cannot be recognised as charitable. [179] However, as the High Court held in Aid/Watch, there is no general doctrine in Australia excluding ‘political objections’ from charitable purposes in the manner indicated by Slade J in McGovern v Attorney-General [1982] Ch 321. In that case, it was held that Amnesty International, though established for the relief of human suffering and distress, was not charitable since one of its main objects was political in nature.
Charitable trusts possess distinctive characteristics that render them unsuitable as court-imposed remedies. The High Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bathurst City Council observed at [41] (footnotes omitted):
However, in our view, the present litigation is not to be resolved by recourse to a remedial constructive trust of that nature. A charitable trust which was imposed by a court as a remedy for unconscientious conduct by a defendant would lack certain distinctive, if not vital, attributes of trusts for a charitable purpose. These express the significance the law attaches, in upholding and effectuating such trusts, to the presence of a charitable intention. In their joint judgment in Attorney-General (NSW) v Perpetual Trustee Co (Ltd), Dixon and Evatt 11 explained that the operation of what generally is seen to be the unique equitable jurisdiction with respect to schemes depends upon whether there is disclosed "a general intention of charity or a particular intention only", understanding by the former "an intention which, while not going beyond the bounds of the legal conception of charity, is more general than a bare intention that [an] impracticable direction be carried into execution as an indispensable part of the trust declared", Their Honours also pointed out that "continuity and indefiniteness of duration form a common characteristic of charitable trusts", These considerations, together with the necessary involvement of the Crown, through the Attorney-General, in enforcement or other "charitable trust proceedings" under the Charitable Trusts Act, show that the charitable trust has characteristics which make it unsuitable as a remedial device imposed by the court.
There is a notion in the caselaw that, for a gift or association to be charitable, it must be ‘exclusively’ charitable. [180] The rationale of the requirement stems from the privileges attached to charitable status. If trusts with mixed charitable and non-charitable purposes could secure charitable status, those privileges could extend to non-charitable objects. [181]
However, New South Wales legislation modifies this. A trust is not invalid merely because some non-charitable and invalid purpose as well as some charitable purpose is or could be taken to be included in any of the purposes to or for which an application of the trust property or of any part of it is directed or allowed by the trust. [182] Further, any such trust is to be construed and given effect to as if no application of the trust property to or for any such non-charitable and invalid purpose were so directed or allowed. [183]
Regarding the meaning of ‘non-charitable and invalid purpose’, Dal Pont notes that there is authority that the saving legislation can save a trust where the non-charitable purpose is to benefit individuals: [184]
Other than in Tasmania, the saving legislation applies only where there are both non-charitable and invalid purposes. The invalidity issue is directed to the purpose, not the trust. Although a non-charitable trust may be valid if it is for individual beneficiaries, the saving legislation is phrased in terms of purposes, and it is established that non-charitable purpose trusts are void (and therefore invalid) for uncertainty of object. While it is not the usual practice to speak of a purpose of a trust when dealing with trusts for individuals, in the context of the saving legislation there is authority to the effect that it can save a trust where the non-charitable purpose is to benefit individuals. Even so, it is by no means evident why such a conclusion rests upon the phrase ‘and invalid’. The phrase is therefore arguably superfluous — a proposition supported by the fact that, in the most recent version of the saving legislation, Tasmania’s, it is omitted.
Section 131 distinguishes between trusts for charitable purposes on the one hand and trusts for non-charitable and invalid purposes on the other hand. It is significant that the section is concerned with a trust combining a non-charitable and invalid purpose with a charitable purpose. It is the invalidity of a non-charitable purpose which, apart from the statute, causes a trust to be void either for uncertainty or because it offends the law against perpetuity. In my opinion, the section does not exclude as part of the combination of its objects a trust for the purpose of benefiting individuals.
The section cannot convert a predominantly non-charitable gift into a valid charitable gift. This point was made clear by the High Court in Downing v Federal Commissioner of Taxation. [186] That case involved the trust of the residue of a deceased estate ‘for the amelioration of the condition of the dependants of any member or ex-member of Her Majesty's naval, military or air forces of the Commonwealth’. The court held that the trust, properly construed, applied to poor dependants; but that, even if it did not so apply, it would be saved by s 131 of the Property Law Act 1958 (Vic). However, Walsh J, with whom the other members of the court agreed, observed:
What I have said about s 131 does not mean that every gift for the purpose of providing benefits to members of a specified class of persons may be treated as capable of separation into a gift for the benefit of the poor members of that class and a gift for the benefit of those who are not poor. It does not mean, as was suggested in argument, that a gift for the benefit of stockbrokers may be remoulded by means of s 131 into a valid charitable gift for the benefit of poor stockbrokers.
One must start with a gift which, while primarily charitable, also includes non-charitable elements.
After the decision of the Privy Council in Leahy v A-G (NSW), [187] the narrower Victorian view must be regarded as wrong. The true principle to be applied is that suggested by the New South Wales and New Zealand cases, namely that the section will be applied where the gift is for a purpose described by a compendious expression which is apt to include both charitable and non-charitable purposes, provided that the expression used significantly indicates a charitable intention on the part of the testator.
Mr Newton SC submitted that the evidence establishes that Arthur regarded himself as a Sovereign Citizen who is beyond the law. [188] There is no doubt that Arthur appears to have taken certain steps to remove himself from aspects of mainstream life.
The defendant had prepared an affidavit [189] which explained the background to Arthur holding certain beliefs and steps to remove himself from the ‘System’ (see below). During the course of reading evidence and dealing with objections on the hearing, that evidence was eventually not read. [190]
It seems uncontroversial that, in or about 2005, the Cristian family appear to have lived in a residential property around Jervis Bay, NSW. [191] Consequent upon a dispute with a financier/mortgagee (seemingly Macquarie Bank) [192] they lost the property. The frustration or heartbreak associated with losing the property appears to have been the catalyst for Arthur to commence to remove himself from ‘the System’. However, there is no specific need for me to make a finding in respect of precisely what caused Arthur to remove himself from the ‘the System’ and I do not do so.
For some period of time after 2005, the Cristian family rented a 3-bedroom property in Roycroft Street, Bowral for about 13 years. [193]
The plaintiff asserts that Arthur in or about November 2018 informed him that they were homeless. [194] The plaintiff’s timing on that is a little out. It seems that a little later in February-March 2019 the family became homeless. At that time, a close friend gifted to them a new camper trailer. [195]
It is not clear what use the family made of that vehicle. However, from messages sent by Arthur to the plaintiff on 12 April 2022 (though I note, not admitted for their truth), it seems at the time the Cristian family was living in a Mazda CX9. The messages reveal certain domestic setbacks to the family, with injury to Meg, mishaps with and expenses associated with the car, and dental expenses for their third daughter. [196] This forms part of the context for certain of the initial payments that were made.
just means in a simple sense is that he has not partaken of any of the benefits of the system for many years now, like, Medicare, driver’s licence. He doesn’t own a bank account. He doesn’t do any of that sort of thing. That’s what he means by being out of the system.
Though the noun ‘Sovereign Citizen’ was used in proceedings, no particular submissions were made regarding its formal meaning.
It is defined in the Macquarie Dictionary, online ed in the following terms:
a person who claims personal sovereignty under the notion that individuals should have total autonomy and that governmental authority and laws lack legitimacy unless consented to.
the rise and spread of individuals asserting personal sovereignty under the belief that individual autonomy supersedes state laws.
For the purposes of the hearing, the plaintiff did not attempt to prove or establish what constituted a person as a ‘Sovereign Citizen’.
Notwithstanding Mr Newton SC’s submissions, I am not satisfied that there is sufficient evidence to demonstrates that Arthur is properly and technically identified as being a ‘Sovereign Citizen’. The defendant does not regard herself as being a Sovereign Citizen. [202] In an answer to a question from me, she indicated that Arthur had also went away from that. [203]
The defendant indicated in response to certain questions in cross-examination that Arthur had told her that he had no legal personality, was not subject to legal authority and in a manner of speaking is “a law unto himself”. In the same context, she indicated that he was governed by moral conscience. [204]
Relevantly, the defendant indicated that whilst she herself had not had any interest in Freeman Sovereignty [205] for many years, [206] the plaintiff was very interested in ‘Freeman Sovereignty’ (a term she linked with being a Sovereign Citizen). [207] She says it was the catalyst for the plaintiff’s initial contact with Arthur in 2008 and that he remained interested in it until they were last talking to him in 2022. [208] She described ‘Freeman Sovereignty’ as “people who are trying to fight the law, using the law, going into the courts, using the law to destroy the law” [209] and indicated that that was what the plaintiff had often said to them that he wished to do. [210]
‘Love for Life’ is a business name registered to the defendant. It was initially registered on 11 December 2006. [211] There is an associated business name ‘Love For Life Supplies’ initially registered it seems on 26 April 2013 in the joint names of the defendant, Bruno and Hannah. [212] That registration is described as a form of partnership and it has an ABN 27 277 266 041. [213] The business names ‘Love for Life’ and ‘Love For Life Supplies’ are both described as having a principal place of business in Roycroft Street, Bowral. [214] There are email addresses associated with ‘Love for Life’ that appear in the Court Book. [215]
As mentioned above, there was an associated Website, [216] “loveforlife.com.au”. [217] It was built or managed through a content management system known as Drupal. [218] The Website is no longer in existence due to technical issues. [219]
The defendant states, and I accept, that the ’Love For Life Supplies’ ANZ Bank account [220] was set up many years ago with the idea that she would run businesses to make money for Love For Life projects as Love For Life itself has always been non-commercial. [221]
The defendant (or at least Love for Life) produced various videos seemingly explaining its goals or purposes. [222]
In addition, the defendant indicates that by the time of the initial contact in 2008, the plaintiff had also been impressed by a series of books ‘The Ringing Cedars of Russia’ (Ringing Cedars) by Vladimir Megré which (purportedly) expresses ideas about community. [223]
The books are: [224] Anastasia (book 1); The Ringing Cedars of Russia (book 2); The Space of Love (book 3); Co-creation (book 4); Who are We? (book 5); The Book of Kin (book 6); The Energy of Life (book 7); The New Civilisation (book 8, part I); The Rites of Love (book 8, part II) and Anasta (book 10).
In the Ringing Cedars community, a family homestead is a plot of land at least 1 ha surrounded on all sides by a passable landway of at least 3m. it is envisioned to be used as a forestry, agricultural and residential space. [225]
The series has generated significant support in Russia and also some support internationally. The movement has been academically studied. [226] At times, it has been labelled as a religious movement. [227]
The notion of a homestead community is not as cockamamie as Mr Newton SC suggests.
The Foundation for Intentional Community (FIC) defines an intentional community as a group of people who have chosen to live together or share resources on the basis of common values, which model more cooperate sustainable and just ways of life. [228] FIC refer to communes, ecovillages, ‘cohousing’, ‘coliving’ and ‘student coops’ as examples of intentional communities. FIC provides information, publications, support services and sharing opportunities for intentional communities.
Thus, in a 2019 article “Utopia isn’t just idealistic fantasy – it inspires people to change the world”, [229] Heather Alberro, Associate Lecturer and PhD Candidate in Political Ecology at Nottingham Trent University, discusses intentional communities inspired by Megré’s decalogy: [230]
To some, the serious political proposals outlined by Extinction Rebellion and in the Green New Deal might seem as unrealistic as the literary works that imagine their realisation. But living examples of ecotopian imagination can already be found in the world we live in.
Thousands of intentional communities across the globe are already creating spaces with social and ecological justice at their heart. Many of these eco-communities have been directly inspired by the communities imagined in ecotopian novels. For example, hundreds of eco-villages in the Baltic region were set up according to the concept laid out in Vladimir Megré’s The Ringing Cedars of Russia.
The notion of eco-communities or settlements of homesteads is drawn from or at least exemplified by the Ringing Cedars series. Saul Of-Hearts, [231] a regular author for the FIC, provides a useful summary. [232]
In the mid-90s, Megré reportedly encountered a woman living in the Siberian wilderness who taught him about her philosophy in the natural world and spirituality. She told him of the ‘ringing cedars’, 500-year-old trees that she claimed have mystical, healing properties. The veracity of her identity is debatable but for present purposes irrelevant.
In 1996, Megré self-published the first Ringing Cedars book, Anastasia, outlining the notion of Family Homestead or Kin’s Domains. Saul states this: [233]
included Anastasia’s proscription on how future generations should live: on sustainable homesteads a hectare or more in size, complete with gardens, beehives, a sauna, a water source, and more, with the primary purpose of raising healthy children. These homes were referred to as a Family Homestead or Kin’s Dominion”.
The concept took off, with thousands of fans forming readers’ groups, determined to create eco-villages of their own. Prime Minister Dmitry Medvedez praised the idea, and the government has begun offering families free land, a hectare in size, for those willing to move to sparsely developed regions of Eastern Russia.
Not all of Russia’s eco-villages are connected to the Ringing Cedars movement; some, like the Land of Plenty commune, are home to over 50 middle-class families.
Of note is the fact that Saul observed that such eco-villages included many “…working professionals who wanted to leave behind the corruption and consumerism they experienced in big cities”.
Even in conventional or mainstream media, there are many books and films, which whilst fictional, rationally develop that very idea. For example, in the mid-late 1970s the UK TV series ‘The Good Life’ depicted a couple Tom Good (a plastics designer) and his wife, Barbara Good, who abandon the rat race in order to become self-sufficient, while remaining in Surbiton. [234]
The plaintiff in his claim contended that the defendant and Arthur are leaders of a cult which they promote as “a cult of freedom, peace, truth, abundance and joy”, “the cult of the removal of all ties or to the “system” where there are no contracts with local council and government”. In addition, he claims they promote the ‘Kindom Motherland’ as the church for the cult where members will congregate in the church of nature and not the church of concrete, plastic and steel that most worship in the “System”. [235] He claims this description is sourced through text messages, emails, videos, songs and articles. [236]
The defendant pleaded in her defence that the plaintiff’s references to a cult was quoting a Facebook post by the defendant and Arthur which parodied certain comments about them. [237]
Specifically, she disputes that they are a cult, citing various dictionary definitions including Britannica Dictionary, Cambridge Dictionary, Merriam-Webster Dictionary, Collins dictionary and Dictionary.com. [238]
The Britannica Dictionary, online ed has various definitions, including listed as the first choice:
a small religious group that is not part of a larger and more accepted religion and that has beliefs regarded by many people as extreme or dangerous.
a religious or pseudo-religious movement, characterised by the extreme devotion of its members, who usually form a relatively small, tightly controlled group under an authoritarian and charismatic leader.
a relatively small group of people having (esp. religious) beliefs or practices regarded by others as strange or sinister, or as exercising excessive control over members.
The defendant asserts that most of the definitions refer to religious groups and disputes that they are religious or promote religion. She asserts they promote “full responsibility because this is true freedom” and contends that “anyone who takes full responsibility for their lives does not lead leader or any group to tell them how to live…”. [239]
The defendant asserts that if people choose to be a part of a community, they are there of their own free will and bound only by ongoing commitments they might have made. [240]
Notwithstanding the “cult” pleading in the ASC and Mr Newton SC’s opening written submissions that the defendant and Arthur were leaders of a cult, [241] he did not during the hearing cross-examine the defendant to that effect.
In final submissions, Mr Newton SC referenced a Facebook post by her on 9 September 2022 which, on the face of it made, reference to a “cult” and had been concluded with a sign off “Arthur and Fiona Cristian Cult Leaders”. [242] However, his intention in doing so was seemingly not for the express purpose of submitting they were a cult but rather to make a point regarding Arthur purportedly controlling admission and exclusion from membership [243] and a little later to contend that the concept of ‘Love for Life’ and the ‘kindom dream’ were uncertain. [244]
The defendant maintained in her final submissions that the Facebook post was a joke. [245]
Certainly, in the absence of any cross-examination on the issue, I am not prepared to find that the defendant and Arthur were leaders of a cult.
In any event, the defendant’s submission that the post was a joke seems to me to have some force to it. Contextualised, it seems to me that at least aspects of the post are a type of parody. More significantly, whilst there is no doubt very strange aspects of messaging as between the plaintiff and Arthur, there is no evidence that the Cristian family or the community espoused by the defendant and Arthur are a “tightly controlled group under an authoritarian and charismatic leader”.
There are 49 payments listed in PPS. However, 5 of the payments (Nos. 23, 33, 38, 44 and 49 for $1,000, $600, $600, $600 and $600 respectively) are actually payments to Stryker Design Pty Ltd and I proceed on the basis that they had been mistakenly (or impermissibly) included in PPS. [246] Certainly, the plaintiff did not explain how those 5 payments which were not made to the defendant had anything to do with his claims in the proceedings. I will refer to those payments in the below schedules as SD payments. The following may be noted about the remaining 44 payments:
the first payment was initiated by the plaintiff without request from the defendant or Arthur (I elaborate on this below); [247]
the majority (40) of the payments were made over approximately a 6-month period in 2022 between 12 April 2022 and 28 October 2022;
by far, most of the payments (38), were made from the plaintiff’s Bank Australia (BA) accounts, with the other payments from his ING account (3), a Good Food Gift Card (1), [248] Commonwealth Bank cheque (1), and Commonwealth Bank EFT payment (1); [249]
all the payments were credited to the defendant’s ANZ account either by EFT or deposit; and
most of the payments (31) (approximately 69%) were for $1,000 or less.
Specifically (as noted above), the payments to the defendant’s ANZ account were made to a bank account in her name associated with ‘Love for Life’. [250]
Here, there are large amounts of monies paid at 3 points of time being:
4 payments (Nos. 5-8) constituting $115,000 over the week of 12-19 April 2022; and
1 payment (No. 37) of $575,000 on 20 September 2022; and
2 payments (Nos.42 and 44) of $50,000 and $5,500 on 2 and 17 October 2022.
Interspersed amongst those large payments are a series of much smaller payments of $1,000 or less. There is a question as to the purpose of those payments. The defendant understood the small gifts as being occasional gifts for the purpose of allowing the family to live in a sense outside the pressures of ‘the System’. [251]
The seventh issue raised by the plaintiff is whether during the period from about August 2017 to October 2022 the defendant requested money from the plaintiff. The defendant asserts, and I accept, that she never asked the plaintiff for money. [252]
| No. | Date | Amount | Source | Plaintiff’s comment | | 1 | 17.08.17 | $250 | BA – CB 172 | - | | 2 | 03.11.18 | $250 | ING – CB 174 | - | | 3 | 08.11.18 | $250 | ING – CB 174 | - | | 4 | 21.02.19 | $1,000 | ING – CB 177 | - |
2017-08-17 23:20:48 Soti Gift [gift emoji] of love [heart emoji] sent your way. $250 into ANZ account. Best wishes. Soti
2017-08-18 18:20:53 Soti Thank you for supporting the living dream of kindom we live for and taking care of our family along the way we are all very grateful. [254]
2018-11-01 10:39:22 Arthur Thanks for the space you provided for this man to fill it with what this man is on about. [smiling face with sunglasses emoji]
2018-11-01 12:41:35 Soti Super cool [smiling face with sunglasses emoji]
2018-11-03 08:16:17 Soti $250 sent via Payld as Gift.
2018-11-03 08:47:52 Arthur Once this 1 page html for the lfl homepage is up i can send you a copy inc html codes to see what you can do with it to improve its overall look etc. The about section broken down into sub headings will be a mini ebook. We are up for turning it all into a basic website using Wordpress or whatever. I could send you the email that pair.com sent me about what you can and cant transfer to their new servers. If you want to learn Drupal 8.1.6 we could start building the website. I could send you back ups of everything. Or we wait till we have the money and get a pro to do it. We want it to look just like the Drupal 5 one and then we can update it down the track change the front structure menu etc. By thw way how do you reduce the size of embedded photobucket photos using html?
2018-11-03 08:57:40 Soti Yes, sounds great. I'll learn if need be. Image resize use width and height attributes https:www.w3schools.com/tags/att_img_height.asp
2018-11-04 10:54:13 Arthur Please give us a call if you can. Having some trouble with Html coding.
2018-11-08 07:17:53 Soti Osko $250 sent. Have feeling you need it more than me.
2018-11-08 08:19:45 Soti Recreating Paradise. No thanks needed.
2018-11-08 09:01:16 Soti That's why the Space of Love is important. It unravels all else.
2018-11-08 09:32:45 Arthur With what we send you in an email with password etc. You can do whatever you like because it is just a copy and we have backups and pair have backups.
2019-02-2118:50:02 Received 1k donation in Fiona's account. Keep well. [3 x smiling face with open hands emoji]
| No. | Date | Amount | Source | Plaintiff’s comment | | 5 | 12.04.22 | $3,333.33 | BA – CB 188 | Gift of Love | | 6 | 14.04.22 | $6,666.66 | BA – CB 188 | - | | 7 | 16.04.22 | $100,000 | BA – CB 188 | Space of Love Donation | | 8 | 19.04.22 | $5,000 | BA – CB 188 | - | | 9 | 21.04.22 | $1,000 | BA – CB 188 | - | | 10 | 25.04.22 | $1,000 | BA – CB 189 | - |
The messaging around this time between the plaintiff and Arthur is significant as it bears upon the purpose of the payments in this period.
In messages extracted in the plaintiff’s affidavit which were admitted on a limited basis under s 136 of the Evidence Act 1995 (NSW) (as evidence of the fact that the matters were said and sent rather than truth of what was texted), [258] the following was stated: [259]
12/04/2022 03:09 PM (Viewed 12/04/2022 03:15 PM)
[Arthur]
Our dog Meg got injured yesterday 485.00 and with the mazda cx9 windscreen being replaced due to a rock cracking it recently 490.00 and now with the mazda starter battery completely dying yesterday and we replaced it with a new lithium cranking battery 995.00 to work with our dual battery system for off grid, we have finally hit the wall and now reaching out to anyone who has spare dosh they can flick our way to help us get out of this jam. We basically have no money for fuel, food, etc. until some more money comes in mid next week. If you can help us
ANZ
FIONA CAROLINE CRISTIAN
[bank account details]
12/04/2022 03:15 PM
[Arthur]
We are still sleeping in the car with the 3 dogs in the boot.
12/04/2022 03:16 PM
[Soti]
Done. How much?
12/04/2021 03:22 PM
[Arthur]
Whatever you can comfortably manage bro. Sorry, I really do hate asking for help. We are in a deep hole. The 7k to put in a replacement auto transmission and transfer case really killed us. We paid 4.5k already towards it with another 2.5k to go. This is what set us back under our current homeless situation. Fortunately our 3rd daughter’s dental bill of 6.5 is now down to 865.00 so we are close to fucking it off.
12/04/2021 03:22 PM
[Arthur]
We are chipping away bit by bit each month.
2022-04-12 17:20:01 Arthur Altering the DNA and then reattempting to alter the DNA is playing God (so to speak). We do have the power to cause change using nature as our only medium, and not fiction.
2022-04-12 17:34:16 Soti LivinglnThePrivate ebook and website revealed much to me. It's all consent. Those spell casting warlocks and witches with their legal society didn't educate us for enlightenment but the contrary. Seeing much at work, WFH. My work was smart enough not to mandate jab but asked anyone who didn't voluntarily disclosure vaccination status to work from home and not attend office (discrimination), now they're saying all need to go back x2 per week and that they "believe" they have right to medical data.
2022-04-12 17:36:33 Soti Of course, I maintained privacy and confidentially and informed them did not consent to release of that information and also claimed it as part of my estate and further refused consent for anyone to administer it. Avoiding joinder to person, understand and that crap as much as possible. Wait and see ...
2022-04-12 17:41:47 Soti And of course, I'm Sotirios who is always difficult and being difficult. [sheep emoji] [unclear emoji]
2022-04-14 18:05:22 Soti Can I call you? There is land available which I am willing FYI help you acquire through share ownership. It's 68k
2022-04-15 11:01:59 Soti Sister is dead end. Waste of time asking.. won't spare some land for even 2 shipping containers on 75 acres.
2022-04-15 11:05 :36 Soti GoL should have arrived by now. Have Fiona check account.
2022-04-15 11:42:18 Arthur For starters, Let's buy a piece of land, say 5 acres, with a house and ideally a shed on it, anywhere between P[suggesting locations]. What do you say? Bruno is keen for something like this to happen.
2022-04-16 21:31:24 Soti Space of Love Donation.
2022-04-16 21:35:41 Soti I challenge any keyboard warriors advocating to be adherents of the Ringing Cedars or opposition to darkness to forsake their attachment of the dead and make a similar contribution for the Dream of Life, Kindom and Divine inspiration.
2022-04-16 21:37:28 Soti Let the energies of creation awaken and flame of ancestors awaken within all Vedruss.
2022-04-17 00:14:12 Arthur A Greek friend in Melbourne Sotirios sent us $100,000.00k this arvo as a gift, that's right one hundred thousand dollars, and it is already in FionasANZ Chq Account. Its to go towards buying land to establish a Kindom, a space of love (do no harm). Sotirios was inspired by the series of 9 mostly short videos Arthur made Feb-April 2022 in the front passenger seat where he has been sleeping every night since 8th Jan 2022. Sotirios wrote "I challenge any keyboard warriors advocating to be adherents of the Ringing Cedars or opposition to darkness to forsake their attachment of the dead and make a similar contribution for the Dream of Life, Kindom and Divine inspiration. Let the energies of creation awaken and flame of ancestors awaken within all Vedruss."
2022-04-17 06:58:07 Soti I have a plan for dealing with Macquarie and Steadfast. Give them an opportunity to correct their transgressions. Offer them a 12 million way out - non negotiable - 3m for them direct deposit into the defendant's account and 9m into mine. Otherwise I pursue criminal charges against them. Sounds crazy. Good. I'll allow them to be honourable. If they choose dishonour then I pursue action.
2022-04-17 07:12 :19 Soti Actually, I'll give them 2 options: either split deposit as above or all deposited into the Fiona’s account. Let them go for latter to screw me over. We win either way.
2022-04-17 07:13:57 Soti Let them play in a sandbox. Ours. Our rules and our way for CoCreation.
2022-04-19 11:20:29 Soti I don't want to be part of the dead world any longer. Could Hannah teach me landscaping Would that be an option, If she's willing? Craving an Earth or land connection. There's a lot stirring with me right now. It's difficult to contain. [smily Face emoji]
2022-04-19 11:22:16 Arthur Once we have land we will look after you, otherwise find a landscaping job that also involves organic gardening, etc.
2022-04-19 13:29:16 Soti RE: Ms Perkins intention to use billions to end poverty.
Money in and of itself will not address the issue. The one solution capable of addressing not only poverty, but all societal issues and the ills of the current system is the creation of Food Forests in alingnment with the philosphoy of Kindomain Do Harm Communities [sic]. [266] What is needed for that is land. It is the disconnection from the land, from the divine creation - nature is the creators divine though - resulting in all harm as a consequence.
The concepts of Kindomains, food forests are contained within the "Ringing Cedars" series of books by Vladimir Megré. There is a family, Arthur & the defendant Christian, who have been maintaining this dream of life for over 16 years, with the know how, integrity and determination to bring this dream to fruition. I have oberved and kept a watch of them over 10 years and they are the real deal, so I have stepped up this year since they are now living in a car and their talents & skills are being wasted because they have no land to create the dream of Kindomain.
On a personal note, I have been inspired by Arthur & the defendant and have donated over *115,000 of my own funds, constituting over 80% of my total cash assets as Gift of Love to the Christian family. To put things in perspective, my annual earnings are below *90k per annum, I do not have a business, do not have shares, no dividends, no other form of revenue, do not have domations coming in or anything else. I spend my waking life working in the land of the dead for fictitious dollars so that we can acquire land, which is delaying a critical initiatve for this planet that is in alignment with the Creators dream of Co -Creation and life.
Recently, a spark has ignite within me and I can no longer standby and do nothing, nor am I willing to stand by and watch the se brave courageous souls, their dream, skill s and talents be wasted due to lack of land, so am committed to do what I can make Kindomains a reality. All else pales in comparison, and there is nothing more important.
I implore whoever is reading this to please help us, we are steadfast in our determination, have unwavering committment, our team has clear direction und skills, know what needs to be done and how to do it, and I am confident that others will be inspired , come out of the woodwork and assist if we can get some decent capital injected to complemeant what I have contributed and hope to add to in the future.
Soon I hope to come into a further 400k by selling my ownership In some real estate - the last asset i have - to put more into the Kindomain intiative.
Would Ms Perkins and her partner who I feel are pure and sincere of heart like my own, please consider and donate a Gift of Lovelt need not be billions, a billion or 100s of millions, we can get this initiative off the ground for 9 million, ideally 12 million dollars. If that is too much to ask, would Ms Perkins please consider 8.5 million or 11.5 million to assist? I will put in an extra *400,000 - everything I have to ensure at least half a million - *500k - is brought to the table. We are not asking for charity, but a helping hand from for the good of all from someone with pure, sincere intent - like us - to aid us in our life mission of recreating a pristince paradise via the creation of Kinsdomains for all to enjoy and benefit from the abundance of nature.
Give us the opportunity to demonstrate to you what can be achived with minimal investment. Ms Perkins will not be disappointed, as what we will build can be replicated, and taught to every family given land.
More than happy to have a chat to discuss further. In fact, it would be best to also contact Arthur and the defendant Christian on [telephone number] who have been attempting to get in contact with Ms Perkins who are located in Sydney, while I am in Melbourne.
2022-04-22 10:26 :30 Soti ....... I can already hear the birds and laughter if happy children in the KinDomain every time I hear it around me I the present. [heart upon heart emoji] it!upon which our kindom can grow, unfolding into a marvellous co creation of life, creativity and bliss. I can already hear the birds and laughter if happy children in the KinDomain every time I hear it around me I the present. [heart upon heart emoji] it!
2022-04-22 10:57:59 Soti ..possibly imagine. Let them accelerate their plans and in so doing accelerate KinDom Co-creation.
2022-04-23 13:17:13 Soti Send me the 100k account info when you get a chance. If I want to deposit for the deposit I'll put it directly there.
2022-04-23 16:03:42 Arthur ANZ Business Advantage Love For Life Supplies [bank account details] Joint Account Holders Fiona Bruno Ferro Hannah Louise Bennett Wood
| No. | Date | Amount | Source | Plaintiff’s comment | | 11 | 13.05.22 | $1,000 [268] | BA – CB 193 | - | | 12 | 14.05.22 | $500 | BA – CB 192 | - | | 13 | 18.05.22 | $110 | BA – CB 192 | - | | 14 | 19.05.22 | $500 | BA – CB 192 | - | | 15 | 27.05.22 | $2,000 | BA – CB 192 | - | | 16 | 27.05.22 | $1,000 | BA – CB 192 | SMS 05/6/22 10:57 am |
There are messages between Arthur and the plaintiff as between 13-27 May 2022.
There are no messages in the Court Book which relate to the 11th and 12th payments on 13 and 14 May 2022.
On 18 May 2022 at 9 AM, the plaintiff received a message from Arthur as follows: [269]
Yes, we all need a 6-week break in Fiji. Can we use the 100k towards this???
2022-05-18 09:03:15 Soti Let’s opt to create paradise instead. [smiley face]
2022-05-18 13:17:40 Soti Fuck money [moneybag emoji] Get this shit done.
2022-05-18 14:25:22 Soti $500.00 every fortnight???
2022-05-18 14:30:39 Soti Give it takes 0 cents.
2022-05-18 14:30:53 Soti Give or takes 0 cents.
2022-05-18 15:33:16 Arthur [3 x love heart emojis]
The messages did not provide clarity regarding the 13th and 14th payment on 18 and 19 May 2022 of $110 and $500 respectively.
A few messages between Arthur and the plaintiff on 19 May 2022 make reference to a property at Paddy’s River NSW, which appears to have become available for sale. Reference is made by Arthur to a sale price of $1.65m in September 2021 and the plaintiff sent a text: [272]
2022-05-19 10:24:15 Sotirios Interest only loan for 1.7 million with 100k deposit is $3,867 pm
2022-05-19 19:34:44 Soti Ubank 550k loan p&i only @1.9% ~$2,010 pm with>= 40% LVR
2022-05-19 19:35:37 Soti [finder.com.au link] Already have account with them. That's where my 100k was sitting before Kindom gift
2022-05-27 09:31:46 Soti 28 acres at 1.5 million. Can you swing that? Offer stuff privately once set up, gifts of love. We pay stuff off quickly we'll give them $ afterwards. May be worth a try.
2022-05-30 08:21 AM Soti [bank account details] Label “Gift Return”
2022-05-30 09:31 AM Soti No change to house plans. Reality is that I cannot do the work you do right now. I may never be a able to do so if you want home then I will buy one and you can be my guests to create KinDom. If that does not suit then let know before I commit to any loans. Or if you have better offers then let me knows and I’ll put brakes on from here. I’ll call you once I get main things with my work out of the way. Sydney is green light to work from with several days in office per week. [275]
2022-05-30 11:16:34 Arthur We live Kindom as Kindom. We are not anyone’s kindom guests (conditional acceptance). Freedom and all the other natural virtues of the good heart have nothing to do with conditional acceptance (guests).
2022-05-30 11:21:25 Arthur Though we have full responsibility for life, for the life (substance of) kindom, we do not "own" kindom nor support, endorse condone, aquiese to the conditional acceptance of kindom, as some guest of someones idea/dreaming/imagininng of kindom. There is no real living truth/substance of kindom existing here and now.
2022-05-30 11:25:38 Arthur What you do for kindom you do from the good heart of kindom , othwise it ain't kindom and no good heart was there from the outset of your relationship with the living-substance of kindom, fantasy and all.
| No. | Date | Amount | Source | Plaintiff’s comment | | 17 | 02.06.22 | $500 | BA – CB 199 | | | 18 | 05.06.22 | $1,000 | BA – CB 199 | | | 19 | 08.06.22 | $500 | BA – CB 199 | | | 20 | 08.06.22 | $500 | BA – CB 199 | | | 21 | 16.06.22 | $500 | BA – CB 199 | | | 22 | 18.06.22 | $2,500 | BA – CB 199 | Gift of [word is obscured] | | SD1 | 29.06.22 | $1,000 [276] | BA – CB 199 | | | 23 | 30.06.22 | $500 | BA – CB 199 | |
2022-06-01 15:33:21 Soti Guys, will most likely need to stop 500 per fortnight with loan. Until at least September.
2022-06-01 15:35:13 Arthur Fair enough.
2022-06-04 07:53:18 Arthur ........ Fiona, asked me a few times over the past few weeks, inc this morning, what if Soti does a Scott goes through a lot of stuff Scott went through as the shit came up, and with Soti currently holding the keys to the house, does he boot us out, sell it, etc. What becomes of us??? Fiona wants to talk about all this asap today. This is why I have been saying that we need to set up a foundation/trust/arrangement etc, between us because we really don't know each other yet, have not lived with each other, and its an unknown what becomes of all of us if you lost the plot and wanted out. Even though we don't lie, steal, connive, seek to harm anyone, take drugs, booze, etc, and are very compassionate and strong on many fronts, we can't control other people's shit if it comes up and they want to run. Give it long patience, healing will settle things down and powerful bonded lives will blossom with a no back door attitude and Kindom flowers.
2022-06-04 08:10:16 Arthur With the above text sent earlier today, please give us a call as soon as you can today Soti. We are going to inspect this house again 11am today, [address]. We all need stability, the cat situation, yet alone Xanthe, Hannah, Fiona, etc, circumstancetc, has again brought to light how important this stability and certainty is for everyone, come trust, patience, honesty, nurturing, etc. There is nothing else out there to buy as a Kindom stepping stone, in readiness and preparedness for the big motherland dream to come. We should buy this place with a no back door attitude Soti, no matter what comes up, we nurture the creativity of the Kindom dream we all live for. Everyone coming to Kindom out of The System will come damaged, inc all of us, and its up to each of us to not let the destructive forces of the dark side undermine and get in the way of the good heart and all its virtues required as tools to create Kindom here and now. How else do we all leave hell to return to paradise in/as this life????
2022-06-04 09:59:03 Soti No back door. Done.
2022-06-04 10:01:41 Soti I'll sell my friggin' PlayStation if I need to.
2022-06-04 10:17:23 Soti If we disagree I move into the garage at the back studio until I calm down. Grab a shovel dig a hole and bury my shit.
2022-06-04 10:19:3 7 Soti Either way, the dream remains and I fully intend to get you off the street and have a place for you family to be whole. Besides, if I need to work I the attitude so be it. I never said I was perfect though certainly believe I am in my self delusion BS.
2022-06-04 10:31:56 Soli Win win. Fiona and I go 50/50 and name appears on paperwork, co-owners. In that way, if either wants out come to mutual agreement, no exclusivity or control of one over other. Yes, I'd do that. Serious about Kindom. My not have right attitude all of time, but know who my enemies me (so to speak) and it ain't the Cristians, Hannah or Bruno.
2022-06-05 12:15:25 Arthur Without a team effort Kindom is fucked. Why else are you pouring money into us who live the kindom dream????
2022-06-05 12:16:37 Soti All else is a distraction
2022-06-05 12 :19 :59 Arthur And make sure you are not trapped in scripts of Kindom coming from us. Make sure it's your kindom dream and not just ours being re-presented as scripts
2022-06-18 15:53:24 Soti Just tell me how much is needed? And it'll get done.
On 27 June 2022, solicitors for Elly wrote to the plaintiff noting that they acted for her in relation to a property settlement and proposed a settlement whereby the Edithvale property would be transferred to Elly contemporaneously with a payment by her to him of $550,000 with other terms. [285]
Within a few days of that letter, on 29 June 2022, the plaintiff deposited the first of a number of sums (in this case, $1,000) to Stryker Design Pty Ltd, which in his table he has included as a payment to the defendant.
| No. | Date | Amount | Source | Plaintiff’s comment | | 24 | 05.07.22 | $300 or $800 [287] | Good Food Giftcard | Good Food Gift Card | | 25 | 05.07.22 | $1,200 | BA – CB 209 | | | 26 | 14.07.22 | $500 | BA – CB 209 | | | 27 | 28.07.22 | $500 | BA – CB 210 | | | 28 | 05.07.22 | $1,000 | BA – CB 210 | | | 29 | 09.07.22 | $2,000 | BA – CB 210 | | | 30 | 10.07.22 | $1,000 | BA – CB 210 | | | 31 | 21.07.22 | $1,000 | BA – CB 210 | | | SD2 | 28.07.22 | $600 [288] | BA – CB 210 | | | 32 | 04.08.22 | $3,500 | BA – CB 264 | | | 33 | 11.08.22 | $500 | BA – CB 263 | | | 34 | 18.08.22 | $5,000 | BA – CB 263 | | | 35 | 25.08.22 | $500 | BA – CB 263 | | | SD3 | 30.08.22 | $600 [289] | BA – CB 263 | |
In early July 2022, the plaintiff contended that Edithvale property was worth between $1.19m and $1.23m and appeared prepared to accept Elly paying to him $575,000 (contemporaneously with a transfer of the Edithvale property to Elly). [290]
The messages mentioned above in which the plaintiff cites a $12,500,000 cost for a “commercial engagement with [his] person” (which Mr Newton SC examined the defendant on regarding the plaintiff’s sanity) were sent by the plaintiff on 22 July 2022.
On 8 August 2022, further messages as between the plaintiff and Arthur indicate that Arthur was meeting an agent about a property, which it seems evident was the Farm, having regard to an email sent by Rachel Lamborne-South, [291] an agent (or staff member) with Ray White Rural Kempsey. In response to a request, she provided a copy to Fiona of a draft contract for sale [292] for the Farm.
The messages sent by Arthur clarified details regarding the listing and sought assurance from the plaintiff that the proposed funding that the plaintiff would get from his property settlement from Elly would be available for purposes of paying a deposit: [293]
2022-08-08 11:30:47 Arthur Call when you can. Agent rang and arranged meeting in their office with us in 2 hrs time, roughly 1.30pm. Are you still 100% about Fiona 100% on title deeds, etc? And putting up the $50k unrefundable deposit? Are you seriously 100% confident about Elly getting the $5 75k money to you and you transferring the money into Fiona's ANZ chq account before the delay settlement deadline?
2022-08-08 11:53:37 Soti Yes to all. Elly has pre-approval for 575k
2022-08-08 17:50:41 Arthur Through amendments attached to the contract and bill of sale via multiple signatures under "name /person", Fiona Cristian, has made it clear to the Freemasonic commercial administrators of The (Their) Crown and all its commercial agencies, departments, corporations, authorities, legal firms and members of the bar, etc, federal, State, Local and International, on shore and off sure and across all space, that the fiction of their intellectual property manifested as their land title deeds, folio recordings and parish particulars, have all been paid in full (give unto caesar what is caesar’s) across all concepts and constructs of time and space, upon immediate acceptance of the $50,000.00 deposit and payment for all other regulatory and service registrations, administration fees, and charges applied in carrying out the instructions commanded by the living creator and highest, most supreme power vested with MAN, Arthur, a living MAN more powerful than all commercial and civil lawsgifted the unencumbered land to the Suveran MAN with no commercial "person/name/agency in commerce/strawman" others relate to as Arthur
2022-08-08 18:18:30 Arthur Fiona is going to simplify it all but do send forth your impressions, etc.
2022-08-08 22:37:54 Soti MAN, the Living Creator. Let it be known... Irrevocable gift for the Co-Creation of Kindom, the Living Paradise, the aspiration of Man, the Living Creator as a Gift Of Love for the Love for Life in respect to our ancestors and the sacredness of our brothers and sisters to return to whole and nurture life. None may interfere in this sacred covenant forevermore... lest they wish to experience the Curse of their sinful actions and eternal death, reserved for all worshippers of fiction. Sealed with the Breath of Man, eternal. Saith no more.
Leaving aside the argot, it may be noted that the plaintiff indicated that the monies that were to come were an “Irrevocable gift for the Co-Creation of Kindom…”.
Relevantly, the parties progressed in a seemingly conventional manner in eventually purchasing the Property.
By 15 August 2022, the purchase of the Property was underway. Ms Robinson sent to Fiona an email attaching a costs disclosure and confirming certain matters, including requests to the vendor regarding a number of the improvements on the Property. [295] Further on 15 August 2022, Fiona sent to the plaintiff by email the prior 8 August 2022 email from the agent which attached a copy of the contract of sale. [296]
On or about 16 August 2022, [297] a few things happened.
First, the plaintiff sent an email to the defendant regarding his ability to fund the purchase and timing regarding that. The plaintiff claims that the email he originally sent was in the following terms: [298]
For the record, let it be known that SOTIRIOS ARAMBATZIS of [Edithvale address] who has 50% equity ownership in the same address, is currently in process of selling interest to his ex for $575,000 consideration which is currently in conveyancing expected to settle within 4-6 weeks.
Once settlement is finalised, the entirety of $575,000 will be transferred to Fiona Cristian, which when combined with the $100,000 already donated to Fiona constitutes settlement, inclusive of stamp duty for [Temagog property].
If necessary, I will also provide additional funds to cover any conveyancing or disbursements.
Trust this correspondence serves to alleviate any concerns. I am contactable on [phone number] if any further clarification is required and can supply my conveyancer details dealing with the Edithvale property, if necessary.
Whilst the plaintiff in his affidavit claimed this was his original email sent, he did not provide a copy of the email itself.
The defendant alerted the plaintiff to the fact that she had forwarded his email to Ms Robinson and stating “We have made a few changes to simplify things. Below is copy of what we sent her”, attaching the email sent:
Hi Fiona,
Re: We request that you provide a copy of your bank statement as evidence for the funds required for settlement.
For the record, let it be known that SOTIRIOS ARAMBATZIS of [Edithvale address], who has 50% equity ownership in the same, unemcumbered property valued at $1.3m, is currently in process of selling interest to his ex partner and the proceeds will be transferred to Fiona Cristian as a gift. To settle the Temagog property.
Conveyancing expected to settle within 4-5 weeks.
I am contactable on [telephone number] if any further clarification is required and can supply my conveyancer details dealing with the Edithvale property, if necessary.
Best Regards, Sotirios
[telephone number]
It appears to be correct that the defendant amended the plaintiff’s email. However, her amendment was to simplify matters and she was transparent with the plaintiff by copying him in to what was sent to Ms Robinson. Assuming that the terms of the original email was as deposed to by the plaintiff, the plaintiff described the “100,000” to be funds “already donated” and indicated the “entirety of $575,000 will be transferred to Fiona Cristian”. There is nothing to suggest that the $575,000 to be transferred will be other than a gift or donation. In any event, there is no evidence that the plaintiff (who at the time knew what had been sent to Ms Robinson) objected to or disagreed with the defendant’s characterisation of his payment as a gift.
Secondly, the plaintiff states he and Elly “officially divorced via private agreement”. The document is described as a “Private Binding Financial Agreement” [299] and appears to be more in the nature of a financial settlement rather than formalising actual divorce of the parties.
On 17 August 2022, there were a series of messages from the plaintiff to Arthur regarding Fiona being the only person on title, at least for tax purposes. Incidentally, the messages strongly suggest that the provision of funds were entirely with goodwill and not under any form of duress, with the plaintiff being aware that the Cristian family would live on the land: [300]
2022-08-17 08:45:38 Soti Kindom. No compromises.
2022-0 8-17 17:30:54 Soti If you plan to sell you'll need at least 12 months stay to avoid capital gains tax. For that reason alone, Fiona will be only one on the title
2022-08-22 17:21:53 Soti She's got a nice soul, that one. It would be good to get her in the land and for her to find a nice boy to raise a family with. It'll be a good day when a baby is born in the land. Free, truly free. Hopefully Hannah or one or all of your daughters can experience that That would bring me peace. And make it all worth it.
2022-08-28 16:46:21 Arthur 1st Draft of the Kindom Overview. We have already chopped a lot out. Working on making it simpler without losing its important essence. Any feedback would be appreciated. Arthur & Fiona Cristian. The Kindom Mudroom. The Centre of Benevolence Magnificence Creativity Do No Harm and Full Responsibility [Facebook link]
2022-08-28 20:41:35 Soti Gifts of love and nurture missed as part of sharing abundance of life with community. Eternal life value proposition missing.
2022-08-28 20:42:27 Soti Co creating paradise in present, instead of hell. Also missing.
2022-08-28 20:43:33 Soti Family tree for children to remember parents and ancestors ls powerful. Ought to be added.
2022 -08 28 20:45:23 Soti Honouring sacredness of life and child Co creation as inspiration of love. Laughter or children... happy families. Good to add as well as part of imagery. End with imagery.
| No. | Date | Amount | Source | Plaintiff’s comment | | 36 | 08.09.22 | $500 | BA – CB 320 | | | 37 | 20.09.22 | $575,000 [302] | CommBank – CB 332 | [comment] [303] | | 38 | 20.09.22 | $1 [304] | CommBank – CB 332 | [comment] [305] | | 39 | 21.09.22 | $1,000 | BA – CB 320 | | | 40 | 22.09.22 | $500 | BA – CB 320 | | | SD4 | 24.09.22 | $600 [306] | BA – CB 320 | | | 41 | 25.09.22 | $1,800 | BA – CB 320 | | | 42 | 02.10.22 | $50,000 | BA – CB 328 | | | 43 | 10.10.22 | $500 | BA – CB 328 | | | 44 | 17.10.22 | $5,500 | BA – CB 328 | [comment] [307] |
2022-09-04 20:48:19 Soti How about letting all fence sitters know that the Kindom project is a matter of life and death? And that is the reason I am piling everything I have into it, as any delays in getting this off the ground risk the life of others.
On 9 September 2022, the defendant posted to Facebook a message which addressed the notion that Arthur/she were a cult. I have addressed this above.
On 13 September 2022, the plaintiff sent a number of messages again in argotic terms. [309]
On 19 September 2022, the sum of $574,836.03 (evidently being proceeds of part of the plaintiff’s property settlement with Elly, effected through Pexa) were paid into the plaintiffs Commonwealth Bank account. [310]
On 20 September 2022, the plaintiff arranged for the sum of $575,000 to be drawn as a check on the Commonwealth Bank account and in addition transferred to the defendant’s ‘Love for Life Supplies’ account the sum of $1. [311]
Further, on or about 20 September 2022, the defendant entered a contract for purchase of the Farm from Catherine Silverthorn - De Voy for a sum of $625,000 (deposit of $50,000 with balance due on settlement). [312] Stamp duty payable on the purchase of the Property was approximately $23,430. [313]
On 26 September 2022, the plaintiff was provided with a Liberty Personal Loan Schedule from Liberty in respect of a proposed amount of loan credit of $50,000 with a loan term of 84 months (7 years). [314]
On 2 October 2022, an additional sum of $50,000 was provided by the plaintiff to the defendant. It is said by the plaintiff to have been borrowed from Liberty Financial. [315] That is borne out by the evidence. [316]
On 4 October 2022, the plaintiff says he received the following message from Arthur [317] :
04/10/2022 10:07 AM
Arthur
Check your emails, an old friend in Canada sent through info on how to not pay the usury on the loan. But best we don’t rush in as there are many other consequences we will encounter when we start stirring the freemasonic cauldron.
It appears that on 19 October 2022, the plaintiff sent an email attaching BPAY details and stating “Paying via BPay helps reduce interest, but extra repayments can’t be drawn out” [318] .
On or about 21 October 2022, the Property was transferred into the defendant’s name. [319]
Further on 21 October 2022, Arthur made Facebook post [320] which discusses concepts of freedom, responsibility, abundance and sharing creativity unconditionally with others, creating a life of certainty and security with land, food, water and shelter etc, and describing this and other matters in terms by reference to the word ‘cult’. Its relevance is dubious.
On 28 October 2022, the plaintiff says he received the following message from Arthur, generated from a Facebook group posting: [321]
28/10/2022 08:14 AM
Arthur
Out of his $120k salary, Soti is paying off the $50k unsecured loan for the Shed until the $14.6m comes in next year or at least until other large gifts come rolling in.
Chris, will also help us in establishing the ‘eco’ water ways & the new ‘Billabong Conservation Water Harvesting Sites’ (not dams).
In (late) October 2022, the plaintiff attended at the Property once it was settled. There was some physical altercation between the plaintiff and Arthur. The defendant accepted Mr Newton SC’s statement that the plaintiff “went away and sulked”, qualifying that he did so for a few hours and then came out and they talked about it and got on. She stated “we had many a laugh together afterwards”. [322] I accept her evidence. In any event, the plaintiff seemingly remained on the Farm for the time being.
In November 2022, Hannah visited the Farm to help “for a day of weeding, seeding and mulching citrus trees”. She indicates that during this time the plaintiff was there and “he spent the day cleaning up some areas of the property”. [323]
By mid-November, I infer the plaintiff had left the Farm. Messages at this time suggest that Arthur’s messages to the plaintiff were being ignored. This used to be called being ‘sent to Coventry’. [324] Now, at least on social media platforms, there are various words describing the state of being ignored with degrees of heinousness, such as being ‘left on read’ through to being ‘ghosted’. Arthur’s message on 14 November 2022, was as follows: [325]
2022-11-14 18:19:10 Arthur Soti, with your ongoing silence and with the Byron factor arising in the horizon, are you now wanting out of the Kindom dream? A simple yes or no will do. We ask because we are talking with Byron and discussions about refunding your money will be on the table in the near future and we all want to know where we stand with you so we can make and implement Kindom venture plans and focus clearly on their outcomes. With your yes, this also means that you want nothing to do with us and the Kindom dream anymore. Continued silence with us will be seen as a clear yes with us. A NO makes it clear that you are not wanting your money back, you still want to be involved, fully supporting what needs to be done and are willing to ride out whatever comes with the rest of us for the rest of our lives as we pass on the legacy of the inheritance of the Kindom dream. We have your banking details and unless you want to give us different ones, we will repay you when the money is cleared from Fiji. Life goes on and thank you for your support of the Kindom dream. Arthur and Fiona
As at the settlement, Ironbark Farm had on it a house, studio and Colourbond shed**.** [327] Prior to settlement of the purchase of the Property, Ms Robinson had alerted the defendant to the fact that the studio at least had been constructed (at least prior to purchase by the defendant) without Council approval. Contemporaneously, Ms Robinson indicated that the defendant might wish to contact the Council to establish whether the shed was covered under an exempt development Code. [328]
During closing submissions, the defendant described the infrastructure and land in the following terms: [329]
The infrastructure is a basic three bedroom one bathroom house built 40 years ago without planning approval, it’s since been approved. There is a disaster of a granny flat that serves a purpose for storage and a sleeping space, but has no functioning kitchen or bathroom. There is a fairly new garage being used for storing garden equipment, tools et cetera, and one large carport. Hence the loan for the shed that has yet to be erected, which is to have a bathroom, basic kitchen and a sleeping space or two to provide accommodation, as well as workshop storage et cetera.
…
…As it is, we can only have groups of people for short periods, as with one toilet the septic system would not cope with overuse for long periods. But with the plaintiff abruptly withdrawing the financial support he committed to, and our friend overseas dying, the funds to build the pad and the concrete slab for the shed have not been available, so we are not able to offer anything to anyone who is not fully self-contained...
As mentioned above, the defendant tendered what became exhibits D1, D2 and D3. Within exhibit D1, tab 1 contained a notice of valuation of the Ironbark Farm as at 1 July 2022. [330] Tab 2 had 223 pages of invoices [331] from various businesses principally in relation to the period of late 2022 to late 2024, though there were a few earlier than that. Exhibit D2 contained photos showing Ironbark Farm when it was first purchased, along with photos showing various aspects of the work done on the Property. Exhibit D3 contained photos showing improvements to and work done on the Property and in respect of efforts to protect the Property from bushfires.
It is evident from the photos that various works were undertaken on the Property. The first three photos of D2 show that the plants were overgrown when the Property was purchased. There is a photo of the mowing being undertaken, [332] and one showing the state of the Property after mowing. [333] Within closing submissions, the defendant said many hours were said to be spent on whipper snipping, sorting piles of old tyres and rubbish, filling in holes, smoothing out mounds, mending fencing, making garden beds, pulling out fireweed, setting up pipes between the dams, fixing the greywater overflow and fixing the septic system. [334] The defendant also says they sorted out leaks, set up plumbing for the tanks, swept the roof and carport, improved the lawn in the house yard, removed old fencing and animal pens, built a guinea pig enclosure and painted some of the house. [335]
There are two photos showing a form of driveway being constructed with blue metal being laid out. [336] There is a photo showing a garden bed they had made with wood at the bottom. [337] One of the photos shows Tyson sorting out an issue with the greywater [338] and another shows a lady named Anthea doing some work with a shovel and wheelbarrow. [339] There is a photo showing some piping said to be an extension of the greywater drainage which took three days. [340]
There was an image of a water pump they purchased for the house and installed themselves. [341] That seems to align with a purchase they made in 9 February 2023 from ASC Water Tanks for a pump for $190.00. [342] There was also a photo of them setting up so they can pump from the larger dam to the smaller dam where the dam pump that irrigates the yard is. They purchased pipes and locks for the job. [343] The invoices relating to the pipes, hoses, fittings, sprinklers and other irrigation accessories and fittings total $8,927.13. [344] That includes the hiring of an eel to clear the pipes, and there was a photo in exhibit D3 of the defendant using it. [345] The invoices relating to hiring of equipment totalled to $4,603.8, including for an excavator and tipper.
They purchased three tanks for the Property, and the defendant during the hearing said they totalled approximately $7,000. [346] The sum of the numbers shown in the related invoices is a little higher, being $8,829.2. [347] There were photos in exhibit D3 relating to the tank. One photo showed two people helping set up the base for the tank, [348] another photo showed four people helping set it up (with one lady appearing to be the same in the earlier photo of two people), [349] and one photo of the new tank. [350]
The defendant submits that a number of volunteers assisted the Cristians in improving and maintaining the Ironbark Farm.
Hannah stayed at the farm from March 2023 to January 2024. During this time, she worked with Fiona in the gardening business called ‘The Green Gardeners Macleay Valley’. [361] While she was there, she also worked on the Property by pulling out weeds, collecting and relocating logs, fallen branches and rocks from the Property, preparing garden beds, whipper snipping, as well as indoor activities such as preparing meals and cleaning. [362]
Hannah gave evidence in her affidavit that she supported Love For Life financially and helped them over the years. Along with the visit in November 2022 mentioned above, she made other visits in December 2022 and January 2023 to help in feeding pot plants, tidying and organising a collection of empty pots inside a garden shed, and weeding and mulching bushes around the house. [363]
Tyson was a friend of the Cristians who is said to have volunteered for about five months. [364] There are photos of him in exhibit 2 sorting out an issue with greywater [365] and in exhibit D3 of him digging a hole. [366]
Anthea is a friend of the Cristians who made a few visits to the Ironbark Farm. There is a photo of her with a shovel and wheelbarrow on the Farm. [367] Currently, she is said to be limited in her ability to volunteer as she is working fulltime in Wilcannia. [368]
The defendant also identified Bernard, Matt (a carpenter by trade), Rafaella, Juliet, Andrea, Anthea and Rick. The work (to the defendant's understanding) has been done on a voluntary basis (for no remuneration). The defendant asserted that many hundreds of hours of work had been undertaken by those persons although acknowledged that (consistent with the work being voluntary) there was no formal record kept of the time spent. [369]
Fiona, Arthur and Hannah defended the Property from bush fires over three days in October 2023. [370] The fire started spreading towards the garage and granny flat when Arthur made repeated calls to the RFS. The RFS brought in a helicopter to take water from the dam to dump on the flames and bring the fire under control.
There were photos of Hannah beating out the fire, the helicopter coming in, the fire trucks, and the damage sustained on the Property from the fire. [371] The photo of the fire truck shows the proximity of the damage from the fire to the wood stacks, said to be close to the garage and granny flat.
The contemporaneous messaging is the starting point. I have set the messaging out above. I note the following.
Initially, payment No. 1 (17 August 2017) in a sense came ‘out of the blue’ without any apparent request by the defendant or Arthur. The message on 18 August 2017 whilst attributed to the plaintiff in the Court Book, in fact appears to be Arthur’s response to the plaintiff. Arthur understood the payment as the plaintiff “supporting the living dream of kindom we live for and taking care of our family along the way…”. [372]
Payments Nos. 2 and 3 (3 and 8 November 2018) appear to be simple gifts. They occur in a context in which it seems the plaintiff is helping Arthur with website issues. Indeed, the plaintiff conceded in cross-examination that he considered the first few payments as a gift. [373] The description ‘gift of love’ was, according to the defendant, a combination of a ‘gift’ and the Ringing Cedars terminology ‘Space of Love’. [374]
Payment No. 4 (21 February 2019) is simply described as a donation. Prima facie, it is a gift to the defendant and Arthur.
Payments Nos. 1-4 are unrelated to any notion or prospect of purchase of land.
On 1 February 2022, about 10 weeks prior to the next series of payments in mid-April 2022, the plaintiff referenced the notion of “Kin Domains or Family Homesteads” in a message to Arthur as follows: [375]
2022-02-01 11:10:07 Soti Hey arthur, Hope you don't mind me messaging. An insight after reading in part, Anasta - book 10 of Ringing Cedars. All technology does harm and violates the divine plan and is inferior to capabilities of man. Ice Age is the Creators ways or a great reset to those fallen to technocracy. Kin Domains or Family Homesteads are way to go. Keep well, sotirios
In April 2022, as noted, the theme regarding purchase of land progressed. [376]
Payments Nos. 5 and 6 were made on 12 and 14 April 2022 of $3,333.33 and $6,666.66. The temporal proximity of the payment to the first payment and the fact that the figures if added together come close to a round figure of $10,000 suggests that there might be some connection between the payments. In the plaintiff’s schedule, his comment regarding the 5th payment of $3,333.33 is ‘Gift of Love’.
Contextualised, the initial two payments totalling approximately $10,000 appeared to be related to the immediacy of Arthur’s request for personal financial assistance for expenses in relation to Meg (the family dog), the car and dental bills. They appear to me to be more directly personal gifts.
On 16 April 2022, the plaintiff and Elly separated but continued (at least for some time) to live together and apart under the one roof at the Edithvale property. [377] That date coincided with Payment No 7. of $100,000 (the first of the large payments). Subsequent messages on 19 May 2022 [378] suggest that the funds were sourced from a Ubank loan account (it being unclear why the monies were first transferred to the plaintiff’s Bank Australia account before being transferred to the defendant).
The text messaging at that time does not indicate that the plaintiff revealed to the defendant and/or Arthur that he and Elly had separated. On one view, the catalyst for Payment Nos. 7-10 (16, 19, 21 and 25 April 2022) is the messages from Arthur to the plaintiff alerting the plaintiff to exigent circumstances they were facing with family misfortune and expenses. Whilst the evidence was not admitted for its truth, it does contextualise the response from the plaintiff.
The assertion (whilst it was not admitted for its truth, there is no obvious reason to doubt it) was that Arthur was seeking financial help in a context in which the family were homeless (whether temporarily or otherwise) and sleeping in the family car, the family dog (Meg) was injured, they had significant expenses relating to the family car and their third daughter had a dental bill of $6,500 which had been substantially reduced but still had a balance ($865) due.
The defendant says that the plaintiff’s payment of $100,000 on 16 April 2022 was made by him without any prompting from her or Arthur and without informing them that he was going to do so. [379] It seems to me that that is only partly right. Clearly, there was some communication between the plaintiff and Arthur on 12 April 2022 regarding the Cristian family’s exigent circumstances. It is closely followed two days later, late on 14 April 2022, by the plaintiff raising the prospect of purchase of land. However, it seems fair to say that the notion of large payment of $100,000 in a sense seems ‘out of the blue’.
The 19 April 2022 lengthy text message by the plaintiff (extracted above) [380] bears upon purpose in the collective (approximately) $115,000 payments (12-19 April 2022).
The defendant indicated that the characteristics of “community on the land” are as follows:
the community is based on “gifts from the heart rather than non-commercial arrangements”; [386]
“no one claims ownership of the land and everyone takes care of the village and the village takes care of everyone”; [387] and
those on the land were to “create abundance to be shared freely” [388] or “enjoy or benefit from the abundance of nature”; [389]
the community essentially offers a remedy to “the current ails of the system”, [390] specifically “producing an alternative to the system where people don’t have to worry about mortgages, they don’t have to worry about rent or repayments, they can grow their food and work together as a community to provide for everyone in the community”; [391]
the “aim of the community, and the end is to be able to be totally self-sufficient, to be able to provide everything we need, so we don’t have to go to the shops or go to whatever”; [392]
“where land, food, water, and shelter are free, and community members can devote their time to growing and improving the community”; [393]
“people can have their homes on the land. We work as a community. We grow food. People can have their own little places as well and grow food, have their own lives, raise their families”. [394]
She indicated that their discussion with the plaintiff was that the intention was for Kindom to be engaged with the wider community and to be around 20 families of strong men and women. [395]
She further indicated under cross-examination that the intention is to benefit the wider community with the food they grow [396] . She stated that part of the reason they did not mind being in Kempsey was that it is a very poor region and the intention was to be able to give people free food and also establish networks to help them grow food themselves. [397]
The defendant contended that the goal of Love for Life is benevolent and charitable. She stated in closing submissions: [398]
The goal of Love For Life has always been benevolent and charitable. The goal of Love For Life has always been to heal the damage to earth by creating communities that nurture the land, so that the land can nurture the people who work on the land, so that the people on the land can then nurture the wider community, so that the wider community can nurture the land, and their wider community, and so it spreads.
During cross-examination, the defendant raised with the plaintiff the fact that there were many messages he had had with Arthur talking about kindom being about community. The defendant’s initial attempts to engage the plaintiff were met with some difficulties regarding the form of the questions. [399]
The defendant shortly thereafter returned to questioning regarding Arthur’s intention to create a community. The defendant balked at answering those questions, which, on the face of it, appeared to be simple questions. Indeed, I noted for the purposes of the transcript (with which Mr Newton agreed) that there had been long pauses with the plaintiff being unable to, at least initially respond to the questions. My impression was that the plaintiff well knew that Arthur had raised with him creation of a community and was attempting to avoid answering the questions. The cross-examination was as follows: [400]
Q. Okay, so what I’m saying is, you were aware of Arthur’s intentions to create a community? Yes, or no?
A. His intentions? His intentions or my intentions?
Q. I said his intentions.
HIS HONOUR
Q. The question relates to his intentions, so you’ve been asked about whether you were aware of his intentions to create a community. That’s the question.
A. (No verbal reply)
Q. You can respond to that question please?
DEFENDANT
Q. And it’s yes or no, it’s simple.
A. (No verbal reply)
HIS HONOUR
Q. Are you able to respond that question?
A. Your Honour, I, I feel that if I respond with a yes it insinuates that I fully understood Arthur’s intention and everything he set out to do, which subsequently did not align with my own as I learnt more about it.
Q. The question is not asking you to analyse--
A. Sorry.
Q. --the purpose of the question. It’s a relatively simple question. Were you aware of his intentions to create a community or not? Can you respond to that question?
A. Am I able to obtain clarification around the community that - that’s referenced? The terms that’s being used there?
NEWTON: Your Honour, I submit that is a reasonable response, because an intention may not necessarily have been communicated, and--
HIS HONOUR: If an intention was not communicated one might think the answer to the question is simply no.
Q. You can respond how you wish to respond.
HIS HONOUR: I will simply note for the purpose of the transcript that there have been long pauses in the plaintiff being able to respond to the last two questions asked. Is that a fair assessment?
NEWTON: Yes, it is.
Even though I have rejected the plaintiff’s evidence about creation of a ‘food forest’ or ‘garden’ for himself and Elly, and I reject the plaintiff’s notion that he was attempting to test the defendant and Arthur to “prove their worth”, [401] the plaintiff acknowledged that the defendant and Arthur had skills to “construct the forests”. [402] I understood this aspect of the plaintiff’s evidence to at least acknowledge that the defendant and Arthur had horticultural type skills, which the plaintiff asserted would be deployed in working on the land. This became evident a little later when the plaintiff acknowledged that he had seen the sort of big garden that the defendant and Arthur had created at Bowral. [403]
Later in cross-examination, the defendant returned to address the topic of community. The evidence is as follows: [404]
Q. What did you understand by the word “kindom”?
A. Kindom, it’s basically land that’s 100 by 100 square metres upon which a family settles down, has a home and built to go.
Q. What did you comprehend by kindom name?
A. Same.
Q. What do you comprehend by community?
A. A group of people.
Q. Well, we are a group of people. There’s a group of people in this room. Are we a community?
A. Is, is there a question?
Q. Is there - are we a community in this room?
A. I’d say so.
Pausing there, the plaintiff’s responses suggest (or at least is consistent with) the notion that the type of ‘Kindom’ that was being discussed between the parties was the notion of any group of people including families settling on land in some basic accommodation and living in a community.
The concluding part of the plaintiff’s cross-examination again demonstrated the plaintiff’s reluctance to acknowledge that details of the community had been discussed: [405]
Q. Yeah, if you were not aware that the land was being used for community, why did you have so many discussions with Arthur about community, the ins the outs, how it works, why, everything like that?
A. (No verbal reply)
Q. You’re saying you didn’t have a lot of discussion with Arthur about community?
A. You’re saying that.
Q. No I’m asking--
A. I’m, I’m--
Q. --did you?
A. Well, sorry, could you repeat the question? Can you paraphrase your question please?
Q. Did you have a lot of conversations with Arthur regarding community, kindom, et cetera, and what they - what that entailed?
A. I had conversations with Arthur, and he gave me his opinion about a whole lot of things. And I - I’m certain he, he mentioned kindom and community, or he mentioned one or the other. His opinion is his own, and my opinion is mine.
Mr Newton SC later submitted that the plaintiff was never informed when he made the payments and principally the $100,000 and the $575,000 what the community would be. [406] To the extent that the submission was that no discussion about community was raised, particularly in light of the plaintiff’s cross-examination, I reject the submission.
To the extent that precise details were set out regarding how the community would be involved on the land, even if that is technically true, it is unsurprising, because no specific land at the time of the payment of the $100,000 had yet been identified. Even with the later payment and the purchase of the land, there is no necessary requirement that every single member of the community ought to have been identified to the plaintiff. Self-evidently, the plaintiff knew that the Cristian family would be part of the community. It was envisaged that he would be part of the community or at least come from time to time.
Despite cross-examination to the effect that the plaintiff did not know who members of the community would be, the defendant disputed that. She indicated the plaintiff knew Hannah and in fact stayed in her house a couple of nights where she was living before they came up to Temagog. [407]
Specifically, the defendant indicated, and I accept, that the plaintiff discussed with her and/or Arthur how the community would be established and would function. [408] The defendant submitted, and I accept, that there were “six months of talking before any money was put down” and including disclosure given by Arthur of his intentions and through explanation of “the whole purpose for the community, its aims, its goals, how to make it work”. [409]
Mr Newton SC submitted [410] that the nature of the discussions as between Arthur and the plaintiff (“six months of talking …”) before any moneys were put down had an overtone of catastrophe if one remained in the System. [411] He submitted that the conversations and messages were set or communicated to the plaintiff in circumstances where he had feelings of loneliness and isolation and he was seeking counsel from the defendant and Arthur. [412] He submitted that the defendant did not deny that the plaintiff was lonely and isolated. [413] The tenor of the submission was that the plaintiff’s apparent attraction to the lifestyle was because of his compromised mental state and what he was told contained nothing certain or concrete. [414]
The submission that the plaintiff was not told anything certain or concrete requires some examination. I reject the notion that the plaintiff was not informed of relevant aspects of the community as described by the defendant. Clearly enough, precise aspects of what the community would look like remained to be worked out. However, it seems to me that the basic nature and purposes of the community as I have outlined above were explained by Arthur and the defendant to the plaintiff and that the plaintiff was genuinely (without any significant vulnerability or any inappropriate pressure), interested in the nature and purposes of the community and decided to support it and be a part of it.
Certain initial payments (earlier identified) were undoubtedly made to assist the Cristian family. Beyond those payments, I find that the payments made over the period April-October 2022, were in a context in which it was envisaged that land would be identified and purchased.
Mr Newton SC made a point that a majority of the messages were sent before the parties became aware of the Property. [415] Whilst that may be true, the messages undoubtedly provide context for the parties’ intentions in searching for a property and the ultimate transfer of payment described by the plaintiff in his message on 8 August 2022 as an “irrevocable gift for the Co-Creation of Kindom”.
Mr Newton SC also submitted that the messages reflect an interest in an imaginary or utopian existence and that they are vague and imprecise. [416]
Whilst the language used is at least on one view unconventional and highly figurative, and may appear eccentric or extreme, there is consistency in the messages, which, in the context of the other evidence that I accept (principally being the defendant’s evidence) demonstrates 2 related purposes.
I find that the first and principal purpose is for the development of a ‘kindom’ type of community envisaged as between plaintiff and the defendant (and Arthur) was a rural subsistence gardening/farming arrangement with the aim of maintaining the land and growing enough food to at least sustain those on the land such that they do not need to otherwise engage in the System (for example by being formally employed). I also find (based on the defendant’s evidence recounted above) that part of the purpose of this community is to be able to provide free food to the wider community as well as services to assist them in growing food. Qualified in the way that I have described above, the plaintiff acknowledged that the defendant and Arthur had skills in creating that sort of subsistence gardening community. [417] That is entirely consistent with what actually occurred immediately following the purchase of the Property.
An accompanying purpose of the payments was to meet the exigent circumstances of the Cristian family ‘to get them off the streets’ in a context in which the plaintiff desired to assist the Cristian family and had been impressed by their discussions regarding the defendant’s and Arthur’s ideas of a community on land. It was plainly within the intention and understanding of the plaintiff that the Cristian family would benefit immediately from being able to live on the land as they develop the community. The method of building the community as envisioned by the parties involved the Cristian family living on the property.
Though Mr Newton submits that the fact the plaintiff used the language “be my guests to create Kindom” in May 2022 is consistent with the plaintiff owning or controlling the land, [418] I do not consider that was the ultimate intention. Arthur plainly rejects the notion that they would be “guests (conditional acceptance)” and it seems to be part of the catalyst for Arthur’s message some days later seeking confirmation of his attention, to which the plaintiff’s responses include “No back door. Done” and “I’ll sell my friggin’ Playstation if I need to”. I find that the message including “be my guests to create Kindom” does not detract from the purpose described above.
In the event that the Court finds the payments were gifts, the plaintiff’s position is that he was under a special disadvantage in dealing with the defendant and or Arthur and that the payments were procured by the exercise of undue influence and unconscionable conduct. [419] The defendant, both in her affidavits [420] and in closing submissions, entirely disputed that. [421]
I have already addressed some details bearing upon this claim above. The plaintiff’s assertions regarding the conduct of the defendant and Arthur which may bear upon an undue influence and unconscionable conduct claim are vast. His answer to a question in cross-examination serves as a good example. The defendant asked him why he did not simply back out when given the chance by Arthur asking if he was still “100% about Fiona on the deeds and putting up the 50K deposit and about getting the money to do it all.” In response, the plaintiff asserted that he was verbally abused, threatened, stonewalled, ignored, manipulated, controlled, and “under your thumb”. [422]
Out of the affidavit and cross-examination evidence, the written submissions and the oral submissions, broadly four narratives arise (not necessarily inconsistent with each other).
First, the plaintiff claims that in his dealings with the defendant he was under a special disadvantage having regard to his fractured relationship with his family and partner and aspects of what he describes as depression, anxiousness, confusion, suicidal thoughts, sweats, feelings of loneliness and isolation, vulnerability and difficulties in sleeping focusing and concentrating [423] . To this he added that he had not obtained financial or legal advice in relation to payments or purchase of the property [424] , and other matters [425] I more particularly set out below.
Secondly, the plaintiff asserts that he feared for his safety and that of others due to threats, verbal abuse and manipulation.
Thirdly, he made assertions suggesting that he continued to transfer funds to the defendant in an attempt to save the $100,000 deposit fund he had already transferred.
Fourthly, Mr Newton advanced an argument that the plaintiff and Arthur were in a position to, and did, exercise dominion over the plaintiff due to his vulnerability, the influence they had over him and other circumstances. The plaintiff gave affidavit evidence to support that, addressing the state of his mental health and representations made to him by the defendant and Arthur.
I will deal with them in turn.
The plaintiff pleaded that from in or about 2017 to in or about at least October 2022 he was at a ‘special disadvantage’ in dealing with the defendant [426]
The particulars of that were as follows [427] :
a. the plaintiff's de facto relationship broke down;
b. the plaintiff separated from his de facto partner;
c. the plaintiff was experiencing conflicts with family. friends and his de facto
partner;
d. the plaintiff was depressed, anxious and confused;
e. the plaintiff had suicidal thoughts;
f. the plaintiff had difficulties sleeping;
g. the plaintiff experienced hot and cold sweats;
h. the plaintiff had difficulties focusing and concentrating;
i. the plaintiff felt lonely and isolated;
j. the plaintiff was vulnerable:
k. the plaintiff did not obtain any financial or legal advice in relation to the
Payments he made to the defendant;
I. the plaintiff did not obtain any financial or legal advice in relation to the
purchase of the Property;
m. the plaintiff made the Payments because he wanted to please the plaintiff and Arthur validate himself to them.
Regarding the first narrative, the plaintiff claimed that Arthur threatened to shoot him in the back two times, at least one of those in the presence of the defendant. The plaintiff said the first instance occurred when he was living with Elly and he explicitly requested the return of funds from Arthur. [431] The second instance apparently occurred when he was speaking to Arthur on the phone while Arthur was in the car with the defendant. The plaintiff asserted that he had told Arthur and the defendant “you’re going to, you should follow my instructions” and Arthur responded that the plaintiff was a threat to Kindom, and that Arthur would shoot him in the back, supposedly said “in all seriousness”. [432]
There was said to be another instance of a verbal threat to the plaintiff’ life when Arthur said, “We’ll kill you, take you out the bush and bury you and claim your life insurance?” [433]
Regarding these verbal threats, the defendant deposed in her affidavit evidence that such conversations happened several times “in jest with the plaintiff joining in and having a laugh about it with us.” [434] She maintained that in her cross-examination. [435]
From a text message dated 21 April 2022 extracted in the Court Book, it appears the plaintiff did allude to the narrative of his own accord: [436]
2022-04-21 13:29:13 Soti Plan on taking out 11.5 or 9.5 million life insurance. They can kill me. It will get KinDomain going. Also, intend to destroy the “afterlife” egregious demons and trace matrix feed back to priests and fry them from inside out if they’re so stupid to try to kill me.
The extracts of many text messages that the parties have included in the Court Book do not support the plaintiff’s assertions. There are many instances of both the plaintiff and Arthur engaging in discourse which, at least on its face, seem to be hyperbolic and absurd streams of consciousness. However, there are no text messages hinting that the defendant and Arthur would physically harm the plaintiff or anyone else if he did not financially contribute to the ‘Kindom dream’.
Further, once the plaintiff halted his communications with the Arthur and the defendant, the evidence does not suggest that the defendant or Arthur responded in a menacing manner. To the contrary, the text message Arthur sent him on 14 November 2022 (extracted earlier) appears to be in conventional, polite and collegiate terms.
In addition to the threats of violent attacks against himself, the plaintiff also asserted he had a genuine fear of being killed overnight, along with “everyone on the planet” due to a “red curse fever which [the defendant and Arthur] led me to believe was real”. At the time, he said he believed that they had “some sort of power or mystical ability that Arthur could dodge bullets, and that [the defendant] could see energies or whatever it was”. [437]
There are some text messages extracted in the Court Book that reference a “curse” that Arthur had supposedly spoke of years ago: [438]
2021-11-23 09:57:33 Soti There is no best while members of my family have been deceived in taking the experimental gene therapy killshot and the philosophy you have will do nothing to cure it or reverse it. Without morality as first step nothing else can follow. If everyone owned some land, connected with it, transformed that piece into living paradise then all the world would transform. The curse you spoke of years ago is here. Only the worshippers of Baal have implemented it against worshippers of YHWH or goyim. Like always, Chabad hide in shadows and their moronic Masons are finger pointed with them never mentioned.
2021-11-23 10:08:43 Arthur Agreed. Its what we do and not what they do which means being conscious of what thoughts/dreams we are nurturing which most are completely unconscious of and have no resolve to change the way they are thinking/dreaming. Soullessness is the only issue and most are already oblivious of their present dead state. also, none of us are vaxed and it stays that way. Most get vaxed because of commercial attachments and the doubt uncertainty distrust fear, etc behind tomorrow’s security, food on the table, roof over their heads, health and confidence, esteem issues, etc with kids, elderly, coffee shop chit chats, etc, etc, THE DARK SIDE ALMOST EVERYONE RAISED N THE SYSTEM CONTINUES TO NURTURE behind money, mortgages, leases, rent, commerce, buy and sell, etc, etc. do read MAN Part 1 and contemplate s you use scrutiny and keep going where the sense/logic of truth takes you.
However, it is not evident to me that the defendant and/or Arthur manipulated the plaintiff into believing that he or others would die overnight, as distinct from, for example, using the term ‘curse’ as a metaphor for how they view the current state of society.
Suffice to say I do not accept that the defendant or Arthur in the presence of the defendant, made verbal threats against the plaintiff’ life said “in all seriousness” such that he feared they were going to physically harm him if he did not continue engaging with them. Further, as I have indicated, I do not accept they manipulated him into believing that, unless he provided them with funds, others would die overnight.
The plaintiff asserted that the defendant and Arthur retained control of the payment of $100,000 (paid on 16 April 2022) and refused to return it. [439] I reject that claim
The plaintiff in his evidence deposed to conversations that relate to requests of the return of the funds.
The plaintiff claimed that, on multiple occasions after he had paid $100,000, he said to the defendant and Arthur he was uncomfortable with proceeding and they responded: [440]
“Others want to participate in the Kindom. Do you think you’re the only one? We’ve had others offer to pour millions into Kindom.”
“Bruno and Hannah (who Arthur had informed me were 2 of their friends and supporters) have each contributed well over a $100,000 or more”
“Remain patient for other people to step up so that I don’t bare all the financial burden”
“Ignore your family and friends because they don’t see bigger picture of what we’re doing”
“Tell your parents that it’s your money to do as you please”
“If you want to get out, you’re supporting and endorsing hell, along with rape, murder, pillaging… and all evils of the System”
7. Shortly after I made the payment of $100,000 on 16 April 2022, I had conversations with Arthur about the money I had paid to Fiona. I recall that Fiona was present during some of these conversations. During these conversations, words to the following effect were said:
I said: "I am not sure about moving forward. The money I have paid is causing conflicts with my parents who would like you to return the funds to me. They gave me the $100,000 as part of my inheritance."
Arthur: "Maintain the vision, don't give up or doubt us. You can have the money back if you like or we move ahead vision for the Kindom. We will hold the money for you. It will continue to belong to you. The funds will be kept solely for the property and will not be used for any other purpose."
8. At the time, Fiona and Arthur had told me they were looking to purchase a property for the Kindom.
The defendant cross-examined the plaintiff regarding where the $100,000 had come from and he responded that it was from funds that he had saved. When the defendant pointed out that that was inconsistent with his affidavit evidence that it came from inheritance, his response was that he ended up losing a large portion of $100,000 which his parents gave him and he then “resaved the $100,000”. [442]
The plaintiff says that, on 30 May 2022, some 6 weeks after the payment of $100,000 on 15 April 2022, the plaintiff sent 2 text messages:
30/05/2022 08:21 AM
[bank account details]
Label “Gift Return”
30/05/2022 09:31 AM
No change to house plans. Reality is that I cannot do the work you do right now. I may never be able to do so if you want a home then I will buy one and you can be my guests to create KinDom. If that does not suit then let know before I commit to any loans. Or if you have better offers then let me knows and I'll put brakes on from here. I'll call you once I get main things with my work out of the way. Sydney is green light to work from with several days in office per week.
Above, I have extracted Arthur’s response addressing ‘conditional acceptance’ and the concept of being ‘guests’.
The plaintiff asserted that on or about the same day (30 May 2022), he had a discussion with Arthur and the defendant, in which he said the following, in the context of the defendant intending to allow paedophiles on the land: [443]
"You're going to be on my land, and you're going to do as I say. I will rule with an iron fist, and if you don't like it, you can go fuck yourselves."
"I am king ding-a-ling of my own castle - no one else."
"End of discussion. End of discussion."
…on or about 15 August 2022 I was with Elly when we had a phone conversation with Arthur and Fiona. Elly and I had the phone on speaker. During the conversation, I heard Elly, Arthur and Fiona speak. During the conversation:
a. Elly said words to the effect: - "Stop damaging and destroying our relationship. Leave Soti alone. You both know full well he is vulnerable and in an emotional state. Stop taking advantage of Soti. You have taken from him over $100,000. You say that he is a good friend. If you truly are his friend, you should return the money to him. You know he was not in the right frame of mind when he paid money to you."
b. I said words to the effect: - "I'm suicidal. I will slash my wrists. I don't want to lose my money".
c. Arthur said: "There will not be any Greek tragedy here".
In her cross-examination, the defendant accepted that a conversation occurred between herself, Arthur, the plaintiff and Elly some time before completion of the purchase of the Property. She accepted that Elly was not supportive of their plans or the fact that the plaintiff was providing them with monies for the purchase of a property. However, she recalled the plaintiff claiming he “wanted to be part of this”. She rejected any notion that the plaintiff expressed any suicidal thoughts or intentions with them. [445]
The plaintiff gave examples, supposedly of the defendant and Arthur stonewalling when he requested the funds to be returned. Apparently, after or around the times when he requested funds to be returned, Arthur’s mother fell and injured herself, one of their daughters was in highway motor vehicle accident, and one of their daughters planned to or did become vaccinated. According to the plaintiff, Arthur and the defendant prioritised these events and reported back to him that they had ran out of money and indicated that they intended on drawing on the funds against the plaintiff’ wishes, even after he had told them not to do it. [446] According to the plaintiff, he had sent an SMS regarding this. [447] It is unclear which SMS he was referring to or whether it is even in evidence.
Regarding any threats to draw down on the $100,000, the defendant accepted that on some occasions, Arthur suggested they take a little of it when they knew they had money coming in the following week to put back. [448] I accept that.
Regarding, Arthur’s message on 18 May 2022 saying “Yes, we all need a 6 week break in Fiji. Can we use the 100k towards this???”, I have included the conversation above. I accept the defendant’s explanation that they were engaging in light-hearted conversation. [449] I do not find that Arthur was seriously suggesting, much less threatening, to use the $100,000 for a holiday in Fiji. In any event, as I indicated above, I consider that the purpose of the April funding of approximately $115,000 was at least in part a personal gift to the Cristian family per se.
Related to this is the plaintiff’s further claims, broadly summarised, that Arthur and Fiona intimidated him into agreeing for them to keep the funds to appease them. Specifically, the plaintiff says that, from on or about 15 August 2022, to on or about 20 September 2022, Arthur told him words to the effect of: [450]
"If you don't continue with the purchase, all you have done will be for nothing and you will lose all the money you have worked for.”
“Have the funds come in yet? We need the funds to complete the purchase.” He said this more than once.
“Can you get the settlement money to us as soon as possible. We have people waiting to work the land.”
I reject the plaintiff’s assertions that he requested return of the $100,000 or that the defendant and Arthur refused to return such funds.
I reject that he expressed the claimed uncertainty in the verbal conversations he deposes to. I reject the plaintiff’s evidence that he expressed he was “not sure about moving forward” (whether in the context of him saying the money was part of his inheritance or some other context) and that Arthur responded in a way as to pressure the plaintiff by saying “maintain the vision, don’t give up or doubt us”.
The messages sent on 30 May 2022 are curious. I accept that those messages as deposed to by the plaintiff and the defendant were sent. The first message sent by the plaintiff at 8:21 AM providing his bank account details and the wording “Label ‘Gift Return’” suggests some contemplation regarding the return of the funds. No discussion regarding the return of funds which could give context to that, appears in the messages in the Court Book. Nonetheless, it is possible that a verbal telephone conversation occurred between the plaintiff and Arthur either before or after that message was sent (or both). However, I accept the defendant’s denial that the plaintiff said “I am king ding-a-ling of my own castle - no one else” or anything like it to her or to Arthur in her presence. [451]
In any event, the next message, sent by the plaintiff approximately only an hour later, confirms that the plaintiff’s position was not that he wished for the return of funds.
As I have noted above, those messages, as well as Arthur’s responses, seem to have been part of the context leading up to Arthur, only 6 days later, sending the plaintiff the message, extracted above, seeking to confirm that the plaintiff is still 100% committed, of his own accord.
Further still, around the timing of the plaintiff’s alleged requests of return of the funds, he was continuing to deposit money into the defendant’s bank account:
| 8 | 19.04.22 | $5,000 | BA – CB 188 | | 9 | 21.04.22 | $1,000 | BA – CB 188 | | 10 | 25.04.22 | $1,000 | BA – CB 189 | | 11 | 13.05.22 | $1,000 [452] | BA – CB 193 | | 12 | 14.05.22 | $500 | BA – CB 192 | | 13 | 18.05.22 | $110 | BA – CB 192 | | 14 | 19.05.22 | $500 | BA – CB 192 | | 15 | 27.05.22 | $2,000 | BA – CB 192 | | 16 | 27.05.22 | $1,000 | BA – CB 192 | | 17 | 02.06.22 | $500 | BA – CB 199 | | 18 | 05.06.22 | $1,000 | BA – CB 199 | | 19 | 08.06.22 | $500 | BA – CB 199 | | 20 | 08.06.22 | $500 | BA – CB 199 | | 21 | 16.06.22 | $500 | BA – CB 199 | | 22 | 18.06.22 | $2,500 | BA – CB 199 | | SD1 | 29.06.22 | $1,000 [453] | BA – CB 199 | | 23 | 30.06.22 | $500 | BA – CB 199 |
In response to a question as to whether the plaintiff believed Arthur and the defendant considered him a friend, he responded “No, you considered me a victim and a target for exploitation.” [454]
Through answers to questions during his cross-examination, the plaintiff referred to claims apparently made by Arthur and the defendant that they were homeless and victims of a crime syndicate, which the plaintiff considered to be “total bullshit”. [455] Further, in a monologue (which I later commented was not clearly responding to the question asked), [456] the plaintiff stated: [457]
You led me to believe that you and Arthur were victims of a crime syndicate. You never were victims of a crime syndicate. You were victims of your erroneous interpretation of the legal system, and you propagated a false tale of propaganda saying that you were victims of a crime syndicate, and you, you posted that on your website, and everyone who read that and donated to you has provided you a donation under false pretences. You have obtained financial advantage via deception, and that Fiona is a criminal act regardless.
The plaintiff has not provided any evidence to substantiate these very serious allegations. I do not find that it has been proven to the civil standard that the defendant obtained financial advantage via deception or otherwise lied about being victims of a crime syndicate.
In the POS, Mr Newton SC contended that Arthur and the defendant were in a position to, and did, exercise dominion over the plaintiff. [458] The plaintiff deposed to his state of mind from August 2017 to October 2022 in his first affidavit. [459] As I indicated above, according to him, he felt depressed and anxious about his de facto relationship with Elly ending around August 2022 and their failure to have children. He felt lonely and isolated. He says he had difficulties sleeping and concentrating and experienced hot and cold sweats.
Also said to support Mr Newton’s submissions is the defendant’s evidence that she and Arthur had in depth discussions with the plaintiff where he shared that he was depressed and the issues he was going through, along with her evidence that they both spent a lot of energy coaching him on how to improve his relationships. [460] I address this in particular below.
Mr Newton SC in his POS outlined the relevant legal principles bearing upon whether a disposition may be set aside in Equity for undue influence. [461] He referenced Allcard v Skinner (1887) 36 Ch D 145 at 171; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (Amadio) at 474; [1983] HCA 14; and Louth v Diprose (1992) 175 CLR 621 at 637; [1992] HCA 61 (Louth).
Mason J in Amadio at 461 explained the relationship between unconscionable conduct and undue influence:
Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.
Undue influence may be presumed in two cases: firstly, where the relationship between the giver and recipient of the property falls within a recognised category involving the reposing of confidence, for example, between client and solicitor; and secondly, where the recipient of property is in a position to “exercise dominion over” the giver of property by reason of the trust and confidence the giver reposes in the latter. [462]
As stated by Brennan J in Louth at 626-627, the Court’s jurisdiction to set aside gifts procured by unconscionable conduct ordinarily arises from the concatenation of three factors:
a relationship between the parties which, to the knowledge of the donee, places the donor at a special disadvantage vis-a-vis the donee;
the donee’s unconscientious exploitation of the donor’s disadvantage; and
the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgment as to what is in their best interest.
Although Mr Newton SC submitted that the Arthur and the defendant were in a position to (and did) exercise dominion over the plaintiff, [463] I do not accept that to be the case. Neither do I accept that the elements of unconscionable conduct are made out.
Whilst a claim of a ‘special disadvantage’ was pleaded and the POS addressed submissions in respect of ‘special disadvantage’ including referencing Louth v Diprose (1992) 175 CLR 621, the submissions more generally elided the concept of special disadvantage with submissions regarding unconscionable conduct.
It is of some significance that during the actual hearing itself there was no particular reference by Mr Newton SC to ‘special disadvantage’. Nonetheless, in the PRS Mr Newton SC submitted that [464]
The evidence establishes that the plaintiff was vulnerable and at a special disadvantage vis a vis the defendant and Arthur.
The allegation of a ‘special disadvantage’ and particulars is a broad allegation. The plaintiff did not set out how and when any of the particularised matters were operative during the period 2017 to October 2022.
Obviously, the plaintiff's relationship with Elly broke down, he separated from her and I accept that he had some degree of conflict with her. However, acknowledging that does not mean that these matters of themselves or in combination with the other particularised matters placed the plaintiff at a special disadvantage in his dealings with the defendant.
In relation to the claims that the plaintiff did not obtain any financial or legal advice in relation to the payments he made or in relation to the purchase of the property even if that is true, I regard it as being as a consequence of his own informed choice. I do not accept that the plaintiff declined to use lawyers or seek financial advice in respect of his dealings with Elly or the defendant and Arthur because the defendants and Arthur counselled him against that.
Specifically, I do not accept that the plaintiff had or expressed any suicidal thoughts to the defendant. I have dealt with above, the only particular instance in which this was alleged and reject the plaintiff’s evidence.
The plaintiff gave generalised evidence regarding depression, having sweats, feeling anxious confusion, difficulties with sleeping, focusing and concentrating as follows:
[465] From in or about early-2022 to late-2022 I had several conversations with the defendant, Fiona Caroline Cristian (Fiona) and Arthur. During these conversations I queried Fiona and Arthur about their situations and told them about: - my challenges at work: my medical history: and my financial position. l told them: - the COVID-19 lockdown had resulted in relationship conflicts with my wife; I felt lonely and depressed; I wanted to do something, like build a food forest for my wife and me. Fiona or Arthur said I should watch their videos and read their articles. They directed me to their videos and articles published on the World Wide Web.
…
[466] During the period from in or about August 2017 to October 2022: - my de facto relationship broke down: I separated from my wife and we unofficially divorced via private agreement on or about 16 August 2022; I was depressed and anxious about our failure to have children and the breakdown of our relationship; I had difficulties sleeping; I experienced hot and cold sweats; I had difficulties focusing and concentrating; I felt lonely and isolated.
…
[467] Sometime between in or about July 2022 and before 20 September 2022 I had a conversation with Arthur during which words to the following effect were said: Arthur: "It will be safer to protect the Temagog Property from the System if we place the property exclusively into Fiona's name. If you remain in the System working or do anything with the law, you may get sued and the System can take the property. As a man of peace you must trust me to do right by you."
I said "Okay''.
At the time, I had not finalised my separation with my wife because of Arthur and Fiona's insistence that I avoid using lawyers and insist on a private agreement with my wife which created distrust and dragged out the process. I felt lonely and depressed. I had difficulties sleeping and concentrating. I told Fiona and Arthur about how I was feeling and how my wife did not trust me.
…
[468] In or about August or September 2022 I had a conversation with Fiona and Arthur during which words to the following effect were said: Arthur: "We need the final payment for the property of $575,000 for the Temagog Property. You must make the payment to avoid losing the property and the deposit"
“Fiona is now exposed and will be liable for breach of contract if you don't get the money ... focus getting the funds from your former partner."
I became distressed and depressed at the thought of losing the Temagog Property and the deposit.
…
[469] In relation to paragraph 16 of Fiona's affidavit, from in or about August 2017 to late 2022, I felt depressed and confused. I had difficulties sleeping, focus ing and concentrating. I felt lonely and isolated. I spoke to Fiona and told her I was feeling lonely, depressed, confused and I had difficulties sleeping and concentrating . I do not recall how many times. However, doing the best I can, it was at least 3 times during this period. During this period I also told Arthur that I was feeling lonely, depressed and confused and I had difficulties sleeping and concentrating. I do not recall how many times. However, doing the best I can, it was at least 12 times during this period. Sometimes Fiona and Arthur were together when I told them about these feelings.
….
[470] From on or about 15 August 2022 to on or about 20 September 2022 I had many conversations with Arthur and Fiona. During my conversations with Arthur he said to me words to the effect: - "If you don't continue with the purchase, all you have done will be for nothinq and you will lose all the money you have worked for."
"Have the funds come in yet? We need the funds to complete the purchase." He said this more than once. "Can you get the settlement money to us as soon as possible. We have people waiting to work the land."
I felt lonely, depressed, confused and I had difficul ties sleeping and concentrating. I was deeply distressed and worried about losing money I had paid to Fiona.
….
[471] At pages 36 to 37 of Exhibit SA-1 to my affidavit made 12 October 2023 is a Schedule prepared by me setting out the payment I made to Fiona. At the time I made the payments, I was feeling lonely, depressed, confused and I had difficulties sleeping and concentrating. From time to time when I transferred money into Fiona's ANZ Bank Account, I did what Fiona and Arthur asked me to do by labelling payments as "gift' or donation. At the time I did not think about the dictionary definitions of "gift" or "donation'. I made these payments because I wanted to please Fiona and Arthur and validate myself to them.
In his POS, Mr Newton SC referred to other parts of the plaintiff’s evidence, including some related paragraphs to those which I have cited above [472] . I have taken that material into account.
The defendant gave some evidence of her interactions with the plaintiff, where they spoke about him dealing with a manager at work and feeling depressed and confused. Her evidence was as follows [473] :
Sotirios told us that Elly was a huge support to him when he was struggling at work with a manager he didn't get on with and feeling very depressed and confused. However, he said that, since he had been feeling a lot better and was now enjoying work again, she was now very impatient with him and got very angry if he asked her to teach him something to do with cooking . He said that she often yelled at him and called him derogatory names. I suggested that, as Elly had had to be so strong for him while he was vulnerable and depressed, now that he was better, she was probably releasing a lot of the anger and hurt she was feeling that she hadn't been able to express before because he was too vulnerable. Sotirios told us that, before he moved in with Elly, he had promised to learn how to cook and perform other household tasks from his mother. He had broken that promise and refused to take responsibility for that, insisting that it was her place to cook and clean for him and getting angry when she (and we) challenged him. Arthur and I both spent a lot of energy coaching Sotirios on how to improve his relationships with his family and Elly because, rather than encouraging Sotirios to cut off contact with his family so we could manipulate and abuse Sotirios, as he maintains was our intention, our intention in all our dealings with Sotirios has always been to help him become the man he truly wants to be. Sotirios was the little boy who had never grown up and he was never going to be happy until he did . We always told him that, while we could give suggestions and explanations, he was the one who had to take full responsibility for his actions and only he had the power to make changes in his life.
Overall, the plaintiff’s evidence regarding depression, confusion and the like is highly generalised and lacked detail. It cannot possibly be the case that that his relationship broke down from August 2017. His de facto relationship with Elly only commenced from on or about 30 March 2018.
I note that the plaintiff’s evidence is inconsistent with the above contentions that the defendant and Arthur encouraged the plaintiff to cut contact with his family and friends, as part of the broader claims that they manipulated him.
I accept that Arthur and the defendant spent time with the plaintiff, listening to his struggles and offering advice. I do not accept that they provided such advice in an attempt to unduly influence or control the plaintiff. The evidence of the defendant, which I accept, is that she and Arthur were clear with him that, while they could give suggestions and explanations, he was the one who had to take full responsibility for his actions and that only he had the power to make changes in his life. [474]
I admit of the possibility that at times for example, the plaintiff may have at times experienced some difficulty sleeping. I accept the defendant’s evidence that there were some instances where the plaintiff expressed to the defendant that he was depressed with the issues at work. However, these seem to be temporary instances, not persistent ones.
There was no evidence that any of the alleged sweats, loneliness or isolation, difficulties in sleeping, or focusing and concentrating coincided with one another or persisted in any material way affecting his dealings with the defendant, in particular during the period in which the plaintiff was making the payments between April-October 2022. To the extent that the plaintiff’s evidence contended that was the case, I reject his evidence. The contemporaneous text messages do not bear out any such difficulties in his dealings with the defendant. In particular there was no evidence that any of these matters were made manifest to the defendant such that she was cognisant of them and took advantage of the plaintiff in her dealings with him.
As the defendant submitted, the plaintiff did not put forward any evidence of undue influence, including any evidence from medical professionals that addresses his mental health. [475] The plaintiff called no corroborative or independent evidence from any other witness, medical or lay to the effect that the plaintiff was having any significant or persistent sweats or issues with focusing, concentrating, or sleeping.
While I accept that the plaintiff may have at times experienced negative emotions, as is natural in life, I do not accept that he has substantiated that he was suffering from any material condition(s) affecting his physical or mental health or cognition or such as would give rise to a ‘special disadvantage’ in his dealings with the defendant.
Further, contemporaneous evidence (text messages and emails) does not demonstrate that the relationship between the plaintiff on one hand and the Arthur and the defendant on the other hand was one in which Arthur and the defendant exercised any influence on the plaintiff beyond the influence that friends or others within one’s life ordinarily have on each other. The communications show that Arthur and the plaintiff often had in-depth conversations in which both parties were contributing their thoughts and ideas openly without restraint, often but not always in agreement with each other.
As to Arthur’s and the defendant’s provision of advice to the plaintiff, I do not accept that it went any further than friends providing their opinions and suggestions to each other based on their experience and out of concern for each other. The nature of the communication does not suggest that the defendant or Arthur attempted to control the behaviour of the plaintiff or take advantage of any disadvantage he may have (of which, in any event, I have found none have been substantiated).
The defendant disputed, and I accept her evidence, that Arthur was “lording over the plaintiff” indicating that, notwithstanding there were various robust discussions, including between herself and the plaintiff, he was always very capable of arguing and standing up for himself. [478]
Further, the text messages in evidence reveal that the defendant, Arthur and the plaintiff himself thought of the plaintiff as a person who has a propensity to be stubborn and self-willed, rather than as someone who was naturally compliant or docile. In a conversation discussing the plaintiff’s decision to resist taking the COVID-19 vaccination despite employment requirements, he sends the following text messages on 12 April 2022: [479]
2022-04-12 17:36:33 Soti Of course, I maintained privacy and confidentiality and informed the did not consent to release of that information and also claimed it as part of my estate and further refused consent for anyone to administer it. Avoiding joinder to person, understand and that crap as much as possible. Wait and see…
2022-04-12 17:41:47 Soti And I of course, I’m the plaintiff who is always difficult and being difficult. [sheep emoji] [unclear emoji]
2022-05-20 13:43:53 Soti Dropping out. Empathy and compassion are both gaps for me.
2022-05-25 18:16:59 Soti Chat tomorrow. Sorry dropped out. Elly back home. Time to nurture… or try to
I consider that these text messages are consistent with the defendant’s evidence that she and Arthur listened to him talk about the issues he was facing in his relationships and provided well-intentioned suggestions.
In the context of a dispute over whether the plaintiff had said he wanted “to destroy lawyers”, he asserted “I said I would litigate anyone that intermeddled in my affairs and that also included yourself if you failed to take my directions and follow the instructions.” After a long-winded monologue regarding the defendant’s apparent “propensity to decide and redelegate things”, he stated “if you were going to be involved with me you would follow my instructions to the letter and you would not deviate”. [481]
A constant refrain in the plaintiff’s case is that he asserted his own ‘kingship’ over his property. The relevant conversations he deposes to regarding being “king ding-a-ling” of his own castle and ruling with an iron fist are extracted above. Though I do not accept that those conversations occurred, to the extent that the plaintiff claimed that he supposedly ordered the defendant to follow his instructions to the letter regarding the Property, it is inconsistent with any claims that the defendant and Arthur exercised undue influence or unconscionable conduct over him.
Lastly, Mr Newton SC submitted that the plaintiff currently does not own any real property, motor vehicles, shares or income producing assets and that he lives in a rented unit in Melbourne. [482] He divested himself of his only interest in real property. I have taken that into consideration. Nonetheless, I do not find that his claims regarding undue influence and unconscionable conduct are made out, or that there is any other basis for the repayment of his money.
For the reasons that follow, it seems to me that the first principal purpose I have identified is consistent with a finding that the Property is held on a valid charitable trust. Regarding whether there is a valid charitable trust, Mr Newton SC principally submitted the following:
No agreement was reached that the purpose of the transfer of funds was to purchase a property to build a community on land in which “no one owns the land”. There [is] no sufficiently clear intention to create such a trust.
If any such agreement was reached, it was too vague and illusory and there is no specification as to how the community would be created.
In any event, there is no sufficient public element to the purpose. It has a “purely personal element”.
Regarding the intention to create a trust, Mr Newton SC made the following A court cannot hold that an express trust exists unless it is satisfied that there was the intention to create a trust. The question will be whether there is language or conduct which shows a sufficiently clear intention to create such a trust. No formal or technical words are required: any apt expression of intention will do. The conclusion that the intention existed may be drawn as an inference from available evidence. In order to infer intention, the court may look to the nature of the transaction and the whole of the circumstances attending the relationship between the parties and known to them, including commercial necessity. The overall question is whether in the circumstances of the case, and on the true construction of what was said and written, a sufficient intention to create a trust has been manifested: Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [5-02].
Certainty as to the intention to declare a binding trust is as strictly insisted upon in charitable as in private trusts. [483] However, charitable trusts are specially favoured by the law in some respects. Charitable trusts are not held void for uncertainty of objects if there is a clear indication of a general purpose of charity. [484] It is not necessary for creators of trusts to specify the particular mode in which they wish their charitable intentions to be carried out, so long as their intention to give to charity is quite clear. [485]
What makes a purpose charitable at law is not motive but congruence with the legal concept of ‘charity’. [486] This is made clear by the Privy Council in Latimer v Commissioner of Inland Revenue [2004] 4 All ER 558; [2004] UKPC 13 at [29] per Lord Millet delivering their Lordships advice.
Whether the purposes of the trust are charitable does not depend on the subjective intentions or motives of the settlor, but on the legal effect of the language he has used. The question is not: what was the settlor's purpose in establishing the trust? but: what are the purposes for which trust money may be applied?
I have made the factual determination above that the plaintiff transferred the funds for the purpose of building a community on the land aligned with the Kindom vision, namely with the aim of maintaining the land and growing enough food to at least sustain those on the land such that they do not need to otherwise engage in ‘the System’ (for example by being formally employed). I consider that the plaintiff sufficiently evinced an intention to create a trust for that purpose. Though he did not use legal or formal language, the evidence available in the form of text messages and that of the further evidence of the parties that I accept, demonstrates the plaintiff intended for the arrangement to operate as a trust to further that purpose.
As I have indicated above, it seems to me that the payments prior to April 2022 were essentially in the nature of gifts to the Cristian family. The payments in context, were intended to address immediate needs of the family and do not really appear to have had a broader charitable purpose. I find that they are simply outright gifts to the Cristian family and are not recoverable by the plaintiff.
The payments from April 2022 fall into a different category.
I consider that the communication between the plaintiff and Arthur, evidenced principally through the text messages, sufficiently indicate his intention to establish a charitable trust for those purposes. It is not fatal to this determination that the language of ‘trusts’ was not used or that there is no deed as such. I consider his intention is clear from the evidence I have accepted, as indicated above.
Regarding Mr Newton’s submission that the purpose is illusory, I reject that submission. It may be unconventional. However, it is not apparent to me that the nature and purpose of the community is illusory. Distilled down, it can be synopsised as creating, as the plaintiff put it in February 2022, “Kin Domains or Family Homesteads”. [487]
Connected to the submission that the purpose is illusory, Mr Newton SC submitted that there was a lack of certainty in respect of certain aspects of the purpose and how it is to be carried out.
In particular, Mr Newton SC submitted that the notion there was community with land with no one owning the land was too vague to qualify it as being charitable. [488] That confuses a number of things. Where property is given for charitable purpose, of its nature, it is correct to say that no one as such beneficially owns the land.
Notwithstanding that part of the purpose for the purchase of the Farm was evidently to provide some form of accommodation for the Cristian family, the defendant clarified the position. She stated that she did not consider herself to be owner of the land because it was not purchased for her but for community. She explained that what was meant by no one owning the land is that it was “shared land”. [489] In other words, the defendant eschewed the notion that she had individual or sole beneficial ownership of the land. Rather, her ownership of the land was intended to be for a community purpose to be shared land. [490] That is not to gainsay that there was no intention on the part of the plaintiff to provide some direct benefit to the Cristian family to address their housing need.
Mr Newton also submitted there was no certainty regarding the identification of a trustee, the rights and obligations of the trustee or person to hold the property and how expenses in relation to the care, preservation and maintenance of the Property would be met. [491]
Regarding the identification of the trustee, it seems plain to me that was naturally understood to be the defendant as the title is in her name. Failure to specify rights and obligations of a trustee is not fatal to the finding of a trust. By law trustees have basic rights and obligations. Expenses in relation to the care, preservation and maintenance of the Property have been incurred by the defendant as detailed above. Further, the community of people, who have worked on the Farm care, have (as outlined) preserved and maintained the Property, consistent with the nature of the trust.
Mr Newton SC also raises the issue of certainty in relation to possible membership of the community, which naturally also bears upon the public benefit element required to establish a valid charitable trust.
I have outlined some of the authorities regarding charitable purposes above.
I will first note Mr Newton SC’s submission that “the so called community is for individuals. It involves a purely personal element thus depriving the Kindom and the community of the required public element”.
It is true that the effect of the plaintiff’s payment of the funds to the defendant and the purchase of the property had an immediate benefit to the Cristian family in that it provided them with a place to live. There is no doubt this was part of the plaintiff’s intention. However, the simple fact that there is a benefit to individual persons does not automatically invalidate the trust. What is required for s 23 to be engaged is a gift which include non-charitable elements but is primarily charitable.
I consider that the purpose of creating a community on the land as described above to be a valid charitable purpose, with the requisite public benefit element and in the spirit and intendment of the Preamble to the Statute of Elizabeth.
It is evident from the communications between the plaintiff and Arthur that the intention was to benefit not only the Cristian family but more broadly any person willing to join the community on the land. In the words of the plaintiff on 19 April 2022 in the proposed email to Ms Perkins (3 days after the transfer of the $100,000), it was his opinion that: [492]
The one solution capable of addressing not only poverty, but all societal issues and the ills of the current system is the creation of Food Forests in alingnment with the philosophy of Kindomain Do [No] Harm Communities.What is needed for that is land.
Q. Did you hear Arthur say to the plaintiff words to the effect, “You need to get out of the system. The entirety of humanity is in jeopardy. If you don’t do this, there’ll be no future for anyone in your family”?
A. Possibly, because he’s of the opinion that, well, I am too, that the society, if you want to call them that, is going nowhere good. So, if you don’t have an alternative, as we can see, things are getting worse, and worse, and worse out there, if you don’t have some alternative, which is what we want to set up, so, no one’s under the pressure of mortgage, no one’s under the pressure of rent, no one’s left homeless because they can’t afford to pay the rent.
The context around the transfer of the funds indicate that part of the purpose was to provide relief to people from the stresses of life in conventional society, including repayment of mortgages or rent, and the purchase of food. I also accept the defendant’s submission that there was and is an intention to benefit those people in the broader community who are not living on the land by provision of free food. Even Mr Newton SC during submissions whilst contending that the defendant’s purposes were no more than a fantasy or a dream, referenced the defendant’s affidavit evidence of discussions with the plaintiff noting that in fact “the intention is for kindom to be out in the open engaged in the wider community” [494] . The plaintiff’s evidence in cross-examination confirmed intention to benefit the broader community [495] .
I consider that this is within the spirit and intendment of the Statute of Elizabeth, which is not to be construed narrowly.
Martin CJ in Flynn v Mamarika (1996) 130 FLR 218 (Flynn) treated the first head of charitable trusts for the relief of poverty, not as confined to the relief of destitution by providing the necessities of life but as relating as well to the relieving of distress caused by lack of money, that is, of those who would otherwise go short or without.
Walsh J made a similar point in Downing v Commissioner of Taxation (Cth) (1971) 125 CLR 185 at 193; [1971] HCA 38 (Downing) (Menzies and Gibbs JJ at 191 and 202 respectively agreeing) (footnotes omitted):
But an intention to provide for the relief of persons from poverty need not be stated in express terms. It may be implicit in a gift: see Union Trustee Co. of Australia Ltd. v. Federal Commissioner of Taxation, and the cases there cited. The question is whether or not such an implication can be obtained from the words used in the clause with which we are now concerned. In my opinion it can. A person may be in need without being destitute. The word “poverty” and similar expressions, as used in the law in relation to charities, refer to persons who, although they may not be in abject poverty, are subject to some degree of financial necessity. That view accords with the view stated by Kitto J. in Ballarat Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation, and also with that stated by Vaisey J. and by the Court of Appeal in In re Coulthurst, deceased; Coutts and Co. v. Coulthurst. In the latter case there was a discussion of the degree of need in which persons must be, in order that a gift for the purpose of assisting them financially may be held to be a gift for the relief of poverty. Evershed M.R. stated that the word “poverty” was a word of wide and somewhat indefinite import and that it may not unfairly be paraphrased as meaning persons who have to “go short”.
The reasoning in Flynn and Downing demonstrate that charitable purposes are not confined to relieving acute destitution but extend to addressing hardship.
It seems to me that, properly characterised, providing relief from the stresses of conventional society through a community on shared land falls within the fourth head. It addresses a social need which benefits those of the broader community that choose to join or benefit.
There is also another aspect which supports my conclusion regarding a valid charitable trust. There is an established line of authority recognising that the development of sustainable agriculture falls within the fourth category in Pemsel. [496] As Barwick CJ observed (obiter) in ICLR at 669, “Agriculture partakes of that fundamental social quality which can give a charitable nature to a trust or purpose relating thereto which is beneficial to the community. So it would seem does horticulture. On occasions, a benefit of that kind to a section of the public less than the whole community by the trust or purpose may be enough…”
In Re Centrepoint Community Growth Trust [2000] 2 NZLR 325, the New Zealand High Court at [40] accepted that the promotion of “a standard of living which enhances and sustains a quality of life that is not exploitive of the environment or people and this is permanent, healthy and sustainable for future generations” was a charitable purpose within the fourth head. [497]
Whilst the evidence does not establish that the purpose involves advancing horticultural knowledge through research in the sense present in ICLR or Pleasants, the purpose in this case is directed toward establishing a sustainable land-based community where the defendant’s skills are applied to achieve self-sufficiency on the land and provide food to others.
With respect to the public benefit element, Mr Newton SC submitted that there was no certainty in relation to the qualifications, size and membership of the community. [498]
The defendant indicated that, to become a member of the community, there was no need to have a specific invitation, rather most people would contact the defendant (or Arthur) by phone and ask if they could visit. [499]
Mr Newton SC submitted that the Facebook post on 9 September 2022 [500] demonstrated that Arthur was the caretaker of the dream, meaning he had the power to admit or exclude members. [501] Further, he submitted that because of this, any such community is related to a personal relationship to Arthur or Arthur and the defendant.
Whilst the defendant readily accepted that Arthur was in charge of creating community on the Property, [502] she disputed that it was up to Arthur to determine or control membership. [503] What the defendant was conveying is not that there is no mechanism for regulating membership but rather that it is not overly formalised and onerous. Love for Life has a public presence through online platforms, through which people are able to make initial contact and go to visit the property. They are not asked for an immediate commitment to stay. Rather, they are invited to stay for a short visit to determine whether they would like to form part of the community or not and after a bit of time then able to make a decision whether they wish to remain or go. They may stay for a longer period such as 6 months. [504] As informal as that is, it appears to have mostly worked and the defendant can only recall one occasion when they indicated to someone that they should leave. [505] Hannah and Bruno were identified as members who had been involved for longer than 6 months. [506] Tyson Janke [507] (Tyson) had stayed for 5 months. [508] Anthea was another person mentioned who comes when she can. [509]
Mr Newton also says, "Well," we can't have a community because of, there's no applications to council.
Well, under the zoning laws, which I think it's R2, on that property, we can have a house, a manager's cottage, a granny flat, 200 metre squared of shedding, so just in there we can house at least ten people. And then people can also stay in mobile units like a motorhome or something like that. So we could certainly have enough people on the land to start creating what we want to create without contravening any council laws. We've already looked into all that.
Mr Newton SC did not cross-examine the defendant about what if any approval had been sought from the council for any form of community dwelling. Even if what Mr Newton SC says might be the case, there is no absolute certainty that the form of community is necessarily impermissible. In the absence of that matter being raised directly with the defendant in evidence, I do not consider that it would be appropriate to make a specific finding that the purpose was impermissible without council approval.
In any event, the defendant has clearly taken steps to effectuate the purpose as described above using the funds provided by the plaintiff. It is not necessary, in order that a gift should be a good charitable gift, to show that it will in itself immediately and completely accomplish the purpose to which it is to be devoted. [512] The fact that it may take some further time and resources before a larger number of individuals and/or family are able to stay on the Property, does not in itself invalidate the purpose.
On any view of the matter, I reject the plaintiff’s claims that the payments made by him were infected by unconscionable conduct for vague and illusory purposes. In the event that I am mistaken regarding the predominant purpose, there remains the intention evident from the plaintiff to assist the defendant and her husband outright in a context in which he was concerned for them, he had regard to their exigent circumstances and was impressed by their discussions regarding their ideas of building a community on land.
On or about 21 October 2022, the defendant, Arthur and Xanthe moved to live on the Farm, [513] and as at the time of the hearing they remained living there. [514]
Consequent upon their move to the Farm, they appear to have set about creating a type of community and undertaking projects.
Unsurprisingly, that is not something that appears to have been able to have occurred immediately.
The defendant indicated that, initially, certain infrastructure works would need to be carried out on the land for the community to function. In order for that to occur some people (the defendant included) would need to work within ‘the System’ to “bring in the money needed to establish the infrastructure necessary for a community to be totally self-sufficient while others work on the land establishing the infrastructure for the workers to come to when they are able to stop working in The System and join the community full time”. [515]
That would progress so that “Gradually, one by one, we will all pull out” [516] (i.e pull out of ‘the System’).
Some of the cross-examination was directed to disputing that there were any members of the community. The defendant disputed that [517] and I accept at least in a basic form there were and are a small number of members. There was a “base group of people” that they had been involved with for a period of approximately 10-16 years. [518]
The size of the expected community according to the defendant would not be large, probably about 10 to 15 people, though with some prospect of that size increasing. She stated: [519]
Q. And how many people do you think would have lived on this property?
A. Well, the size it is, cause one thing we have definitely discovered is that everybody needs a small, private space, along with shared community land. So, with the property as it is, probably ten to 15 would be a good number, and then the idea is that when, cause you need enough people to make it not overly arduous day in, day out, that you’re having to, so everyone can contribute to growing the food, growing, doing whatever. And then, as more people came to join, we could expand, and other people had money to put in, we could expand the land.
The defendant contemplated that more land might be purchased. [520]
Certain cross-examination was aimed at demonstrating that the community did not exist. The defendant disputed that. In particular, she pointed out that part of the difficulty with inviting people onto the land was there was uncertainty over whether there would have land to continue going forward by dint of unknown outcome over the litigation: [521]
Q. Is this the case, that your defence and affidavits do not identify the names of persons who are members of the community where there is no ownership of property because that community does not yet exist?
A. Well, we have had plenty of people on the land, some staying for a few months, some not. Obviously over the last year since this matter started we have not been able to offer people the opportunity to come onto the land because we have had no certainty about the land. So while we talk to people regularly, we have not felt able to say to people, "Yes, you can come on the land" because we don't know what the outcome of today's going to be.
Certain preliminary or start-up work on the Farm was commenced in order to ready it for both a type of village community and projects.
In the start-up or preliminary period, the defendant indicated that whilst she and Hannah worked off the land earning money to fund infrastructure, Arthur worked full-time on the land. [522] Arthur is in charge of the project, making the major decisions, [523] until the village becomes functioning. [524]
The defendant disputed that the community she referred to simply comprised herself, Arthur and Xanthe, and explained that there were others who formed part of the community. Relevantly, at the time of the commencement of the proceedings (August 2023) and at the time of the hearing, the community is no more than about 10 people including Hannah (who was at one point full-time), [525] and a number of others part-time including [526] Anthea, Bruno, Jerry and Tyson Janke.
Despite cross-examination to the effect that members of the community had not been identified by the defendant to the plaintiff, I accept her evidence that the plaintiff knew that members of the community or potential members of the community included (other than the Cristian family) Hannah, Bruno and Anthea. [527]
Despite cross-examination to the effect that the notion of the plaintiff living in community was not something that would suit him at all, the defendant indicated and I accept her evidence that: [528]
A. He claimed to what (sic) [love] [529] that. He even met some people there when we first got there. There was a couple who came to visit with their kids, helped out. He said he loved it. He loved meeting them. He thought they were really nice people. He actually said, “I would love to live with people like that”.
I outlined above the preliminary work that has been done on the Farm. It is evident that from and during the period in which preliminary or start-up works were carried out on the farm the defendant appears to have used profits from her own gardening business to go towards expenses for the setting up of the farm the community and the projects. [530]
Barely 5 months elapsed since the completion of the purchase of the Farm before the plaintiff on or about 23 March 2023 by his solicitors lodged a caveat on the title to the Property, claiming an equitable interest based on a resulting trust. [531] Barely a further 5 months passed after that time before these proceedings were commenced by summons on 7 August 2023. [532]
It seems to me that, in light of the above evidence which I accept, the defendant and Arthur set about creating a community on the land which was the essential purpose for which the money was given.
No attempt was made to demonstrate that some form of simple community in which people attended at the Farm, stayed there (or nearby) for some period of time and worked there on projects whatever they might be was impossible of performance or legally impermissible.
The plaintiff did not prove that the defendant, who holds the legal title to the Property, was unamenable to legal process to enforce the purpose for which the funds were provided. In any event, no submissions were made by the plaintiff that any charitable purpose, if found, was not being effectuated by the defendant or that she was breaching her duties as a trustee.
To the extent that there is any lingering claim by the plaintiff for return of money based on an alleged loan, I reject the plaintiff’s claim.
The plaintiff says: [533]
In or about September 2022 I had conversation with Arthur, during which an exchange to the following effect occurred:
I said: 'The Cash just came through. I just obtained a loan of $50,000 from Liberty for you and Fiona. Get cracking tomorrow".
Arthur. "Pay it into Fiona's account with ANZ."
Q. In about August or September 2022 did you have a conversation with the plaintiff and Arthur in which Arthur said to the plaintiff words to this effect “We urgently need to build a shed for about $50,000. It’s critical for the kindom”?
A. Well they certainly did have conversations about building a shed, because we needed - the infrastructure is not - on the land is not huge, so we wanted to put up a shed, one for equipment but also to make a bit more living space for people too.
Q. You were present when Arthur and the plaintiff had a conversation.
A. There was a lot of conversations over a long time about sheds.
Q. Were you present during some of these conversations?
A. Yeah.
Q. You were present when Arthur said to the plaintiff “We urgently need to build a shed for about $50,000”.
A. There were discussions between the plaintiff and Arthur about borrowing money. I don't know if he said, “We urgently need to borrow it”. But there were certainly discussions about getting a loan for a shed.
Q. Arthur said to the plaintiff, “It’s a matter of life or death”.
A. I never heard that.
Q. He said in your presence “We can use the Facebook group members to pay down the loan so you don’t need to service it yourself”.
A. I don't know.
Q. He said to the plaintiff in your presence “With Bruno’s business, Hannah’s business getting off the ground, Fiona and the online group can service the loan and take care of it”.
A. I, I don't know.
Q. You appreciated that the plaintiff borrowed $50,000 from Liberty Finance.
A. Yes.
Q. And he paid that money into your account with ANZ Bank.
A. Yes.
Q. You’ve never met any of the interest repayments on that loan, have you?
A. No, I haven't.
Q. In your defence - and I’ll take you to it at court book 27 - let me know when you’re at page 27?
A. Yeah, I’m nearly there. Okay, it’s there.
Q. Could I take you to the fifth last line of paragraph 12, just over halfway in? You state:
“Had the plaintiff been offering a loan or conditions upon his financial gifts, they would've been refused because I wouldn’t have been able to guarantee that I could pay them back, and because Arthur and myself have been working on this vision for the last 17 to 18 years.”
Do you see that?
A. I’m saying that if he had said to us “I’ll buy land and, and you can pay me back”, I would've said “No”, because I couldn’t pay it back.
Q. My question is about the $50,000 loan that the plaintiff had paid--
A. I wasn’t talking about that on this, this - with this particular thing.
The cross-examination continued a little bit with Mr Newton SC questioning the defendant about the fact that she earned income.
He then specifically returned to the topic of the loan, the evidence being as follows: [535]
Q. You’re aware that the plaintiff was approached by Arthur to obtain a loan of $50,000.
A. Yes.
Q. You’re aware that he had to go out and borrow the money.
A. Yes.
Q. At commercial rates.
A. Yes, well I didn’t know much about rates and loans but--
Q. You received the money.
A. Mm.
Q. You’ve only spent part of that money, haven't you? You haven't spent it all.
A. No, it’s - the 50,000 was spent. It was--
Q. You say that you have no liability for that money, you don’t have to pay back anything.
A. Well it was - I wasn’t expecting to pay it back, because it was part of the whole pool of everything. If you’ve got to remember, I’ve been spending a fortune on that land. I’ve spent lots and lots of lots of money on that land. I got some - a bit of insurance back from the fires. I put it all back into the land, into the improvements on the land, into the driveways, into the water tanks. It’s not like he was the only one putting money into the project. I put pretty much everything I earn, apart from what I need for family, food on the table, electricity bills. It all goes, okay what do we need to do next? What do we need to do next? What needs improving? What needs buying for this thing? What more plumbing bits do we need?
Questioning continued regarding specifics about the cost for the shed and invoices.
I do not accept the plaintiff’s evidence that there was an agreement that the defendant would repay the loan.
The onus of establishing monies were lent by way of loan is on the plaintiff. The pleading of the loan allegation was in respect of monies advanced to the defendant [536] . The plaintiff did not join Arthur as a party to the proceedings and did not assert there was a loan obligation as between himself and Arthur. There is no pleading of any agency as between Arthur and the defendant so as to bind the defendant to the plaintiff.
Neither the conversation the plaintiff says that he had with Arthur in September 2022 [537] nor the message of 4 October 2022 [538] (nor even the much later message of 27 May 2023 [539] ) of themselves, particularly contextualised in light of all the payments made by the plaintiff, establish that money the plaintiff had borrowed from Liberty was being lent to the defendant. The plaintiff does not depose to any conversation he had with the defendant in which the defendant expressly or impliedly undertook any such repayment obligation.
In Mr Newton SC’s careful cross examination of the defendant, he did not put to the defendant that there was any conversation that she had had with the plaintiff whereby she agreed to repay to the plaintiff the monies that he had borrowed from Liberty. Rather, the cross-examination was on the basis that she was broadly aware of some discussions that had taken place as between Arthur and the plaintiff and that she herself had never met any of the interest repayments on the Liberty loan monies.
Whilst the evidence in the form of messages [540] and an email [541] suggests that there was some discussion as to the method and plan of loan repayments, it does not demonstrate that there was an agreement for the defendant or Arthur to make repayments. Rather, there was simply some contemplation that further and larger gifts may be used to pay off part of the loan.
The defendant disputed that the monies the plaintiff borrowed from Liberty Financial were the subject of any agreement by Arthur or the defendant to repay the sum. [542]
Overall, I am not satisfied that there was any specific arrangement or agreement that the defendant (or even Arthur) would borrow the sum of $50,000 from the plaintiff or that the defendant would be obliged to make interest payments and repay the capital amount that had been borrowed. I accept the defendant’s evidence that, in substance, the $50,000 was a contribution by the plaintiff to the purpose of building a community on the land. Whilst it is true that the defendant herself earnt an income, a degree of that income was spent by herself on the land and I accept her defence that she never agreed to undertake any obligation to repay the $50,000 or interest on it. It needs to be remembered that part of the context which I have found is that the plaintiff was providing funding in circumstances where he was cognisant of the exigent circumstances of the Cristian family. Further, the plaintiff’s claim regarding the terms of the loan agreement is that as soon as $50,000 was advanced the defendant became liable to pay that sum “at once” or alternatively on request or demand [543] . Having regard to my findings regarding the context in which the payments generally were made by the plaintiff I consider it highly unlikely that the defendant agreed or would have agreed to such a term.
In light of the findings that I have made above, I do not consider that there is any basis on which the Property should be returned to the plaintiff.
In relation to the eleventh issue raised by the plaintiff, I do not find that it is unfair or unconscientious that the defendant procure or accept and retain the payments, or that the gift of money should be set aside.
The fifth and sixth issues proposed by the plaintiff are as follows:
5. Whether the failure to satisfy section 23C of the Conveyancing Act renders the alleged agreement and/or trust that the Property be purchased for the purpose of creating a community on the land with no one owning the land ineffective?
6. Whether by reason of section 54A of the Conveyancing Act no action or proceedings may be brought on any alleged agreement that the Property was purchased for the purpose of creating a community on the land with no one owning the land.
Mr Newton did not address these issues in oral submissions but nonetheless submitted in the POS and PSS that the failure to satisfy s 23C of the Conveyancing Act rendered the trust ineffective and that the failure to satisfy s 54A rendered it unenforceable.
Section 23C is in the following terms:
23C Instruments required to be in writing
(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol—
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.
(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.
(3) For the purposes of this section, a requirement for writing may be satisfied in electronic form and a requirement for writing to be signed may be satisfied by electronic signature.
54A Contracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged.
(2) This section applies to contracts whether made before or after the commencement of the Conveyancing (Amendment) Act 1930 and does not affect the law relating to part performance, or sales by the court.
(3) This section applies and shall be deemed to have applied from the commencement of the Conveyancing (Amendment) Act 1930 to land under the provisions of the Real Property Act 1900.
(4) A contract referred to in subsection (1) is not invalidated or rendered unenforceable only because it has been created in electronic form and electronically signed or attested.
A declaration of trust is a disposition of property. [544] Section 23C(1)(a) will apply where an interest in land is created or disposed of. [545]
When the plaintiff wrote a cheque for $550,000 (and when he transferred the $100,000), he did not have any interest in land to dispose of. The trust created by the transfer of funds was a trust over money and not land. It does not seem to me that this engages ss 23C or 54A of the Conveyancing Act.
The charitable purpose of the trust was, as I found above, to purchase land on which to build a community with a rural subsistence gardening/farming arrangement with the aim of maintaining the land and growing enough food to at least sustain those on the land such that they do not need to otherwise engage in the System , and to provide food to the broader community [546] .
Having regard to my principal findings, the Property, when purchased (for a legitimate purpose) by the defendant using the funds she held on trust, then became subject to the same trust. No further declaration, whether in writing or otherwise, was at that point required for there to be a trust over the Property. Further, it is accepted that contracts for the sale and purchase of the Property were exchanged. [547]
In any event, the requirement for ‘writing’ means printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form. [548] In relation to the requirement for signing, s 9(1) of the Electronic Transaction Act 2000 (NSW) provides:
(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—
(a) a method is used to identify the person and to indicate the person’s intention in respect of the information communicated, and
(b) the method used was either—
(i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or
(ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence, and
(c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).
It is far from clear to me that the provisions of s 54A Conveyancing Act 1919 have any application here. The defendant has not brought any action or proceeding in respect of a disposition or creation of an interest in land.
However, to the extent that there is any requirement that there be a memorandum or note “signed” by “the party to be charged” or his/her agent, it seems to me that that is amply satisfied by the text messages that I have referred to earlier between the parties identifying the purpose of the gifts in the sender and recipient. Further, it has been held that emails are writing for the purposes of relevant statutory requirements of a memorandum or note and the signing requirements are satisfied by the party’s name appearing at the foot of the email. [549]
Ultimately I have rejected the plaintiff’s claims for recovery of the Property and any other monies. I reject the plaintiff’s claims that that defendant and Arthur were cult leaders and Arthur was a Sovereign Citizen and also reject his claim that the payments made by him were infected by unconscionable conduct for vague and illusory purposes.
Certain initial payments (earlier identified) were undoubtedly made to assist the Cristian family. Beyond those payments, I find that the payments made over the period April-October 2022, were in a context in which it was envisaged that land would be identified and purchased. The language used in the communications regarding purchase of the land admit of a predominant purpose and an incidental purpose.
The principal purpose enabling the development of a ‘kindom’ type of community envisaged as between the plaintiff and the defendant (and Arthur) was a rural subsistence gardening/farming arrangement with the aim of maintaining the land and growing enough food to at least sustain those on the land such that they do not need to otherwise engage in the System (for example by being formally employed) and to provide free food for the broader community.
The incidental purpose was for the plaintiff to meet the exigent circumstances of the Cristian family ‘to get them off the streets’ in a context in which the plaintiff desired to assist the Cristian family and had been impressed by their discussions regarding the defendant’s and Arthur’s ideas of a community on land.
The principal purpose is consistent with the finding of a charitable trust.
In the event that I am mistaken regarding the predominant purpose, there remains the intention evident from the plaintiff to assist the defendant and her husband outright in a context in which he was concerned for them, he had regard to their exigent circumstances and was impressed by their discussions regarding their ideas of building a community on land.
The plaintiff’s claims accordingly must be dismissed. There is no residual part of the plaintiff’s claim which seeks any declaratory relief in respect of a charitable trust. Further, there is no cross-claim or other claim for declaratory relief regarding purpose. Those matters suggest that the claim should simply be dismissed.
Nonetheless, in light of my principal findings that the first principal purpose I have identified is consistent with a valid form of charitable trust, I would be amenable should the parties or some interested other party (such as the Attorney-General) wish me to consider the making of declarations to record the form of charitable trust.
Prima facie, costs should simply follow the event. My understanding is that at all relevant times the defendant has been self-represented and it is likely that she consequently has no legal costs which would be the subject of a costs order in her favour. Nonetheless, against the possibility that the defendant has some costs which might be regarded as being legal costs there should be a costs order in her favour. Further, ordinarily there should be no order as to the plaintiff’s costs to the intent that he will bear his own costs. However, to cover any possibility that there were relevant costs offers made by the parties, I will permit the parties to apply to vary my proposed costs orders.
THE COURT:
| No. | Date | Amount | Source | Plaintiff’s comment | | 1 | 17.08.17 | $250 | BA – CB 172 | - | | 2 | 03.11.18 | $250 | ING – CB 174 | - | | 3 | 08.11.18 | $250 | ING – CB 174 | - | | 4 | 21.02.19 | $1,000 | ING – CB 177 | - | | 5 | 12.04.22 | $3,333.33 | BA – CB 188 | Gift of Love | | 6 | 14.04.22 | $6,666.66 | BA – CB 188 | - | | 7 | 16.04.22 | $100,000 | BA – CB 188 | Space of Love Donation | | 8 | 19.04.22 | $5,000 | BA – CB 188 | - | | 9 | 21.04.22 | $1,000 | BA – CB 188 | - | | 10 | 25.04.22 | $1,000 | BA – CB 189 | - | | 11 | 13.05.22 | $1,000 [550] | BA – CB 193 | - | | 12 | 14.05.22 | $500 | BA – CB 192 | - | | 13 | 18.05.22 | $110 | BA – CB 192 | - | | 14 | 19.05.22 | $500 | BA – CB 192 | - | | 15 | 27.05.22 | $2,000 | BA – CB 192 | - | | 16 | 27.05.22 | $1,000 | BA – CB 192 | - | | 17 | 02.06.22 | $500 | BA – CB 199 | | | 18 | 05.06.22 | $1,000 | BA – CB 199 | | | 19 | 08.06.22 | $500 | BA – CB 199 | | | 20 | 08.06.22 | $500 | BA – CB 199 | | | 21 | 16.06.22 | $500 | BA – CB 199 | | | 22 | 18.06.22 | $2,500 | BA – CB 199 | Gift of [word is obscured] | | SD1 | 29.06.22 | $1,000 [551] | BA – CB 199 | | | 23 | 30.06.22 | $500 | BA – CB 199 | | | 24 | 05.07.22 | $300 | Good Food Giftcard | | | 25 | 05.07.22 | $1,200 | BA – CB 209 | | | 26 | 14.07.22 | $500 | BA – CB 209 | | | 27 | 28.07.22 | $500 | BA – CB 210 | | | 28 | 05.07.22 | $1,000 | BA – CB 210 | | | 29 | 09.07.22 | $2,000 | BA – CB 210 | | | 30 | 10.07.22 | $1,000 | BA – CB 210 | | | 31 | 21.07.22 | $1,000 | BA – CB 210 | | | SD2 | 28.07.22 | $600 [552] | BA – CB 210 | | | 32 | 04.08.22 | $3,500 | BA – CB 264 | | | 33 | 11.08.22 | $500 | BA – CB 263 | | | 34 | 18.08.22 | $5,000 | BA – CB 263 | | | 35 | 25.08.22 | $500 | BA – CB 263 | | | SD3 | 30.08.22 | $600 [553] | BA – CB 263 | | | 36 | 08.09.22 | $500 | BA – CB 320 | | | 37 | 20.09.22 | $575,000 [554] | CommBank | [comment] [555] | | 38 | 20.09.22 | $1 | CommBank | [comment] [556] | | 39 | 21.09.22 | $1,000 | BA – CB 320 | | | 40 | 22.09.22 | $500 | BA – CB 320 | | | SD4 | 24.09.22 | $600 [557] | BA – CB 320 | | | 41 | 25.09.22 | $1,800 | BA – CB 320 | | | 42 | 02.10.22 | $50,000 | BA – CB 328 | | | 43 | 10.10.22 | $500 | BA – CB 328 | | | 44 | 17.10.22 | $5,500 | BA – CB 328 | [comment] [558] | | SD5 | 28.10.22 | $600 [559] | BA – CB 328 | | | | Total | $785,060.99 | | |
**********
See Helen Fulton, A Companion to Arthurian Literature (2012, John Wiley & Sons) at 1.
Ibid at 2.
John Steinbeck, Chase Horton and Christopher Paolini, The Acts of King Arthur and his Noble Knights (2007, Penguin Books).
Lord Byron, Don Juan (1859, Jas. B. Smith & Co) at CI p. 365.
Court Book (CB) 10-15 (Amended Statement of Claim (ASC) [5]-[30]).
CB 16 (ASC [34]).
CB 16 (ASC [33]). Reference to a ‘kindom motherland’ appears in a number of places including CB 75[91].
Plaintiff’s Opening Submissions (POS) [7]; T 8.9-.21, 268.19-.20.
T 269.15-.16.
T 9.34-.38.
CB 32[41]; T 289.9-.38.
CB 26[2], 26[7], 27[10], 29[20], 29[23].
CB 32[36]-[38] (amended defence) (AD).
CB 26[3], 29-30[23].
CB 30[23], 165[12].
CB 30[24].
T 276.1; T 285.1 (see also T 81.32-.23 and T 161.33-.34).
See Issue 4 of defendant's statement of issues (MFI-1) (which the plaintiff did not agree contained admitted facts or raised real issues).
CB 26[2], 37[64].
CB 169.
T 206.42-.47.
CB 38[73], T 159.16.
CB 337.
T 275.31-.37.
Seemingly “loveforlife.com.au”, which is no longer in existence due to technical issues: T 13.32-.34.
T 162.22.
CB 26[2].
CB 49[7]-[8].
CB 56[22]-57[24].
CB 87[29]; T 156.12-.23.
CB 90[90], 121[65].
CB 256.
CB 16[34(a)].
CB 196.
CB 91[7(e)].
CB 196.
CB 48.
CB 30[24].
CB 328.
T 213.23, 213.46-.49.
It being unclear whether this was 2022 or some other point between 2008-2022.
CB 32[40].
T 170.42.
CB 54[19], 59[40], 60[41], 66[67], 70[82], 71[84], 72[87], 72[89], 73-75[90], 75-76[91].
T 23.31-.47; Affidavit, Hannah Louise Bennet Wood, 18 January 2025 (Hannah’s affidavit) [2].
CB 55.
T 213.35-.36 (it being unclear whether the defendant’s reference to family were her other children, parents, siblings or others).
T 16.9-.22.
CB 124-125[81].
T 215.5-.6.
T 232.5-.10.
T 151.18, 232.1.
T 151.18-.19, 231.50-232.3.
CB 66[65], [67], 270.
T 230.30-.37.
T 232.10.
CB 103.
12 681 280 420 Separate to ‘Love for Life’ (see below).
CB 339-340.
CB 339-340.
CB 103.
CB 369-370, 10[7(a)], 28[13].
T 231.43-.45.
T 231.47-.48.
CB 31[30].
T 12.6-.13.
T 28.30.
T 12.44-.47, 195.50-196.6.
T 13.27-.46.
CB 168.
CB 169.
T 16.3-.7.
T 12.6-.13, 13.48-14.10 (opening submissions), 16.3-.7.
See references to Hannah and Bruno also at CB 61[46], 103[18], 107[30], 109[38], 184, 187, 195.
CB 73[90].
CB 73[90]. See also CB 61[46], 67[73].
Hannah’s affidavit [2].
CB 73[90].
Lot 5971 in Deposited Plan 621202 with an associated folio identifier (5971/621202): CB 215, 237.
CB 244.
CB 335.
CB 238.
160m x 141m. See AU Stadiums, “Accor Stadium” (Webpage) https://www.austadiums.com/stadiums/stadium-australia accessed 29 November 2025.
T 282.26-.29.
CB 15[24] (ASC); CB 32[35] (AD).
POS [1] citing ASC [24] and AD [35] (see CB 15, 32). The POS [1] in fact states the figure as being $784,458.99. (See other references: CB 56[21], 76[93], 90[4]).
See CB 15[24], 369-370.
CB 57[29]. See the bank statements at CB 171-174 (Bank Australia); 177-178 (ING); 188-189, 192-193, 198-199, 209-210, 263-264, 320-321, 328-329 (Bank Australia); 332-333 (Commonwealth Bank).
Orders 1-7.
Orders 8-9.
Orders 10-11.
Order 12.
Orders 13-15.
CB 26[2] (AD).
CB 26[3] (AD).
T 1-4.
T 1.34-.36.
See e.g. Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley JA, Giles and Whealy JJA agreeing at [829] and [830] respectively; Bauskis v Liew [2013] NSWCA 297 at [67]-[70] per Gleeson JA, Beazley P and Barrett JA agreeing at [1] and [2] respectively; Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37] per Kirk and McHugh JJA.
Affidavits at CB tabs 5 (12 October 2023), 6 (25 March 2024), 7 (1 May 2024).
Affidavits at CB tabs 8 (No.1 19/20 November 2023), 9 (No.2 19/20 November 2023), 10 (No.3 17 June 2024) and 11 (No.4 11 November 2024).
T 73.19-.37.
T 261.14-262.22.
T 84.1-.2.
T 235.20-.23.
T 263.34-.35.
T 263.49-.50.
T 85.7-.24.
T 178.19-.21.
T 179.24-.40.
Randwick City Council v Fuller [1996] NSWCA 444 per Handley JA at 2.
McWhinney v Melbourne Health (2011) 31 VR 285; [2011] VSCA 22 at [32] per Meave, Redlich and Mandie JJA.
See for example Reeves v State of New South Wales [2024] NSWCA 125 per Bell CJ at [105]-[107].
CB 206.
CB 270 (read with CB 252-254).
T 175.10-.13.
T 244.20-.47.
CB 215-254.
MFI-1.
Ibid.
CB 31[28]-[32] (AD).
See CB 30[23], [24].
CB 30[23].
CB 43-44 (appearing in the chapeau and 8 of the 10 paragraphs of the reply).
DOS page 3 (see also page 5).
New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [56] per Leeming JA, Barrett JA and Tobias AJA agreeing at [1] and [75] respectively.
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128 (ET-China.com) at [25] per Bell P, Bathurst CJ and Leeming JA agreeing at [1] and [287] respectively.
ET-China.com at [25], [28] per Bell P, Bathurst CJ and Leeming JA agreeing at [1] and [287] respectively.
T 90.41 (in context T 90.11-.41), 94.46.
T 128.28-.39.
T 129.1-.11.
T 144.8-.10.
T 144.14-145.48.
T 99.12-.25.
T 99.27-.32.
T 100.15-.23.
T 100.41-.47.
CB 196.
T 88.16-.25.
T 92.1-.50.
T 93.16-.22.
CB 205.
T 195.11-.40.
CB 208, 372.
T 211.49-213.10.
CB 53[14].
See e.g. T 212.26-.37.
See e.g. T 216.28-217.48.
Gibbons v Wright (1954) 91 CLR 423 at 437-438 per Dixon CJ, Kitto and Taylor JJ; [1954] HCA 17.
Papas v Co [2018] NSWSC 1404 (Papas) per Hallen J at [399] citing Potter v Potter [2003] 3 NZLR 145 at [13].
Papas at [399] citing Ying v Song [2010] NSWSC 1500 at [32].
Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 at 113 per Gavan Duffy J, Rich, Starke and Dixon JJ agreeing; [1930] HCA 26; Balout v Touma; Dobro Dosle Pty Limited t/as Amalgamated Investments Trust v Balout [2025] NSWSC 459 (Balout) per Lindsay J at [16].
Balout at [16] citing Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 569-570 and Coshott v Sakic (1998) 44 NSWLR 667 at 671D-F.
POS [32].
Calverley v Green (1984) 155 CLR 242 at 246 per Gibbs CJ; [1984] HCA 81.
Amit at [111].
Bosanac v Federal Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34 at [94] per Gordon and Edelman JJ. See also Clarke v Terry (1859) 1 Legge 753.
Richard Hyland, Gifts: A Study In Comparative Law (Oxford University Press, 2009) (Hyland) at 127.
Leary v Federal Commissioner of Taxation (1980) 47 FLR 414 (Leary) at 136 per Deane J; [1980] FCA 134.
Commissioner of Taxation of the Commonwealth of Australia v McPhail (1968) 117 CLR 111 at 116 per Owen J; [1968] HCA 13; Leary per Deane J at 415.
Maxwell v Maxwell [2022] NSWSC 1028 (Maxwell) per Ward P at [179].
Ibid at [180] citing Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121 (Nolan) per Dodds-Streeton J at [131]. For a more detailed analysis both in respect of the common law and comparative law, see Hyland Chapter 3.
Nolan at [132] cited in Maxwell at [181].
Hyland at 219.
Hyland at 219.
Ibid.
Ogilvie v Littleboy (1897) 13 TLR 399 at 400 cited by Pembroke J in Ballenden v Bryant (No 2) [2013] NSWSC 454 at [19]; Ballenden v Bryant [2012] NSWSC 1471 at [22].
JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) (Jacobs) at [1-01].
Ibid.
Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales (2024) 116 NSWLR 314; [2024] NSWCA 30 (CMCT) per Leeming JA at [20].
CMCT at [148].
Incorporated Council of Law Reporting (Q) v Commissioner of Taxation (Cth) (1971) 125 CLR 659 (ICLR) at 666 per Barwick CJ.
Jacobs’ at [10-06] citing Pemsel at 54; Re Foveaux [1895] 2 Ch 501 at 504; Verge v Somerville [1924] AC 496 at 499; [1924] All ER Rep 121 at 123 (Verge); Re Compton [1945] Ch 123; [1945] 1 All ER 198 (re Compton); Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; [1951] 1 All ER 31; Davies v Perpetual Trustee Co (Ltd) [1959] AC 439; [1959] 2 All ER 128 (Davies).
Jacobs’ at [10-06] citing Re Tree [1945] Ch 325 (Re Tree); [1945] 2 All ER 65; Davies.
Jacobs’ at [10-06] citing Davies.
See Ch 325 at 327.
Monds v Stackhouse (1948) 77 CLR 232 (Monds) at 241 per Latham CJ.
Harmony – The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276 (Harmony) per Ward CJ in Eq at [50]; Hickey v Attorney-General (NSW) [2021] NSWSC 772 per Ward CJ in Eq at [81].
The passage was endorsed in Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 (Aid/Watch) at [18] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
Aid/Watch at [142]-[43] (French CJ, Gummow, Hayne, Crennan and Bell JJ) at [42]-[43] referring to Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396 at 426; [1938] HCA 39 per Rich J.
GE Dal Pont, Law of Charity (3rd ed, 2021, LexisNexis) (Dal Pont) at [13.1] pp. 304-305.
Ibid at 305.
CTA s 23(1).
Paraphrasing CTA s 23(2), Dal Pont at 325.
Dal Pont at [13.48] p. 330.
But cf Re Saxone Shoe Co Ltd’s Trust Deed [1962] 2 All ER 904 at 915-916 per Cross J considering the English saving legislation, Charitable Trusts (Validation) Act 1954 s 1(1) which is in slightly different terms.
(1971) 125 CLR 185.
[1959] AC 547; (1959) 101 CLR 611; [1959] 2 All ER 300.
T 268.12-.13.
CB 129[4]-130[6] (defendant’s affidavit 19 November 2023).
T 73.19-.37.
CB 129[4] (not read).
See e.g. T 96.8-.26 (in the context of a message sent by the plaintiff on 17 April 2024 at CB 184).
T 171.28-.46.
CB 48[5].
CB 75[91].
CB 55.
T 9.18-.24.
T 11.48-12.2.
T 11.41.46.
T 15.44-16.5, see also T 166.8-.19.
Ibid.
T 13.48-.50, also T 12.5-.30.
T 13.48-14.10.
T 166.25-167.13.
Otherwise described as the ‘Common Law/Freeman/Sovereignty movement’: CB 26[2].
T 12.34.
T 13.38-.46.
T 12.6-.30, 12.42-13.7.
T 12.34-.36.
T 12.36-.42.
CB 336-337.
CB 338.
CB 338.
CB 337-338.
See e.g. CB 168.
T 97.38.
T 13.32-.33.
T 97.12-.17, 97.42-.43.
T 13.32-.34.
CB 189A.
CB 103[18].
CB 26[2].
CB 26[2].
See Goodreads, “The Ringing Cedars of Russia Series” (Webpage) https://www.goodreads.com/series/41570-the-ringing-cedars-of-russia accessed 6 December 2025.
See Ringing Cedars Australia, “Family Homestead” (Webpage) https://ringingcedars.au/#family-homesteads accessed 6 December 2025.
For example, Veronica Davidov, “Beyond Formal Environmentalism: Eco-Nationalism and the ‘Ringing Cedars’ of Russia” (2015) 37(1) Journal of Culture & Agriculture 2; Julia Andreeva, “Traditions and the Imagined Past in Russian Anastasian Intentional Communities” (2021) 2 Journal of Ethnology and Folkloristics 25.
For example, Julia Andreeva, “Verbal Cliches of Followers in the ‘Anastasia’ New Religious Movement” 57(2) Anthropology & Archeology of Eurasia 88.
See Foundation for Intentional Community, “About FIC” (Webpage) https://www.ic.org/foundation-for-intentional-community/ accessed 6 December 2025.
Heather Alberro, ‘Utopia isn’t just idealistic fantasy – it inspires people to change the world’, The Conversation (21 June 2019).
Ibid.
See FIC, “Author: Saul of-Hearts” (Webpage) https://www.ic.org/author/saul-of-hearts/ accessed 6 December 2025. In November 2013, he was living in an intentional community in LA in which 80+ artists, musicians, and creative types share half-a-dozen houses on adjacent streets: see Mensch, “Saul of Hearts – Author of Lateral Freelancer” (Webpage) (21 November 2013) https://ideamensch.com/saul-of-hearts/ accessed 6 December 2025.
Foundation for Intentional Community, “How a Mystical Novel Spurred the Ecovillage Movement in Russia” (15 September 2016) (Webpage) https://www.ic.org/ringingcedars/ accessed 6 December 2025.
Ibid.
IMBD, “The Good Life” (Webpage) https://www.bbc.com/historyofthebbc/anniversaries/april/the-good-life accessed 16 December 2025.
CB 15-16[32]-[33].
CB 16[33] (particulars).
CB 32[41].
CB 32[42].
CB 32-33[43].
CB 32-33[43].
POS [8].
CB 266-267.
T 271.13-.26.
T 293.20-294.2.
T 289.9-.38.
See an email 2 July 2022 from the plaintiff to Jacqui Lewsam at BSM Universe regarding proposed forms of pledges in or to Stryker & LifeCube: CB 207. There is no specific indication that the amounts were deposited to the defendant’s ‘Love for Life’ account. The defendant in her defence states "The Plaintiff had decided to purchase and pay off two investment packages, one for Kindom under my name and one for himself.": CB 29[17].
CB 170, 172.
$300 on 5 July 2022.
Dated 20 September 2022. There is also a transfer on the same day of $1 from the plaintiff's CommBank account. It is unclear what that was for.
CB 56[22]-57[24].
T 17.2-.11.
CB 118[61].
CB 170, 369, 371.
This message, by its terms, suggests it was sent by Arthur and has in reproduction accidentally been misattributed to the plaintiff.
CB 174 (3 November 2017 ING), 174 (8 November 2017 ING).
CB 175.
CB 177 (ING), 371.
T 35.31-36.4.
CB 55.
CB 183-184.
CB 184, 371.
CB 184.
CB 184, 371.
CB 185.
CB 185-186, 371.
Obviously ‘Do No Harm Communities’.
CB 187,189A.
This is out of sequence on the bank statement but appears at CB 193.
CB 59[40].
CB 189A.
CB 190.
CB 190.
CB 190, 371.
CB 190, 371.
Meant to be “work from home”: T.134.4-.30.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
CB 194.
CB 194.
CB 194.
CB 195, 372.
CB 195.
Ibid.
Ibid.
Ibid.
CB 196-197.
It will be noted that payments 26 and 27 are listed in the plaintiff's list out of chronological order.
The PSS is unclear.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
CB 201, 204, 256.
CB 214.
CB 215-250.
CB 212, 372.
CB 212, 372-373.
CB 252-254.
CB 214.
CB 57[30].
CB 251.
CB 256-259.
CB 260-261.
CB 262, 371.
CB 90[4]. A photocopy of the bank cheque withdrawal receipt and detail of the defendant as payee appears at CB 269.
The plaintiff's annotation in the table at CB 370 is "Wrote Cheque and posted, no note indicating gift of any kind".
This payment was made to ‘Love For Life Supplies’.
The plaintiff’s annotation in the table at CB 370 is “SMS – 21/09/2022 12:46 PM (Viewed 21/09/2022 1:21 PM)”.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
The plaintiff's annotation in the table at CB 370 is "Monies sent as part of move, in add to 4.5k by Hannah, 10k total expected for 50k loan - none returned, not even went sent back to Melb after asking for it to be returned".
CB 265.
CB 268.
CB 332.
CB 332.
CB 270.
CB 9[4(b)], 26[5].
CB 306-319.
CB 13[15]-14[22] (ASC); 31[28], [31] (AD).
CB 321.
CB 69[80].
CB 69-70[81].
CB 325-326.
CB 324.
CB 71[84].
T 211.17-.25.
Hannah's affidavit [3].
Cambridge Dictionary, online ed, “send someone to Coventry”.
CB 331.
CB 346.
CB 270.
CB 253.
T 282.31-.38, 282.44-.50.
T 85.10.
In fact, a little more as there were some pages doubled up with the same number.
D2 p. 4; T 177.4-.7.
D2 p. 5.
T 284.6.
T 284.8-.14.
Exhibit D2 pp. 6-7; T 177.14-.22.
Exhibit D2 p. 8; T 177.27-.32.
Exhibit D2 p. 9; T 177.36-.41.
Exhibit D2 p. 10; T 177.44-.47.
Exhibit D2 p. 11; T 177.50-178.8.
Exhibit D3 p.1; T 178.26-.27.
Exhibit D1 p. 223.
Exhibit D3 pp.4-5; T 178.31-.35.
Exhibit D3 pp. 21, 23, 28, 30, 31, 35, 36-39, 42, 44-46, 125, 127, 131, 132, 141, 148, 174, 178, 194, 195, 197, 199, 200-203, 206, 207, 208, 210, 211, 217, 220, 223.
D3 p. 6; T 178.38-.39.
T 178.40.
D1 p.4 showing a purchase of $2,995 from Bushmans on 19 April 2023 and p. 5 showing a purchase totalling to $5,874.2 from The Tank Factory on 8 November 2023. There were also two further invoices related to tanks, one for $150 from Balls Earthmoving on 2 August 2023 p. 1, and one for $124 from Ebay on 12 December 2023 p. 179.
D1 pp. 26, 29.
D3 p. 7.
D3 p. 8; T 178.39.
D3 pp. 134, 144; T 232.23-.24.
D1 pp. 6-11, 70; T 232.32-.46.
D1 pp. 12-13.
T 232.26-.27.
D1 p. 48.
D1 pp. 15, 16, 17, 50, 51, 52, 53, 54, 63, 70, 95, 96, 130, 135, 136, 137, 138, 139, 167, 170, 171, 172, 173, 214.
D1 pp. 59, 67, 118-122, 187.
D1 pp. 162, 164-66.
D1 pp. 47, 73-94, 99-117, 212-213.
D1 p. 104.
Hannah’s affidavit [5].
Ibid.
Hannah’s affidavit [4].
CB 162[5]; T 177.41-.42.
D2 p. 9; T 177.36-.41.
D3 p. 2; T 178.27.
D3 p. 10; T 177.44-.47.
T 164.18-.21, 168.4.
T 75.44-76.14.
CB 165[13].
D3 pp. 9-12; T 179.10-.18.
CB 170.
T 98.1-99.10.
T 98.1-.10.
CB 183.
CB 183-184.
CB 196.
CB 190.
CB 27[12] responding to 10[7(a)].
CB 185-186, 371.
CB 184-186, 371.
CB 184, 371.
CB 190, 194-195, 212, 260-262, 265, 371-373.
Two payments on 27 May 2022.
CB 196.
CB 162[3].
CB 30[23]-[24], also 27[13]; T 275.31-.33.
CB 27[12].
CB 186.
T 16.40-.42.
T 18.2-.5.
T 208.17-.19.
T 275.31-.35 (closing submissions).
T 160.43-.45.
CB 117[55]. This paragraph was in pre-trail objections initially objected to but in dealing with objections on the hearing Mr Newton confirmed that there was no objection to [55]: T 67.7-.9.
T 189.1- .21(especially T 189.12).
T 189.14-.21.
T 287.10-.15.
T 112.30-.50.
T 114.6-115.3.
T 102.1-.4.
T 102.15 (see also T 144.19-26).
T 117.25-118.1.
T 131.9-.24.
T 147.27-.47.
T 251.12-.13.
T 221.48-222.10.
CB 96[4] – whilst the period is stated as being “April 2023 – October 2023”, contextually and by refence to other evidence, the period being referred to is clearly “April 2022 – October 2022”.
T 281.5-.29.
Commencing T 291.10 and following.
T 292.20-.21.
T 292.42-.46.
T 293.3-.5.
T 293.5-.10.
PSS [68], [70], [72].
Ibid.
T 102.15 (see also T 144.19-26).
POS [46].
POS [23], [91]-[121]; PSR [30]; T 6.13-.16.
CB 38[71].
T 252.2-253.11.
T 125.42-126.30.
CB 16[34].
Ibid.
CB 16-17[35]-[36].
CB 16[34].
Ibid.
CB 16-17[35]-[36].
CB 16[35].
CB 17[36].
T 127.50-128.4.
T 126.14-.17, 128.4-.12; see also CB 51.
CB 51.
CB 101[14].
T 292.10-.18.
CB 187.
T 126.20-.23; see also CB 50.
CB 180-181.
T 103.15-104.3, see also T 108.25-.34.
CB 59[38]-[39].
CB 80. See also CB 59[39]-[40].
CB 110.46-111.15.
CB 81[11].
CB 85[20].
T 216.28-218.21.
T 126.46-127.13.
T 127.13.
CB 118[58].
Ibid.
CB 85-86[21]
CB 104 [21] (read in part, see T 55.48-57.20), 120[65] (read in part, see T 65.17-.35).
This is out of sequence on the bank statement but appears at CB 193.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
T 147.4-.5.
T 145.22.
T 146.1-.2.
T 145.35-.41.
POS [111].
CB 57[30]-59[36].
POS [109]-[110]; CB 102[16].
POS from [91].
Matouk v Matouk (No 2) [2015] NSWSC 748 at [33] per Slattery J referencing Johnson v Buttress (1936) 56 CLR 113 at 119 per Latham CJ; Whereat v Duff [1972] 2 NSWLR 147 at 167 per Asprey JA.
POS [111].
PRS [25].
CB 49[7].
CB 57[30].
CB 62-63[51]-[52]
CB 65-66[63]-[64].
CB 79[4].
CB 85-86[21]-[22].
CB 87[31].
CB 57-58[30]-[39], 61[46], 62-63[48]-[52] (corrected by CB 81-82 [10], [13], 14]), 65[61]-[62], CB 76[94], CB 85-86[20]-[22], CB 88[32], CB 90-94.
CB 102[16].
CB 102[16].
T 253.11-.15.
CB 16[35].
CB 17[36].
T 170.40-.48.
CB 183.
CB 190.
T 90.3-.34.
POS [19].
Jacobs’ at [10-60].
Jacobs’ at [10-61].
Ibid.
Dal Pont, GE, Law of Charity (3rd ed, 2021, LexisNexis) at [2.8] page 21.
CB 183.
T 270.7-.8.
T 160.39-.43.
See e.g. CB 26[2].
POS [56].
CB 135.
T 208.21-.29.
T 250.23-.29.
T 189.1-.21.
Harmony at [61] per Ward JA; In re Pleasants; Pleasants v Attorney-General (1923) 39 TLR 675 (Pleasants); Inland Revenue Commissioners v Yorkshire Agricultural Society [1928] 1 KB 611; ICLR at 669; Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925 at [27] per Black J.
Cited by Ward Ja in Harmony at [61].
T 251.6-.11.
T 162.17-.19.
CB 266-267.
T 270.3-.5, 270.25-271.26.
T 161.34-.35.
T 161.37-.43.
T 161.42-162.29, 163.10-.14, 163.26-.42.
T 162.29-.31.
T 163.44-164.2.
Hannah’s affidavit [6].
T 164.14.
T 164.18-.26.
T 270.13-.23.
T 288.48-289.7.
Monds at 243 per Latham CJ.
CB 165[12].
T 167.15-.23.
CB 96[4].
Ibid.
T 159.48-160.
T 160.18-.21.
T 210.5-.13.
T 163.8-.10.
T 159.38-.46.
Ibid.
CB 38[73].
CB 39[78].
This being consistent with Hannah not being presently involved in the gardening business: T 230.40.
T 167.25-168.19.
T 168.25-.45.
T 210.36-.39 (and in context T 210.25-.49).
The word “what” has been mis-transcribed in the transcript. As is evident from the words in the quote "He said he loved it" a few sentences later the correct word is "love".
CB 162[2].
CB 342-343.
CB 1.
CB 68.
T 229.20-230.28.
T 231.14-.41.
CB 3[6], 8[8], 13[17], 14[18].
CB 68[76].
CB 69[80].
CB 70[82].
CB 69[80], 70[82].
CB 69-70[81].
CB 31[28]-[32] (amended defence).
CB 14[18a].
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184 at [6] per Handley JA.
PF 473 Pty Ltd v Qasim [2024] NSWSC 874 (Qasim) per Faulkner J at [92].
For example see my earlier references CB 117[55], T 189.1-.21 (and also Mr Newton SC’s submissions at T 250.23-.29).
POS [12].
Qasim at [95] per Faulkner J citing Interpretation Act 1987 (NSW) s 3 and sch 4.
Qasim at [90]-[100] per Faulkner J.
This is out of sequence on the bank statement but appears at CB 193.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
CB 90[4]. A photocopy of the bank cheque withdrawal receipt and detail of the defendant as payee appears at CB 269.
The plaintiff's annotation in the table at CB 370 is to the effect "Wrote Cheque and posted, known note indicating gift of any kind".
The plaintiff’s annotation in the table at CB 370 is “SMS – 21/09/2022 12:46 PM (Viewed 21/09/2022 1:21 PM)”.
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
The plaintiff's annotation in the table at CB 370 is to the effect "Money sent as part of move, in add to 4.5k by Hannah, 10k total expected for 50k loan - none returned, not even went sent back to Melb after asking for it to be returned".
This payment is not in fact to the defendant but one of the payments to Stryker Design Pty Ltd.
Arambatzis
Cristian [2025] NSWSC 1606
(2010) 241 CLR 539
(1937) 58 CLR 316
(1998) 195 CLR 566
(2022) 275 CLR 37
(1984) 155 CLR 242
(2024) 116 NSWLR 314
(1983) 151 CLR 447
(1968) 117 CLR 111
(1998) 44 NSWLR 667
(1971) 125 CLR 185
(2021) 388 ALR 128
(1996) 130 FLR 218
(1954) 91 CLR 423
(1930) 45 CLR 111
(1971) 125 CLR 659
(1936) 56 CLR 113
(1959) 101 CLR 298
(2006) 66 NSWLR 241
(2011) 243 CLR 361
(1959) 101 CLR 611
(1980) 47 FLR 414
(1992) 175 CLR 621
(2011) 31 VR 285
(1948) 77 CLR 232
(1985) 160 CLR 583
(2014) 86 NSWLR 226
(2003) 10 VR 627
(1930) 36 ALR 192
(1938) 60 CLR 396
(1959) 102 CLR 315
(1956) 99 CLR 560
It was further complicated by the fact, as I will elaborate below, that much of the messaging that occurred between the plaintiff and Arthur was in terms that have some appearance of gobbledygook.
In recounting the reasons for my determination, I propose to initially set out in some ordered way some of the parties’ introductory biodata that I have been able to locate and to identify, and explain or at least partly unravel, some of the unusual and esoteric terms, and philosophical claims, that underpinned the contentions of each side. I will then set out the legal principles and the factual circumstances directly bearing upon the claims before addressing each of the real issues detailed below.
legal principles regarding advances of money and charitable purposes;
the parties’ terminology and their philosophies which bear upon the communications regarding purpose;
details of the payments made and contemporaneous disclosure of purpose; and
the entry of a contract to purchase the Property, the settlement and aspects of the activities carried out on the Property including improvements after settlement.
Generally, absent some legally recognised vitiating factor such as (relevantly) undue influence, once moneys are gifted, they cannot be recalled simply because the donor wishes they had not made them and would like to have back the property given. [166]
Gifts may be conditional. It suffices to note briefly the following. In Muschinski v Dodds (1985) 160 CLR 583, Brennan J (who dissented from the majority judges who imposed a constructive trust on the property of a separated de facto couple) observed at 605 (footnotes omitted):
The defendant purchased a Bluetti EP760 solar inverter on 23 November 2023 for $8,729 and earlier a solar roof ventilation fan for $729.81. [351] Invoices from Starlink and Murtech Communications regarding internet and telephone service totalled $3,746.00. [352] Two payments for electricity from Sumo totalled $1,082.68. [353]
In cross-examination, the defendant said they bought a Ute to use on the land, though accepted they used it outside of the Property as well. [354] There is a form of receipt dated 22 November 2023 for the sum of $8,000 for a Toyota Landcruiser, though it suggests a man named Paul Gojarty purchased it. [355] The receipts that contain items for car related purposes sum to $11,675.55, [356] bringing the total including the price of the car to $19,675.55.
Other purchases were made relating to plumbing and the septic system, totalling $1,638.33. [357] Purchases of $705.96 were made for window awnings. [358] Invoices of various trips to Bunnings from October 2022 until September 2024 totalled $8,189.51. [359] There was also an invoice from 29 October 2021 for $81.26. [360] Other purchases principally from eBay total $8,854.9.
The terminology used by the plaintiff included ‘GofL’ (I infer ‘Gift of Love’) and ‘Space of Love Donation’. The ‘Space of Love’ donation is directly linked to the adherents of the philosophy of Ringing Cedars. [381] That is how Arthur understood it. [382] Subsequently, leading up to the settlement of the purchase of the Property the plaintiff continued to reference ‘Kindom gift’, ‘gifts of love’ and ‘kindom’. [383]
There is no suggestion that those references were materially different to the earlier references of ‘Kin Domains’ as understood by reference to the Ringing Cedars philosophy. Further, if the notion of ‘kindom’ had simply been ethereal, then there would have been no point in purchasing land. What actually occurred is entirely consistent with the creation of a type of community physically on land which was being developed for that purpose.
Later on (on 4 June 2022), there is further messaging between the plaintiff and Arthur (which I will refer to below) by which the plaintiff expresses an intention to assist Arthur “to get you off the street and have a place for you family” which also gives some support for the notion that the April funding (of approximately $115,000) is at least in part purposed as a personal gift to the Cristian family per se.
Contextualised on the whole, it seems to me the April 2022 payments (Nos. 5-10) are purposed to provide the Cristian family with some immediate funds (approximately $10,000) to meet the exigency of their asserted financial difficulties and further funds ($100,000 to $105,000) to purchase some land (as distinct from any specific land) for Arthur and the defendant to use towards the creation of a form of Kindomain consistent with the theme of community in Megré’s third book ‘Space of Love’.
Whilst some of the texts later on refer to property, in the overall context, it seems that it was simply Arthur investigating potential properties that might be available for purchase. However, in terms of the immediacy of purpose of the small payments by the plaintiff, the 11th to 16th payments (13, 14, 18, 19, 27 [384] May 2022) appear to be gifts unrelated to purchase of buying any specific land but rather generally for Arthur and/or his family.
By June 2022, the mortgage had been discharged and Elly’s solicitor had obtained an appraisal for the property assessing it as being between $1.1m to $1.2m. [385]
Contextualised, the messages on 22/23 April, 18 May and 1 June 2022 seem suggestive that what the plaintiff contemplated doing, and in fact did from about 21 April 2022, was to deposit small amounts of money of $500 or multiples of $500 (such as $1,000 or $2,000) to the defendant’s account. It seems to me (subject to a matter that I will come to) that the purpose of those deposits was to use the plaintiff’s expression “deposit for the deposit”, I infer, for land. It is not clear to me what the words “with loan” were intended to convey after the words “500 per fortnight”, noting that the loan from Liberty Financial was taken out by the plaintiff on or about 26 September 2022. There is nothing in the earlier material (or indeed thereafter) which suggests or gives any strong support for the notion that the payments were some form of loan to Arthur and the defendant.
In any event, the payments did not stop between June and September 2022. Further smaller payments (as I have said, in multiples of $500) were made after 1 June 2022. Examination of the actual bank statements reveals no specific annotation to those payments.
In July-August 2022, Payments Nos. 24-35 appear consistent with the theme of payments in multiples of $500.
In September-October 2022, the final set of payments Nos. 36-44 are clearly referable to purchase of the specific Ironbark Farm property.
I address the legal characterisation of these purposes below.
I have otherwise dealt with the other aspects of the pleading of special disadvantage regarding what the plaintiff says the defendant informed him about ‘Love for Life’ and the ‘Kindom’ [476] regarding his relationships with his family and Elly, and requirements for money and how money was to be designated. It suffices for me to note that I do not accept that any aspect of the conversations that the defendant and Arthur had with the plaintiff regarding his relationships and family were untoward. Further, in light of what I have found regarding the interactions between the defendant/Arthur and the plaintiff I do not accept he was under any relevant disadvantage in dealing with the defendant and Arthur [477] .
I have had regard to the difference between an association or group which itself admits or excludes members of the public, and a section of public that adheres to a common calling, as explained by Lowe J in Re Income Tax Acts.
I consider that as the purpose is carried out, the benefits will be sufficiently available to any member of the community who has a desire or inclination to join.
It is true that the defendant recalled in cross-examination that they may have had to ask one person to leave in the past. It is not clear on what basis that was done. Mr Newton SC did not ask further questions addressing this. The fact that a person was asked to leave does not undermine the public element per se. It is to be expected that a community will have rules regarding acceptable behaviour. In the absence of further cross-examination and in light of the rest of the circumstances of the case, I do not consider that this bars a finding that the public benefit element is sufficiently met.
Finally, Mr Newton SC in his final submissions contended that it may not be possible to have a community in the land because it would require council approval or consent and that there is no evidence that Council approval had been applied for or granted. [510]
The defendant for her part disputed that any community on the land in terms of at least 10 people were impermissible. She stated: [511]
Further, lest there be any doubt about it, the findings that I have made regarding the purpose of the payments generally in my findings above regarding the $50,000 amount suffice for me to reject any alternate claim of monies had and received.
The Orders of the Court are: