Baker v Sheridan [2005] NSWSC 89 | Case summary

Baker v Sheridan [2005] NSWSC 89 | Case summary | Zoe

[12]

UNDISPUTED OR CLEARLY ESTABLISHED FACTS 2 A number of facts were not disputed or were clearly established by the evidence and it is convenient to set out some of these facts as a framework in which the issues between the parties, the evidence and the submissions of the parties can be considered. 3 Mrs Baker is the widow of the late Kenneth William Baker of Upper Belmore River on the mid north coast of New South Wales near Kempsey. The plaintiff and Mr Baker were married in 1961. They had two adopted children Trevor Baker and a daughter Cathy Maree Alexander, who herself had a daughter Emma. 4 At his death Mr Baker owned a number of parcels of real estate in the area of the Right Bank Road, Belmont River. These parcels were:- 5 (i) Lot 2 in deposited plan 181210 being the whole of the land in identifier 2/181210 together with the house and outbuildings erected thereon. In these proceedings this parcel of land was often referred to as "the homestead". For many years down to Mr Baker's death Mr and Mrs Baker lived in the house on the homestead as their home. 6 (ii) Lot 11 in deposited plan 554777. This parcel of land adjoins the homestead. In these proceedings this parcel of land was often referred to as "Lot 11". 7 (iii) Lot 86, part of Lot 73 and part of Lot 74 in deposited plan 754400, all being parts of the land in certificate of title volume 4473 folio 99. In these proceedings these parcels of land were often referred to as "the Loftus Road properties". These parcels adjoined each other but were separated by a short distance from the homestead and Lot 11. 8 (iv) Lot 2 in deposited plan 513573. In these proceedings this parcel of land was often referred to as "the Quarry". Between 1993 and 1999 Trevor Baker carried on quarrying operations on the Quarry in partnership with a man named Marriott. 9 (v) Lot 32 in deposited plan 754400. In these proceedings this parcel of land was often referred to as "the Quarry Stockpile". The Quarry and the Quarry stockpile adjoined each other and also the Loftus Road properties. 10 The various parcels of land are shown in a map, a copy of which became exhibit B. 11 Mr Baker had once owned land on the left bank of the Belmont River close to the land owned by him on the right bank of the Belmont River but in 1995 he had transferred this land to his son Trevor Baker. This land on the left bank of the Belmont River was often referred to in the proceedings as "Syd's property". 12 For many years down to his death Mr Baker had carried on cattle grazing activities on his land and on Syd's property. 13 Apart from his cattle grazing activities, Mr Baker was a partner with Stephen Rigg in a car retailing and car repair business in Kempsey known as Kempsey Kar Kare. 14 Mr Baker died suddenly on 25 April 1996. He left a will dated 17 March 1971 which had been drawn by the defendant Mr Sheridan, whereby he appointed his wife his executrix and left all of his property to her. 15 Mrs Baker retained Mr Sheridan to act for her as executrix of her husband's will and also in her personal capacity. 16 It is clear from Mr Sheridan's contemporaneous records that Mrs Baker had meetings with Mr Sheridan at his office in Kempsey on 7 May 1996, 30 May 1996, 18 July 1996, 18 October 1996 and 25 November 1996. 17 At the meeting on 18 October 1996 Mrs Baker swore an affidavit of executor in her late husband's estate. In this affidavit the parcels of real estate which had been owned by Mr Baker were shown as assets of his estate and were shown as having the following values.

[16]

(iii) The deceased's half share, amounting to $50,000, of an amount due under a loan from a man named Trott to the deceased and Stephen Rigg. 23 In the affidavit of executor the total liabilities of the estate were stated to be $220,495.89 and $7,389.97. 24 In par 14 of the affidavit it was stated that "the estate has a gross value of $959,680.03 and a nett value of $731,794.17". 25 On 28 October 1996 probate of the will of Mr Baker was granted to Mrs Baker. 26 On 25 November 1996 at the office of Mr Sheridan Mrs Baker, Trevor Baker and Stephen Rigg executed a deed which had been drawn by Mr Sheridan. This deed was often referred to in the proceedings as "the deed of transfer". 27 By the deed of transfer the parties (that is Mrs Baker, Trevor Baker and Stephen Rigg) agreed that title to the Quarry should be transferred to Trevor Baker, title to the Quarry stockpile should be transferred to Trevor Baker and Stephen Rigg in equal shares, title to the homestead, Lot 11 and the Loftus Road properties should be transferred to Stephen Rigg, title to the plant and equipment owned by the deceased should be transferred to Trevor Baker and Stephen Rigg in equal shares and title to the cattle owned by the deceased should be transferred to Stephen Rigg. 28 On 25 November 1996 Mrs Baker signed a transmission application for all the parcels of real estate and also, in accordance with the provisions of the deed of transfer, signed transfers of the various parcels of land to Trevor Baker, Stephen Rigg or both of them. 29 Shortly after 25 November 1996 Mrs Baker, Trevor Baker and Stephen Rigg executed another deed which was often referred to in the proceedings as "the deed of residence". In the deed of residence Mrs Baker was described as "the transferor" and Trevor Baker and Stephen Rigg were described as "the transferees". 30 It was provided by cl 1 of the deed of residence that Mrs Baker, her daughter Cathy Maree Alexander and her granddaughter Emma Lee Alexander should continue to reside in the house on the homestead "rent free and without being liable for costs such as rates, insurance and maintenance at any time". Clauses 4 and 5 of the deed of residence were in the following terms:- "4. The said Transferees will at their own expense continue to maintain the subject house property and ensure that it at all times habitable to the said Transferor, her said daughter and her said grand-daughter. 5. The said Transferees will in addition to maintaining the property pay all Council rates, Water rates, Land Tax and insurance and other charges associated with the said building". 31 Subsequently, the transmission application and the transfers which had been signed by Mrs Baker were registered. No document relating to the rights conferred on Mrs Baker by the deed of residence was registered. Mrs Baker continued to reside in the house on the homestead and Stephen Rigg or Trevor Baker paid the charges and outgoings on the house. 32 In about March 1997 the debt to the State Bank was paid and the mortgage to the State Bank discharged and Stephen Rigg borrowed a larger sum from the Commonwealth Bank, which was secured by, inter alia, a mortgage from Mr Rigg to the Commonwealth Bank over the homestead. 33 From about 1999 onwards Stephen Rigg defaulted in repaying amounts borrowed from the Commonwealth Bank the repayment of which had been secured by certain mortgages including a mortgage over the homestead. 34 In proceeding in this Court (Common Law Division No 13225/01) brought by the Commonwealth Bank against Stephen Rigg ("the possession proceedings") the Commonwealth Bank claimed judgment for possession of the properties which had been mortgaged, including the homestead. A notice of the Bank's claim for possession was served on Mrs Baker as the occupier of the homestead. On 1 August 2003 an order was made that Mrs Baker be added as a defendant in the possession proceedings, upon terms that she did not assert any defence to the Commonwealth Bank's claim for possession of the homestead and was to be a party only for the limited purpose of applying for a stay of the enforcement of any judgment for possession. On 5 August 2003 the Commonwealth Bank obtained judgment for possession of the lands claimed by it, including the homestead. On 7 August 2003 an order was made that execution on the judgment for possession of the homestead be stayed until 30 April 2004. There has been no further order for a stay of execution of the judgment for possession of the homestead but the Commonwealth Bank has up to the present voluntarily refrained from taking any step to enforce the judgment for possession against Mrs Baker, who has continued to reside in the house on the homestead. It has been accepted by Mrs Baker's legal representatives that she does not have any right to possession of the homestead which could prevail against the Commonwealth Bank.

[17]

THE PLEADINGS 35 The final form of the statement of claim, subject to certain amendments made in the course of the hearing, was an amended statement of claim filed on 17 September 2003. A number of the allegations made in the amended statement of claim were not pressed, or were only faintly pressed, by counsel for the plaintiff in final submissions. 36 In par 8 of the amended statement of claim it was alleged that the plaintiff had retained the first defendants to act as her solicitors as executor of the will of the deceased and in her personal capacity. 37 In pars 9, 10 and 11 of the amended statement of claim under the heading "The Firm's duty of care regarding the estate generally" it was alleged (in par 9) that the first defendants had been under a duty to advise the plaintiff about certain matters and (in pars 10, 11 and 12) that the first defendants, in breach of their duty, had failed to advise her of any of these matters. Although these claims were not abandoned, ultimately none of them were really pressed by counsel for the plaintiff. 38 In par 15 of the amended statement of claim it was alleged that at no stage had the plaintiff instructed the first defendants to prepare the deed of transfer. This claim was not pressed by counsel for the plaintiff in final submissions. 39 In pars 18-20 of the amended statement of claim under the heading "Duty of Care in relation to the deed" (that is the deed of transfer) it was alleged that the first defendants had been under a duty to advise the plaintiff of certain matters, before the deed of transfer was executed, and that the first defendants had failed to advise her of any of these matters. The matters of which, it was alleged, the plaintiff should have been advised and was not advised, were:- "(a) that it would not be in her best interests to sign the deed; (b) as to her personal liabilities to the second and third defendants; (c) again as to the extent to which the estate was in fact liable to either or both of the second and third defendants in any respect, including liabilities associated with the partnership; (d) as to the practical legal effect of the deed; (e) as to the alternatives to signing the deed; (f) as to either the practical or legal necessity for the plaintiff either personally or as executor of the estate to sign the deed; (g) that by signing the deed she, as sole beneficiary of the estate, was foregoing the right to enjoy the vast bulk of the assets that she and the deceased had acquired during their marriage; (h) that she was free to reject the deed; (i) again, of any conflict of interest on a part the firm in relation to the interests of the plaintiff and the second and third defendants". 40 It was these allegations which formed the basis of the claims made by the plaintiff against the first defendants which were pressed in counsel for the plaintiff's final submissions. 41 A claim made in par 21 of the amended statement of claim that the deed of transfer was an unjust contract within the Contracts Review Act was not pressed at the hearing. 42 A claim made in par 22 of the amended statement of claim against the first defendants, that the first defendants, in breach of a duty owed to the plaintiff, had failed to ensure that the interest created in favour of the plaintiff by the deed of residency was legally protected, was not the subject of any submissions in counsel for the plaintiff's final submissions. 43 In par 23 of the amended statement of claim the matters on which the plaintiff had relied in earlier paragraphs of the amended statement of claim as giving rise to claims against the first defendants in tort were relied on as being breaches of an implied term of an agreement between the plaintiff and the first defendants that the first defendants would exercise reasonable care, skill and diligence in providing legal services for the plaintiff. 44 A claim made in par 24 of the amended statement of claim for "rectification" of the deed of transfer was not pressed in counsel for the plaintiff's final submissions. 45 A claim made in par 25 of the amended statement of claim that the second defendant and the third defendant had procured the execution of the deed of transfer by the plaintiff by engaging in unconscionable conduct was pressed and was strongly pressed, particularly against the second defendant. 46 In amendments to the amended statement of claim which were made in the course of the hearing the plaintiff alleged that she had been induced to execute the deed of transfer, the deed of residency and the transfers of the real estate by undue influence exerted by the second defendant, without having any separate or independent advice, without due consideration of the reasons for or the effect of what she was doing and at a gross undervalue. Particulars of the alleged undue influence by the second defendant were provided, including:- (a) Using his position as her nephew, neighbour and business partner of her late husband, to assume a position of ascendency over the plaintiff; (b) Because of her emotional state the plaintiff took a position of dependence relative to the second defendant in relation to financial matters; (c) Using his ascendancy to unduly gain the trust and reliance of the plaintiff; (d) Using his position aforesaid to misrepresent or failing to explain fully the financial position of the husband's estate; (e) Failing to disclose his interest or motive in and for the proposed transaction

[18]

47 Further particulars of these particulars were provided. These further particulars were:- "1. As to paragraphs (a) and (b) of the particulars the respective positions of ascendency and dependency commenced in the period after the death of Kenneth Baker and prior to 24 May 1996 and it enured until 1999. 2. As to paragraph (d) of the particulars the misrepresentation was express and implied: i. In so far as it was express it was oral; ii. The oral misrepresentation was made by the second defendant on an occasion between May and July 1996; iii. The oral misrepresentation was such that the second defendant told the plaintiff that Kenneth Baker was in debt; iv. The expression 'in debt' implied that the debts were of such magnitude to require the disposal of the real and personal property comprising the estate; v. Further, on the occasion referred to in sub-par 'ii' above, the second defendant told the plaintiff that she would lose everything. The implication was as in sub-par 'iv'; vi. Alternatively, the second defendant at paragraph 40 of his affidavit sworn 5 August 2003 implied: a) That it was his option to sell up the deceased's property to pay out the debts of Kempsey Kar Kare (the business); vii. Alternatively, the second defendant's statement, inter alia, that the properties will have to stay with the partnership as they run with the debts of Kenneth Baker was a misrepresentation of his right and entitlement as a surviving partner, and of the legal position; viii. The second defendant failed to inform the plaintiff of the true position namely that the deceased's interests in the partnership on a winding up was a considerably lesser debt than his share of the liabilities of the partnership per se and that the deceased's personal property including but not limited to the cattle was likely to be, on the administration of the estate, sufficient. 3. As to paragraph (e) of the particulars the second defendant's interest and motive was greed, ambition and the desire to obtain an advantage to which he was not entitled, namely virtually the whole of the deceased's estate for his own ends including his continuation as a sole trader of the business". 48 The first defendants and the second defendant filed defences traversing many of the allegations in the amended statement of claim. The third defendant Mrs Baker's son Trevor Baker did not file any defence and submitted to whatever order the Court might make. 49 In his cross-claim against the first defendants Stephen Rigg alleged that Mrs Baker, Stephen Rigg and Trevor Baker had informally agreed ("the transfer agreement") that the properties which had been owned by the deceased would be transferred to Stephen Rigg and/or Trevor Baker, that Stephen Rigg would continue to operate the businesses of cattle raising and of Kempsey Kar Kare and would assume sole liability for the obligations of the businesses, that Stephen Rigg would assume liability for certain of the personal debts of the deceased and that Stephen Rigg and Trevor Baker would at their own expense permit Mrs Baker her daughter and her granddaughter to continue to reside in the former matrimonial home; and that Mrs Baker, Stephen Rigg and Trevor Baker had retained the first defendants to prepare the necessary documents and take the necessary legal steps to have the transfer agreement put into legal effect. Paragraph 7 of the amended cross-claim was in the following terms:- "In carrying out the retainer the solicitors acted for Rigg and consequently: (a) the solicitors owed to Rigg a fiduciary duty to act in his interests and not to assume obligations to other persons which would or might conflict with the discharge of that duty; (b) the solicitors owed to Rigg a duty of care and a contractual obligation to use reasonable skill and diligence in acting for him in connection with the retainer and in particular to use reasonable skill and diligence to ensure that any document prepared by them to give effect to the transfer agreement would be legally effective". 50 It was then alleged, in effect, that, if Mrs Baker succeeded in her claims against Mr Rigg, then the first defendants had breached their fiduciary duty alleged in pars 7(a) of the amended cross-claim and had breached the duty of care and the contractual obligation alleged in par 7(b) of the amended cross-claim. 51 In the cross-claim by Mr Rigg against Trevor Baker Mr Rigg claimed contribution from Trevor Baker in respect of outgoings for the house on the homestead which Mr Rigg had paid.

[20]

Mrs Baker's Affidavit 53 In her affidavit Mrs Baker said that as a child she had lived in an isolated country area, that she had left school at the age of fourteen and that after leaving school she had worked as a cleaner and a waitress. 54 During their marriage all decisions about farming activities and the acquisition of properties had been made by Mr Baker. 55 In about 1988 Mr Baker had told Mrs Baker that he, Stephen Rigg and Mr Baker's brother Roger were going to buy the business which became Kempsey Kar Kare. So far as Mrs Baker was aware, Mr Baker did not play any active part in the conduct of the business of Kempsey Kar Kare. 56 In par 16 of her affidavit Mrs Baker said:- "Following my husband's death, I was extremely distraught and on many occasions I cried so continuously and heavily that I was unable to speak. This situation continued for several months". 57 In par 18 of her affidavit Mrs Baker said:- "Approximately six weeks after the death of my husband I was contacted by Rigg. At this stage there had been no contact as far as I can recall between myself and Mr Sheridan. I remember that Rigg said to me 'I have made an appointment with Paul Sheridan. We have to go in today for the reading of the will'. Rigg then said 'You've got to do something about Ken's estate because his properties are mortgaged. If you don't do something you will lose the lot.'" 58 In par 19 of her affidavit Mrs Baker said that she recalled attending Mr Sheridan's office with Stephen Rigg and Trevor Baker. Mr Sheridan gave all three of them a copy of Mr Baker's will. Mrs Baker did not recall what Mr Sheridan said on this occasion. 59 In par 20 of her affidavit Mrs Baker said:- "I think I next saw Rigg approximately two weeks after I had first seen Mr Sheridan. Mr Rigg took me for a drive around 'The Hill Paddock' which was one of my late husband's properties. Rigg said to me 'You're going to have to transfer all the lands to me because of Kenny's mortgages.' I said 'What do you mean, what is all this about?' Rigg replied 'Well Ken was in debt at the time of his death. If the properties are not transferred to me they will be taken by the Bank.' I did not know what Rigg was referring to. I was aware that at some stage my husband had transferred an account from the State Bank to the Commonwealth Bank. This was the extent of my knowledge relating to banking matters. So far as I can recall, I said to Rigg 'How much is owing and how did all this happen?' Rigg replied 'You don't have to worry, I'll look after everything.'" 60 So far as Mrs Baker could recall, any dealings about her husband's estate were carried out directly between Stephen Rigg and Mr Sheridan. 61 In par 22 of her affidavit Mrs Baker said:- "I think that we may have seen Mr Sheridan thereafter on about two or three occasions. I recall that Mr Sheridan was polite to me but I do not recall anything that he said that was a cause of concern to me. I was still very upset at this time. So far as I can recall, Mr Sheridan never said anything to me at this time which related to the transfer of assets from the estate to Rigg". 62 In par 23 of her affidavit Mrs Baker said that she was certain that she gave no instructions for the deed of transfer to drawn. She admitted that a signature on the deed of transfer appeared to be her signature but she could not recall the occasion on which the document had been signed by her. She did not recall Mr Sheridan explaining any document to her. She was certain that, if the deed of transfer had been presented to her for her signature, she would have signed the document, without having read it. 63 In par 24 of her affidavit Mrs Baker said that she had not become aware that she had transferred all the assets in her husband's estate to Stephen Rigg and Trevor Baker, until she had a conversation with Stephen Rigg in 1999 in which Stephen Rigg told her that he would have to sell Mrs Baker's home. 64 In par 25 of her affidavit Mrs Baker said that she had never personally given Mr Sheridan any instructions in connection with the administration of her husband's estate and that she had never authorised Stephen Rigg to give Mr Sheridan any instructions on her behalf.

[21]

Trevor Baker's Affidavit 65 In his affidavit Trevor Baker said that his mother was extremely upset when Mr Baker died and that she continued to grieve for about eighteen months. 66 During the marriage Mr Baker had always been "the financial manager" and Mrs Baker had had nothing to do with financial matters. 67 In par 12 of his affidavit Trevor Baker said that about two or three months after his father's death Stephen Rigg had said to him:- "Your old man has left a fair bit of debt behind. Your mother's going to have to sign her place over to me or otherwise the bank is gunna sell it. If your mother doesn't sign it over she will lose the lot. It's all mortgaged". Trevor Baker said in par 12 of his affidavit that he was surprised by what Stephen Rigg said to him, because he had always believed that his father had been a successful grazier. 68 In par 13 of his affidavit Trevor Baker said that in another conversation Stephen Rigg had said that Mr Baker had had a debt "tied up with Kempsey Kar Kare" and "all of Kenny's property is going to have to be transferred to me or it will be lost". Mr Rigg said to Trevor Baker that he did not want Trevor Baker to have anything to do with Kempsey Kar Kare but "you can take half of your father's personal debt. That is about eighty grand". 69 In par 15 of his affidavit Trevor Baker said that Stephen Rigg had told him that he and his mother would have to go to Mr Sheridan's office to sign some papers. 70 In par 16 of his affidavit Trevor Baker said:- "I do recall attending upon Mr Sheridan's office with my mother on that occasion. This was after my father's death. It would have been within about six months. I cannot otherwise recall the date of the occasion. My best recollection is that Rigg was already at Mr Sheridan's office. Rigg met us outside the office in the street. We all went into the office together. My mother was very upset. She was crying. We were not kept waiting and we were shown into Mr Sheridan's office. I was sitting on one side of my mother and Rigg on the other. Mr Sheridan did not say very much at all. Mr Sheridan produced a document for us all to sign. There was only one copy of the document. Mr Sheridan did not read the document to us. Mr Sheridan said something to the following effect 'Well this is the document, do you want me to read it all to you?' My mother was visibly upset. I do not recall her saying anything at all. I do not recall asking for the document to be read to me. Mr Sheridan pointed at the document and said words to the effect 'You sign here and here'. My mother signed the document first. I was of the understanding that the document had to be signed to transfer all of the properties to Rigg otherwise the properties would be lost. I was of this understanding as a result of the conversations that I had with Rigg, to which I have referred in this affidavit. I do not recall Mr Sheridan providing any legal advice on this occasion". 71 In par 17 of his affidavit Trevor Baker asserted that at the time of signing the deed of transfer he was not aware that the deed dealt (inter alia) with Mr Baker's farming equipment and cattle. 72 In par 19 of his affidavit Trevor Baker said that Mr Sheridan did not ask Trevor Baker, Mrs Baker or Stephen Rigg what any of them wanted to do in relation to the administration of Mr Baker's estate. 73 In par 23 of his affidavit Trevor Baker said that he had been unaware of his father's financial position, that he had accepted that Mr Rigg was telling the truth about his father's financial position and that he had not himself made any enquiries about his father's true financial position. 74 In further parts of his affidavit Mr Baker gave evidence about his experience with respect to the grazing of cattle but I rejected evidence of an opinion by him about the number of cattle that could be agisted on the combined lands which had been owned by Mr Baker, on the grounds that Trevor Baker was not qualified to express such an opinion. 75 In par 35 of his affidavit Trevor Baker said that, after his father's death, he had paid Mr Sheridan's costs for acting on the transfer of Syd's property from his father to Trevor Baker. 76 In parts of the affidavit (for example pars 32, 34 and 36) Trevor Baker gave some evidence relevant to the cross-claim by Stephen Rigg against himself. 77 In further paragraphs of the affidavit Trevor Baker referred to a suggestion by Stephen Rigg that Stephen Rigg and Trevor Baker should each pay half of Mr Baker's personal debts. Trevor Baker ultimately decline to pay half of Mr Baker's personal debts, on the grounds that Mr Baker had been a grazier and Stephen Rigg had received all of Mr Baker's cattle. 78 In answer to parts of Mr Sheridan's Trevor Baker said that he did not recall going to Mr Sheridan's office on 7 May 1996, when, according to Mr Sheridan's statement, Mr Baker's will was read, nor did he recall attending a conference at Mr Sheridan's office on 26 July 1996 with Stephen Rigg, although having read Mr Sheridan's statement "it's sounds familiar". 79 In his affidavit Trevor Baker said that he did not recall what Mr Sheridan asserted in his statement had been said on 25 November 1996 at the conference when the deed of transfer was signed. 80 In the remaining parts of his affidavit Trevor Baker disputed parts of Stephen Rigg's affidavit of 5 August 2003.

[22]

Mr Sheridan's Statement 81 In his statement Mr Sheridan said that he had been admitted as a solicitor in February 1966. He had acted as Mr Baker's solicitor for many years. 82 In par 22 of his statement Mr Sheridan said that on 26 April 1996 he had received a telephone call from Stephen Rigg, who had told him that Mr Baker had died, and he told Stephen Rigg that Mr Baker had made a will in which Mrs Baker was the executrix and the sole beneficiary. In the telephone conversation arrangements were made for a conference at Mr Sheridan's office on 7 May 1996. 83 Par 2.5 of Mr Sheridan's statement was in the following terms:- "On 7 May 1996 I conferred with the plaintiff, Dawn Marie Baker (hereafter 'Dawn Baker'), Steve Rigg and Trevor Baker. Annexed and marked 'PWS3' is a copy of my contemporaneous note of that conference. At the conference one of either Dawn Baker, Trevor Baker or Steve Rigg said to me words to the following effect: 'Ken Baker's date of death was 25 April 1996. He was born on 15 March 1936'. One of the three people referred to above and I believe it was Steve Rigg, said to me words to the effect: 'Scott & Finlay were the accountants for the business'. I took the reference to 'the business" to be Kempsey Kar Kare. To the best of my recollection Dawn Baker said to me words to the effect: 'The title deeds for Ken's properties are held by the bank. There are bank accounts at the State Bank in Ken's name'. I do not now recollect whether it was Dawn Baker. It may have been Steven Rigg. I do not think it was Trevor Baker. I believe Steven Rigg said to me words to the effect: 'The business banked through the Commonwealth Bank.' I asked all three what were the other assets and liabilities of Mr Baker. I believe it was Dawn Baker who said words to the effect: 'Ken Baker had life insurance and superannuation.' I think Dawn Baker or Trevor Baker also said words to the effect that the deceased also had stock, plant and equipment. I said to all three words to the effect: 'you will need valuations for that stock, plant and equipment'. One of the three people also said to me but I do not now remember which it was: 'Ken may have held shares in an abattoir at Casino and maybe a company known as Midcoast Co-operative Meat Society at Macksville'. I said to them words to the effect: 'We will find out about those shares, for the probate'". 84 Mr Sheridan's contemporaneous note (annexure PWS3) does not indicate which of the three persons at the conference supplied the various pieces of information. Nothing was said at the conference on 7 May 1996 about any arrangement between Mrs Baker, Stephen Rigg and Trevor Baker. 85 After the conference on 7 May 1996 Mr Sheridan took various routine steps as a solicitor acting in an estate matter and he had some telephone conversations with Stephen Rigg about the estate. On 27 June 1996 he received a telephone call from Stephen Rigg. In the ensuing conversation Mr Rigg asked "Can Dawn Baker transfer the property?" and Mr Sheridan replied "Yes (subject to certain formalities)". 86 Par 2.23 of Mr Sheridan's statement was in the following terms:- "On 18 July 1996 I had a conference with Dawn Baker and Mrs Rigg, Steve's mother. Steve Rigg was not present at the conference. During the course of the conference Dawn Baker said to me words to the following effect: 'I want the properties previously owned by Ken to be transferred to Trevor (Baker) and Steve (Rigg). The boys will take over the debts that Ken Baker owed to the State Bank and the Commonwealth Bank as part of the arrangement for the properties being transferred to them'. I assumed that 'the boys' meant Trevor Baker and Steve Rigg. Dawn Baker then said to me words similar to 'The other part of the deal will be that I will be able to live in the home with Cathy and Cathy's daughter Emma. The stock and the plant will be transferred to Steve and to Trevor'. By that conversation I understood that Dawn Baker would live in the former matrimonial home with her daughter and grand-daughter and that 'Steve' meant Steven Rigg and 'Trevor' meant Trevor Baker. I asked Dawn Baker: 'How will that work?' She said words to me to be similar to 'I, Cathy and Emma will live in the house rent free. I have had heart problems over the years and I don't want to have to worry about farm work or looking after the property. I just want out of it. I am going to go onto the pension'. I had been aware from things previously said to me that Steve Rigg, apart from being Ken Baker's former business partner, would also help Ken in his farm duties before Ken's death. Dawn Baker had said to me words to the effect: 'Steve had helped Ken on the farm before he died'. From that conversation or otherwise I believed that Ken and Dawn felt a sense of obligation towards Steve. I had a number of professional and informal discussions with the deceased prior to his death. At some of those discussions Steve Rigg was present. The deceased had said to me words to the effect: 'I have done a deal of farm work with Steve. Trevor has also done a lot of farm work with me. I consider them to be my 'right hand men'. If I hadn't had their assistance, and especially Steve's advice, I would have found it very difficult to continue farming'. At the conference on 18 July 1996 Dawn Baker said to me something similar to: 'I realise I can't continue to run Ken's farming properties, nor his business. I am more than happy to transfer what I am going to get in those properties and in the business to Trevor (Baker) and Steve (Rigg). Those transfers are because of the help both Trevor and Steve have given Ken over many years. She also said words to the effect: 'As long as I have a house for myself, Kate and Emma to live in and get the pension, I won't need any more and I can look after myself'". 87 Annexure "PWS 32" to Mr Sheridan's statement was his contemporaneous notes of the conference on 18 July 1996, which read:- " 'PWS 32' 18/7/96 Tfrs to Trevor property

[26]

Stephen & Trevor to provide for Emma?? (Discussing and advising 1 HR - 10 Units)" 88 Paragraph 2.28 of Mr Sheridan's statement was in the following terms:- "On 26 July 1996 I conferred with Steve Rigg and TV. One of them, whom I believe was Steven Rigg, said to me; 'Ken and Roger own a block near the floodgate. I think it may be a lease'. Steve Rigg then said to me ' the responsibility for payment of the Commonwealth Bank debt should go to me'. I then said to both of them: 'What about the other debts?' One of them and I believe it was Trevor Baker said to me 'I'll look after half of Dad's personal debt'. I took that to mean the debt to the State Bank. I then discussed the other properties with the two of them. One of them and I think it was Steven Rigg said 'Lot 2 in DP513573 is the quarry. It's 78 acres that's about 31 hectares. That's to go to Trevor'. I then said something like 'What about the remaining properties'. One of them and I again think it was Steven Rigg: 'Lot 2 in DP181210 is the house and that's going into my name and we'll get the debt on it split evenly'. I understood 'the house' to mean the former matrimonial home in which Dawn and Ken Baker lived. Steve Rigg then said 'the insurance monies will come off the debt'. One of them then said words to the effect: 'Steve will service the debt on the cattle and Trevor will service the debt on the quarry'. We then further discussed other property. One of them said and I again think it was Steve Rigg: 'Lot 11 in Dp554777 will go to me as it is the one which adjoins the house paddock which is number 2. Rodger (Baker) owns Lot 1'. 'There is another piece of land which is the land in volume 4473 folio 99 and that's also to go to Steven'. One of either Steven Rigg or Trevor Baker said to me 'The other land, lot 32, is going to be in both our names and the mortgage on that has got to be discharged. That's the land which is next to Trevor's quarry'. Annexed hereto and marked PWS36 is a copy of my contemporaneous note of that conference". 89 Annexure PWS 36 to Mr Sheridan's statement was his contemporaneous notes of the conference on 26 July 1996, which read:- " 'PWS 36' 26.7.96 (Attg S Rigg & T Baker) Ken & Roger own a Block near the floodgate near Crescent Head. - Lease?? - C'th Bank debt goes to Steve). Re: Debts Trevor shares ½ of Ken's Personal Debt (State Bank) Lot 2 in DP 513573 is the Quarry 78A - 31 HA to go to Trevor Lot 2 in 181210 is House Goes to Steve's Name and debt gets split evenly Insurance monies come off the debt. Steve - services the debt ex cattle. Trevor - services the debt ex Quarry Lot 11 in DP 554 777 goes to Steve R adjoins House paddock Lot 2 (Rodger is Lot 1)/ C/T Vol 4473 Folio 99 goes to Steve R. Ident 32/754400 to be in Both Names and Mortgage Discharged. (Next to Trevor's Quarry) Other Lot (Crown) to be transferred to Joint Names of Steve & Trevor. Machinery - evenly divided. Anything that C'th Bank has mortgage over is Steve's. Dawn & Cathy live in the House Put 2500 X 2 (S&T) away for Emma in a Trust fund until she is 21 - when it will be $50,000/ 1 hour - 10 units. Intergenerational Tfrs - Nephew". 90 In par 2.33 of his statement Mr Sheridan said that on 28 August 1996 he contacted an officer of the Office of State Revenue and made enquiries as to whether the "rules and regulations" providing for intergenerational transfers of property to be exempt from stamp duty extended to nephews and to plant and equipment. 91 Par 2.43 of Mr Sheridan's statement provided in part as follows:- "On 18 October 1996 Dawn Baker swore in my presence and affidavit of Executor, a copy of which (with the annexures referred to in the affidavit) is annexed and marked 'PWS 52'. Before Mrs Baker signed this affidavit, I placed it in front of her. Sitting opposite her at the desk in my office, I read, in full, the affidavit to Mrs Baker from my file copy affidavit. As was my normal practice when documents of this nature were signed by clients/executors and those documents/affidavits referred to further documents as annexures, I got up from my seat at the desk and went around to that side of the desk on which the client/deponent was seated. When an annexure letter appeared, I turned the pages specifically to the relevant annexure and showed or read its contents in full to Mrs Baker and assured myself, by asking her whether she was aware of the nature, content and meaning of the documents being read and perused. I said to her: 'Do you realise that these documents I have just read through with you and to you are the documents which, when signed by you, will be sent to the Probate Office in Sydney so that we can obtain a Grant of Probate of Ken's will?' Mrs Baker replied: 'I understand that'. I said: 'You understand what information the documents contain as to the value of Ken's assets and debts and that such information was obtained by me in the normal course of compiling and preparing such documents to get Probate granted'. Mrs Baker replied: 'I do'. I understood from her replies that she knew what she was signing and what the effect of those documents was. I then, at that time, also told Mrs Dawn Baker: 'The signed documents and these annexures will be sent to the Probate Office in the Supreme Court in Sydney. Provided the documents are in order, the Court will make a Grant of Probate. That confirms that your husband was the owner of the assets which are referred to in these documents, that he was liable for the debts which we have also referred to in the documents and that his will was validly made. It also means that the will had the effect of the wording contained in it and as well that you will be the executrix. You have agreed to be executrix by signing these documents. The will makes you the sole beneficiary named in the will'. I then asked Mrs Baker: 'Do you have other questions you want to ask? Are there any other matters you want to discuss or is there something you didn't understand about this process?' She replied: 'No, please show me where to sign'. She then signed all the relevant documents in my presence which I dated and witnessed. I then said to Mrs Baker: 'These documents will be sent to the Probate Registry by Document Exchange mail and Probate of your late husband's will should be granted within the next week to fortnight'. Mrs Baker said: 'That's good, we can then get on with the transfers to Trevor and Stephen'". 92 In a telephone conversation on 7 November 1996, after probate of Mr Baker's will had been granted on 28 October 1996, Mr Sheridan said to Stephen Rigg:- "We will need to prepare the necessary documentation to give effect to this arrangement which you have reached between yourself, Dawn Baker and Trevor Baker as a deed of family arrangement. We will also need to prepare and execute a trust agreement providing for Dawn's granddaughter Emma".

[27]

Stephen Rigg said that the debt owed by the deceased to the State Bank was to be divided between Trevor Baker and himself. 93 Mr Sheridan proceeded to prepare various documents to give effect to the agreement which he said had been reached between Mrs Baker, Stephen Rigg and Trevor Baker. Mr Sheridan forwarded copies of the deeds he had drafted with a letter of 19 November 1996 addressed to the three parties C/- of Kempsey Kar Kare. 94 On 25 November 1996 Mrs Baker, Stephen Rigg and Trevor Baker attended at Mr Sheridan's office. On 25 November 1996 Mrs Baker signed a transmission application and transfers of the homestead, Lot 11, the Loftus Road properties, the Quarry and the Quarry stockpile and also signed the deed of transfer and two statutory declarations. The purpose of the two statutory declarations was to support the claim for exemption from stamp duty. In the statutory declarations Mrs Baker said inter alia that her intention in effecting the transfers of the real estate was that the transferee or transferees should take total legal and equitable ownership of the land being transferred. 95 In par 2.56 of his statement Mr Sheridan said:- "Dawn Baker, Trevor Baker and Steve Rigg attended my office on 25 November 1996 prior to signing the documents referred to in the preceding paragraph. I explained the nature and effect of the documents to Trevor, Dawn and Steve by saying 'Dawn, do you realise that by signing these documents you are transferring to Trevor and Steve all assets Ken left to you in his will, that is, the whole of his estate?' Mrs Baker replied: 'I know that and I'm happy to let the transfers proceed as we have all discussed'. I said to Trevor and Steve: 'You each realise what assets you are getting and what responsibilities for mortgages and debts you are taking on?' Each indicated to me they understood by replying: 'Yes'. I read out aloud the deed and the statutory declarations. Following my doing so, and prior to the documents being executed, I said to Dawn Baker words to the effect of: 'Are you happy to proceed?' Dawn responded: 'Yes'. I asked Dawn 'Do you have any questions about the documents or anything else?' I also asked her 'Do you want to talk to anybody else before you sign the documents or to seek any other advice?' She responded with words to the effect: 'I want to proceed now and I want to have the transfers finalised as soon as possible'". 96 In part of par 2.59 of his statement Mr Sheridan said:- "When the parties called on 25 November 1996 to sign documents relating to the transfer of the deceased's properties and assets to RB and Steve Rigg, discussion took place between them and myself as to a residency agreement. I recall Mr Rigg saying: 'The agreement to allow Dawn, her daughter Cathy and granddaughter Emma Lee, is to provide for them to live in the deceased's farm house property rent free while ever they wish. Trevor and I will maintain the house at our expense and we will pay all rates and insurance levied on the property'. I said to Mrs Dawn Baker: 'Are you happy with this arrangement? Are there no other monies payable? She replied: 'I am happy and there are no other payments required. The boys (Trevor and Steve) have relieved me of any debt worries and any worries about running the properties. As far as I am concerned, that's all I want to be sure of'". 97 In par 2.59 of his statement Mr Sheridan said that on 26 November 1996 he had caused a draft deed of residence to be forwarded to the parties. The deed, signed by all the parties, had subsequently been returned to him. 98 Mr Sheridan proceeded to cause the transmission application and the transfers to be registered. 99 In his statement Mr Sheridan denied allegations by Mrs Baker in her affidavit which were inconsistent with assertions which Mr Sheridan had made in his statement. In particular, he denied assertions by Mrs Baker that she had not given any instructions for the deed of transfer to be prepared, that Mr Sheridan had not explained to Mrs Baker the documents which she had signed and that Mrs Baker had not been aware that she had transferred all the assets in her husband's estate to Stephen Rigg and Trevor Baker.

[28]

Stephen Rigg's Affidavit of 5 August 2003 100 Mr Rigg said that he had been born on 13 November 1962. After leaving school he had taken up an apprenticeship as a panel beater and he had worked as a panel beater until 1985. He had then worked as a truck driver. 101 In this affidavit Mr Rigg said that he had known Mr Ken Baker since he was a child. In par 6 of the affidavit he said that he and Mr Baker had carried on together a business of buying, fattening and selling cattle. 102 In 1988 Mr Rigg, Mr Baker and Roger Baker had purchased a motor vehicle business in Kempsey and renamed it Kempsey Kar Kare. They had then carried on the business in partnership. In about 1993 Roger Baker left the partnership. In 1994 Mr Trott lent money to the partnership, which was still outstanding at the time of Mr Baker's death. 103 In February 1996, not long before Mr Baker's death, the partners obtained overdraft accommodation with the Commonwealth Bank in the amount of $100,000 and also obtained a fixed rate term loan of $150,000 to refinance an existing loan from the State Bank. 104 In pars 26 and 27 of the affidavit Mr Rigg said that after 25 November 1996 he had taken over the sole responsibility for the debts of Kempsey Kar Kare (the overdraft debt and the fixed rate term loan). 105 In par 27 of the affidavit Mr Rigg said in part:- "Under the deed, Trevor Baker was supposed to take over half of Kenny's debt. Trevor, however, did not, to my knowledge, take over any debts of Kenny's. This meant that I had to take over Kenny's total debts". 106 In his affidavit Mr Rigg then gave evidence about his financial affairs from 1997 onwards. 107 In par 40 of the affidavit, in answer to par 18 of Mrs Baker's affidavit, Mr Rigg said:- "In relation to paragraph 18 of the affidavit, I recall having a conversation with Mrs Baker approximately two to three weeks after Kenny passed away. I said words to the following effect: 'There is a partnership agreement between Ken and I relating to the Kempsey Kar Kare business. Ken has mortgaged some of his properties to the Commonwealth Bank of Australia as security for loans for the business. We'll have to make some decisions as to what to do about the situation. I can either wind up the business and pay out the bank, which will include selling up some of the properties, or you and Trevor [Baker] can run Ken's half, or I can continue the business by myself and things will run in the same way as they had always run when Ken was alive. If I continue the business, however, the properties will have to stay with the partnership as they run with his debts' Mrs Baker said words to the following effect: 'I don't want any part of the debt and I don't want you selling up any of the properties. I then said words to the following effect: 'Then you'll have to transfer the mortgage properties to me so that I can keep running the business and pay the loans'. Mrs Baker said words to the following effect: 'That's fine, you can work it out with Trevor'. I understood her reference to Trevor to be a reference to Trevor William Baker, the third defendant, who is her son. I said words to the following effect: 'I'll talk to Trevor and ask Paul Sheridan to take care of the transfer'. We then terminated the conversation shortly thereafter. I deny saying that Mrs Baker 'will lose the lot". 108 In par 41 of the affidavit, in answer to par 20 of Mrs Baker's affidavit, Mr Rigg said inter alia:- "I deny saying that 'if the properties are not transferred to me they will be taken by the bank', however, I do recall saying on several occasions that 'if the partnership is wound up then some of the properties will need to be sold to pay out Kenny's debt to the bank under the partnership.'" 109 Paragraphs 42, 43, 45, 46 and 47 of Mr Rigg's affidavit were as follows:- "42. On or about 10 May 1996, or in any event after the will of Kenny Baker had been read, I visited 1415 Right Bank, the property Mrs Baker was staying on, and had the following discussion: I said words to the following effect: 'Have you decided what you want to do with Ken's farms?' Mrs Baker said words to the following effect: 'You and Trevor can sort things out and run them together. I don't want to sell the farms up. I want to keep the farms together. I don't want to sell them up to the bank. You and Trevor can run the cattle together as well'. 43. On or about 11 May 1996 while fixing a tractor with Trevor Baker on property 1420 Left Bank Road, Trevor and I had the following discussion: I said words to the following effect: 'What do you want to do about your father's debt under the partnership?' Trevor said words to the following effect: 'I don't want to have anything to do with the business or the cattle'. I said words to the following effect: 'What do you want to do with the debt over your father's properties? If I take over your father's debts, his properties mortgaged to the bank will have to stay with the business and be transferred to me so that the loans can be transferred'. Trevor said words to the following effect: 'That's fine, I only want the quarry'. By reference to the quarry I understood Trevor to be referring to Lot 25/13573. 45. On or about 20 November 1996 I received a telephone call from Trevor Baker and we had the following conversation: Trevor said words to the following effect: 'I don't want to have anything to do with the cattle or the mortgage over Mum's house. I can't refinance the house'. I said words to the following effect: So how is Dawn going to keep the house? Trevor said words to the following effect: 'Can you run the cattle on dad's property and pay the mortgage for the house like dad did?' I was aware that Kenny had been making an approximate profit of $16,286.34 each year from running the cattle. Annexed hereto and marked with the letter "L" is a document entitled 'Ken Baker Livestock Dealer', which Kenny had submitted as part of the loan application referred to in paragraph 22 above. I relied partly on the amount Kenny was earning from running cattle on Kenny's farm in ultimately agreeing to sign the deed referred to in paragraph 26 below. I then said words to the following effect: 'If refinance it, I'll take over the responsibility, but I will also have to have the property transferred into my name. You mum can keep living there of course'. Trevor Baker said words to the following effect: 'That's fine, but just so long as we are clear that if you take the cattle and mum's house as well, you'll have to take over all of dad's debts'. I said words to the following effect: 'Okay'. 47. In relation to paragraph 23 of the affidavit, I recall that Mr Sheridan read through the entire deed during this meeting and asked whether anyone had any questions. I do not recall anyone asking any questions. It was my understanding that the deed was necessary to sign in order to effect the transfer of properties mortgaged to the CBA as well as to the State Bank in exchange for me assuming Mr Baker's debts under the partnership as well as his personal debts, and to otherwise reflect the agreement reached between Trevor Baker, Mrs Baker and myself. I deny playing any role in administering the estate. My involvement in relation to any assets of the estate were purely related to assuming the business and personal debts of Kenny Baker as a consequence of the discussions referred to in paragraphs 40, 41, 43, 45 and 46 above". 110 In par 48 of his affidavit Mr Rigg said that in 1999 Trevor Baker had told him to take his cattle off Trevor Baker's property (Syd's property), which Mr Rigg had been using for grazing his cattle. Mr Rigg said that, having taken his cattle off Trevor Baker's property, he was obliged to sell the cattle and was thereby deprived of a continuing income and was unable to meet his commitments to the Commonwealth Bank, including payments under the mortgage over the homestead. 111 In par 55 of the affidavit Mr Rigg said:- "At all times, I looked to Mr Sheridan to look after the interests of Dawn Baker, Trevor Baker and myself in relation to the estate. At no stage did Mr Sheridan tell me that there was any difficulty with him looking after our interests together. He never told me that there was a risk that Dawn Baker might be able to have the deed and the transfers under the deed unwound". 112 In pars 56 to 58 of the affidavit Mr Rigg gave evidence about expenditure by him on the house on the homestead in support of his cross-claim against Trevor Baker.

[30]

Stephen Rigg's Affidavit of 8 September 2004 114 In paragraphs 2 to 6 of this affidavit Mr Rigg gave evidence of what he said had been his experience in cattle grazing and in par 7 to 17 of the affidavit he expressed opinions about the suitability for cattle grazing of the various parcels of land which had been owned by Mr Baker. In par 17 of this affidavit he said:- "In my opinion, if the properties the subject of these proceedings were to be let out for agistment purposes, they would result in a return based on 60 to 80 head on a per year basis. This is essentially the carrying capacity of the front country on the Homestead lot. Although, depending on the season, the other land could support some temporary additional grazing of maybe 30 to 40 head, it could not do so consistently throughout the year and for the reasons that I have given I do not believe it would be capable of producing a regular or reliable agistment income". 115 In paragraphs 30 to 32 of the affidavit Mr Rigg said that, while Mrs Baker had been very upset when her husband died, she had started going out again a few weeks after his death and when Mrs Baker called in at the premises of Kempsey Kar Kare she seemed to Mr Rigg to be "functioning quite normally". Shortly after Mr Baker's death Mrs Baker had spoken to Mr Rigg about a diesel fuel rebate form which had not been sent in by Mr Baker and an insurance renewal form. 116 In pars 33 and 34 of his affidavit Mr Rigg said that soon after Mr Baker's death Mr Bowden of the Commonwealth Bank had begun pressing Mr Rigg about what was to happen to Kempsey Kar Kare. Mr Bowden said:- "You are going to have to let me know whether the partnership is going to be wound up or whether you are going to trade on as a sole trader or whether you are going to get another partner". 117 Mr Rigg then realised that something had to be done "to fix up Kempsey Kar Kare". 118 In pars 36, 37 and 38 of this affidavit were in the following terms:- "36. At the time it was my belief that if KKK shut down there would be a shortfall because I believed that if there was a forced sale of the assets of KKK that they would make less than the amount of the debts. There would also be further liabilities generated because it would be necessary to pay out the leases, staff entitlements and other debts of KKK that would become due if KKK were shut down. My belief at the time was that the shortfall would have exceeded $100,000. I knew that Kenny had given security over Lot 11, Lot 32 and the Loftus Road properties for the KKK debt and I believed that if KKK was shut down, some or all of those properties would need to be sold to meet the shortfall. 37. No one else that I was aware of was prepared to purchase KKK. 38. At that time I knew that if I was to take on the KKK debt personally I needed to take some of Ken's properties as security for the KKK debt". 119 In pars 39 to 49 of this affidavit Mr Rigg gave evidence, in support of some of his assertions in par 36 of the affidavit, about accrued annual leave and long service leave entitlements of employees of Kempsey Kar Kare and about payments due under leases by Kempsey Kar Kare. 120 In pars 50 and 51 of this affidavit Mr Rigg said that the order of some of the conversations he had deposed to was a conversation with Mr Bowden (pars 33 and 34 of his affidavit of 8 September 2004), then the conversation with Mrs Baker (par 40 of his first affidavit) and then the conversation with Trevor Baker (par 43 of his first affidavit). 121 In par 53 of this affidavit Mr Rigg said with respect to the conference Mrs Baker had with Mr Sheridan on18 July 1996:- "I recall ringing Mr Sheridan's office in about July 1996 to make an appointment for Dawn to see him. I did this because Dawn asked me to make the appointment. To the best of my recollection, I never intended to attend at that meeting and in fact I did not do so". 122 In pars 54, 55 and 56 of this affidavit Mr Rigg said:- 54. After arranging the appointment for Dawn to see Mr Sheridan, I recall that Trevor and I attended a meeting with Mr Sheridan. Before that meeting Trevor and I had had a discussion about how to deal with the assets and debts of the estate. In the course of that meeting discussions took place in words to the following effect: I said: 'You can take over your father's share of Kempsey Kar Kare if you want. You can also take over his cattle business if you want'. He said: 'I don't want to have anything to do with the cattle or the business. I just want the quarry'. I said: 'Well I'll take the business and the cattle but we will need to do something about the debts. I'll take over the business debts. What about your father's debt to the State Bank?' He said: Can we go halves in that?' I said: 'Okay, but we will need security to service the debts. In order to raise the money I will need the homestead'. He said: 'That's fine, but I want Lot 32'. I said: Lot 32 is already mortgaged to the Commonwealth Bank as security for Kempsey Kar Kare debts and I will need some high country if I am going to take over the cattle in case I need to move them there in a flood'. He said: 'I have to have Lot 32 for the quarry. If you're getting the homestead can't you use it as security instead of Lot 32 and discharge the mortgage? Then we can go halves in Lot 32. I can use it for the quarry and you can use it for the cattle'. I said: 'That should be okay. What about the truck and the equipment? He said: 'We will both need to use it on both our places. We should go halves in it'. During that conversation I also said words to the effect that: SJR: 'I know that Kenny would have looked after Emma'. This conversation took place prior to seeing Mr Sheridan with Trevor on 26 July 1996. I remember there was some discussion about Emma Alexander. However, I do not now recall specifically what was said. I later had a conversation with Dawn in which I told her what Trevor and I had agreed. She said words to the effect: DMB: 'I'll leave it up to you and Trevor'. 56. The possibility of selling some or all of the plant & equipment, the cattle and the land other than the homestead and for Dawn to live on the homestead and agist cattle did not occur to me in 1996. This possibility was not suggested to me by Dawn or Trevor or Paul Sheridan or Barry Bowden or any other person in 1996". 123 In par 57 of this affidavit Mr Rigg said that he recalled that on or about 26 July 1996 he had had a meeting with Mr Sheridan and Trevor Baker about the arrangements that had been discussed between Trevor Baker, Mrs Baker and himself. 124 In pars 58 to 62 of this affidavit Mr Rigg gave evidence about the probate valuations. He said that he had arranged for the valuations to be made, after Mr Sheridan had advised that they should be obtained, but "I was not particularly interested in what the valuations were". He had left it to a Mr Bradley, a consultant working for Kempsey Kar Kare, to arrange for the valuations to be obtained and for accounts of Kempsey Kar Kare to be prepared. 125 In pars 63 to 65 of this affidavit Mr Rigg gave evidence about the estate bank account with the Commonwealth Bank. He said that he had not attended at the bank when the estate account was opened. Mrs Baker had provided Mr Rigg with a cheque book for the estate account. A procedure developed whereby Mrs Baker, having received bills payable by the estate, would deliver the bills to Mr Rigg, Mr Rigg or his wife would write out cheques in payment of the bills and then take the cheques to Mrs Baker for her signature. 126 In par 66 of this affidavit Mr Rigg said that before 25 November 1996 Trevor Baker told him that he had not been able to obtain finance to pay half of the State Bank debts which he had agreed to pay. 127 In par 68 of the affidavit Mr Rigg said that he had had a telephone conversation with Mr Sheridan in November 1996 in which Mr Sheridan told Mr Rigg that Trevor Baker had changed his mind about the amount of the yearly payments he could afford to make to the proposed trust fund for Emma, Mrs Baker's granddaughter. 128 In par 70 of this affidavit Mr Rigg said that he now believed that in pars 45 and 46 of his first affidavit he had run together parts of conversations which had taken place in July 1996 and November 1996. 129 In par 71 of this affidavit Mr Rigg said that after November 1996 Trevor Baker had proposed a boundary change for the Quarry and the quarry stockpile so as to include the access road to the quarry, which was in Lot 32, in Lot 2 and in consideration for this boundary change Trevor Baker would give up his half share in what was left of Lot 32. Mr Rigg did not agree to the proposed boundary change.

[32]

Evidence in Chief 131 Mrs Baker gave evidence that after her husband's death she had no desire herself to take over his interest in the partnership of Kempsey Kar Kare. She had not had any involvement in her husband's business as a grazier and after his death she had no desire to become a grazier. She knew that she was not capable of doing that. 132 Mrs Baker did not remember saying to Mr Sheridan at the conference on 18 July 1996 "I want the properties previously owned by Ken to be transferred to Trevor and Stephen". She said "I only did that (transfer the properties) because of the mortgage". When asked what she meant by this evidence, she said that she had transferred the farm to save her home. That was an idea she had after talking to Mr Rigg. 133 Mrs Baker did not remember saying at the conference on 18 July 1996 that "the boys will take over the debts". She denied that before going to Mr Sheridan's office on 18 July 1996 she had had a conversation with anyone about "the boys" taking over the debts. 134 When asked whether Stephen Rigg had helped her husband on the farm she said "he (Stephen Rigg) was always around". She denied that she had felt any sort of obligation to Stephen Rigg. 135 Mrs Baker asserted that she had had nothing to do with a bank account which had been opened in the name of the estate of her husband. 136 Mrs Baker accepted that she had signed the affidavit of executor but she could not recall signing it. 137 Mrs Baker accepted that she had signed the deed of transfer in Mr Sheridan's office. When asked whether Mr Sheridan had told her anything about the deed of transfer before she signed it, she said "Not that I can remember, I think we just signed". 138 The following questions and answers occurred at transcript p 50 line 38 to page 51 line 30. "Q. Did Mr Sheridan ever suggest to you that you should consult another solicitor? A. No. Q. Did he ever suggest to you that you should consult an accountant? A. No Q. Did he ever give you any advice about whether the transfer was a good idea? A. No. Q. Did he ever tell you that the legal effect of the transfer would be that you couldn't control your own property? A. No. Q. Did he ever tell you that if you transferred your property and somebody else mortgaged it, you might lose it? A. No. Q. Did he ever tell you that there was more money in the estate in terms of value than there were debts? A. No, he never told me that. Q. Did he ever tell you that there were ways of paying off the debt without transferring the property? A. No. Q. Did he ever tell you, for instance, that the cattle and the insurance policies and the plant and equipment - the tractor, et cetera - might, themselves, bring enough to cover the amount of the debt? A. No, he never told me that. Q. If he'd told you those things, would you have left differently about matters? A. Yes, I would. Q. In what way would you have felt different about it? A. Well, I probably would be able to handle - get ourselves out of debt, you know. Q. Did Mr Rigg tell you any of those things when he spoke to you about the debt? A. No. Q. Did you know that you might have had other options than transferring the property to Mr Rigg and to Trevor? A. No." 139 Mrs Baker did not remember or denied what Mr Sheridan had said in pars 2.56 and 2.59 of his statement about what had happened at the conference on 25 November 1996. 140 At no time between May 1996 and November 1996 had Mr Sheridan talked to Mrs Baker on her own, with no one else being present. 141 Mr Sheridan had never told Mrs Baker that she had a choice about whether to enter into the arrangement with Stephen Rigg and Trevor Baker. 142 In July 1996 she had gone to an office of Centrelink and applied for an aged pension. She had gone to Centrelink with Mrs Rigg. She said that "at the time I was really upset and Hazel was sort of talking for me". 143 The following questions and answers occurred at transcript p 64 lines 7 to 16:- "Q. … At the time you were applying for a pension were you aware that you had or may have had the choice between going on the pension and supporting yourself from the assets of the estate? A. No, I never thought of that. Q. If you'd had a choice, which would have included supporting yourself from the assets of the estate, what would you have chosen to do? A. Well, I would have had the assets". 144 Mrs Baker said that during his lifetime her husband had sometimes agisted other peoples' cattle on his land. She did not know what her husband had received for agisting other peoples' cattle and she had never thought of agisting other peoples' cattle.

[33]

Cross-examination by counsel for the First Defendants 145 Mrs Baker had no recollection of anything Mr Sheridan had said to her on any of the occasions that she attended his office. 146 Mrs Baker agreed that, after the deeds were signed, she had continued to live in her home and had had no worries, until Stephen Rigg told her that the property would have to be sold. She denied that she was happy with the arrangement, because "I didn't like to lose everything" but then said that she did not know that she had lost everything until Mr Rigg had told her (some years later) that the bank wanted to sell the property. 147 Mrs Baker agreed that before her husband's death his cattle were grazing partly on the lands owned by him at his death and partly on Syd's property. 148 When cross-examined about the affidavit of executor Mrs Baker said that she thought that she had been asked to read it before she signed it and that "I would have read it". She said "I don't honestly remember seeing those figures (in the affidavit of executor) … I'm not a business person. I just wouldn't have read it… I couldn't have took any notice to the figures". However, she said that she knew enough to have been able to understand what was in paragraph 14 of the affidavit of executor, if she had read it. 149 When her husband died she was aware that he owed money to at least one bank and it occurred to her that something would have to be done to pay the bank. She herself would not be returning to work. She knew that she could not continue her husband's cattle grazing activities. 150 Mrs Baker agreed that "your dearest wish soon after your husband passed away was to be able to live in your home". She had strong emotional ties to the home in which she and her husband had lived for thirty-five years. 151 Mrs Baker agreed that a suggestion was made that Stephen Rigg and Trevor Baker might take care of the debts owed by Mr Baker to the bank. She did not expect Stephen Rigg and Trevor Baker to pay those debts out of her own funds. 152 Mrs Baker could not remember speaking to Mr Rigg about the transfer of the properties before 18 July 1996. She denied that she had discussed with Mr Sheridan why she had wanted the properties to be transferred. 153 On 19 July 1996 Mrs Baker went with Mrs Rigg to an office of Centrelink to apply for an age pension. At the office at Centrelink Mrs Baker signed two Department of Social Security forms, an "asset details" form (which became exhibit 1D1) and a "pension claim" form (which became exhibit 1D2). Both forms were standard printed forms on which handwritten entries had been made. Both forms were signed by Mrs Baker. 154 Mrs Baker gave evidence that the handwriting on the forms was not hers and she thought it might be Mrs Rigg's. She could not remember whether the two forms had been filled in by an officer at Centrelink. She recalled having a meeting with someone at Centrelink, being asked questions and answering those questions. 155 Although I have not had the advantage of seeing any undoubted specimens of Mrs Rigg's handwriting, the handwriting on the two forms is a business like, literate style of handwriting (quite unlike Mrs Baker's signature) and I am satisfied that I should infer that the handwriting on the forms was written by an officer of Centrelink and not by Mrs Baker or Mrs Rigg. Part 12 of the pension claim form, which was to be filled in "if a friend or relative helped you with your claim" was left blank. 156 Mrs Baker gave evidence that on 19 July both she and Mrs Rigg had answered questions. She had agreed with the accuracy of any answers given by Mrs Rigg and Mrs Rigg had not exerted any pressure on her. In 1996 she and Mrs Rigg had been "very close". 157 In Part 9 of the pension claim form, in answer to a question "do you or will you get money from a life interest?" the words "home only" were handwritten. In answer to a question "are you the owner or part owner of a farm?" the answer "no" was ticked. In answer to a question "do you own or have an interest in any real estate in Australia or overseas?" the answer "No" was ticked. In answer to a question "do you own your own home?" the answer "No" was ticked. In answer to a question "do you have an interest in your home?" the answer "Yes" was ticked. In answer to a question "do you get free accommodation?" the answer "Yes" was ticked. 158 Mrs Baker agreed that "by 19 July 1996, when you attended Centrelink… you had made a decision … to transfer the properties to Mr Rigg and your son" and "you'd come to an agreement with (Mr Rigg) by 19 July 1996 that you would live in the house free of charge until you passed away". However, she said that she could not remember whether she had made the decision to transfer the properties, before she saw Mr Sheridan on 18 July 1996. 159 As to whether Mrs Baker knew that she had a choice, the following questions and answers occurred at transcript p 92 lines 15 - 35:- "Q. I'm asking you about your state of mind. You knew that you had to agree for anything to be transferred to them? A. Yes. Yes. Q. And whilst others may have made these suggestions to you, you knew you had to agree before any of that could be done? A. Yes. Q. You knew you had a choice, 'Yes, I agree to that proposal" or "No, I don't" A. Yes, I knew that. Q. You could have chosen, if you wanted to, not to transfer the properties to your son and Mr Rigg? A. Yes". 160 Mrs Baker was cross-examined about what she would have done, if she had received advice from another solicitor in 1996. She said "I would have took notice, I guess. I would have took notice to what he told me". I disallowed a question asked by counsel for the first defendants, asking what advice Mrs Baker thought she would have been given by another solicitor. As to whether Mrs Baker would have gone to see another solicitor or an accountant, the following questions and answers occurred at transcript p 111 line 28 to p 112 line 3:- Q. You have got no idea if you had gone to see an accountant what they might have told you? A. I've got no idea. Q. And you've got no idea whether you would have acted any differently to the way you did if you'd spoken to an accountant? A. Well, I don't know because I never went. Q. Mr Sheridan did say to you something to the effect of, "Do you want to go and see another solicitor?' A. No. Q. If his Honour accepts your answer as correct - if he had said that to you, you would not have gone to see any other solicitor, would you? A. Well, I guess I would have, but it was never suggested. Q. When you say 'I guess I would have', you've got no idea one way or the other? A. Well, I always thought Mr Sheridan was my solicitor. Q. And if he'd said to you, 'Well, look, I'm also doing some work for your son and Mr Rigg and this transfer. Maybe you should go and see somebody by yourself"-- A. No. Q. -- you wouldn't have gone anywhere else, would you? A. No. I trusted Mr Sheridan. Q. And even if he told you to see another solicitor, you would not have gone? A. Well, I probably might have. I don't know". 161 At transcript p 126 lines 49-50 Mrs Baker said:- "If he (Mr Sheridan) had suggested it (seeing another solicitor), I probably would have went to someone else". 162 The following questions and answers occurred at transcript p 127 line 11 to line 42 and at p 128 line 1 to line 9:- Q. At that time in 1996, you trusted your son? A. Yes. Q. You trusted Mr Rigg? A. Yes. Q. You discussed with Mr Rigg the various aspects of the proposal - of the transfer of property and what would happen? A. I don't know whether we had a discussion about it or not. Q. Well, you spoke about it to him? A. Yes, yes. Q. And you understood, in broad terms, that you were transferring your property to Mr Rigg and your son -- A. Yes. Q. ---together with cattle, plant and equipment, and things of that sort? .A Yes. Q. And they would take care of the debts that your husband left? A. Yes. Q. In those circumstances, if Mr Sheridan had told you those various things, you would have been content to remain with Mr Sheridan and not see a different solicitor, wouldn't you? A. No I never thought of another solicitor". … CURTIN: Q. In all the circumstances, Mrs Baker, even if Mr Sheridan said to you, 'I think you should see a different solicitor,', you would not have gone to a different solicitor? A. Well, I don't know, because it wasn't suggested. Q. I'm just asking you to assume that it was suggested. A. Well, I still don't know what I would have done". 163 The following questions and answers occurred at transcript p 114 lines 17-31:- Q. If Mr Sheridan had said to you, 'look, Dawn, you should go and speak to an accountant about this proposal to transfer the assets', you wouldn't have gone, would you? A. Well, I don't know what I would have done, but it wasn't said to me. Q. If Mr Sheridan had said to you, let's assume at the time he read the will, 'Mrs Baker, you should go and get some financial advice as to what to do with the estate'-- A. No. Q. --you wouldn't have seen anybody, would you? A. Well, I don't know. I just had Mr Paul Sheridan, that's all". 164 The following questions and answers occurred at transcript p 117 line 5 to line 34:- "Q. And you signed the deed knowing that Mr Rigg and Trevor would then own individually or between themselves all of those properties? A. Yes. Q. And as owners they could do what they wanted with the properties; you knew that? A. Yes, I knew, mmm. Q. And you knew that one of the things they might do is to borrow money against those properties if they so desired? A. Well, I don't know. I suppose they would, but I don't - I didn't - you know, I wouldn't know what they'd do. Q. But you know, or knew then, that an owner of a piece of land-- A. Yes. Q. -- can go to the bank and borrow money and the bank takes a mortgage? A. Yes. Q. When you signed the deed transferring the properties to Mr Rigg and your son, you knew that one of the things they might decide to do later on is to borrow some money against the land? A. Never entered me mind when I did it. I thought the places would go on". 165 The following questions and answers occurred at transcript p 128 line 16 to p 130 line 2:- "Q. You might remember yesterday I asked you some questions about mortgages? A. Yes.

[69]

Q. With all of the properties being worked together? A. Yes". 176 Mrs Baker accepted that she herself was not capable of stepping into her husband's shoes and she agreed that "you were looking for someone to come in and take your husband's place, so that you could continue to live as you had lived before". 177 The following questions and answers occurred at transcript p 167 line 46 to line 55:- PARKER: Q. A proposal was put forward - we will come back to by whom or the circumstances- that the person who was going to take your husband's place, keep these businesses operating, would be your nephew Stephen and your son Trevor, together? A. Yes, but it never worked. Q. It didn't eventually work, but that was the proposal? A. Well, I guess so. I couldn't run it". 178 The following questions and answers occurred at transcript p 169 line 34 to line 37:- "Q. Your concern was that someone would do it out of the two of them and you were quite happy for them to divide up the responsibilities among themselves, weren't you. A. Yes". 179 At transcript p 170 line 46 to line 50 the following question and answer occurred:- "Q. And Mr Rigg said to you that if you didn't want to take over your husband's business affairs, you would have to transfer the mortgaged properties to him so that he could keep running the business and pay the loans? A. Yes. Yes, that's right". 180 Mrs Baker said that she could recall only one conversation with Stephen Rigg in 1996. When asked what had been said in this conversation Mrs Baker said:- "Q. What happened in this conversation; who said what? A. Well, Stephen just come down and said he had to have the land because the mortgages - otherwise we would lose it, lose the lot. So - but he told me my place was in trouble, he had to sell my place". 181 I comment that it is obvious, as Mrs Baker herself later acknowledge, that the second sentence in this piece of evidence is evidence, not of any conversation in 1996, but of a conversation occurring some years later. 182 A little later in her evidence Mrs Baker said that she could not remember any conversation with Mr Rigg in 1996. She said "I can't remember back that far". 183 Mrs Baker was asked about her relationship with Stephen Rigg. She said that she did not have any special relationship with Mr Rigg before her husband's death, that she did not place any particular reliance on him before husband's death, that she did not consider her relationship with Mr Rigg to be "anything particularly special" either before or after her husband's death. Her relationship with Mr Rigg had not been any different from her relationship with her numerous other nephews and nieces. Later in her evidence Mrs Baker said that she did not now believe that in 1996 Mr Rigg was in a position of influence over her. 184 Mrs Baker accepted that after her husband's death there had been a number of persons she could have discussed financial matters with, including Mr Thomas (an accountant who had prepared income tax returns for her husband), Mrs Rigg, Trevor Baker and Kevin Lambert. Mrs Baker had not felt that she had to speak only to Mr Rigg. Mr Rigg had never sought to prevent her speaking to other members of her family or friends about financial matters. When discussing the estate with Mr Rigg, she had never felt any pressure from him not to speak to other persons. Mrs Baker said that she could have spoken to someone else "if I had had the knowledge to do it" but "it just didn't enter my head". 185 At transcript p 194 line 18 to line 28 the following questions and answers occurred:- "Q. When you attended Mr Sheridan's office in November 1996, your understanding was that what you were doing was signing documents which would have the effect of transferring the assets of your husband to Mr Rigg and to your son Trevor; correct? A. Yes. Q. On the understanding that they would also take on the liabilities that your husband had left behind; correct? A. Yes". 186 At transcript p 195 line 5 to line 23 the following questions and answers occurred:- "PARKER: Q. Your understanding was that Mr Rigg was taking over the cattle business that your husband had operated before his death? A. Yes, well, he was having the cattle.

[88]

Q. And before 25 November you had discussions with Mr Rigg as to how your father's debts were to be paid off? A. Yes." 198 Trevor Baker asserted that after his father's death both he and his mother had wanted to sell the cattle in the estate. He said that "she told me she wanted to sell the cattle to pay the debt". Trevor Baker accepted that "by 25 November there was absolutely no plan, desire or interest, so far as you perceived, in anybody to sell the cattle to pay off your father's debts". 199 When asked why he had not given back the Quarry to his mother, he said "I don't know". Later in the cross-examination he said that he had not returned the Quarry because it was "his" and he had been making an income from it. 200 Trevor Baker said that he knew that his father's debts had to be paid off but he denied ever discussing with his mother before 25 November 1996 that he would be paying off some of his father's debts. He said that "Mr Rigg was going to do it all". He knew that Mr Rigg would be using his father's cattle to derive income to pay off his father's debts. 201 Trevor Baker asserted that he had thought that he was going to get his father's plant and equipment. 202 Trevor Baker asserted that he had not discussed the proposed transactions with his mother, because whenever he mentioned his father in his mother's presence his mother would start crying again. 203 The following question and answer occurred at transcript p 546 line 14 to line 18:- Q. When you became aware before 25 November that the quarry and part of another property were going to be transferred to you did you say to your mother is that okay? A. No. I just thought that was her wish". 204 When asked whether the deed of transfer was read aloud on 25 November 1996 at Mr Sheridan's office, Trevor Baker said "not that I remember" but then said that the deed "may have been" read aloud and later still he said "I don't think so". 205 Trevor Baker said that the conference on 25 November 1996 did not last long enough for him to read the deed of transfer. He said "mum was very upset. I (wanted) to get out of that and she wanted to get out of there". To Trevor Baker the deed of transfer was "just a bit of paper" and "a piece of paper doesn't mean much" and he was not really concerned to see what was written in the document. 206 Trevor Baker said that he had a discussion with his mother after 25 November 1996 about the transfers of the properties. He had no idea how long after 25 November 1996 this discussion had occurred. At transcript p 548 line 28 to line 30 the following question and answer occurred:- "Q And in discussion your mother indicated she was content with this arrangement in some fashion, did she? A. Yeah, at the start, yeah". 207 At transcript p 548 line 49 to p 549 line 1 the following questions and answers occurred:- "Q. Your mother indicated to you she knew that all of your father's properties were being transferred into your name or to Mr Rigg's name? A. Yeah, I think so. Q. When you say I think so, do you have a recollection of? A. No, I don't. Q. What did she say to you about the transaction? A. She said it was the only way to go, otherwise her house was going to be sold". 208 Trevor Baker had a complete absence of recollection as to whether the matters set out in pars 2.56 and 2.59 of Mr Sheridan's statement had occurred on 25 November 1996.

[89]

Cross-examination by Counsel for the Second Defendant 209 Trevor Baker reiterated, and said that he was "certain", that he paid Mr Sheridan's costs for acting on the transfer of Syd's property from his father to himself. 210 Trevor Baker was cross-examined about a statement he had made to Mrs Baker's solicitors in 2002. In his evidence Trevor Baker denied that he had never like Stephen Rigg but that was what he had said in his statement in 2002. 211 Trevor Baker accepted that up until his father's death he had had no real interest in his father's cattle grazing activities, although he had been interested in working with the farm machinery. After his father's death he had not been interested in taking over and continuing his father's cattle grazing activities. 212 Trevor Baker had worked in the business of Kempsey Kar Kare in 1989-1990 but he had not liked working for Kempsey Kar Kare and he agreed that from 1990 onwards he had never thought that he would play any role in Kempsey Kar Kare. 213 Between 1990 and 1999 Trevor Baker's interests had lain with the quarrying activities being carried on on the Quarry. His father had mortgaged the Quarry to secure a loan to Trevor Baker and his partner in the quarrying activities. Trevor Baker gave evidence that, as at his father's death, that loan was the only loan relating to his father that he knew of. His attention was directed to part of his statement made in 2002, where he had said that before his father's death he was aware of a debt owed by his father in relation to Kempsey Kar Kare. 214 Trevor Baker at first denied that, after his father's death he had had any discussions with his mother about what she should do with regard to Mr Baker's properties and debts. A little later in his evidence he accepted that he had discussed with his mother what she should do. 215 Trevor Baker accepted that his mother was not capable of running the business of Kempsey Kar Kare and he himself knew nothing about Kempsey Kar Kare. He accepted that something had had to be done about the half share of Kempsey Kar Kare which his father had and the possibilities were that the business of Kempsey Kar Kare should be closed down or the half share sold to someone else or the half share transferred to Stephen Rigg. 216 Trevor Baker accepted that Mrs Baker was not capable of carrying on his father's cattle grazing business and that the only options concerning the cattle grazing business were to sell the business or to transfer it to someone within the family. 217 Trevor Baker accepted that Mrs Baker had not been capable of carrying on the quarrying operations on the Quarry. The Quarry had been transferred to Trevor Baker, following discussions after his father's death between his mother, Trevor Baker and Stephen Rigg. 218 Trevor Baker agreed that both he and Stephen Rigg had had an interest in the quarry stockpile (Lot 32), Trevor Baker because Lot 32 contained part of the land which was being used in the quarrying operations and Stephen Rigg because Lot 32 contained higher ground, not subject to flooding, on which cattle could be grazed. However, later in his evidence he said that Lot 32 had had nothing to do with the Quarry and he could not explain why he had ended up as a co-owner of Lot 32. 219 As regards the items of machinery (the plant and equipment), Trevor Baker agreed that the machinery would not be of any use to his mother and that there were some items in which he would be more interested and some items in which Stephen Rigg would be more interested. 220 Trevor Baker said that, although he now knew that by the deed of transfer the plant and equipment had been transferred to him and Stephen Rigg jointly, he had not read the deed of transfer before he signed it, "I didn't do it, Mr Rigg done it", the deed had been prepared on instructions given to Mr Sheridan by Stephen Rigg and "I didn't give any instructions". At the time of the deed of transfer Trevor Baker had thought that he was getting (all) the machinery. 221 As to whether he had attended a meeting with Mr Rigg and Mr Sheridan on 26 July 1996, Trevor Baker said "I supposedly did" and he said that he had doubts whether he had attended such a meeting. A little later in his evidence at transcript p 578 line 15 to line 52 the following questions and answers occurred:- "Q. You don't have any real doubt that you did in fact attend such a meeting, although you can't recall what was said, isn't that the truth? A. Possibly, yes.

[116]

Q. And you didn't protest about it in any way, did you? A. No." 225 Trevor Baker said that he did not recall signing the deed of provision but admitted that his signature appeared on the deed. He was cross-examined at some length about different versions of page 3 of the deed of provision. He said that it had been Stephen Rigg's idea to put money aside for Emma, that he, Trevor Baker, could not afford to put money aside for Emma and that he had never had money put aside for himself until he was twenty-one. The deed of provision had been put in front of him and he had signed it. 226 After November 1996 Trevor Baker had refused to take over half of the debt to the State Bank, because a bank manager had told him that, since Mr Rigg was getting his father's cattle, Mr Rigg ought to have all the debt to the State Bank, because the debt to the State Bank was associated with his father's cattle grazing activities. 227 After November 1996 there had been further negotiations between Trevor Baker and Stephen Rigg. Trevor Baker said that there was "no way" he had agreed at a meeting with Mr Sheridan on 7 February 1997, that, in consideration of Trevor Baker being released from his share of the State Bank debt, he would transfer his half interest in the quarry stockpile (Lot 32) to Stephen Rigg, subject to there being a boundary adjustment to Lot 32 which would give Trevor Baker the part of Lot 32 he needed for the operations of the quarry. Trevor Baker agreed that in a letter sent by Mr Sheridan to him in February 1997 there was a reference to Trevor Baker seeking to have a building restriction placed on the quarry stockpile and that a surveyor had made a survey showing a proposed boundary adjustment which would add the parts of the quarry stockpile associated with quarrying activities to Lot 2 (the Quarry). Ultimately, Trevor Baker agreed, having been shown a letter written by a surveyor to Mr Sheridan on 17 February 1997, that a transfer and a boundary adjustment of the kind which had been to him must have been contemplated. When the proposed boundary adjustment had been put to Mr Rigg, Mr Rigg had not agreed to it and the proposal for a transfer and a boundary adjustment had not gone forward. Trevor Baker had left it to Stephen Rigg to pay the whole of the State Bank debt. 228 As regards Stephen Rigg, Trevor Baker said that he had not experienced any difficulty in telling Mr Rigg "to get lost", when Stephen Rigg had wanted Trevor Baker to pay half of the State Bank debt. Trevor Baker had not been overawed by Mr Rigg. He had not let Mr Rigg push him around. However, up to and including the time he had signed the deeds, Trevor Baker had trusted Mr Rigg and "I didn't know the full story". 229 Trevor Baker agreed that his mother had not wanted to sell any of the land that had been used by his father for grazing cattle and that "her intention … was to keep all that land in the family and keep it together" and use it for cattle grazing. However, he continued to maintain that his mother had wanted to sell the cattle to pay his father's debts. 230 Trevor Baker accepted that in a conversation between Stephen Rigg and himself referred to in par 13 of his affidavit, Stephen Rigg had not said that "all" of Mr Baker's property was going to have to be transferred to Stephen Rigg. Trevor Baker said in evidence "I used the word 'all'". 231 As regards par 23 of his affidavit in which he had said that he recalled his mother saying "I've got to sign the property over to Steve, otherwise my house will be sold", there was no such assertion in the statement he had given to Mrs Baker's solicitor in 2002.

[128]

Q. Because without those disclosures having been made your understanding, as it was, of the situation in 1996 was that you wouldn't have fully informed consent? A. Yes". 237 Mr Sheridan was asked questions about his notes of the conference on 18 July 1996. He said that it was Mrs Baker who said that she wanted the properties transferred to Trevor Baker and Stephen Rigg. It was Mrs Baker who raised the option of the proceeds of an insurance policy going to the bank. Mrs Baker had told Mr Sheridan that Trevor Baker and Stephen Rigg had mentioned to her that they were thinking of setting up a trust fund for Mrs Baker's granddaughter Emma. 238 Mr Sheridan was also cross-examined about his notes of the conference on 26 July 1996 with Trevor Baker and Stephen Rigg. Mr Sheridan's best recollection was that it was Trevor Baker who said that "Trevor would share half of Mr Baker's personal debt to the State Bank. Stephen Rigg had said "I'll be responsible for the Commonwealth Bank debts… that's why the properties are being transferred to me". 239 Mr Sheridan was cross-examined about the deed of provision for Emma. Mr Sheridan said that the signed deed of residence had been brought to his office at some time after 26 November 1996 by Stephen Rigg and that Mr Rigg had then said that there had been further discussions about the amount of money to be put aside for Emma under the deed of provision and that Trevor Baker had said that he could not afford to pay $2,500 per year. 240 When Mr Sheridan rendered his costs, he sent a bill addressed to Mrs Baker as the executrix for acting on the application for probate and the transmission application and a bill addressed to Stephen Rigg and Trevor Baker for acting on the transfers of the properties, because he saw them as being his clients on the transfers. 241 Mr Sheridan was cross-examined about notes of a meeting with Mr Rigg on 3 February 1997, in which Mr Rigg had told him that Trevor Baker was objecting to paying half of Mrs Baker's personal debt. At another conference with Mr Rigg on 6 February 1997 Stephen Rigg had said that Trevor Baker had said that he would give up his half share in Lot 32, in exchange for Stephen Rigg taking over the whole of the State Bank debt. However, Trevor Baker had not wanted any building erected on Lot 32, in case the occupant of such a building complained about the noise of the quarry being operated nearby. At a conference with Trevor Baker on 7 February 1997 Trevor Baker had said to Mr Sheridan that he would transfer his interest in Lot 32 to Mr Rigg, on the basis that he, Trevor Baker, would not be responsible for any part of Mr Baker's debt to the State Bank, but only if there was boundary adjustment. Ultimately Trevor Baker and Stephen Rigg were not able to agree on a boundary adjustment.

[129]

Cross-examination by Counsel for the Plaintiff 242 Mr Sheridan agreed that there would have been plenty of alternative sources of legal advice for Mrs Baker relatively close to Kempsey. 243 It was put to Mr Sheridan that there had been "adversity of interest" between Mrs Baker and Stephen Rigg but Mr Sheridan did not agree. Mr Sheridan had not thought that the interests of Mrs Baker, who under the will was entitled to the whole of the estate, were adverse to the interests of Stephen Rigg and Trevor Baker who under the arrangement were going to take the whole of the assets of the estate. 244 Mr Sheridan accepted that, after the deed of transfer, Mr Rigg could borrow more money on the security of the properties transferred to him and that, if Mr Rigg defaulted, the mortgagee (the bank) would have rights including a power of sale. 245 Mr Sheridan continued to dispute that there had been any conflict of interest between Mrs Baker and Stephen Rigg. Mrs Baker had wanted "those things" (the things effected by the deeds). Mr Sheridan said at transcript p 791 line 15 to line 18:- "A. I was dealing with three people, call them family if you wish, practical people with a deal of commonsense and each knew what they wanted and what they were doing and in those circumstances I implemented their wishes". 246 At transcript p 791 line 27 to line 28 Mr Sheridan said:- "A. There was nothing at that time that I felt put me in an obligation to foresee the eventual outcome". 247 Mr Sheridan had never seen Mrs Baker by herself. Whenever he had seen Mrs Baker in 1996, someone else had made the appointment. He had never taken Mrs Baker aside and said that he and Mrs Baker should have a discussion, before she proceeded further. He had never acted for Mrs Baker before her husband's death. 248 Mr Sheridan described Mrs Baker as "very practical"; he did not agree that she was not a person of any sophistication in a financial sense; he accepted that she was probably not a person of any sophistication in a legal sense. He had not detected that Mrs Baker was "extremely upset" during 1996 because of the death of her husband. 249 Mr Sheridan agreed that the only time he had said anything to Mrs Baker about whether she wanted to talk to anyone else or see another solicitor was on 25 November 1996. He did not accept that on 25 November 1996, when the deed of transfer was ready for signature, it was "a little late in the piece" to be asking such a question. 250 Mr Sheridan accepted that, before he made his statement of 18 February 2003 he had known that there was a complaint against him that "I got myself into a conflict of interest" and that it would have been important to say in his statement, if it was the fact, that he had asked Mrs Baker whether she wanted to see another solicitor but he had made such an assertion, for the first time, only when giving oral evidence in the witness box at the hearing. 251 Mr Sheridan was cross-examined about other occasions, during his practice as a solicitor, when he had asked a client whether the client wanted to see another solicitor. He had said it in situations where he thought he could see "there might be further problems down the road". However, on 25 November 1996 he had thought that "it was a reasonably non-combustible scene". 252 On some twenty to thirty occasions he had asked a client, when the client was at his office to sign a document, whether the client wanted to see another solicitor. On some of these occasions he could foresee a problem "down the road". Others of those occasions had been cases like the present case, in which he was acting for more than one person, the parties were related, there was an estate and money was changing hands. Mr Sheridan accepted that in such cases he had asked the question, whether the client wanted to see another solicitor, because there was a potential conflict of interest. Mr Sheridan accepted that even the cases where he had asked the question, because he could foresee problems down the road, had been cases in which he had been acting for more than one party. In the present case Mr Sheridan had acted for more than one party, an estate had been involved, the parties were related and "valuable consideration" was moving from Mrs Baker. 253 Mr Sheridan accepted that sometimes, according to the practice of competent solicitors, a solicitor acting for more than one party should say to the clients "do you want to speak to another solicitor?" He did not agree that "initially" such advice should have been given in the present case but he agreed that by 25 November 1996 he had thought such advice should be given, because there was a possible conflict of interest. He had decided some time on 25 November 1996 itself that the advice should be given. He agreed that there had not been any new development on 25 November 1996. He did not agree that, according to the practice of competent solicitors, a solicitor should give the advice as soon as it became apparent that the factors he had identified (that is acting for more than one party, the parties being related, an estate being involved, value passing from one party to another) had come together in a given case. 254 Mr Sheridan accepted that, according to the practice of competent solicitors, advice should be given to clients about the practical implications of transactions clients are entering into. However, Mr Sheridan denied that it was a practical implication of the transaction Mrs Baker was entering into that there would be a problem for Mrs Baker, if Mr Rigg ran into financial trouble and could not pay monies due on a mortgage over the homestead. 255 Mr Sheridan accepted that where parents guarantee a child's debts and give a mortgage over their home to support a guarantee, a practical implication of the transaction is that, if the child defaults, the parents might lose their home and a careful, competent solicitor should advise the parents of that practical implication. Mr Sheridan also agreed that a careful competent solicitor would ask the parents whether, in the event of default by the child, there would be any other assets to meet the debt guaranteed and that they were free to chose whether or not to enter into the transaction. 256 Mr Sheridan agreed that Mrs Baker was surrendering legal control over the land in her husband's estate, that the land could be mortgaged or further mortgaged without reference to her and that default could occur under such a mortgage or further mortgage but Mr Sheridan denied that that had been a foreseeable problem. 257 Mr Sheridan considered that it was a matter of assessment in each case whether he as a solicitor should see, separately from their child, parents proposing to enter into a guarantee of their child's debts to be supported by a mortgage over their home. If there was any possibility of the parents being influenced by the child, the solicitor should see the parents separately from the child. 258 Mr Sheridan agreed that he had not given Mrs Baker any advice about the practical implications of the proposed transaction, apart from what he had said as set out in pars 2.56 and 2.59 of his statement. At transcript p 852 line 45 to p 853 line 21 the following questions and answers occurred:- "Q. Would you agree with me that you didn't say to her anything like, one of the practical implications of this is that if either Mr Rigg or Mr Baker default on the existing mortgages that are being transferred with the property you could lose your house? A. I didn't say that, no. Q. You didn't say that if Mr Rigg or Mr Trevor Baker further mortgaged the properties they would be entitled to do that because they would have a legal title? A. I didn't - you are asking me whether I did not say?

[130]

Q. I am saying you didn't say that, did you? A. No. Q. You didn't say that if they further, or one of them, further mortgage the property, that likewise default on that further mortgage could lead to you losing your house, do you? A. No. Q. You didn't say to her anything like - look Mrs Baker, because you are, as I have said to you, transferring all of the assets Ken left to you in his will, the whole of his estate, you would not have any other assets to pay out the bank if either Stephen or Trevor default? A. No, I didn't say that. Q. Still looking at … paragraph 2.56, accepting for the purposes of my question that you said "Are you happy to proceed?" And she said "yes", would you agree that you didn't specifically say to her - look, you have freedom of choice here as to whether or not you wish to do this? A. No, I didn't say that". 259 As regards the conference on 7 May 1996, Mr Sheridan said that Mrs Baker had done some talking, "she did give me some instructions" and "she did say something about the assets in the estate". 260 Mr Sheridan was cross-examined about par 2.10 of his statement, where he said that he had introduced what he had said at the conference on 7 May 1996 about the steps which would have to be taken to obtain a grant of probate, by saying that during the conference on 7 May 1996 he had said to "Stephen and Trevor …", omitting any reference to Mrs Baker. Mr Sheridan said in evidence that "that's what it says but I would have directed it to Mrs Baker as well... I just left out Mrs Baker's name". 261 Mr Sheridan accepted that in a telephone conversation with Mr Rigg on 13 May 1996 he had discussed, not merely Mr Baker's interest in Kempsey Kar Kare, but Mr Baker's estate generally. 262 In a conversation with Stephen Rigg on 15 May 1996 Stephen Rigg had said that he thought Mrs Baker would continue to operate as a partner in Kempsey Kar Kare as Mr Baker had done. At this stage there was no mention of a possibility of Kempsey Kar Kare being wound up. 263 Mr Sheridan said that Mrs Baker had given him permission to talk to Stephen Rigg and Trevor Baker about estate matters and to send messages to her through Mr Rigg. That permission had been given on 7 May and 30 May. Mr Sheridan denied that he had taken instructions from Stephen Rigg and Trevor Baker, because he believed that Mrs Baker was not capable of giving instructions. 264 In a telephone conversation with Mr Rigg on 21 May 1996 Stephen Rigg spoke about the need to get the cattle Mr Baker had owned at his death valued. There had been no reference by Stephen Rigg in this conversation to any cattle owned jointly by Stephen Rigg and Mr Baker. The values which Mr Sheridan had put in the affidavit of executer as being the values of the parcels of land had been supplied to Mr Sheridan in a letter from Mr Rigg. Stephen Rigg had spoken to Mr Griffin, a valuer, about obtaining a valuation of the cattle. During the cross-examination counsel for Mr Rigg said that his client did not dispute that he had played a part in obtaining information which was required for the probate application. 265 Mr Sheridan had not had any telephone conversation with Mrs Baker between 25 April 1996 and 25 November 1996, apart from one conversation in relation to insurance. 266 Mr Sheridan accepted that, if he had not received the instructions he had received in July 1996, he would have spoken, at the time the affidavit of executor was sworn, about the need to discharge the debts of the estate or service them in some way. He knew that Mrs Baker did not have any assets independently of her husband's estate. 267 Mr Sheridan was cross-examined about what might have been done to pay the debts of the estate. The life policies, the motor vehicle and the livestock and the plant and equipment would not have been sufficient to pay all the debts of the estate. A careful and competent solicitor could have said something about realising parts of the realty to make up the shortfall. It might have been possible to use the liquid assets to pay the debts, so far as was possible, and to raise an additional sum by a mortgage of real estate but in the present case Mrs Baker had no other assets and was not receiving income (and, hence, might have had difficulty in borrowing money on mortgage). Mr Sheridan accepted that a careful and competent solicitor would have suggested to a client talking to his or her accountant. 268 Mr Sheridan agreed that part of his evidence in par 2.23 of his statement about Mrs Baker saying that Stephen Rigg had helped her husband on the farm was not included in Mr Sheridan's notes of the conference on 18 July 1996. 269 In the first form of his statement, made on 18 February 2003, Mr Rigg had not attributed any positive statement to Mrs Baker and had merely said:- "I had either been informed by Dawn Baker or was otherwise of the belief that Ken and Dawn felt a sense of obligation towards Steve". 270 However, Mr Sheridan did also say in the first form of his statement that Mrs Baker had said on 18 July 1996 that the transfers were to proceed, because of the help that both her son and Mr Rigg had given to her husband over many years before his death. 271 Mr Sheridan accepted that he had not read any of the deeds aloud to the clients on 25 November 1996.

[132]

Cross-examination by Counsel for the Plaintiff 274 Mr Rigg accepted that no financial records had ever been prepared in relation to any grazing partnership between Mr Baker and Mr Rigg, that no income tax return had been lodged for any such partnership and that no amount had ever been included in Mr Rigg's personal income tax returns as being a profit or a loss from such a partnership. However, Mr Rigg continued to assert that there had been a cattle grazing partnership between himself and Mr Baker. Mr Rigg asserted that he and Mr Baker had jointly owned some cattle. Mr Rigg agreed that in his financial and taxation records the only person he was shown as being in partnership with was his wife. 275 In September 1993 the three persons who had been carrying on the business of Kempsey Kar Kare in partnership (Mr Baker, Mr Roger Baker and Stephen Rigg) executed a deed of dissolution of the partnership. Thereafter Mr Baker and Stephen Rigg continued to carry on the business in partnership but no written agreement was entered into between them. 276 As regards Kempsey Kar Kare, Mr Rigg agreed that he himself had not had sufficient assets to secure the indebtedness of Kempsey Kar Kare and that, if the business of Kempsey Kar Kare was to continue after Mr Baker's death, it needed the finance it had negotiated with the Commonwealth Bank in early 1996 and the security it was providing for that finance had to remain in place. Mr Rigg worked full-time in the business of Kempsey Kar Kare and Kempsey Kar Kare was the main source of his livelihood. Mr Baker had been a silent partner in the business of Kempsey Kar Kare. At the time of Mr Baker's death Mr Rigg had been optimistic about Kempsey Kar Kare surviving and prospering. 277 If the business of Kempsey Kar Kare had been wound up in 1996 and there had been a fire sale of assets of the business, then the proceeds of sale of the assets would have been less than the debts, the shortfall would have been large and half the shortfall would have been Mr Rigg's responsibility. Mr Rigg would not have had cash on hand to meet his share of the shortfall and he would have had to have attempted to borrow money, for which purpose he would have needed security. Furthermore, if the business of Kempsey Kar Kare had been wound up, Mr Rigg would have been deprived of the benefit of his years of hard work in the business. From Mr Rigg's point of view a winding up of Kempsey Kar Kare was not a preferable option. 278 Mr Rigg agreed that Mr Bowden of the Commonwealth Bank, when he telephoned Mr Rigg soon after Mr Baker's death, wanted an answer to his question about what was going to happen to Kempsey Kar Kare "as soon as one was available" and was pressing him in May 1996 for an answer to this question. 279 At transcript p 1038 line 8 to line 37 the following questions and answers occurred:- "Q. Well, let me put it to you this way, Mr Rigg: The only benefit of Dawn being a partner the same as Kenny would be that the security would remain in place; that's right, isn't it? A. Yeah.

[138]

280 Mrs Baker had said that she did not want to be partner in Kempsey Kar Kare. The only other option was for Mr Rigg to carry on the business of Kempsey Kar Kare as a sole trader but Mr Rigg could do this only if he had sufficient security to support the financing of the business and the only available property to serve as security was Mr Baker's property. Mr Rigg accepted that "in relation to the debts that were already established I had to have that security". 281 For a period after Mr Baker's death Mr Rigg had thought that Mrs Baker might continue as a partner in Kempsey Kar Kare "as Mr Baker had done". "I believed that Dawn was going to stay and just do what Kenny did". However, Mrs Baker told Mr Rigg that she did not wish to continue as a partner. In his first affidavit Mr Rigg had said that this conversation had occurred two to three weeks after Mr Baker's death but if, as Mr Sheridan had said in his evidence, Mr Rigg had told Mr Sheridan on 15 May 1996 that Mr Rigg believed that Mrs Baker would continue as a partner, then the conversation in which she said that she did not wish to continue as a partner must have taken place subsequently, towards the end of May 1996. 282 Mr Rigg said that after Mr Baker's death "I did things that she asked me to do for her". Mrs Baker had needed to know, for example, what to do about her husband's funeral. Mr Rigg accepted that in this period Mrs Baker was upset and not coping well. 283 Mr Rigg said that on 26 April 1996 it had been Mr Sheridan who telephoned him on his mobile telephone. Mr Sheridan had wanted to know when Mr Baker's funeral was on and Mr Sheridan had volunteered to Mr Rigg information about Mr Baker's will. Somebody from Kempsey Kar Kare, Mr Rigg did not know who, had apparently told Mr Sheridan that Mr Baker had died. 284 After Mr Baker's death Mrs Baker asked Mr Rigg to do jobs for her. She had wanted Mr Rigg to go to Mr Sheridan's office for the reading of the will. At Mrs Baker's request, Mr Rigg delivered documents and information about the estate to Mr Sheridan. Mr Sheridan used Mr Rigg as his first point of contact in relation to the estate. Mr Rigg agreed that he was the person who ended up ringing people and getting information in relation to the estate, "when I was asked to do it", although he agreed that he sometimes telephoned Mr Sheridan, without having had any specific request from Mrs Baker to do so. 285 At transcript p 1051 line 50 to p 1052 line 1 the following questions and answers occurred:- "Q. You knew she was relying upon you to do those type of things? A. Yes. The things I said I would do for her, she was relying on me to do them for her, yes.

[142]

Q. That is not what you said in your affidavit though, is it? A. No, it is not". 291 When asked whether the third option he had put in the conversation with Mrs Baker (according to par 40 of his first affidavit) was the best option for him, Mr Rigg said "I don't know" and he would not agree that the third option was the most advantageous for him. He accepted that as a sole trader he would have complete control of the business of Kempsey Kar Kare and would receive all the profits of the business and that, if the third option was adopted, he would greatly increase his personal land holdings. 292 Although in earlier evidence Mr Rigg had agreed that at the time of the conversation with Mrs Baker he believed that option one and option two were not likely to be acceptable to Mrs Baker, he would not agree that at the time of the conversation he believed that only option three was likely to be acceptable to her. A little later in his evidence Mr Rigg accepted that he had not thought that Mrs Baker would want to be involved in the business of Kempsey Kar Kare and that, if she did not want to be involved in the business of Kempsey Kar Kare, that would leave only option three. 293 So far as any disadvantages of option three were concerned, Mr Rigg under that option would be taking on responsibility for the estate's share of the debt of Kempsey Kar Kare and, having recently gone through the process of refinancing the working capital of Kempsey Kar Kare, he would have had a good idea of the amount of the business's indebtedness on a going concern basis. 294 Mr Rigg said that he did not believe that the value of the security Mr Baker had provided was greater than the amount of the debt. The values attributed to the assets of Mr Baker in the application for probate had been obtained by Mr Bradley of Kempsey Kar Kare, at the request of Mr Rigg, from the Commonwealth Bank and had been forwarded to Mr Sheridan by Mr Rigg in a letter dated 9 September 1996 signed by Mr Rigg. Mr Rigg gave evidence that at the time of the writing of the letter of 9 September 1996 he had not believed that some of the values the bank had put on Mr Baker's properties were accurate. However, he had believed that the information about the values in the letter was true "for what Paul Sheridan wanted". 295 Mr Rigg said that, although in early 1996 the homestead was not being offered as part of the security for the accommodation being sought from the Commonwealth Bank by Kempsey Kar Kare, on a day in February 1996 when he, Mr Baker and Mr Bowden of the Commonwealth Bank were driving around the properties, Mr Bowden had ascribed a value to the homestead. In further evidence Mr Rigg said that some of the values Mr Rigg had given to Mr Sheridan in September 1996 were "a bit" less than what Mr Bowden had said the properties were worth in February 1996 and that some of the values were a bit more. 296 At the time of the writing of the letter of 9 September 1996 Mr Rigg had not believed that the value of $75,000 attributed to Mr Baker's cattle was accurate. Mr Rigg denied that he had believed that the cattle were worth more than $75,000. 297 Mr Rigg gave an affirmative answer to the following question:- "If the values contained in your letter of 9 September 1996 in relation to the land were true as at the time you spoke to Mrs Baker in May 1996, then you would be getting a lot more out of option three than you were giving in relation to the debts?" 298 The amount of the indebtedness of Mr Baker Mr Rigg would be taking over was a half share of the indebtedness of Kempsey Kar Kare, that is half of $250,000 or $125,000, and Mr Baker's personal debt of $90,000, making a total indebtedness of $215,000, whereas the value of the properties (excluding the Quarry and a half share in the quarry stockpile) was a lot more than $215,000. 299 Mr Rigg then accepted that he would get a very significant advantage, if the third option he offered Mrs Baker in May 1996 was accepted. The value of what Mr Rigg ultimately took, under the family arrangement that occurred, far exceeded the amount of the debts which he took over. 300 Mr Rigg denied that in a conversation with Mrs Baker he had said words to the effect "If you don't do something, you will lose the lot" or that he had said "If the properties are not transferred to me, they will be taken by the bank". He believed that he had said to Mrs Baker that the Bank would want its money, that is the Bank would want to be repaid all at once or would want repayments to be made on time. 301 Mr Rigg agreed that the Commonwealth Bank needed to be told what was going to happen in relation to Kempsey Kar Kare and that, if Kempsey Kar Kare was to continue, he needed to be able to tell the Commonwealth Bank that security for the indebtedness of Kempsey Kar Kare to the Bank would remain available. 302 Mr Rigg believed in 1996 that Mrs Baker would feel the need to take advice from members of her family and most likely from himself and Trevor Baker. Mr Rigg had believed that Trevor Baker would want the Quarry. Mr Baker, when he was alive, had said that the Quarry was going to be Trevor's. Mr Rigg believed that, if Trevor Baker wanted the Quarry, he would also want part of Lot 32, which was being used for quarrying activities. On the other hand, anyone who was going to run cattle on Mr Baker's properties would want access to Lot 32, because it had high land which was not subject to flooding. 303 Mr Baker's cattle had not been discussed in the conversation Mr Rigg had with Mrs Baker in May 1996. 304 Trevor Baker had occupied Syd's place for about five years before Mr Baker died. During that period Trevor Baker had run very few cattle of his own on Syd's place. 305 Mr Rigg had not thought that Mrs Baker would become a grazier. However, he thought that she could have become a silent partner in Kempsey Kar Kare, as Mr Baker had been. 306 By 18 July 1996 it had been agreed that all of the grazing properties, including the homestead, and the cattle would be transferred to Mr Rigg. 307 Mr Rigg said that Mrs Baker had asked him to find out how she could get the pension. Stephen Rigg had then telephoned Centrelink to find out what Mrs Baker would have to do to apply for a pension. 308 After he had had a conversation with Trevor Baker, Mr Rigg had told Mrs Baker that Trevor Baker had said that he, Trevor Baker, did not want anything to do with Kempsey Kar Kare or the cattle and all that Trevor Baker was interested in was the Quarry. 309 Mr Rigg was cross-examined about the letter of 9 September 1996 from Mr Rigg to Mr Sheridan, in which the two parcels of land forming Syd's property were included in a table showing the division of real estate between Stephen Rigg and Trevor Baker, as going to Trevor Baker. However, Mr Rigg denied that the only purpose of including the reference to Syd's property was to shown that Trevor Baker had already received Syd's property from his father. 310 At transcript p 1105 line 46 to 1107 line 8 the following questions and answers occurred:- "Q. Now, the effect of the family arrangement, as you understood and believed it to be, was that you became sole master of Kempsey Kar Kare, that's right? A. Yes.

[159]

Cross-examination by Counsel for the First Defendant 316 Mr Rigg was cross-examined about exhibit J (the notes made by an officer of the Department of Social Security on 30 July 1996 of a telephone conversation between the officer and Mrs Baker and then Mr Rigg). Part of exhibit J reads "Mrs Baker knows she has to advise this Department within fourteen days of settlement of the estate and if she receives any assets". Mr Rigg said in evidence that he could not recall any discussion between himself and Mrs Baker about any effect the receipt of assets from the estate might have on her entitlement to a pension. 317 At the meeting on 7 May 1996 Mrs Baker had said to Mr Sheridan, "if you need anymore information, see Steve". 318 Mr Rigg was cross-examined about the letter he had caused Mr Melville solicitor to write in 2000 to Mrs Baker. In 2000 Mr Rigg had believed that, if part of a deal was not formally recorded, then it was not legally binding. He did remember in 2000 that it was part of the arrangement that Mrs Baker could live in her home rent free for the rest of her life but when he looked at the deed of transfer in 2000 he saw that that part of the arrangement had not been recorded in the deed of transfer and he therefore formed the view that he was not legally obliged to comply with that part of the arrangement. 319 Mr Rigg accepted that Mr Sheridan, as Mrs Baker's solicitor, would have been interested in knowing about any conduct misleading Mrs Baker or any pressure placed on Mrs Baker, prior to her signing the deed of transfer. 320 Mr Rigg was cross-examined about the options he had offered Mrs Baker in his conversation with her in about late May 2000, according to par 40 of Mr Rigg's affidavit of 5 August 2003. According to his affidavit Mr Rigg had offered three options in respect of Kempsey Kar Kare, winding up the business (option one), Mrs Baker and Trevor Baker taking over Mr Baker's half share (option two) and Mr Rigg carrying on the business by himself (option three). 321 Mr Rigg agreed that there would have been a fourth option, that is Mrs Baker alone being a silent partner in Kempsey Kar Kare and entitled to share in any profits. He had not offered this option to Mrs Baker. For at least a short period of time after Mr Baker's death he had believed that Mrs Baker would be a silent partner in the business of Kempsey Kar Kare. 322 Mr Rigg also agreed that there would have been a fifth option, which he had not offered to Mrs Baker, that is "the properties remaining in Mrs Baker's name but also remaining as security for the Kempsey Kar Kare debts". Under this option Mrs Baker would not have been a partner in Kempsey Kar Kare but would have continued to provide the properties as security for Kempsey Kar Kare's debts. 323 Mr Rigg agreed that options four and five would have been financially realistic. 324 Mr Rigg confirmed that option one, that is the winding up of the business, was "the last thing he wanted". Mr Rigg knew that option two would not be taken up, because he knew that Trevor Baker was not interested in Kempsey Kar Kare. 325 Mr Rigg was cross-examined about the part of par 40 of his affidavit of 5 August 2003, in which he said, in regard to option three, "if I continue the business, however, the properties will have to stay with the partnership as they run with (the) debts". Later in par 40 of his affidavit Mr Rigg said that he had said to Mrs Baker that "you'll have to transfer the mortgage properties to me, so that I can keep running the business and pay the loans". 326 Mr Rigg accepted that in 1996 he had believed that he could have kept running the business of Kempsey Kar Kare and paying the loans, even if the mortgage properties had stayed in Mrs Baker's name. Mr Rigg knew in 1966 that the properties did not have to be in his name to remain as security for the debts of Kempsey Kar Kare. 327 Options four and five had not been suggested by Mr Rigg to Mrs Baker. He denied that he had deliberately withheld them from Mrs Baker. He had not thought of them at the time. In speaking to Mrs Baker "I was going on virtually the words that Mr Bowden asked me to enquire about". He had known that "anybody could have owned the properties but if they remained mortgaged to the bank, they would remain as security for the business debts". 328 Mr Rigg said that he did not know and "would not say" whether option three would have been more financially advantageous to him than options four and five. 329 In 1996 Mr Rigg knew the approximate amount of the debts of Mr Baker. He knew the values which the bank had put on Mr Baker's properties and he knew that, according to those values, the values of the parcels of real estate exceeded the amount of the debts. 330 After 1996 Mr Rigg's income from Kempsey Kar Kare had declined and his income from cattle grazing had declined because Trevor Baker refused him permission to graze cattle on Syd's property. 331 Mr Rigg denied that Mrs Baker was "distracted" when he spoke to her about the proposed arrangement. He had not formed any view that he was in a stronger bargaining position than Mrs Baker. The arrangement which was ultimately entered into had been proposed by Mrs Baker and not by himself.

[160]

Mr Sheridan 332 It is convenient to begin the assessment of the witnesses with Mr Sheridan. 333 Attacks were laid on Mr Sheridan's credibility by counsel for the plaintiff in final submissions. It was submitted that Mr Sheridan's refusal to concede that there had been a conflict of interest between Mrs Baker and Stephen Rigg; his evidence that the eventual outcome, that is Mr Rigg defaulting under a mortgage over the homestead and the mortgagee exercising its rights, was not foreseen or foreseeable by Mr Sheridan in 1996; his assessment of Mrs Baker as being a very practical person and as being a person who was not without any sophistication in a financial sense; his evidence that he had not detected that Mrs Baker was extremely upset because of the death of her husband; and his evidence, given for the first time in his oral evidence, that at the conference on 25 November 1996 he had asked Mrs Baker whether she wanted to see another solicitor should all be rejected and reflected badly on Mr Sheridan's general credibility as a witness. 334 However, I do not consider that the giving of this evidence should be regarded as seriously weakening Mr Sheridan's credibility generally. As I will discuss later in this judgment, there are grounds for saying that, having regard to Mr Sheridan's retainer, there was, indeed no conflict of interest between Mrs Baker and Mr Rigg. I consider that Mr Sheridan's assessment of Mrs Baker was an assessment he could have made in good faith. On the whole of the evidence I have concluded that I should make a finding that Mrs Baker, while seriously distressed at her husband's death, was not as severely or continuously emotionally distressed as alleged in the plaintiff's case. While Mr Sheridan had not, before giving his oral evidence, said that he had asked Mrs Baker on 25 November 1996 whether she wanted to see another solicitor, Mr Sheridan had said in his statement of 18 February 2003 that he "asked her whether she wanted to talk to anybody else before she signed the documents or seek any other advice", which was tantamount or close to asserting that he asked Mrs Baker whether she wanted to see another solicitor. 335 What lends real credibility to Mr Sheridan's evidence is that much of his evidence is supported by his contemporaneous notes of what happened or what was said at a conference or in a telephone conversation and by the other contemporaneous documents which were annexed to his statement. The evidence of none of the other principal witnesses, Mrs Baker, Trevor Baker and Stephen Rigg (except to a limited extent in the case of Stephen Rigg) was supported by contemporaneous records. 336 I have concluded that I should generally accept the evidence of Mr Sheridan. This conclusion is strengthened by the unfavourable conclusion I will shortly express about the credibility of Mrs Baker and Trevor Baker. 337 A consequence of my accepting evidence given by Mr Sheridan on some matter is that, where the evidence given by Mr Sheridan is in conflict with the evidence of another witness on that matter, I will reject the evidence of that other witness on that matter. 338 I accept Mr Sheridan's evidence about what happened and what was said at the conferences or meetings at his office on 7 May 1996, 18 July 1996, 26 July 1996, 18 October 1996 and 25 November 1996. I accept that both Mrs Baker and Mr Baker before his death expressed to Mr Sheridan a sense of obligation to Stephen Rigg for what he had done for Mr Baker. I accept Mr Sheridan's evidence relating to the discussions between Stephen Rigg and Trevor Baker in early 1997 regarding Lot 2 and Lot 32 and who of Stephen Rigg and Trevor Baker should be responsible for Mr Baker's personal debts. 339 I accept that Mr Sheridan gave in good faith all of the evidence which was made the foundation for the attack on his general credibility.

[161]

Mrs Baker 340 While accepting that Mrs Baker was a completely honest witness and after allowing for the circumstances of her life, I have concluded that I should not consider that Mrs Baker was a generally reliable witness. 341 Mrs Baker's affidavit was made on 23 October 2002, about six years after most of the events she described in the affidavit and her oral evidence was given about eight years after those events. She had no contemporaneous records. I infer that she had no reason to endeavour to remember what had happened in 1996, until she was told in 1999 by Mr Rigg that her house was to be sold. 342 Mrs Baker had no recollection of many events. She said that she had no recollection of anything Mr Sheridan had said to her on any of the occasions that she attended his office. In one part of her evidence she said that she could not remember any conversation with Mr Rigg in 1996. She could not recall signing any of the documents on which her signature appears. 343 In a part of Mrs Baker's evidence where she did claim to have a recollection of a conversation with Mr Rigg in 1996 she ran together something which might have been said in a conversation in 1996 with something which could not have been said before 1999. 344 Mrs Baker gave internally contradictory answers, as where she said that, after the deeds were signed, she was not happy with the arrangement, because "I didn't like to lose everything", but then said that she did not know that she had lost everything until Mr Rigg told her (some years later) that the Bank wanted to sell the land. 345 As noted earlier, a consequence of accepting Mr Sheridan's evidence is that some of Mrs Baker's evidence on the same matters has to be rejected. 346 Affidavit evidence given by Mrs Baker that I do not accept includes that she was severely and continuously incapacitated by emotional distress as a result of her husband's death up to and including 25 November 1996 (this evidence is inconsistent with Mr Sheridan's evidence about his various conferences with Mrs Baker, including his hour long conference with her on 18 July 1996); her evidence about what was said in conversations between herself and Stephen Rigg; her evidence, of which she was "certain", that she gave no instructions for the deed of transfer to be drawn; her evidence that Mr Sheridan did not explain the deed of transfer to her; her evidence that she was not aware that she had transferred all the assets in her husband's estate until she had a conversation with Stephen Rigg in 1999; her evidence that she never gave Mr Sheridan any instructions in connection with the administration of her husband's estate; and her evidence that she never authorised Stephen Rigg to speak to Mr Sheridan about the estate. 347 Oral evidence given by Mrs Baker which I do not accept includes her evidence that "I transferred the properties because of the mortgage"; that she had no conversation with Trevor Baker and Stephen Rigg about "the boys" taking over the debts of her husband's estate; that she did not feel any sense of obligation to Stephen Rigg; that her husband had not felt any sense of obligation to Stephen Rigg; that she had had nothing to do with the estate bank account; that she was not told about the deed of transfer before it was signed; that she was not given various pieces of advice by Mr Sheridan (except to the extent to which her evidence is supported by admissions by Mr Sheridan); that she was not happy with the arrangement effected by the deeds; and that, if advised to see another solicitor, she would have done so (to the extent that she did give such evidence). 348 Oral evidence by Mrs Baker that I do accept includes her evidence that after her husband's death she had no desire to take over his interest in the partnership of Kempsey Kar Kare and had no desire to become a cattle grazier. I accept Mrs Baker's evidence that she had never thought of agisting other peoples cattle; that after the deeds were signed she had had no worries; that she had read the affidavit of executor before she signed it; that she knew, when her husband died, that he owed money to at least one bank and knew that something would have to be done about the indebtedness to the bank; that her dearest wish was to continue living in her own home; that she knew that she had a choice whether to enter into the arrangement; that at the time of signing the deed of transfer she knew that she was transferring the properties; that she knew that an owner of land could mortgage the land to a bank and that if default was made under the mortgage the bank could sell the land; that she was aware of the amount of the debts of the estate; that she wanted to keep the properties together; that she herself could not carry on the grazing of cattle; and that, after her husband's death, it was necessary to find some person who would stand in the place of her husband. 349 I will now make a number of findings, based wholly or partly on Mrs Baker's evidence. 350 On 19 July 1996 Mrs Baker went to the office of Centrelink with Mrs Rigg and at the office of Centrelink she signed the forms which became exhibits J and K. When she signed the forms she understood that she would be divesting herself of her husband's estate. 351 Mrs Baker herself did not regard her relationship with Stephen Rigg as being "anything particularly special". After her husband's death there were a number of other persons she could have discussed financial matters with. When discussing her husband's estate with Mr Rigg she had not felt any pressure from Mr Rigg not to speak to other persons. 352 At the time of signing the deeds Mrs Baker believed that the deeds reflected the plan of keeping the properties together, the two businesses continuing to be operated and Mrs Baker continuing to live in her home on the homestead.

[162]

Trevor Baker 353 Like his mother, Trevor Baker was giving evidence about events which had happened a number of years before, without the benefit of any contemporaneous records. Trevor Baker did not make his affidavit until 25 June 2004, eight years after 1996, although he had made a statement to Mrs Baker's solicitors in 2002. 354 Trevor Baker had no recollection of many events which undoubtedly happened. He recalled attending only one meeting with Mr Sheridan (on 25 November 1996, when the deed of transfer was signed) and had no recollection of having been at Mr Sheridan's office on 7 May 1996 or 26 July 1996. Even as regards the meeting on 25 November 1996, he said that he had a complete absence of recollection as to whether the matters set out in pars 2.56 and 2.59 of Mr Sheridan's statement had occurred at that meeting. 355 Trevor Baker gave some evidence which was clearly untrue, as being contradicted by cogent other evidence. For example, he said that he was "certain" that he had paid Mr Sheridan's costs for acting on the transfer of Syd's property from his father to himself; he said that he had not given any instructions for the deed of transfer; he said that there was "no way" he had been agreeable, in consideration of his being released from his share of the State Bank debt, to transferring his interest in the quarry stockpile to Stephen Rigg, subject to there being a boundary adjustment. 356 Trevor Baker gave evidence that after his father's death his mother had wanted to sell his father's cattle. Mrs Baker gave no such evidence, she gave other evidence rendering it improbable that she would have wanted to sell her husband's cattle and I am satisfied that Trevor Baker's evidence on this matter was untrue. 357 During his oral evidence Trevor Baker changed his position on some matters, for example whether he had discussed with his mother his father's estate and the transfer of assets in the estate. 358 I have concluded that I should not regard Trevor Baker as a generally reliable witness. 359 Apart from the evidence given by Trevor Baker which I have already referred to as being untrue, I do not accept evidence given by Trevor Baker that his mother was emotionally upset to the extent alleged; that he had conversations with Stephen Rigg in the terms alleged by him; that at the meeting on 25 November 1996 his mother was seriously upset and Mr Sheridan was quite brusque; that at the time the deed of transfer was signed he was not aware that the deed dealt with (inter alia) the plant and equipment and that he thought that he was going to get all the plant and equipment; and that he regarded the deed of transfer as "just a bit of paper". 360 I do accept evidence given by Trevor Baker that, at least "at the start", Mrs Baker indicated that she was content with the arrangement; that his mother had not wanted to sell any of the land that had been used by his father for the grazing of cattle and that her intent was to keep all that land in the family and to keep it together; that after his father's death he had not been interested in taking over and continuing his father's cattle grazing activities; that from 1990 onwards he had never thought that he would play any role in Kempsey Kar Kare; that what he was interested in were the quarrying activities being carried on on the Quarry; that his mother was not capable of running the business of Kempsey Kar Kare; that his mother was not capable of carrying on his father's cattle grazing business; that his mother was not capable of carrying on the Quarry; that he signed the deed of transfer, believing that it reflected the instructions that had been given; that he saw nothing wrong in what he was receiving under the arrangement, even though the amount of the debt he was taking over might be less than the values of the lands being transferred to him; and that in 1996 he himself had not been overawed by Mr Rigg.

[163]

Stephen Rigg 361 Mr Rigg did not have many contemporaneous records but he did have a few contemporaneous records and his solicitors acquired further contemporaneous documents by subpoenaing third parties. 362 There are some grounds on which Mr Rigg's credibility as a witness could be attacked. I consider that Mr Rigg was sometimes reluctant to make concessions which he could see might be used against him. For example, he was reluctant to concede that of the three options he offered Mrs Baker, according to par 40 of his first affidavit, option three was the most advantageous to him; he was reluctant to concede that options one and two were likely to be unacceptable to Mrs Baker; and he was reluctant to concede that the value of the properties he received under the arrangement exceeded the amount of the debts he was taking over. 363 Mr Rigg's evidence that, before Mr Baker's death, he and Mr Baker were carrying on a cattle grazing business in partnership was not supported by any records (with one minor exception) and was inconsistent with other records and I do not accept that he and Mr Baker were carrying on such a partnership, although I do accept that Mr Rigg helped Mr Baker in Mr Baker's cattle grazing activities. The giving of instructions by Mr Rigg to Mr Melville to write the letter to Mrs Baker demanding payment of rent in respect of her occupation of the house on the homestead and the explanations given by Mr Rigg in his evidence for giving such instructions showed Mr Rigg in an unfavourable light. 364 I have, however, concluded that Mr Rigg had a much better recollection of events in 1996 than either Mrs Baker of Trevor Baker and, although I have some reservations about his credibility, I consider that I should accept most of his evidence. 365 I consider that I should accept Mr Rigg's affidavit evidence, subject to the qualifications I will now state. 366 As already indicated, I do not accept that Mr Rigg and Mr Baker carried on together in partnership a cattle grazing business. 367 The dates given by Mr Rigg for his conversations with Mrs Baker and Trevor Baker in May 1996 could not be correct (given Mr Sheridan's note of his conversation with Mr Rigg on 15 May 1996, the conversations with Mrs Baker and Trevor Baker must have occurred after 15 May 1996) but I consider that I should accept Mr Rigg's evidence about what was said in the conversations. Mr Rigg's evidence is much more credible than Mrs Baker's or Trevor Baker's evidence of such conversations. In counsel for the plaintiff's final submissions a number of submissions were based on my accepting Mr Rigg's evidence in par 40 of his first affidavit about what had been said in his first conversation with Mrs Baker about what should happen to the estate. 368 Included in the affidavit evidence by Mr Rigg which I consider I should accept are:-

[168]

THE PLAINTIFF'S ACTION AGAINST THE FIRST DEFENDANTS 371 The plaintiff's claims against the first defendants were common law claims in the tort of negligence and in contract, alleging breaches of an obligation to exercise reasonable care in acting as solicitors for the plaintiff. 372 At the hearing there was no dispute that the first defendants had been retained by the plaintiff to act as her solicitors on the application for probate of Mr Baker's will and in relation to the arrangement which was ultimately effected by the deed of transfer and the deed of residence and that in so acting for the plaintiff the first defendants were obliged to exercise reasonable care. What was disputed was the scope of the first defendants' duty and in particular whether the duty extended to matters outside the terms of the retainer; whether there had been breaches of the first defendants' obligations; and, if so, whether those breaches had caused damage to the plaintiff. 373 In counsel for the plaintiff's final submissions (which were lengthy submissions, both written and oral) many of the allegations which had been made in the statement of claim were not the subject of any submission and were not pressed in any way. 374 In pars 30 to 33 of the written submissions counsel did refer to pars 9, 10 and 11 of the amended statement of claim ("the firm's duty of care regarding the estate generally") but this part of the written submissions was quite brief and was not strongly pressed. I am not satisfied that I should find that any of the breaches alleged in pars 10 and 11 of the amended statement of claim have been established. 375 The allegations in the amended statement of claim which were strongly pressed in counsel for the plaintiff's final submissions were the allegations in pars 18 to 20 ("duty of care in relation to the deed"). 376 There is some overlap or duplication in the respects in which it is alleged in par 18 of the amended statement of claim that the first defendants were obliged to advise the plaintiff. Having regard to the submissions which were made, it seems to me to be useful to classify the obligations which it was submitted the first defendants had, as follows:- 377 Sub-pars 18(g) and 18(a) - A duty to advise the plaintiff that by entering into the deed of transfer she would be transferring away most of the assets to which she was entitled as the sole beneficiary under her husband's will. 378 Sub-pars 18(d) and 18(g) - A duty to advise the plaintiff as to the practical legal effect of the deed of transfer and, in particular, of the risk that Mr Rigg as the transferee under the deed of transfer could mortgage the homestead and might default under the mortgage, with the consequence that the mortgagee might exercise its rights under the mortgage against the homestead, thus depriving Mrs Baker of her home. 379 Sub-pars 18(f), 18(h) and 18(e) - A duty to advise the plaintiff that it was not necessary for her to sign the deed of transfer (sub-par 18(f)); that she was free to decline to sign the deed of transfer (sub-par 18(h)); that there were alternatives to entering into the deed of transfer (sub-par 18(e)). 380 Sub-par 18(i) - A duty to advise the plaintiff that there was a conflict of interest between the plaintiff on the one hand and Trevor Baker and Stephen Rigg on the other hand and a conflict of interest (or a conflict of duty and duty) in the first defendant's acting for both her and for Trevor Baker and Stephen Rigg. 381 It would not appear to me that any separate submissions were made by counsel for the plaintiff in relation to sub-pars (b) and (c) of par 18 of the amended statement of claim. 382 It was accepted by counsel for the plaintiff that some of the advice which it was alleged the first defendants should have given to Mrs Baker was outside the terms of the first defendants' retainer and was financial advice or akin to financial advice. However, counsel referred to Waimond Pty Limited v Byrne (1989) 18 NSWLR 642 especially at 652 where Kirby P said:- "Although the contract of retainer will be an important indicium of the nature of the relationship which gives rise to the common law duty of care … it will not chart exclusively the perimeters of that duty". 383 Kirby P then referred to what Deane J had said in Hawkins v Clayton (1988) 164 CLR 539 at 579 that, depending upon the circumstances of the particular case, a solicitor's duty may require the taking of positive steps "beyond the specifically agreed professional task or function, where these are necessary to avoid a real and foreseeable risk of economic loss being sustained by the client". See also the judgment of Hope AJA in Waimond especially at p 665. 384 As regards sub-pars 18(a) and 18(g), it was submitted that there was a real and foreseeable risk of economic loss to Mrs Baker, that Mr Sheridan should at least have asked Mrs Baker why she wanted to transfer away all the assets and that, if he had done so, Mrs Baker would have given an answer which would have revealed to Mr Sheridan that Mrs Baker was acting out of a sense of crisis induced in her by Mr Rigg. 385 As regards sub-par 18(d) of the amended statement of claim, it was pointed out by counsel that Mr Sheridan had admitted in cross-examination that he had not advised Mrs Baker that a practical implication of the proposed transaction was that, if Mr Rigg defaulted under an existing or a future mortgage over the homestead, Mrs Baker could lose her home. 386 As regards sub-par 18(h) of the amended statement of claim, it was pointed out by counsel that Mr Sheridan had admitted that he had not advised Mrs Baker that she had freedom of choice whether to enter into the proposed transaction. It was submitted that there were alternatives to entering into the deed of transfer, which would have been open to Mrs Baker and about which Mr Sheridan should have advised Mrs Baker. 387 As regards sub-par 18(i) of the amended statement of claim, it was submitted that there was a clear conflict between the interests of Mrs Baker on the one hand and of Stephen Rigg and Trevor Baker on the other hand and that, consequently, Mr Sheridan should not have acted for Mrs Baker, without obtaining her informed consent, and Mr Sheridan had failed to obtain Mrs Baker's informed consent. 388 On the issue of causation it was submitted that it was not essential for Mrs Baker to have given direct evidence, for example about what she would have done, if advice which had not in fact been given had been given. Counsel referred to Gould v Vaggelas (1985) 157 CLR 215 at 235 per Wilson J; Dominelli Ford (Hurstville) Pty Limited v Karmot Auto Spares Pty Limited (1992) 38 FCR 471. It was submitted that Mrs Baker had, in fact, given some evidence relevant to causation and, in particular, some evidence which would support a finding that she would have adopted an alternative course, if she had been advised about the alternative course, and that, if she had been advised to see another solicitor, she would have done do. It was submitted that the causation issue should be resolved in favour of the plaintiff, on the basis that no reasonable person, if properly advised, would have assented to divesting herself of the whole of her property in the circumstances of the present case. 389 It was submitted by counsel for the first defendants that the first defendants had been retained by Mrs Baker, to act for her in relation to the family arrangement, at the conference with Mr Sheridan on 18 July 1996. It was submitted that I should accept Mr Sheridan's evidence of what had happened and of what had been said at that conference. Accordingly, I should find that the terms of the retainer were that Mr Sheridan was instructed by Mrs Baker to draw documents and to take steps to give effect to what Mrs Baker said she wanted to happen and, in particular, that the properties previously owned by Mr Baker should be transferred to Stephen Rigg and Trevor Baker, that Stephen Rigg and Trevor Baker should assume responsibility for the debts Mr Baker owed to the Commonwealth Bank and the State Bank, that the livestock and the plant and equipment should be transferred and that Mrs Baker should be able to live in her home on the homestead rent free. I should find that on 18 July 1996 Mrs Baker gave instructions in person to Mr Sheridan; that she said to Mr Sheridan "I want" the properties to be transferred and not that anybody else had suggested to her or told her that the properties should be transferred; that neither Stephen Rigg nor Trevor Baker was present at the conference; and that, although Mrs Rigg had been present, I could not, on the evidence, make any finding that Mrs Rigg was exerting any influence on Mrs Baker. 390 It was submitted that Mr Sheridan had not been under any obligation to provide financial advice to Mrs Baker. It was submitted that I should find that Mr Sheridan was not retained by Mrs Baker to provide financial advice, that Mrs Baker did not rely on Mr Sheridan to provide any financial advice and that Mr Sheridan did not assume any responsibility to provide financial advice. 391 As to whether a solicitor is obliged to provide financial advice, I was referred by counsel for the first defendants, not merely to Waimond, but also to Clark Boyce v Mouat [1994] 1 AC 428, Citicorp Australia Limited v O'Brien (1996) 40 NSWLR 398 especially at 418 per Sheller JA and Nikolic v Nikolic [2002] NSWCA 248. 392 In Nikolic the New South Wales Court of Appeal at par 17 approved the following statement by Lord Jauncey in Clark Boyce:- "When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in carrying out a particular transaction, that solicitor is under no duty, whether before or after accepting instructions, to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on the solicitors". 393 It was submitted that I should find that on 18 July 1996 Mrs Baker was not incapacitated by emotional distress as a result of her husband's death and was in full command of her faculties and apparently aware of what she was doing, with the consequence that Mr Sheridan was under no duty to proffer unsought advice on the wisdom of the proposed transaction. 394 Counsel for the first defendants disputed that, if a client is inexperienced in business matters, the scope of the solicitor's duty to give advice is extended. It was submitted that the true position is that, if a client is inexperienced in business matters, a solicitor may have to advise more fully on matters on which it is within his retainer to give advice. 395 As regards sub-par 18(g) of the amended statement of claim, it was submitted by counsel for the first defendants that I should find that Mrs Baker knew, to the knowledge of Mr Sheridan, that she had received the assets of the estate under her husband's will and that she was transferring away those assets. Evidence on which such findings could be based would include the evidence that Mrs Baker had been present at the reading of the will on 7 May 1996, evidence that on 18 October 1996 she had made the affidavit of executor in which the assets and liabilities of the estate were listed, evidence of what happened in the conference on 18 July 1996, evidence of Mrs Baker's visit to Centrelink on 19 July 1996 and of the contents of the Centrelink documents signed by her, evidence of what happened at the conference on 25 November 1996 and evidence of admissions made by Mrs Baker in cross-examination. 396 It was submitted that there was no need for Mr Sheridan to tell Mrs Baker of matters of which, to Mr Sheridan's knowledge, Mrs Baker was already fully aware. 397 As regards sub-par 18(d) of the amended statement of claim, Mrs Baker had admitted in cross-examination that she had realised that, if the properties were transferred, Mr Rigg as the owner of some of the properties could borrow money on the security of a mortgage over those properties and that, if Mr Rigg did not repay the lender, the lender could sell the properties. She realised that this was "a possibility" but she "didn't think it would happen". 398 As to sub-pars 18(f), 18(h) and 18(e) of the amended statement of claim, it was submitted that I should find that the course Mrs Baker wanted to adopt had a number of advantages for her, which she communicated to Mr Sheridan, including that the properties would be kept together, the properties would continue to be used for cattle grazing, the business of Kempsey Kar Kare would continue to be carried on, Mrs Baker would be relieved of having to take any part in the cattle grazing business or the business of Kempsey Kar Kare, Mrs Baker would be relieved of having to worry about the debts of the estate, Mrs Baker would be able to occupy her home rent free and free of any other charges and Mrs Baker would derive income from a pension. 399 Mrs Baker had admitted in cross-examination that she knew that she had a choice whether or not to transfer the properties to Stephen Rigg and Trevor Baker. 400 It was also submitted by counsel for the first defendants that there was no viable alternative course of action, a submission which was more fully developed later in counsel's submissions. 401 As to sub-par 18(i) of the amended statement of claim, it was submitted that, notwithstanding any concession made by Mr Sheridan in cross-examination, there had in fact been no conflict of interest between Mrs Baker on the one hand and Stephen Rigg and Trevor Baker on the other hand, because of the limited nature of Mrs Baker's retainer of Mr Sheridan and the absence of any viable alternative course of action. Even if there had been a conflict of interest between the clients and Mr Sheridan had been acting for clients whose interests conflicted, it would still be necessary for Mrs Baker to prove that, by reason of the conflict, Mr Sheridan had omitted to give some advice or information to Mrs Baker which should have been given, and that this had not been proved. 402 Counsel for the first defendants submitted that, even if the plaintiff established that some breach of duty had occurred, it would still be necessary for the plaintiff to prove that the breach had caused damage to the plaintiff; that, if no breach had occurred, the plaintiff would have acted differently from the way in which she had acted and in a way which would have involved no damage or less damage for her. It would be necessary for the plaintiff to prove that, if Mr Sheridan had given advice which he had omitted to give, Mrs Baker would have acted on that advice. Counsel referred to Citicorp at p418G per Sheller JA. 403 It was submitted by counsel for the first defendants that, although direct evidence from the plaintiff on an issue of causation was not essential, the absence of evidence or at least of clear evidence from the plaintiff about what she would have done, if certain advice had been given to her, made it more difficult to make a finding in her favour on the issue of causation. 404 It was submitted that, if a breach consisted of Mr Sheridan failing to give information on some matter but the plaintiff was already aware of the matter without having to be told by Mr Sheridan, then the omission to give information on that matter could not have been causative of damage to Mrs Baker. 405 As to whether, if Mrs Baker had been advised before 25 November 1996 that she should seek independent legal advice, she would have sought independent legal advice, it was submitted that the vague and conflicting evidence given by Mrs Baker did not establish that, if such advice had been given by Mr Sheridan, Mrs Baker would have sought independent legal advice. It was submitted that I should accept Mr Sheridan's evidence that on 25 November 1996 he did ask Mrs Baker whether she wanted to see another solicitor. 406 Likewise, it was submitted that Mrs Baker's evidence did not establish that, if Mr Sheridan had advised her to seek financial advice from an accountant, she would have taken his advice and seen an accountant. Nor did the evidence establish what financial advice an accountant might have given Mrs Baker. 407 A number of submissions were made by counsel for the first defendants on whether Mrs Baker could have acted differently, consistently with what her objectives were, if she had been given different advice by Mr Sheridan; that is, whether there was any viable alternative course of action to the course of action in fact adopted by Mrs Baker. 408 It was submitted that the present case was not a "no transaction case" in which a viable alternative would have been for Mrs Baker simply to have done nothing. Because of the death of her husband, who had been carrying on two businesses, who had left assets and debts secured by mortgages and who had left a will under which Mrs Baker was the executrix and the beneficiary, Mrs Baker had to do something. She could not simply do nothing. 409 The present case, it was submitted, was different from the case of parents who are asked to give a guarantee of the debts of their child, the guarantee to be supported by a mortgage over their home. Such a case is, indeed, a "no transaction case". A viable alternative for the parents is simply to decline to enter into any transaction. 410 The plaintiff's case had been opened by counsel for the plaintiff on the basis that, if Mrs Baker had been properly advised by Mr Sheridan, she could have acted differently by using the personal property in the estate to pay the debts of the estate and by letting the real property in the estate on agistment so as to provide an income for herself. This case had collapsed, when it became apparent during the course of the hearing that the personal property in the estate would not have been sufficient to pay the debts of the estate and that the evidence of the plaintiff's expert witness, the accountant Mr Otto that a modest, but sufficient, income for Mrs Baker could be derived from letting the real property on agistment, had been based on false assumptions, including an assumption that the cattle owned by Mr Baker at his death had been grazing solely on his land and not also on Syd's property. In addition, the evidence of the first defendants' expert Mr Naunton, that the nett income from agistment would be insufficient to support the plaintiff, should be accepted. 411 During the hearing it was suggested on behalf of the plaintiff that another alternative course which would have been viable, would have been for Mrs Baker to sell some of the real property so as to pay the balance of the debts of the estate and to let the rest of the real property on agistment so as to provide some income from agistment for her, and for her to receive a pension. 412 In relation to this suggested alternative, it was submitted by counsel for the first defendants that the realty which might have been sold had not been identified, that this course of action would have been contrary to Mrs Baker's wish to keep all of her husband's properties together, that there was no evidence that, if she had retained some of the real property, she would still have been eligible to receive a pension and that there was no evidence from the plaintiff that, if she had been advised to adopt this alternative course, she would have taken it. 413 It was submitted by counsel for the first defendants that I should find that the plaintiff would not have acted any differently, if any different advice had been given by Mr Sheridan. The course the plaintiff had adopted and had told Mr Sheridan that she wanted to adopt fulfilled the objectives she had.

[169]

DECISION 414 Earlier in this judgment I made an assessment of the various witnesses and I made lengthy findings of fact. My decision on the claims made by Mrs Baker against the first defendants is determined, to a large extent, by my earlier findings of fact. 415 I accept counsel for the first defendant's submission that it is necessary for the plaintiff to prove, not only a breach of a duty owed to Mrs Baker, but also that the breach caused loss to Mrs Baker, including that Mrs Baker would have acted differently, if the breach had not occurred. 416 I accept counsel for the first defendant's submissions about the terms of the retainer and the circumstances in which the retainer was given. 417 Having considered the authorities and in the light of the findings of fact I have made, I do not consider that Mr Sheridan was under an obligation to advise Mrs Baker about the financial wisdom of the proposed transaction or, having been provided by Mrs Baker with reasons why she wanted to enter into the transaction, to question her further about her reasons and motives. I am not satisfied that, if Mr Sheridan had questioned Mrs Baker, Mrs Baker would have given an answer which would have revealed to Mr Sheridan that she was acting out of a sense of crisis induced in her by Mr Rigg. I do not accept that Mrs Baker was acting out of a sense of crisis induced in her by Mr Rigg. 418 I am not satisfied that, if Mrs Baker had been advised by Mr Sheridan to seek independent legal advice or to seek financial advice, she would have taken Mr Sheridan's advice. 419 I accept counsel for the first defendant's submission that it has not been shown that there was any viable alternative course of action for Mrs Baker or at least any viable alternative course of action which would have fulfilled as many of her objectives. 420 As to sub-par 18(g) of the amended statement of claim, I find that Mrs Baker was already fully aware, to the knowledge of Mr Sheridan, that she would be transferring away the assets of her husband's estate. These were the instructions Mrs Baker gave on 18 July 1996. On 25 November 1996, before the deed of transfer was signed, Mr Sheridan asked Mrs Baker whether she realised that she was transferring all the assets of the estate. I find that there was no breach as alleged in sub-par 18(g) of the amended statement of claim. 421 As to sub-par 18(d) of the amended statement of claim, I find that Mr Sheridan did not advise Mrs Baker of the risk of default being made under a mortgage of the homestead and the mortgagee exercising its rights under the mortgage. I find that he should have done so and that this was a breach as alleged in sub-par 18(d) of the amended statement of claim. However, Mrs Baker was aware of this risk, without having to be told by Mr Sheridan, and I am not satisfied that, if advised of the risk by Mr Sheridan she would have acted any differently. Mrs Baker, while aware of the risk, believed that it would not eventuate. 422 As to sub-pars 18(f), 18(h) and 18(e), Mr Sheridan admitted that he did not, in terms, tell Mrs Baker that she had a choice whether to enter into the deed of transfer. However, what he said to Mrs Baker of 25 November 1996 would have clearly conveyed to Mrs Baker that she was not obliged to proceed with signing the deed of transfer. Mrs Baker admitted in evidence that she knew that she had a choice. I do not consider that there was any breach as alleged in these sub-pars of par 18 of the amended statement of claim. Alternatively, I do not consider that it has been shown that Mrs Baker would have acted any differently, if any breach had not occurred. As stated by me earlier, there was an absence of a viable alternative. 423 As to sub-par 18(i) of the amended statement of claim, I am not satisfied that, having regard to the limited terms of the retainer and the absence of any viable alternative course of action, there was any conflict of interest. Alternatively, it has not been shown that by reason of any conflict of interest Mr Sheridan omitted to give information or advice to Mrs Baker, which he ought to have given. 424 I find a verdict for the first defendants against the plaintiff.

[172]

(i) Mr Rigg had the capacity to influence Mrs Baker. (ii) That capacity had been exercised. (iii) The exercise of that capacity amounted to undue influence. (iv) The transaction (the deed of transfer) had been brought about by that undue influence. 428 It was submitted that I should find that the evidence established that Mrs Baker was a person of little education, that she had worked in simple occupations such as being a waitress, that she was a person of no business experience, that during their married life her husband had attended to all their business and financial matters, that she had no knowledge of the affairs of Kempsey Kar Kare, that she had little knowledge of her husband's debts and mortgages, that she was distraught as a result of the death of her husband and unable to cope, that she trusted Mr Rigg and that she did not receive any real advice from Mr Sheridan. 429 It was submitted that I should find, in relation to Mr Rigg, that he had business experience, that he had been the active partner in Kempsey Kar Kare and was familiar with the affairs of Kempsey Kar Kare and that he knew much more about the financial circumstances of Mr Baker than Mrs Baker did. 430 It was submitted that I should accept Mrs Baker's evidence about her conversations with Mr Rigg and find that Mr Rigg had deliberately manufactured a false atmosphere of crisis, so that Mrs Baker was induced to feel that she had to transfer all the properties in order to save her home. The atmosphere of crisis was false, because there were other alternative courses of action open to Mrs Baker. 431 Counsel submitted that I should find that the plaintiff had established the existence of an antecedent relationship of influence, which gave rise to a presumption throwing upon Mr Rigg the burden of justifying the transfer of the properties by showing it was the result of a free exercise of Mrs Baker's will. Counsel cited Johnson v Buttress (1936) 56 CLR 113 at 138 per Dixon J. Such a presumption had not been rebutted and, in particular, had not been rebutted by the giving of independent legal advice, because no advice which was truly independent had been given to Mrs Baker. 432 As to whether the deed of transfer was an unconscionable dealing, counsel for the plaintiff referred to inter alia Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621. 433 It was submitted that, within the principles stated in Amadio by Mason J at 462-3 and by Deane J at 474-5, Mrs Baker had been under a special disadvantage or special disability, that Mr Rigg knew or ought to have known of the special disadvantage or special disability or the special disadvantage or special disability would have been evident to Mr Rigg and that Mr Rigg had unconscientiously taken advantage of Mrs Baker's position of special disability or special disadvantage to obtain her consent to the transfer of the properties. 434 The same factors in relation to Mrs Baker as were relied on in the part of counsel for the plaintiff's submissions dealing with undue influence, were relied on as amounting to a special disadvantage or special disability which would have been known to Mr Rigg. 435 It was then submitted that Mr Rigg had unconscientiously taken advantage of Mrs Baker as a person subject to such a special disadvantage or special disability. 436 It was submitted that I should find that what had happened was that Mr Rigg had been a partner in Kempsey Kar Kare, Kempsey Kar Kare was Mr Rigg's livelihood, Mr Rigg was optimistic about the prospects of Kempsey Kar Kare, Mr Rigg had participated in the negotiations with the Commonwealth Bank in February 1996 for refinancing the loan capital of Kempsey Kar Kare, the accommodation to be provided by the Commonwealth Bank was to be secured by mortgages over the properties owned by Mr Baker and Mr Rigg himself had insufficient property of his own to serve as security. It was in these circumstances that Mr Baker had died. Soon after Mr Baker's death Mr Bowden the Commonwealth Bank manager was pressing Mr Rigg to be told what was going to happen to Kempsey Kar Kare. 437 Mr Rigg, according to his own evidence, had had a conversation with Mrs Baker in May 1996, in which he had put three options to Mrs Baker. The first option, that Kempsey Kar Kare be wound up, would have had serious adverse consequences for Mr Rigg and was an option which Mr Rigg knew would not be acceptable to Mrs Baker. The second option, that Mrs Baker and Trevor Baker together take over the interest in the partnership which Mr Baker had had, was an option which Mr Rigg knew would not be acceptable, because, to his knowledge, Trevor Baker had no desire to be involved in Kempsey Kar Kare. That left only the third option, that Mr Rigg alone carry on the business of Kempsey Kar Kare, which would be very advantageous to Mr Rigg and which was what ultimately happened. Mr Rigg told Mrs Baker that, if the third option was adopted, the properties would have to be transferred to him. Mr Rigg did not offer to Mrs Baker the fourth and fifth options which were suggested to Mr Rigg in cross-examination by counsel for the first defendants. 438 It was submitted by counsel for the plaintiff that I should find that Mr Rigg set out to get Mr Baker's estate for himself, that he deliberately gave an incomplete set of options to Mrs Baker, which was skewed towards the option which he wanted her to chose, and that he thereby unconscientiously took advantage of Mrs Baker. 439 The matters on which counsel for the plaintiff attacked Mr Rigg's credibility as a witness were relevant, not merely to his credibility as a witness, but also as tending to show that he was conscious that he had deliberately taken advantage of Mrs Baker. 440 I turn to the submissions made by counsel for the second defendant. 441 It was submitted by counsel for the second defendant that it was necessary to distinguish undue influence and unconscionable dealing. Counsel referred to Amadio at p 461 per Mason J and at p 474 per Deane J.

[173]

As to undue influence:- 442 Counsel for the second defendant noted that it was conceded by counsel for the plaintiff that in the present case there was no presumption of undue influence and undue influence had to be proved. 443 In the further particulars of undue influence in the amendment to the amended statement of claim it was alleged that the undue influence had commenced in May 1996 and had enured until 1999. It was submitted by counsel for the second defendant that the plaintiff had been constrained to allege that the undue influence had continued up until 1999, because the plaintiff had not made any complaint about the deed of transfer until at least 1999 and it would be difficult to explain the absence of any complaint, except on the basis that the undue influence alleged had continued up until 1999. However, no evidence at all had been adduced to show any undue influence of Mr Rigg on Mrs Baker between November 1996 and 1999. 444 It was submitted by counsel for the second defendant that, although, notwithstanding the difference in principle between undue influence and unconscionable dealing the same factual matters may be relevant to both, if in the present case the evidence about the alleged unconscionable dealing was excluded, there was very little, if any, other evidence tending to show a relationship of undue influence. 445 It was conceded by counsel for the second defendant that the evidence established that Mrs Baker trusted Mr Rigg but it was submitted that the reposing of trust commonly occurs between members of the same family and was not sufficient of itself to give rise to an inference of undue influence. 446 It was conceded that Mr Rigg had done many things in relation to Mrs Baker's estate including communicating with Mr Sheridan but it was submitted that I should find that Mr Rigg had done those things at the request of Mrs Baker. 447 Counsel for the second defendant particularly relied on the circumstances that Mr Rigg had not attended the conference between Mrs Baker and Mr Sheridan on 18 July 1996 and had not attempted to attend the conference himself or to postpone the conference to some date when he would have been able to attend. It was submitted that these circumstances showed that Mrs Baker was not dependent on Mr Rigg and that Mr Rigg was not seeking to exercise any malign influence over Mrs Baker. It was true that Mrs Rigg had attended the conference but I should find that Mrs Rigg had not exerted any pressure on Mrs Baker. 448 It was submitted that, apart from Mr Rigg, Mrs Baker had had access to other persons who could offer her advice, for example Mr Sheridan, her accountant and her son Trevor Baker. It was submitted that I should find, as was admitted by Trevor Baker and as was inherently likely, that Mrs Baker had discussed with her son what she should do in relation to the estate. 449 The solicitor who acted for Mrs Baker (Mr Sheridan) was a solicitor who had acted for Mrs Baker's husband and who she had instructed to act for her on the application for probate. Mr Rigg had made no attempt to have Mrs Baker retain a solicitor of his choosing. 450 It was submitted that I should accept Mrs Baker's own evidence that she did not see anything particularly special in her relationship with Mr Rigg.

[174]

As to unconscionable dealing:- 451 It was submitted by counsel for the second defendant that I should not find that Mrs Baker had been under a special disadvantage or a special disability. I should not find that she had been seriously and continuously distraught as a result of her husband's death. 452 As against the factors relied on by counsel for the plaintiff, I should find that, after her husband's death, Mrs Baker knew that something had to be done, she knew what were the objectives she wanted to achieve, she knew what she herself was not capable of or not interested in, she had a sense of obligation to Stephen Rigg for what he had done for her husband during his lifetime and she knew that her husband had had a sense of obligation to Stephen Rigg. Mrs Baker attended the conference with Mr Sheridan on 18 July 1996 without Mr Rigg and told Mr Sheridan what she wanted to happen. There was no other course of action which was a viable alternative. 453 Mrs Baker gave her instructions to Mr Sheridan on 18 July 1996 but did not sign the deed of transfer until more than four months afterwards, on 25 November 1996. It was submitted by counsel for the second defendant that the very length of the period during which the plaintiff had to assert that she continued to remain subject to a special disadvantage or special disability was a weakness in the plaintiff's case. 454 It was further submitted by counsel for the second defendant that I should not find that Mr Rigg had taken advantage of any condition of Mrs Baker so as to procure her assent to the deed of transfer. The present case was not a "no transaction case", where Mrs Baker could simply have refrained from entering into any transaction. I should find that there was no other viable alternative to the deed of transfer and the deed of residence, which would have fulfilled Mrs Baker's objectives. 455 Mr Rigg had not attended, and had not sought to attend, the conference with Mr Sheridan on 18 July 1996. Mr Rigg had not sought to have Mrs Baker retain a solicitor of his choosing. Mr Rigg had not made any attempt to control the supply of information and advice to Mrs Baker. 456 It was submitted that Mr Rigg, so far from seeking to minimise the values of the properties being transferred to him, had participated in the supply to Mr Sheridan of values for those properties, which exceeded what the plaintiff's expert valuer Mr McNamara considered were the true values of the properties. 457 It was submitted that conduct by Mr Rigg which tended to show that he had not been intent on obtaining advantages for himself included his participation in the proposal that some provision be made for Mrs Baker's granddaughter, his willingness in February 1997 to negotiate with Trevor Baker and his ultimate assumption of sole responsibility for Mr Baker's personal debts. 458 As regards the options which counsel for the plaintiff had submitted had not been put by Mr Rigg to Mrs Baker in his conversation with her, even if they were to be regarded as being distinct from the options which Mr Rigg did offer, I could not be satisfied that they were viable or that Mrs Baker would have accepted either of them.

[177]

As to unconscionable dealing:- 467 On the findings of fact I have made earlier in this judgment, I am not satisfied that I should find that Mrs Baker was in a position of special disadvantage or special disability. I accept the submission by counsel for the second defendant that the length of time during which the plaintiff had to assert that she continued to remain in a position of special disadvantage or special disability is a weakness in the plaintiff's case. 468 I accept that the various circumstances sought to be relied on by counsel for the plaintiff have been proved except that, notwithstanding any admission made by Mr Rigg in cross-examination, I am not satisfied that I should find that Mr Rigg knew that the second option he offered Mrs Baker would necessarily be rejected by her. 469 As stated earlier, I consider that the present case was not a "no transaction case" and that, on the contrary, Mrs Baker was in a position where she had to do something. The course of action she took is readily explicable, otherwise than on the basis that Mr Rigg unconscientiously took advantage of her, on the basis that that course of action fulfilled a number of her objectives and it has not been shown that there was any viable alternative course which would have fulfilled as many of her objectives. 470 The second option offered by Mr Rigg to Mrs Baker, according to par 40 of Mr Rigg's first affidavit, was that Mrs Baker and Trevor Baker take over Mr Baker's half share in Kempsey Kar Kare. I accept that this option, according to the literal terms of Mr Rigg's affidavit, required that both Mrs Baker and Trevor Baker join in taking over Mr Baker's half share. However, I do not consider that Mr Rigg really intended to convey or that Mrs Baker would have understood him as conveying that Mrs Baker could not, if she wished, take over her husband's share by herself, without Trevor Baker joining in. I consider that I should accept Mr Rigg's evidence that, in saying what he did to Mrs Baker, he was reflecting what Mr Bowden of the Commonwealth Bank had previously said to Mr Rigg. I am not satisfied that if either option four or option five had been offered to Mrs Baker, she would have taken it. 471 The reasons I have already given for finding that undue influence has not been proved also support a conclusion that an unconscionable dealing has not been proved. 472 I do not consider that I should find that Mr Rigg set out to get Mrs Baker's estate for himself or that he unconscientiously took advantage of Mrs Baker. 473 Having rejected both ways in which the plaintiff's case against the second defendant was put, I find a verdict for the second defendant against the plaintiff.

Baker v Sheridan

At a glance

Court

Decision date

Before

Source

Judgment (180 paragraphs)

Parties

Cases Cited (10)

Cited By (3)