Bale v Kimberley Developments Pty Ltd - [2022] NSWSC 820 - NSWSC 2021 case summary — Zoe

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Bale v Kimberley Developments Pty Ltd

[2022] NSWSC 820

Supreme Court of NSW|2021-09-09|Before: Ward P

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-09-09

Before

Ward P

Source

Original judgment source is linked above.

Judgment (103 paragraphs)

[1]

Background

The deceased was an engineer who had operated a plating and manufacturing business (through a company known as British Franco Electric Pty Ltd, of which he was sole director) from the Forest Lodge Property for a number of years prior to the events in question (see Ms Bale's evidence at T 39.32-39.39; see also at [2] of her first affidavit sworn 23 November 2018), there being some reference also to another company associated with the deceased, Schein Industries. The deceased was the registered proprietor of the Forest Lodge Property (which was located at Kimber Lane and was a battleaxe block with right of way access to Junction Road in Forest Lodge).
The deceased and his first wife had one child (the plaintiff, Ms Bale). It was evident from Ms Bale's cross-examination that she is very proud of her late father's achievements (see at T 36.30-37.30) and that the two were close (at least apart from a period after the deceased's remarriage from around 2008 to 2015).
Prior to his first wife's death, the deceased and his first wife were living in a house in Gordon (which Ms Bale described in her statement to the NSW Civil and Administrative Tribunal (NCAT) at the 2016 hearing as her parents' dream home - see below). The deceased also owned property at Summer Hill (in which Ms Bale and her husband, Gavin, lived for a time) that was the subject of a development application in around 2001 and which caused considerable financial difficulty for the deceased in the period around 2007/2008 (see below) (the Summer Hill Property).

[2]

[12]

13 November 2007 admission to hospital

On 13 November 2007, the deceased was admitted to Royal North Shore Hospital. According to the hospital records, this was after the deceased was found (by a Mercy Community Services nurse) in bed with decreased consciousness and slurred speech (see annexure "C" to Ms Bale's first affidavit). Ms Bale has deposed that the nurse informed her (see [29] of her first affidavit, this being read for the fact of communication not its truth) that there was a female there (at the deceased's house) who had informed the nurse that the deceased had drunk a bottle of scotch the night before and she thought that he was just drunk. Ms Bale believes, and it seems likely that this female was Ms Chyna Schein (see below). The Northern Sydney Central Coast Health records note that the principal diagnosis was "Collapse ? cause" and state that: 76 year old man BIBA after found at home in bed with decreased consciousness and slurred speech. Patient had GSC of 15 by the time he arrived in emergency. B/G of recent similar episode 2 months ago, investigated at Mona Vale hospital.
Ms Bale has deposed that she was concerned and asked the hospital to conduct tests to confirm her father's blood alcohol level (and Ms Bale has deposed that the tests showed very little alcohol in the blood) but it is not clear from the hospital records that this was there recorded and I can draw little, if anything, from this, other than to note that it is evident that there was some kind of health issue afflicting the deceased at this stage (since there is no dispute as to the fact of his successive hospitalisations).
Ms Bale says that this was the first time that she became aware of Ms Chyna Schein, deposing at [30] that the deceased continually asked for "Chyna" but that the deceased could not remember how he had met her.
On 6 December 2007, the deceased was reviewed by Dr Dent at Royal North Shore Hospital, who referred the deceased to a geriatrician (Dr Veitch) at Royal North Shore Hospital (see at [31] of Ms Bale's first affidavit).

[13]

Summer Hill development

Ms Bale's evidence is that she became involved in the Summer Hill development (to assist the deceased) between 2007 and 2008 (see T 40.29). Ms Bale explained her role as relating to obtaining Council approval of the development so as to permit the sale of the properties to be completed (see T 40.34). Ms Bale said that she was dealing with Suncorp in relation to the facility. Ms Bale's evidence in cross-examination (see at T 41.30) was that at this time, Ms Bale knew that money was owed (to Suncorp) and that there was a sense of urgency to sell the properties, in the context of which there was some urgency in obtaining Council approval for the development (so that the sales of the properties could be completed). Ms Bale also knew that there was a delay in relation to the Council approval and that this was costing a lot of money.
In her statement to NCAT in 2016, after referring to the Court proceeding with the first builder that had been unsuccessful (to which I have referred above) Ms Bale went on to recount that: 2- Council approval for development registration delayed until certain details were completed. Builder no longer working on development. I worked with council to complete. New builder used. Survey and flood management redone for council approval. Funds needed. No council approval, no sales of development properties. This delay cost hundreds of thousand of dollars in interest alone. Constant negotiating and reporting to lenders, Suncorp, Challenger, Perpetual Mutual to delay payment until development was sold, to repay loans and accruing expenses 3- Second builder garnished [sic; garnisheed] rental income from development. Most properties rented and those funds were being used to complete works to meet council approval, but now stopped as builder had garnished [sic; garnisheed] rent. Second Builder also put a writ on Michel Schein's house. This was my father and mother's dream house. It took 3 ½ year[s] to find. [This is a reference to the Gordon house as confirmed in cross-examination by Ms Bale at T 48.48] 4- My father and I were advised by long time solicitor, Ken Hancock, that my father would have to sell house to pay debts. My father decided to refinance. I contacted finance person recommended by my father, Antoni[a] Romeo. She was working on refinancing my father's situation but it was complex, it took time. Additional pressure. 5- Properties were auctioned but contracts and funds could not be exchanged due to council delays to register development. 6- Properties previously sold withdrew from contacts [sic; contracts] due to Sunset clause and registration delays.
The picture there painted (in 2016) was thus of pressing financial difficulties in 2007 and going into 2008.

[21]

ACAT assessment

Ms Bale has deposed that on 2 April 2008 she was in attendance during an ACAT assessment of the deceased (see her first affidavit at [40]; see also annexure "F" to her first affidavit) by a registered nurse from Hornsby Kuring-gai Community Health Services (Trish Price RN). The assessment (to which objection was taken) included reference to the deceased grieving for his wife and being depressed, but recorded that his memory had not been formally assessed. On the self-care functional assessment, the deceased was assessed at 20 (independent); on the domestic functioning assessment 27 out of 30 (within the mild dependence range). The notes make reference to a "lady friend" (presumably Ms Chyna Schein who, according to Ms Bale, appeared by then to have been living at the Gordon Property).
The outpatient notes completed by RN Price also record concerns by Ms Bale as to the deceased's "increasing memory impairment" and that it was of grave concern to Ms Bale that a "female friend" who had been temporarily residing with the deceased had introduced a "male friend" (presumably, Mr Mohr) to the deceased and that Ms Bale had discovered the "male friend" had been involved in "sorting out" all of the deceased's documents. Objection is taken to these notes. For present purposes, I simply note that the recording of these concerns corroborates the timing of Ms Bale's concerns as to the deceased's memory and vulnerability to exploitation. The notes also recorded that a dementia monitoring programme had been suggested (consistent with Ms Bale's apparent concern) (see annexure "F" to Ms Bale's first affidavit); though it is not clear if that was implemented.
On 24 April 2008, Dr Veitch reported on his review of the deceased in his clinic that day with Ms Bale (see annexure "G" to Ms Bale's first affidavit). It is clear that the letter records a number of matters that Ms Bale had conveyed to Dr Veitch (and hence can only be as reliable in that context as Ms Bale's account is shown to have been) (such as Ms Bale's concern that the "new girlfriend maybe [sic] after her father's assets"); and Dr Veitch also noted that some of the history that the deceased gave was different from that given by Ms Bale. The letter stated that from a functional point of view, the deceased is "otherwise pretty good"; examination revealed a "well looking but somewhat belligerent elderly man"; Dr Veitch had some concern about the deceased's insight even though the deceased "gave plausible explanations" for many of his questions; the deceased was reasonably orientated in place, though not able to name the hospital and not sure of the date or day of the week; and the deceased "probably has some cognitive impairment although not severe, which may be affecting his decision-making, and I believe he is at risk of being taken advantage of". (As noted, objection is taken to this evidence.)

[24]

Lodgment of Strata Management Statement or strata plans

Ms Bale gave emphatic evidence that on 2 or 3 June 2008 the strata plan for the Summer Hill development was finally able to be registered. Ms Bale graphically (and with evident emotion) described the "blood, sweat and tears" that had been involved in achieving this (T 50.28). Ms Bale also said (at T 50.30) that she delivered it personally to the Council, to Suncorp, and to the office of the solicitor (Mr Ken Hancock). Ms Bale emphasised the importance of the registration of the strata plan (see T 57.39). Pressed on this (and see the communication from Mr Hancock on 13 June 2008 below), Ms Bale retreated somewhat to saying "well I thought I'd attended to that, but obviously I haven't" (see T 58.9-58.21).
Pausing here, I note that the date stamp for registration of the Strata Management Statement is 15 August 2008 (see also T 82). The document seems to have been signed with the deceased's signature on 11 June 2008 (see T 83.9) but bears the handwritten words "Françoise Bale on behalf of Michel Schein pursuant to power of attorney". Ms Bale said that the handwritten words did not look like her signature (T 84.27) but that the signature did look like the deceased's signature. At T 85.18, Ms Bale said that "perhaps I didn't sign the Strata Management Statement but I certainly did deliver [it]". At T 85ff, Ms Bale gave the following evidence: Q. Just so I understand your evidence, Ms Bale, is now your evidence that you didn't sign this document? A. Well, I can't see my signature. But on behalf of my father, I went to - I got the letter, I got all the information required to register the development, and gave it to Ken Hancock. Because - I'm going back a long time now, okay. And there was a considerable amount of pressure there. I was to get everything so that Ken Hancock could register the development, and that - and that meant the plans, getting the, you know, this paperwork to the - so that the surveyor could sign it, and take it to Suncorp, and then I took it back to Ken Hancock, who was in Padstow at the time. Yeah. So perhaps it didn't require my signature per se, but it required my taking everything, getting everything, and then bringing it back to Ken Hancock, so that he could do as quickly as possible what he needed to to register the property. [set out] … Q. Were you present when your father signed this document on 11 June 2008? A. No. He was living with his wife. Q. I think your evidence was that the signature that appears to the left of the words "Francoise Bale"-- A. Yeah. Q. --looks like your father's signature. Was that your evidence? A. It does - it is. That's what I said. That's what it looks like to me. … Q. Ms Bale, you know, don't you, that if your father signed documents, there's no need to refer to a power of attorney, is there? A. Well, if that was the case, then why was he with - why did my power of attorney continue after - you know, for 12 months afterwards because he was with me, but he wasn't well.
Pausing here, arguably there would be no logic to the reference to a power of attorney on the Strata Management Statement if it was intended to be signed by the deceased himself but it might well be the case that the words were written on the document in anticipation that it would be signed by Ms Bale under her (then) power of attorney (and that, by the time it came to be signed that power of attorney had been revoked so that Ms Bale was no longer able to sign). In any event, it seems apparent that the document was simply signed by the deceased himself. This precludes any suggestion that Ms Bale was improperly signing as the deceased's attorney (and there is moreover doubt as to when she was notified of revocation of the power of attorney). However, it makes it unlikely that Ms Bale physically delivered the documents on 2 or 3 June 2008.

[27]

13 June 2008 letter from Mr Hancock to the deceased

By letter dated 13 June 2008 from Mr Hancock to the deceased, Mr Hancock referred to the deceased attending Mr Hancock's office and giving him instructions on 11 June 2008 to proceed with the lodgment of the plans concerning the Summer Hill Property (see T 57.46-58.3; see also annexure "H" to Ms Bale's first affidavit). (This makes it unlikely that the plans had already been delivered by Ms Bale to the Council by then, assuming that this is a reference to the same plans. It also suggests that Mr Hancock had no concerns about the deceased's capacity to give those instructions at that stage.)
The letter dated 13 June 2008, in terms responding to a facsimile from 12 June 2008 apparently received from the deceased, relevantly states: I was surprised to receive your facsimile of 12 June, 2008. You state that I have not been fully accounting to you and suggest that there have been activities and dealings that have been occurring without your knowledge. This is not true. You are aware that I have been regularly speaking with you on the telephone and in my office over the past year and a half concerning your property matters and your finance arrangements. In addition, you have made it very clear to me that I am to consult with your previous attorney, your daughter Françoise, in regard to all of your matters and that you were relying on her to assist you. You made this clear to me on a number of occasions. I therefore had numerous attendances both by telephone and in person on Françoise dealing with your matters. In all respects, I can state that notwithstanding the difficulties encountered, everything was attended to with the best of our ability. In addition, I can confirm that your daughter Françoise has spent a considerable amount of time and energy in regard to looking after your affairs. You acknowledged to me on many occasions that you appreciated the efforts of Françoise. In addition, you are aware that I have forwarded to you recently a copy of a letter sent to your attorney at the time, Françoise, enclosing a number of accounts. At that time, these accounts totalled $28,814.29. These accounts represented work done up to that time and as you know, we have not received any payment in regard to those accounts. I now acknowledge that you have revoked your appointment of Françoise as your attorney and that you have appointed your wife China as your attorney and that you have authorised us to deal with China in regard to all of your matters. We accept these instructions and will abide by them. This does not mean that we should not have communication directly with you be telephone and in view of the terms of your facsimile of 12 June, we require you to telephone us to discuss the matters referred to therein. In addition, if you have concerns regarding the actions of Françoise, then you should take these matters up directly with her, When you attended at our office on 11 June last [i.e., 2008], you gave clear instructions that we would proceed with the lodgment of the plans concerning the Summer Hill property. I can report that the plan of subdivision has been accepted and requires payment of the fee of $2,280.00. We are arranging to pay this from the funds held in the Estate of your previous wife in accordance with your instructions in that regard. We understand that the fees that will be payable on the strata plan will be a further $2,180.00, making a total of $4,460.00. The strata plan is in order except that the Strata Management Statement requires the signature of your mortgagee, Suncorp and we are making arrangements for this to be attended to as a matter of urgency. …
The letter recorded that various of the properties had been sold (Townhouses 6, 7 and 9 and House 29) and that contracts for Townhouse 3 had been exchanged that day. The letter advised that the debts were as follows: owing to Suncorp (as at 23 May 2008) $6,183,384.54 and; to Commonwealth Bank $1,251,185.68. (In the witness box, Ms Bale thought that the Commonwealth Bank loan might have been referable to the Gordon Property. This is seemingly inconsistent with the November affidavit in which Ms Bale said that $24,000 in the bank account would be enough to cover personal expenses for the deceased including the mortgage on the house at Gordon. However, Ms Bale's evidence was that her understanding was that once the development was sorted out, there would be sufficient funds to pay the deceased's debts (see T 62.11).)
The letter concluded that: When you saw us on the 11 June last, amongst other things you gave me very clear instructions that you wanted to have Mr Max Mohr leave your premises at Gordon. You specifically instructed me to write to him requiring him to vacate. We were therefore surprised to receive your telephone call thereafter countermanding those instructions. In view of our long association with you and the terms of your facsimile of 12 June, we ask that you telephone our Mr Ken Hancock to discuss the terms of your letter.
Pausing here, while the letter is clearly expressing concerns on the part of Mr Hancock as to the deceased's instructions (consistent with, say, a concern as to the possibility of exploitation or undue influence being exerted over the deceased), it does not appear that Mr Hancock had any concern at that stage about the deceased's capacity to give him instructions on 11 June 2008 in relation to the lodgment for registration of the strata plans.
As appears from Mr Hancock's 13 June 2008 letter, it appears that at that stage (i.e., 13 June 2008) the Strata Management Statement had not been signed by anyone on behalf of Suncorp (T 58.16). It is consistent, however, with the deceased himself having signed the document on 11 June 2008.

[28]

Revocation of Ms Bale's power of attorney

Ms Bale's evidence (see her first affidavit at [49]) is that, shortly after the deceased's marriage to Ms Chyna Schein, she received a telephone call from Mr Hancock telling her that the deceased had said he did not want Mr Mohr to live at his property any longer and that he had instructed Mr Hancock to send a letter but had received a call one hour later from the deceased asking him not to send the request. (This is consistent with the letter extracted above and would place any such telephone call as being not before 11 June 2008.) Ms Bale has deposed that Mr Hancock sent her a copy of the 13 June 2008 letter (which is extracted above) and advised her to contact the Guardianship Tribunal (see her first affidavit at [50]).
The time at which Ms Bale received notification of the revocation of her power of attorney was an issue that arose in the course of her cross-examination. Mr Hancock's letter clearly refers to Ms Bale as being the deceased's "previous attorney".
Ms Bale's evidence (as noted above) is that she discovered the power of attorney had been revoked before receiving the letter as to revocation of the power of attorney (see T 60.2-60.35); and she discussed this with Mr Hancock, who expressed concern for the deceased's wellbeing and advised Ms Bale to contact the Guardianship Tribunal (T 64.11). At [51] in her first affidavit, Ms Bale deposed that she received a copy of the power of attorney appointing Ms Chyna Schein and the document confirming her power of attorney had been revoked on 13 June 2008. Ms Bale was adamant in the witness box that she made a telephone call in the course of doing business for her father to an unidentified person, who disclosed that her power of attorney was revoked, and that this occurred before she received the letter (saying that she was not surprised when she received notification of the revocation) (T 59.12-60.45). Ms Bale said she still had the envelope in which the letter had been sent.
Ms Bale also gave evidence of a telephone conversation with the deceased around this time in which she says the deceased told her that he had been in a car and that Ms Chyna Schein and Mr Mohr had stopped the car on the side of the road and would not drive home until he called Mr Hancock and cancelled the request for Mr Mohr to vacate the property (see her first affidavit at [49]).
On 13 June 2008, as noted above, Ms Bale received a copy of an enduring power of attorney by which the deceased appointed Ms Chyna Schein as his attorney. The document was witnessed by Mr Churchill. (Thus indicating that Ms Chyna Schein was acquainted with Mr Churchill at least in his professional capacity by then.)

[34]

Instructions regarding the marketing of the Forest Lodge Property for sale by auction in 2009

Mr Andreacchio, of Raine & Horne, received instructions from the deceased in 2009 to place the Forest Lodge Property on the market for sale by auction. Mr Andreacchio prepared a contract for sale of land in respect of the Forest Lodge Property (T 119.37). Mr Andreacchio says that he had first met the deceased in 2008 (see T 121.46).
On 3 April 2009, a Mr Edward Fotosong sent an email offering to purchase the Forest Lodge Property for $650,000 (see T 127.25; see also annexure "C" to the second affidavit of Mr Andreacchio affirmed 19 September 2020). The offer was declined by the deceased.
A marketing campaign for the sale of the Forest Lodge Property was conducted in April 2009. Mr Andreacchio's evidence was that the normal time for such a campaign would be around four weeks. (See advertisement for auction on-site on 18 April at 11am, marked as annexure "B" to Mr Andreacchio's first affidavit sworn 11 February 2019.)
An on-site auction was held on 18 April 2009, which was unsuccessful. The highest non-vendor bid was from the incumbent tenant, Mr Moore, who offered $650,000 (which was below the property's reserve price of $1,000,000). Mr Moore's evidence was that he had a lease in 2009 that gave him an option to purchase the property; but it does not appear that he invoked this right (see T 172.48-173.15). Mr Moore confirmed that he had made the highest (non-vendor) bid for the property (at the auction) at $650,000.
In cross-examination, Mr Andreacchio did not recall the auction. However, by email sent on 19 April 2009 at 11.39am, Mr Andreacchio reported that the property had been passed in at auction at $850,000 (which was a vendor's bid). Mr Andreacchio confirmed (at T 136.17) that Mr Moore had been the highest (non-vendor) bidder at the auction. Mr Andreacchio also said that the reserve was set in discussions with Ms Chyna Schein and Mr Mohr at close to $1 million (T 136.35). (From this, it may confidently be inferred that the principal instructions as to the sale of the property were also coming from Ms Chyna Schein and Mr Mohr, rather than the deceased himself; or at the very least that they were a driving force behind the instructions for sale. Ms Chyna Schein, it will be remembered, held the deceased's power of attorney by this stage.)
On 8 May 2009, Mr Andreacchio referred to the Forest Lodge Property in a Raine & Horne property update, which is consistent with it remaining on the market at that stage.
Mr Andreacchio's evidence is that, following the unsuccessful auction, he met Mr Darwiche (who he said was retained to clean up the property). Mr Andreacchio has deposed that he was introduced to Mr Darwiche by Ms Chyna Schein and Mr Mohr (see his first affidavit at [10]-[14]). Mr Andreacchio's evidence was that Mr Darwiche gave a quote to clear the property and to remove the contents of the property of about $20,000 to $30,000 (see also T 140.32-140.44). Pausing here, it appears that it was in the course of Mr Darwiche carrying out works to clear the Forest Lodge Property (in 2009 or 2010) that he became acquainted with the deceased. As noted earlier, it seems that Mr Churchill (a long-term friend and associate of Mr Darwiche seemingly also acquainted with Ms Chyna Schein) introduced Mr Darwiche to the deceased.
Mr Darwiche's evidence is that in or about mid-June 2010 he received a telephone call from Mr Churchill to the effect that one of his clients (the deceased) was selling the Forest Lodge Property and needed work done to it - and that he met the deceased, Mr Churchill and Ms Chyna Schein; that the deceased explained what he wanted done; and that the works were complete in around February 2011 (see his second affidavit at [6]-[9]). There is thus some discrepancy in the evidence as to when Mr Darwiche was first retained to do works on the property.
There was also some evidence that, in mid-2009, Mr Andreacchio recommended the sale of the family home in Gordon. Mr Andreacchio said (T 132.9-132.16) that he was aware of the Suncorp lender and that there were some issues about financiers "holding off" action.
From 5 June 2009 (until 21 February 2011), cheques and rental moneys were paid on many occasions by Mr Andreacchio to Mr Mohr (according to Mr Andreacchio, at the request of Ms Chyna Schein) (see Mr Andreacchio's first affidavit at [17]-[18]).
Mr Andreacchio says that, while Mr Darwiche was carrying out the cleaning works in late 2010, Mr Darwiche had a conversation with him regarding the sale and unsuccessful auction of the Forest Lodge Property, in which conversation Mr Andreacchio says he expressed to Mr Darwiche that the deceased was looking for offers of $1,000,000. Mr Darwiche denies that the conversation ever took place (see T 257.19-257.26). Rather, Mr Darwiche says that, while undertaking the cleaning works to the Forest Lodge Property, the deceased requested him to "ask around" if anyone was interested in a direct sale of the property due to a pending foreclosure from the bank. (Ms Bale points out that Mr Darwiche does not note when this happened with any precision; and she argues that there is no evidence that the bank ever intended to exercise its power of sale over the Forest Lodge Property at any time. However, there was evidence of default notices having been issued on 19 January 2009 and 9 February 2010, and I note the Suncorp email sent on 18 January 2011 stating that there would be no further extensions granted - see Ex 6.)
For his part, Mr Andreacchio gives evidence that the Forest Lodge Property was producing significant rental income and that there was no suggestion from anyone that a lender was proposing to exercise its power of sale; and Mr Andreacchio further says that if such a scenario was in the offing, he would have known about it. (That assumes a level of involvement by Mr Andreacchio with the property, or with the deceased, that is by no means clear on the evidence.) In any event, it is clear from the contemporaneous documents that Suncorp was indeed threatening to exercise its power of sale over the period from at least 2009 to January 2011.
Mr Moore signed a statutory declaration on 18 December 2019 (marked "MFI 6" during the hearing) in which he referred to a conversation with Mr Darwiche about the property. In cross-examination, Mr Moore said that, to the best of his knowledge, the statutory declaration was correct, but he accepted that he did not know the dates of "transactions and things" (see T 176.14-177.40). Mr Moore confirmed that Mr Darwiche had demolished a shed on the property in either 2009 or 2010 (see T 174.28).

[39]

Communications with Mr Zounis in relation to the Forest Lodge Property

Mr Michael Zounis owned an adjacent property to the Forest Lodge Property (the Forest Lodge Property being located behind three properties that fronted onto Junction Street). Access to the Forest Lodge Property was through a right of way on Junction Street; and Mr Zounis owned one of the properties on Junction Street.
The relevance of Mr Zounis in the chronology of events relates largely to communications in which Mr Zounis discussed a proposed development of the Forest Lodge Property with Mr Andreacchio. In cross-examination, Mr Andreacchio agreed that he had communicated for many years with Mr Zounis (T 114.37). The defendants place these discussions as occurring from around mid-2010 to the beginning of 2011. Mr Andreacchio, however, denied (at T 144.30) that from mid-2010 to the beginning of 2011 he was in discussion with Mr Zounis as to a potential purchase of the property. That said, Mr Zounis certainly seems to have been keen to progress discussions in relation to a development at around that time.
There is in evidence a letter sent by Mr Zounis to Mr Andreacchio, referring to a telephone conversation on 3 July 2010 (as to the option of developing the entire site including the land occupied by the three terraces - see letter dated 5 July 2010, marked Ex 4). Taken to this in cross-examination, Mr Andreacchio's response (convincing in its tone) was that he did not have time to read "all this stuff" from Mr Zounis (see T 148.9) and he said that "I didn't want Mr Zounis running the agenda" (T 149.5). Mr Andreacchio said that it was important to get Mr Zounis "off his back" and that he paid a sum of $15,000 to an organisation named Amflo for a "feasibility study" (see T 149.35; 152.49). However, Mr Andreacchio says that he did not speak to the other proposed neighbour who Mr Zounis had identified (i.e., the owner of the other property adjacent to the Forest Lodge Property) (see at T 151.28).
My observation of Mr Andreacchio in the (virtual) witness box was that he was somewhat defensive on this topic (see T 156-158). Mr Andreacchio was, however, firm in his evidence as to the conversation he had with Mr Darwiche as to the price at which the Forest Lodge Property was passed in at auction (T 162.18-162.24), maintaining that this was in 2010 (though his reason for ascribing this date to the conversation seemed to be simply because that was what was stated in his affidavit). Mr Andreacchio was no longer the managing agent for the property after 2014 (T 159) but there is nothing to suggest that he was not in communication with Mr Darwiche before that time. At T 163.2, Mr Andreacchio accepted that he was not aware of the deceased's financial situation, except that he knew the rent was going to Mr Mohr or Ms Chyna Schein, so he thought that the deceased was "travelling OK".
By email on 4 February 2011, Mr Zounis wrote to Mr Churchill (which suggests that Mr Churchill was also involved in some capacity at this point), copied to Mr Andreacchio, in which Mr Zounis referred to a discussion earlier in the week, and set out a development proposal for the Forest Lodge Property in addition to other properties at Junction Street (see Ex 4 at p 12).

[43]

Terms of the alleged agreement

The "proposed" agreement that Mr Darwiche (in his affidavit at least) said was the agreement handed to him by the deceased, and that in respect of which Ms Bale here sues, is a document that appears on its face to be in different fonts. So, for example, the coversheet (which simply names the parties as Albert Darwiche and Michel Schein) is in larger font than the balance of the document and, more relevantly, the operative clauses (cll 5-29) are inconsistently aligned. There is also a problem with the sequence or numbering of the clauses, since at the conclusion of cl 29 the numbering reverts to cl 26 (and it and the following clauses are further indented).
The document, as it appears in the Court Book, bears underlining and handwritten annotations (it being unclear whether these were on the document as signed but, if Mr Darwiche's affidavit evidence is correct - though noting that he resiled from this in cross-examination - these were on the document as handed to him).
The document is dated 21 February 2011 (in apparently the same font as the coversheet) in the heading on the first substantive page of the document, and in handwriting next to the execution clause. The document is purported to be signed by "Chyna Schein & Michel Schein" (those names being printed in handwriting next to the execution clause) but seems to bear only one signature at the bottom of each page (which looks like that of the deceased, at least by my comparison with his signature on other documents) and a different signature under the printed names (presumably that of Ms Chyna Schein). There is a space for signature by a witness but none appears to have been noted there. There is also space (above the execution clause signed by the deceased and/or Ms Chyna Schein) for execution by another party (presumably Mr Darwiche, who is the named counterparty to this agreement). It is also relevant to note that the final clause of the document contemplated the execution and exchange of counterparts (but noting that the agreement "shall be of no force and effect until the counterparts are exchanged"). At the foot of the execution page, appear the words "Agreement between", which seem to be the introductory words for the coversheet (which may perhaps simply be a photocopying glitch of some kind).
To say that the document is oddly or infelicitously drafted is an understatement. There is nothing on the face of the document to indicate by whom it was drafted.
The document (to which I will hereafter refer as the 21 February Agreement, though I do not use this definition as a label from which to conclude that it was in fact a binding agreement - bearing in mind the admonition by the High Court against such reasoning in Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at 419), recites that the deceased is the registered proprietor and owner of the Forest Lodge Property (Recital A); that Kimberley Developments "is a company focused [o]n the improvement, development and management of property and services" (Recital B); that Mr Darwiche had agreed to take actions "to participate in the improvement development and management" of the Forest Lodge Property (Recital C); and that the deceased had requested Mr Darwiche "to take actions with him to jointly develop the property" (Recital D).
The 21 February Agreement, after cl 1 (definitions) and cl 2 (containing interpretation provisions), there contained a number of operative clauses. Relevantly, I note the following clauses.
Clause 3.1 provided that the deceased wished to appoint Mr Darwiche as the "exclusive and strategic Decision maker in respect to the improvement, development and management of the development of the property" and that the deceased wanted "to take no active part in the project or projects". The clause contained an acknowledgment by the deceased as to the need for a "single decision maker in the proposed project" and (having in the first sentence stated the wish to appoint Mr Darwiche) that the deceased "hereby appoints" Mr Darwiche "or his nominees or assigns" to be the "single decision maker" (the concept of plural nominees or assigns being the single decision maker seems to be a contradiction in terms). Clause 3.2 provided, among other things, that Mr Darwiche may assign each and any rights under the agreement and appoint "such agents, distributors or licences [sic]".
Clause 4.1 (under the heading "Rights and obligations of Albert Darwiche") provided that, during the "Term" (capitalised but not defined) of "this Agreement", Mr Darwiche "shall take all actions he considers necessary for the improvement development and management" of the Forest Lodge Property and that Mr Darwiche "is authorised and directed to take such actions as he in his absolute unfettered discretion deems necessary" (a very broad discretion and on its face not in the deceased's interests).
This clause (in a separate paragraph) provided that Mr Darwiche "will transfer 60 percent of the Class B non-voting shares" in Kimberley Developments to the deceased "upon the signing this Agreement, and the [sic] on the signing of the agreement for the sale of the land to Kimberley Developments … and on the signing of a transfer of title of the land [the Forest Lodge Property] to Kimberley Developments …". Against this clause appear the handwritten words (which can only sensibly have been written at some later point) "where are shares?".
Clause 4.2 provided that Mr Darwiche "will make payments on any shortfall on mortgage payments in respect of the property from the date of settlement" and that Mr Darwiche was "authorised to use any income from the property to use for whatever purpose he may consider appropriate".
Clause 4.3 provided that Mr Darwiche was to "take such actions as he in his absolute unfettered discretion considers necessary for the improvement and development of the property" and that the parties agreed to improve, develop, and manage the property using the Company.
Under the heading "The Parties Agree", there were then various short clauses (inconsistently aligned) dealing (among other things) with the parties' agreement as to their aims and objects in relation to the company and to provide for the operation and administration of the company (see cl 6), including the shareholding of the company (cll 8-19) and its management on a day-to-day basis (by Mr Darwiche) (cl 7).
Relevantly, there were to be two classes of shares - Class A shares with full voting rights, the shareholders of which were to make all decisions; and Class B shares with no voting rights. Apparently in case that was not clear enough, the agreement also provided that Class B shares were to have no voting rights in respect of the appointment of directors and Class A shares were to have full voting rights in respect of the appointment of directors. The 21 February Agreement recorded that the parties envisaged that in the "normal course of business" dividends and profits would be paid to Class B shareholders. Clause 16 in effect repeated what was provided for in cl 4.2 in relation to the making of mortgage payments of any shortfall in mortgage and the use of any rental or other income coming in from the property by Mr Darwiche to make mortgage or other payments due on the property.
Clause 17 specified that the deceased was to hold 60% of the Class B shares and Clause 18 in turn specified that Mr Darwiche was to hold 40% of the Class B shares. The holder of the Class A shares was not identified.
Clause 21 referred to an agreement by the parties that Mr Darwiche use the property to obtain replacement finance for the mortgage currently held over the property; that it was the intention of the parties to use Kimberley Developments as a "borrower" and the land as security; that the payments made during the term of the agreement would be "credited" to Mr Darwiche and be reimbursed to him; and that the parties acknowledged that Mr Darwiche needed to approach a non-bank lender to obtain funding and the deceased requested Mr Darwiche to take immediate action to obtain such funds.
Clause 22 provided that the parties agreed that should the development not proceed then Mr Darwiche "shall be reimbursed for all sums expended" (against which there is a handwritten note, again which must have been placed on the agreement at a later date - "what sums have been expended?"). There is a deletion from cl 22 (seemingly otiose words "that if" after "should") and (which I consider not insignificant) the deletion of those words has been initialled.
The content of cll 21 and 22 are seemingly for Mr Darwiche's benefit - and, again, not obviously in the deceased's interest as to reimbursement "for all sums expended" in the circumstances contemplated by the case.
Clause 24 is a lengthy (and in parts repetitive) clause dealing with legal costs in respect of the property and the formation of the company, including that the parties authorise Mr Churchill to place a caveat or caveats on the property should he consider it appropriate to secure his fees, costs and disbursements and that the parties pledged the property as security therefor. (There is a handwritten note, again seemingly written after the event, against this clause "what were his costs".)
Clause 25 recorded the parties' intention that Mr Churchill was to rank as the primary secured creditor in respect of the property and provided for the parties to indemnify Mr Churchill from "any failures to secure such position".
The defendants contend that the above clauses indicate that Mr Churchill drafted this agreement (and they contend that this was done on the instructions of the deceased on the basis that this was within the particular knowledge of the deceased not Mr Darwiche). Ms Bale (to the contrary) submits that the document was most likely drafted by Mr Darwiche with the help of Mr Churchill (see below).
Pausing here, I accept that it seems likely that the agreement was drafted by Mr Churchill or at least by someone with an interest in affording him priority or security for his fees and with his lawyer (though I frankly cannot see that the draftsmanship of this agreement is anything of which a lawyer could be proud, and it seems to me on its face more likely to be an agreement cobbled together by a non-lawyer). That said, I have no knowledge of Mr Churchill's drafting skills (or otherwise) to be able to comment on the likelihood that he did in fact draft it. However, I cannot see that the agreement was inherently to the deceased's advantage (particularly noting the absolute and unfettered discretion accorded to Mr Darwiche; his sole decision-making capacity under the agreement; and the provisions for reimbursement to him of payments made; amongst other provisions to his obvious advantage), which makes it implausible to my mind that the deceased was responsible for its drafting.
Ms Bale maintains that the agreement encapsulates the terms and representations upon which Mr Darwiche "enticed" the deceased to transfer the property, noting in this regard that the 21 February Agreement is dated the same day the transfer of the Forest Lodge Property was signed.
Clause 26 (where first occurring) provided that the parties had agreed a price for the property of $590,000 based on a listing of the property by "A Licenced [sic] Real Estate agent" for $600,000, stating that "[t]his listing was not able to obtain any acceptable offers". The clause recorded that the parties had agreed that the property would be sold by the deceased to Kimberley Developments for $590,000. (The defendants rely on this - and other clauses - as suggesting that the agreement was drafted on the deceased's instructions.)
Clauses 28 to 29 (where first occurring) dealt with matters relating to the development costs and development approval; and cl 27 (where first occurring) provided for the vesting in Mr Darwiche (in the event of a winding up of the company "or this joint venture") of the intellectual property of the company and the joint venture, including any rights that may accrue from a development application or building application or any variations.
After cl 29, and a space in the document, there is then a section headed "Michel Schein agrees", commencing from cl 26. In that section the document provides for: the deceased's agreement on the signing of the agreement to enter into an agreement for the sale of land to Kimberley Developments (cl 26); that on the signing of the agreement the deceased will sign a transfer of title of the land to Kimberley Developments (cl 27) ; and that the deceased will pay all land tax, water rates and Council rates up to the date of settlement (and goes on to record a request for delay in calling on those contributions "until Darwiche determines that they must be paid" (cl 28)).
Clauses 29 (where second occurring) to 33 provide that: 29. Schein agrees that Darwiche provided substantial work on the property and removed materials from the property at the request of Schein to enable the development to proceed. The parties agree that all such sums that may be owed to Darwiche by Schein have been merged in this agreement. Darwiche has provided a professional and workman like service to Schein who wishes to enter into this Arrangement with Darwiche. 30. Michel Schein hereby acknowledges receipt of the sum of $590,000.00 for the sale of the property comprising of the discharge of the outstanding Mortgage, the shareholding in the Company and for settlement of monies owed to Darwiche in respect of the clean up and improvement of the property and other services. 31. A signature on any document by his wife Chyna Schein, also known as China Schein shall bind Michel Schein. Michel Schein has appointed his wife Chyna Schein also known as China Schein under a Power of Attorney. Michel Schein advises Albert Darwiche that such Power of Attorney was challenged in the Guardianship Tribunal of New South Wales and was upheld to be a valid Power of Attorney. 32. Schein advises Darwiche that Schein was in default of his Mortgage with Suncorp who were to take possession of the property. Schein has requested Darwiche to take all actions necessary to obtain finance including finance from private financiers. 32. Schein has advised Darwiche that he has difficulty in travelling to Sydney and wishes to remain a passive investor. Schein has authorised Darwiche take all such actions that Darwiche may consider necessary. 33. Schein agrees that his interest in the Property has been transferred to the Company Kimberley Developments Pty Ltd. Schein acknowledges that he has no right to place caveats or other restrictions on the property.
Against cl 29 in this section are the handwritten words "does that make Dad's costs part of contract? OR is [sic] monies still owing?" (which indicates that this, and the earlier handwritten comments, are those of Ms Bale).
As noted above, cl 31 provides that a signature on any document by Ms Chyna Schein shall bind Michel Schein (and notes that Ms Chyna Schein has a valid power of attorney). Reliance is placed on this (by Ms Bale, as indicating that Mr Darwiche was aware of the deceased's cognitive ability at the time - see below). I would not draw such a conclusion - since it is equally possible that provision was here being made in case there were to be a challenge in future - particularly since Mr Darwiche's own evidence was that the deceased had told him about a challenge by his daughter in NCAT.
After cl 33, there appear various clauses (seemingly boilerplate but including a confidentiality provision) that are not sequentially numbered in accordance with the earlier clauses.
Ms Bale contends that Mr Darwiche, having become aware of the prospect of sale of the Forest Lodge Property, incorporated Kimberley Developments in early February 2011 and that, at or around that time, Mr Darwiche proposed to the deceased that if the deceased transferred the Forest Lodge Property to Kimberley Developments, Mr Darwiche would develop the Forest Lodge Property with a view to selling it for a profit. It is said that, with that in mind, Mr Darwiche and Mr Churchill drafted the 21 February Agreement. Ms Bale says that, given the terms of the agreement, and what she maintains is the cognitive decline of the deceased, it is impossible to conclude that it emanated from anyone else but Mr Darwiche. In that regard, Ms Bale contends that the relevant terms of the 21 February Agreement were not commercial and confer a disproportionate advantage on Mr Darwiche.
Mr Darwiche maintains that he never agreed to any of the terms in the 21 February Agreement. Mr Darwiche asserts that Mr Churchill showed him a copy of the agreement (already executed by the deceased) and that "upon reviewing this agreement, I rejected the agreement" (although in cross-examination Mr Darwiche seemed to resile from the proposition that he had carried out any real review of substance of the document - see T 214.42-217.21).
Similarly, Mr Theo Trigas (who is not named as a party to the agreement nor is he the subject of any clause in the agreement) states in his second affidavit sworn 25 February 2020 at [9] that he considered the proposal and also rejected it.
The defendants emphasise that the copy of the 21 February Agreement in evidence is not executed by any of Kimberley Developments, Mr Darwiche or Mr Theo Trigas.
Mr Darwiche and Mr Theo Trigas maintain that there was an oral agreement between themselves and the deceased for the deceased to transfer the Forest Lodge Property to Kimberley Developments for $590,000 only (that sum comprising a discharge of the outstanding mortgage sum of around $285,000 owing to Suncorp Bank and the alleged debt owed to Mr Darwiche for cleaning up the Forest Lodge Property of around $38,000, with the balance to be paid in cash). The defendants point to the fact that the transfer, as registered, records the consideration for the transfer of the property as being in the sum of $590,000.
No contract for the sale of the property has been produced in evidence. Ms Bale contends that there is none; the defendants contend that it should be inferred (from the stamp duty paid on the transfer and the Duties Notice of Assessment) that a standard form contract for the sale of the land as used in New South Wales was indeed executed and exchanged on 21 February 2011 (and they have given hearsay evidence to the effect that Mr Churchill said it was lost).
The defendants maintain that the deceased insisted that the remaining balance (after discharge of the Suncorp mortgage and taking into account the $38,000 debt to Mr Darwiche), totalling just over $300,000, be paid in cash. The defendants state that this money was provided by the now deceased Mr Marinos Trigas (the father of Mr Theo Trigas and Mr Arthur Trigas) who it is said had at any one time up to $500,000 in cash in a safe at his home (having, it is said, made his money in the sale of cigarettes) (see T 288.42-289.3). Ms Bale points out that there is no evidence of the moneys being paid, other than the assertions of Mr Darwiche and Mr Arthur Trigas; in particular, that there is no evidence of the funds being withdrawn or any receipt for their payment. Ms Bale maintains that the account of a cash payment is an obvious lie and refers in this regard to the observations of Hammerschlag J, as his Honour then was, in Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297 (Sergienko v AXL Financial Pty Limited) at [1] as to large undocumented cash transactions, namely that: A party asserting, and seeking to rely upon, the terms of an alleged, undocumented commercial transaction said to involve the transfer of very large sums of cash, ought not to be taken by surprise when he, she or it fails to persuade the Court of its existence.
Mr Darwiche and Mr Arthur Trigas were cross-examined on their accounts of the payment in cash of over $300,000 to the deceased and Ms Chyna Schein in the house at Woolgoolga on 21 February 2011 (and the counting of the money), together with the issue of the lack of any receipt for the money. I refer to this cross-examination in due course.
Mr Darwiche said that the cash payment was made up of bundles of $50,000 and that the $50,000 bundles were in turn made up of $10,000 bundles. In cross-examination, Mr Darwiche said that the deceased did not actually count the individual bank notes but that he counted the bundles; and that it took half an hour to count six identical bundles (T 249.43). Mr Darwiche's evidence was that the question of the giving of a receipt was raised but that Mr Churchill and the deceased said that the sales contract and the transfer were the receipt (T 251.16).
A transfer of the title to the Forest Lodge Property from the deceased to Kimberley Developments was in evidence. The transfer is dated 21 February 2011 and appears to be signed by the deceased, whose signature is witnessed by Ms Chyna Schein. The transfer was signed by Mr Churchill as "solicitor for the transferee". (For the defendants, it is submitted that, on 21 February 2011, Mr Churchill was working for Mr Theo Trigas on behalf of Kimberley Developments or perhaps for Kimberley Developments on behalf of Mr Theo Trigas - see T 264.10. One difficulty in this submission is that if that is the case the transfer was signed by the solicitor, allegedly on behalf of Kimberley Developments, but instructed by someone who (on the ASIC records at the time) had nothing to do with the company.)
The transfer acknowledged receipt of the consideration of $590,000. The copy of the transfer in evidence was stamped for duty of $10.
On 24 February 2011, payment of $288,242.63 was made directly to Suncorp via bank cheque in payment of the outstanding mortgage over the Forest Lodge Property. There are bank statements in evidence that record the payment of $22,606 (for stamp duty on the purchase price of $590,000).

[53]

March 2016 - second application to NCAT

On 4 March 2016, Ms Bale submitted an application to NCAT for the review of the power of attorney that the deceased had granted in favour of Ms Chyna Schein. In support of that application, Ms Bale submitted various documents, including a medical certificate dated 1 March 2016 from a general practitioner in Wyong (Dr Howard Oxley) who stated his opinion that the deceased was suffering from a "degree of dementia" but nevertheless was satisfied that the deceased understood his own feelings and his present home situation and who said that the deceased's responses "confirm that he is in a good frame of mind to make a decision as to where he wishes to live and with whom"; the statement from Pastor Vaughan (referred to above); and the report of Dr Regal (also referred to above).
The hearing at NCAT commenced on 31 May 2016. Handed up during the hearing was a statement dated 24 May 2016 by Ms Bale in which Ms Bale recounted various matters (including as to difficulties with the Summer Hill development, to which I have referred above) and her concerns. In that statement, Ms Bale stated that all the properties her father had at the time of his marriage to Ms Chyna Schein had been sold "as far as we know" and that the deceased was on a government pension but that she did not know what had happened with the proceeds of the properties and any income earned from them. (The statement also suggested that, by the time the deceased had returned to live with Ms Bale, Mr Mohr was no longer in contact with the deceased; according to Ms Bale the deceased had been told by Ms Chyna Schein that Mr Mohr had gone to Machu Pichu.)
Ms Bale says that, at the 2016 NCAT proceeding, Ms Chyna Schein stated that she: wanted a property settlement from the deceased and believed that half of all of his assets belonged to her; wished to defend the validity of the power of attorney appointing her appointee; and believed that the deceased was still a 60% owner of the Forest Lodge Property by virtue of an agreement as between the deceased, Kimberley Developments and Mr Darwiche. (It is in this context that Ms Bale says that she first became aware of the existence of the 21 February Agreement. Ms Bale says that the Tribunal advised her to make further inquiries about the transaction.) The hearing was adjourned on 31 May 2016 and resumed on 11 August 2016.
In cross-examination, Ms Bale said that she assumed that all the properties had been sold because the deceased had become an aged pensioner in April 2011 (see T 106.44-107.6).
Ms Bale said that the 21 February Agreement was put in front of her for the first time at the NCAT hearing on 11 August 2016 (T 104.8) and that it bore the original signatures of Ms Chyna Schein and the deceased. (One logical difficulty that flows from this seems to be that, if the contracts were executed and exchanged as counterparts, one would assume that Mr Darwiche would hold the original counterpart as executed by the deceased and that what Ms Chyna Schein would have retained would be the original executed by Mr Darwiche.)
Ms Bale notes that Ms Chyna Schein told NCAT that the Forest Lodge Property had sold for $590,000 (T 109.6-109.7). (This is consistent with the transfer registered in relation to the sale of the property and cl 26 of the 21 February Agreement. However, it does not exclude the possibility that the $590,000 there recorded as consideration had been agreed to be regarded as paid by the issue of shares in the company which is the understanding to which Ms Chyna Schein deposed at the NCAT hearing.)

[61]

Pleaded case

I have referred above to the pleaded case as against the various defendants and to the amended defences thereto.
As noted, the principal claim against the (active) defendants is for unconscionable conduct in relation to the 21 February Agreement (noting that the claims for undue influence and for misleading or deceptive conduct were not pressed) and it is only in the alternative that claims for breach of contract are made. There are, however, also claims for breach of constructive trust by Kimberley Developments and disbursement of trust funds in breach of trust (see [69]-[71]) and breach of trust in the transfer of the funds to Super Start, including accessorial claims against Mr Theo Trigas of knowing concern in breaches of trust.
As against Ms Chyna Schein, the claim is in essence for damages for breach of the fiduciary obligation owed by her as the deceased's attorney in relation to the sale transaction in question.
In opening written submissions, the crux of the case for Ms Bale was described as being that the deceased was preyed upon by Kimberley Developments and Mr Darwiche, who it is said induced the deceased to enter into a complex agreement that they knew he could not have understood. Similarly, in closing submissions, Ms Bale contends that Mr Darwiche persuaded the deceased to enter into the 21 February Agreement.
Insofar as the defendants in their submissions suggested that Ms Bale was abandoning the pleaded claims pursuant to the Contracts Review Act or the Australian Consumer Law, Ms Bale in reply submissions affirmed that the case as to relief under the Contracts Review Act is pressed. (What is not pressed (see T 324) is: the relief claimed in relation to capacity ([6]); the Australian Consumer Law relief (see [9], [10], [14]); the claims at [33] and [34] and the misleading or deceptive conduct allegations at [46]-[49].)
The defendants' position in summary is that Ms Bale has failed to prove her case; that the 21 February Agreement is not binding; and that Ms Bale has not established part performance of the Agreement and therefore s 54A of the Act provides a complete defence. The defendants say that their evidence should be accepted and that there should be a finding that the cash payment was made to the deceased in accordance with the sale of the Forest Lodge Property that was memorialised in a (now lost) standard form contract for the sale of land and the transfer. It is said that Mr Churchill retained the contract for the sale of land and arranged for it and the transfer to be stamped; that Super Start (of which Mr Theo Trigas is sole director and shareholder) paid for the discharge of the Suncorp mortgage over the Forest Lodge Property in the sum of $288,242.63 and paid the stamp duty in the sum of $22,060.00.
It is submitted that there is insufficient evidence to conclude on the balance of probabilities that, as at 21 February 2011, the deceased was unable to understand the general nature of the sale transaction; and that if (which is denied) the deceased was incapacitated, it is said that Ms Bale has failed to establish that the defendants had or ought to have had any knowledge of that incapacity.
The defendants further say that the claims are not maintainable as they have been brought after the expiration of a limitation period of six years relying on ss 14 and 23 of the Limitation Act; and that Ms Bale has failed to establish that the deceased was suffering from a disability within the meaning of s 52 of the Limitation Act at the relevant time. Further, the defendants say that Ms Bale has not articulated how her claim is a cause of action for an equitable estate or interest in land. The defendants acknowledge, however, that, to the extent that the cause of action relied upon by the plaintiff is that there is a remedial constructive trust, the plaintiff's claim is effectively a claim for an interest in land and on this basis would not be statute barred (T 359.44-360.19). The defendants also contend that they have made out a defence of laches.

[64]

The representations of Dr Sawrikiar and RN Price

At T 12.45; T 14, I reserved the question whether representations identified by the defendants that were made by Dr Sawrikiar (the deceased's general practitioner) and RN Price (a nurse who recorded various observations in the deceased's hospital or medical records) those representations being contained in medical records and notes tendered by Ms Bale as business records, should be excluded as inadmissible opinions (as the defendant contends) within the meaning of s 76 of the Evidence Act.
Reference is made by the defendants to the observation by Beech-Jones J (as his Honour then was) in Rodriguez and Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 13) [2018] NSWSC 565 at [3] that s 69 of the Evidence Act operates as an exception to the hearsay rule only so far as the document contains the representation and that it is the evidence of that representation (and not the document generally) that s 69 renders admissible (his Honour there citing Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 at [88] where Leeming JA in turn cited the decision in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 (Lithgow City Council) at [17] per French CJ, Heydon and Bell JJ). The defendants note that, in Lancaster v The Queen (2014) 44 VR 820; [2014] VSCA 333, Nettle and Redlich JJA and Almond AJA confirmed (at [68]) that a representation of opinion is not admissible under s 69(2) of the Evidence Act unless it complies with the requirements for admission of opinion evidence prescribed by ss 76-79 of the Evidence Act, citing Lithgow City Council.
The defendants submit that (although accepting that the documents that contain the representations are admissible as business records), if the representations made by Dr Sawrikiar and/or RN Price are relied upon by Ms Bale as to the truth of the facts asserted therein, then the particular representations identified by the defendants are inadmissible statements of opinion within the meaning of s 76 of the Evidence Act unless they satisfy an exception to the opinion rule.
It is submitted that, in the absence of sufficient reasoning, and for the additional reasons set out in the defendants' schedule of objections, the representations made by Dr Sawrikiar (to the effect that the deceased had "early onset of dementia" as at an unidentified date after 10 March 2007) and by RN Price (that the deceased's judgment or insight and thought content or processes were both "reduced" as at 29 April 2008) should not be admitted as they do not satisfy s 79 or s 135 of the Evidence Act. It is said that it is not known if the opinions are within the education, training and experience of the author, as there is no evidence as to the author's education, training or experience, and in the absence of any reasoning the Court cannot be satisfied that the evidence is based wholly or substantially on that knowledge (citing Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [31]-[32] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In reply submissions as to the deferred evidentiary rulings, Ms Bale maintains that the deceased's medical records are admissible, referring to Albrighton v Royal Prince Alfred Hospital & Ors (1980) 2 NSWLR 542 for the proposition that hospital medical records and assessments are taken as admissible as evidence of the facts of the case. There it was held (at [90] per Hutley JA with whom Reynolds and Hope JJA agreed) that medical records of a hospital and by extension of a practice are "kept for the information of the staff and treating doctors" and therefore, fall within the exception to the hearsay rule for business records.
Ms Bale notes that the various medical records were admitted (mostly subject to weight) as business records for the purpose of the fact of the recording of various notes by doctors and nurses who were examining the deceased as his treating medical practitioners. Ms Bale accepts that a single medical record indicating the prospect of the deceased suffering from advanced dementia would be of limited evidentiary value but argues that the fact that numerous entries were made about the same issue provides strong evidence that the deceased was in mental decline as alleged.
Insofar as the defendants contend that the records of Dr Sawrikiar or RN Price do not comply with the requirements for admission of opinion evidence, Ms Bale submits that this should be rejected. It is said that they are trained medical professionals giving a diagnostic opinion wholly based on their training study or experience in accordance with s 79 of the Evidence Act.

[66]

Transcript from the 2016 NCAT hearing (Ex C)

For Ms Bale, the entirety of the transcript of the 2016 NCAT hearing is tendered. It is submitted that the transcript is relevant both for what Ms Bale said and for what Ms Chyna Schein said (see submissions at T 109.28-109.31) and that the rest should be admitted as context (T 179.35). As to the hearsay objection in relation to Ms Bale's evidence to the Tribunal, it is noted that Ms Bale was made available for cross-examination. The real issue is as to the transcript of Ms Chyna Schein's evidence (she being unavailable for cross-examination).
The defendants submit that anything attributed to Ms Chyna Schein at the NCAT hearing upon which Ms Bale relies for the truth of those statements should be limited pursuant to s 136 of the Evidence Act as evidence that the statements were made by Ms Chyna Schein during the NCAT hearing but not as to the truth of the statements.
During the course of the proceeding, I admitted the transcript provisionally (subject to weight) as Ex C, but indicated that insofar as there were particular representations where there was a prejudice identified by the defendants, I would admit that representation subject to a s 136 limitation (T 182.23). (A schedule of the representations contained in the transcript was marked as MFI 7 during the hearing.)
The defendants did not identify, in the course of final submissions, any particular representations by which they would be prejudiced but maintain that if a s 136 limitation is not made in respect of that evidence, then they are prejudiced by the inability to test Ms Chyna Schein's evidence (including evidence that they say is demonstrably factually incorrect). In that regard, it is noted, by way of example, that Ms Chyna Schein gave evidence at NCAT that the deceased "found a partner" (who she later identified as Mr Darwiche) and "opened a company with this guy"; that the partner paid off the loan; and that the deceased still owned the Forest Lodge Property which was solely in his name.
In this regard, as is evident from the above chronology of events, it was obviously incorrect as at 2016 for Ms Chyna Schein to suggest to NCAT that the Forest Lodge Property remained solely in the deceased's name. It had been transferred - pursuant to a transfer she had herself witnessed - to Kimberley Developments in 2011.

[69]

Determination

It was not disputed that evidence to which objection was taken (the medical records and transcript) was hearsay (and hence not admissible pursuant to s 59 of the Evidence Act as evidence of the truth of a fact supposed by a previous representation (see De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2011) 200 FCR 253; [2011] FCA 645 (De Bortoli Wines) at [25] per Stone J; Fodare Pty Ltd v Shearn [2010] NSWSC 737 (Fodare v Shearn) at [14] per Barrett J). Nor was it disputed that, where evidence satisfies s 69 of the Evidence Act such that the hearsay rule does not apply, this nevertheless does not affect the question whether an opinion expressed in a business record is admissible; that being contingent upon whether ss 76-80 permit the use of that opinion (see Lithgow City Council at [18]-[22] per French CJ, Heydon and Bell JJ; Shafston Avenue Construction Pty Ltd, in the matter of CRCG-Rimfire Pty Ltd (subject to a deed of company arrangement) v McCann (No 3) [2021] FCA 938 at [142] per Reeves J; see also JD Heydon, Cross on Evidence (2021, 13th ed, LexisNexis) at [35555]).
The medical records tendered by Ms Bale could not be admitted as expert evidence because the holders of those opinions had not acknowledged and were not bound by the expert witness code of conduct (and the medical practitioners were not being made available for cross-examination to test their opinions). The difficulty as to the admission of the representations contained in these records as to the mental condition of the deceased is that the records do not include sufficient information as to the basis upon which the opinion was formed (such as would enable those opinions to be assessed). While I would be prepared to infer (from their medical qualifications) that the medical practitioners held specialised knowledge in their respective areas of practice, neither Dr Sawrikiar nor RN Price appears to be a specialist in the area of geriatric medicine or dementia. The medical records do not in my opinion provide sufficient evidence as to the basis for the opinions there expressed (and, in any event, it can be seen from the medical records extracted above that the opinions were relatively qualified at the time that they were made). Accordingly, for that reason I find that the evidence is not admissible as opinion evidence pursuant to s 79 of the Evidence Act (see the well-endorsed passage of Heydon JA (as His Honour then was) in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85]). Those records will therefore be admitted only for the fact that such statements were made, not as to the truth of the conclusions there stated.
Pausing here, it does not seem to me that much ultimately turns on this. Even had the records been admitted as opinion evidence, they would not necessarily have assisted me. An opinion that the deceased had mild dementia at a particular time would not, for example, permit me to conclude that the deceased had no capacity to understand matters in relation to particular transactions on particular days; nor even would an opinion of moderate dementia (even were capacity to have remained in issue in the proceeding; which it has not). Moreover, it seems to me not insignificant that in 2008 there was a finding made by NCAT in effect that the deceased was capable of making his own decisions and, as at June 2011, the deceased's own solicitor of many years (Mr Hancock), though concerned as to the content of instructions he had been given, nevertheless appeared satisfied that he could proceed on the basis that the deceased did have capacity to give instructions in relation to his property dealings (for example, in relation to the issues on which Mr Hancock had sought and was apparently prepared to act upon the deceased's instructions).
The relevant issue here is whether the deceased was under a special disadvantage or disability (of which the respective defendants were aware and which they exploited) such as to give rise to a conclusion that there was unconscionable conduct in the defendants' dealings with the deceased.
There is no doubt that the deceased was, by the end of his life, suffering significant cognitive impairment. What is by no means clear is when the severity of that impairment would have been manifest to persons, such as the defendants, who were then dealing with him. I consider this issue in due course.
As to the 2016 NCAT reasons, I do not accept that the findings of fact there made would be admissible in this proceeding (see s 91 of the Evidence Act; see also Quach v MLC Limited (No 6) [2021] FCA 271 at [8]-[10] per Rares J) (and in any event the basis for NCAT's decision to remove Ms Chyna Schein as attorney, which is the issue to which the reasons were addressed, is not of assistance to me on the issues here to be determined - that being a perceived conflict of interest on the part of Ms Chyna Schein).
Turning to the 2016 NCAT hearing transcript (Ex C), it was said by the defendants in closing submissions that the question of its admissibility might well be a "non-issue" given that Ms Bale did not rely on anything contained in the transcript in any detail (T 335.30-335.36). However, I did not understand Ms Bale to be abandoning any reliance on the transcript and so it is necessary to deal with this.
Pausing here, whether the transcript was admissible as containing admissions by Ms Chyna Schein (see s 81 of the Evidence Act) would not assist in relation to the claims against the other defendants (but as against Ms Chyna Schein it can be noted that s 81 provides that the hearsay and opinion rules do not apply to evidence of an admission; nor do they apply to evidence of a previous representation that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and to which it is reasonably necessary to refer in order to understand the admission) (and see in this context s 82 of the Evidence Act).
As to the objection by the defendants to the admission (without a limitation) of the evidence given by Ms Chyna Schein to NCAT in 2016, I accept that the inability to test the evidence of Ms Chyna Schein is a relevant consideration that may cause some prejudice to the defendants (and it means that I would in any event be hesitant to place reliance on any evidence given by her that goes to contested factual matters). While this seems to me largely to go to a question of weight, I will limit the admission of that evidence pursuant to s 136 for the fact that this was what was said at the Tribunal by Ms Chyna Schein (and not as to the truth of the statements there made). The fact that Ms Chyna Schein made certain statements in her evidence to the Tribunal has some relevance (for example when considering the actions taken by Ms Bale thereafter) but ultimately I do not place any great weight upon the untested assertions contained in the transcript (not least because of the obvious self-interest of Ms Chyna Schein in the giving of that evidence at the Tribunal and that parts of the transcript demonstrate that Ms Chyna Schein's understanding or recollection of events was not reliable given the matters shown to have been clearly incorrect).
The same evidentiary deficiencies discussed above in relation to the medical records are applicable in respect of Annexure Q and p 240 of Annexure R; and thus I accept the defendants' submissions in this regard. These documents will therefore be admitted only for the fact that such statements were made, not as to the truth of the conclusions there stated. With respect to p 235 of Annexure R, which the defendants complain is not admissible pursuant to the hearsay and opinion rule, I again will only admit this document for the fact that such statements were made not to the truth of those statements.
To the extent that the documents tendered as Ex 1 are hearsay (pursuant to s 59 of the Evidence Act) I consider that the documents fall comfortably within the business records exception, as account statements, internal Suncorp reports, registered documents and correspondence between Suncorp and the deceased, and I admit them on that basis.
Finally, for completeness, I note that objection was taken to the tender of, or reliance placed on, a judgment in an earlier District Court proceeding in which Mr Arthur Trigas had made a personal injury claim (and his evidence had not been accepted) (see Trigas v Owners of Strata Plan [2019] NSWDC 473). I rejected the tender of that judgment (it being tendered to show that Mr Trigas had not been accepted as a witness of truth) (see T 316.20). As indicated at the hearing, the fact that Mr Arthur Trigas' evidence was not accepted in that case or that adverse credit findings were there made does not assist me in determining the issues now before me. It does not follow that because a witness is disbelieved on particular matters that he or she ought to be disbelieved on all matters (see Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 63 (Steinberg v Federal Commissioner of Taxation) at 695 per Gibbs J, as his Honour then was; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah) at 136 [100] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [232] per Heydon J). I consider that Mr Arthur Trigas' credibility should be tested on the evidence and material before me in the present proceeding (not the fact that he may falsely have brought a personal injury claim in some other proceeding).

[71]

Ms Bale

The defendants say that Ms Bale's evidence was "problematic", referring to the following matters.
First, that Ms Bale conceded that, in respect of the time Ms Bale was managing the Summer Hill development under power of attorney, she had not told the truth when she denied knowing about attempts in 2008 to refinance the secured debt over the Summer Hill Property with Challenger Finance.
Second, in respect of the signatures on the strata plan of the Summer Hill development on behalf of the registered proprietor, that Ms Bale gave conflicting evidence (on the one hand that she had signed the strata plan and on the other hand that it was the deceased who had signed the strata plan).
Third, it is said that Ms Bale gave conflicting and self-serving evidence in respect of the date of registration of the strata plan. Ms Bale gave evidence that the registration of the strata plan occurred on 2 or 3 June 2008 on "a Friday" and that she had a specific recollection of that because it was "blood, sweat and tears" and "important" and that she had "delivered it personally", having attended the Council, Suncorp's office and Mr Hancock's office. However, it is noted that Ms Bale later conceded that she might have been wrong and that it might have been between 2 and 11 June 2008 and said "I mean, we are talking 2008 and that's what - how many years? That what, 13 years ago? So I may have got that wrong. And if I have, I'm sorry". The defendants note that when it was then put to Ms Bale that the signing of the strata plan happened after revocation of her power of attorney on 13 June 2008, despite her concession that her recollection may have suffered from the passage of time, Ms Bale responded "[n]o, it didn't happen after 13 June. No way, Jose. No". The defendants say that this last answer is self-serving and was only given in that unequivocal manner because Ms Bale feared making an admission to having done the wrong thing by continuing to act as the deceased's attorney after it was revoked. (I do not accept that Ms Bale's evidence was consciously self-serving in that regard. Rather, I considered Ms Bale's evidence to be a genuine expression of the firmness of her belief as to the events about which she was there being questioned.)
Fourth, the defendants say that there was conflicting and dissembling evidence about Ms Bale's role in the Summer Hill development. The defendants say that that, on the one hand, Ms Bale stated that in 2007 and 2008 she was not involved in the development being actually built and that her activity in those years was trying to get Council approval but, on the other hand, Ms Bale stated that in 2007 she "didn't know" that the credit recovery team of Suncorp was in contact with her and the deceased regarding further delays that had occurred at the development, due to the configuration of the stormwater drainage system not being signed off by an engineer and approved by Council. It is noted that Ms Bale later gave evidence as to handling sales and being in contact with Mr Andreacchio, attending court with the deceased relating to litigation involving the second builder and opening all of the deceased's letters.
Fifth, it is said that Ms Bale gave dissembling evidence as to the date she was notified that her power of attorney for the deceased was revoked. The defendants point out that, in her affidavit, Ms Bale only deposed to receiving a copy of a document revoking her power of attorney on 13 June 2008; whereas in cross-examination Ms Bale variously insisted that she had received notification of the revocation during a business phone call with an unidentified person after 13 June 2008 and then conceded that it might have, or must have, been before 13 June 2008.
Sixth, it is said that Ms Bale gave conflicting and dissembling evidence about whether she had Ms Chyna Schein's telephone number. It is said that Ms Bale gave evidence that "I didn't have her telephone number. I had no contact details to speak to her one way or another" but then said "I correct myself. I think dad gave me her telephone number, said that I could ask about the details as to where it was. I didn't realise that I needed to put all of that information in the affidavit for a matter that happened three years afterwards".
Finally, reference is made to the evidence Ms Bale gave to the effect that she had kept a diary, including during the period of the Summer Hill development, in which she made contemporaneous notes. The defendants point out that none of the diary notes is in evidence. It is noted that Ms Bale purported to annex a copy of her diary to her affidavit but resiled from this in her cross-examination, stating that she provided the "diaries" to her counsel (T 107.45-108.6). The defendants submit that it should be inferred that the diary (or diaries) would not have assisted Ms Bale's case on these issues, particularly in light of her conflicting and dissembling evidence as referred to above. (Pausing here, I note that Ms Bale offered to produce the diary but no call for it was made - see T 107.45-108.6.)
Ms Bale was loquacious and in my view a very open and genuine witness. Ms Bale was co-operative in cross-examination, not reticent in answering questions, with a tendency to digression (see T 43) and often "jumping in" to answer anticipated questions; and at times somewhat rambling in her answers (see for example at T 98). Ms Bale candidly accepted that her memory was not good (see at T 48) and was prepared to concede that events may have occurred other than as she remembered them (such as in relation to the Zounis email and as to the signing or delivery of the strata management plan in 2008).
My impression was that Ms Bale often spoke almost in a stream of consciousness manner (or off the top of her head based on her then recollection) without necessarily focusing carefully on the detail of the chronology of events that she was there describing. This was particularly evident in the evidence of her delivery of the signed strata plans or Strata Management Statement. It was quite apparent that Ms Bale's focus was on her relief that the Council approval had been obtained (and the blood, sweat and tears that it had taken to obtain it); not on the logistics involved.
I found Ms Bale to be a sincere and credible witness overall, although her recollection of events was not always reliable when tested against the contemporaneous documents. That is not surprising given the passage of time and it does not to my mind bespeak any attempt to misstate the evidence or to advance the plaintiff's case.
I accept that Ms Bale was genuinely concerned at the relevant time as to the position of the deceased and his vulnerability to exploitation (which seems to me to be obvious, whether or not he was then suffering from undiagnosed dementia, having regard to the somewhat extraordinary turn of events surrounding his marriage to Ms Chyna Schein and the unexplained presence of Mr Mohr as part of the marital arrangements, and having regard to what happened thereafter). Ms Bale was genuinely and visibly upset in the witness box (T 48) at the events that had occurred. I do not accept the suggestion, implicit in the evidence of some of the defendants, to the effect that Ms Bale was seeking improperly to have access to or control over the deceased's assets.
That said, the relevant question is whether any vulnerability the deceased had to exploitation by Ms Chyna Schein and/or Mr Mohr (or any special disability or disadvantage in that regard) was or would have been manifest to the defendants (other than Ms Chyna Schein herself) at the relevant time. I address that in due course (save to note at this stage that the suggestion by Mr Arthur Trigas that the deceased was mentally "very sharp" because he had a young wife (see at T 314.11) is hardly a ringing endorsement of the deceased's mental condition - with all due respect to the deceased; the fact that the deceased had a much younger wife might indeed be the very circumstance that indicated his vulnerability to exploitation; certainly, such a concern was evidently felt by Mr Hancock by 13 June 2008 as appears from the communications referred to above).
In any event, overall, while I place more weight on objective and contemporaneous evidence, and while her recollection was not always reliable, I considered Ms Bale to be a truthful witness.

[72]

Mr Andreacchio

Mr Andreacchio, who as noted above, was a real estate agent at Raine & Horne Ashfield and its general manager from February 2011, gave evidence of his lay observation of the deceased. Mr Andreacchio was the managing agent for the Forest Lodge Property from 2009 until 2014. Mr Andreacchio gives evidence in his first affidavit at [15]-[16] that following the deceased's marriage to Ms Chyna Schein: I saw a significant decline in his mental state; he was no longer able to make independent and informed decisions. He became less communicative, less engaging, and would always defer to Chyna. He did not give responsive answers to even the simplest of questions, we were not able to have in-depth conversations and he didn't appear to understand the substance of what I was saying. … I saw a decline in the plaintiff's business acumen; he no longer made informed and independent decisions.
Ms Bale contends that Mr Andreacchio is "the closest this case comes" to having a disinterested witness. Mr Andreacchio's evidence was that he was involved in a number of property matters relating to the deceased's affairs. In cross-examination, Mr Andreacchio accepted that he was paid a management fee in relation to the rental of the properties at Summer Hill (see T 124.23-124.50) and obtained a commission on sales from the development from 14 October 2008.
It also emerged in cross-examination that Mr Andreacchio had been involved to some extent at least in discussions as to the potential acquisition and development of the Forest Lodge Property. Thus, he was not disinterested in the fate of the Forest Lodge Property at the relevant time. That said, I do not accept that this necessarily coloured his evidence as to his observations of the deceased; I simply treat with caution that evidence insofar as it cannot be said that he is a wholly independent witness.
For the defendants, it is said (of Mr Andreacchio's evidence as to his observations of the deceased after the deceased's marriage to Ms Chyna Schein) that it is equally plausible that those changes resulted from the issues that the deceased was experiencing with Ms Chyna Schein and Mr Mohr's involvement in his life and his relationship with Ms Chyna Schein (which it is noted was largely unexplored in the evidence due to Ms Chyna Schein's failure to appear in the proceeding).
The defendants say that Mr Andreacchio's evidence also needs to be approached with caution; on the basis that he had a vested financial interest in the possibility of the development of the Forest Lodge Property and had met with Mr Zounis, the owner of an adjacent property on a number of occasions to discuss the possibility about selling the adjoining properties in conjunction with the Forest Lodge Property.
It is said that Mr Andreacchio's efforts in terms of the possibilities of redevelopment were significant and that he had a developer (a Mr Joseph Panetta from Amflo) wanting to know if the adjoining lot owners would sell. It is noted that Mr Zounis provided Mr Andreacchio with an example introductory letter for him to put on his letterhead and send to the adjoining owners. The defendants say that Mr Andreacchio's explanation for the sending of the letter dated 3 September 2010 should not be accepted nor should his explanation regarding the conversation to which he deposed at [11] of his second affidavit (in which Mr Andreacchio says he expressed surprise to his receptionist that the deceased would accept an offer of $650,000). Mr Andreacchio's explanation for the 3 September 2010 email was that it was simply a template email and he sent it out of frustration without double-checking the email (T 150.25-150.37); while his explanation for the conversation at [11] was that the figures may be incorrect but he was expressing surprise that the deceased would accept a lower offer and he was not aware of the deceased's financial situation at the time (see T 164). The defendants say that both explanations are inherently implausible.
Apart from the submissions to the effect that Mr Andreacchio had a vested interest in the property, it is said by the defendants that any commentary that Mr Andreacchio provides regarding whether the sale to Kimberley Developments was a good move financially for the deceased needs to be considered in light of the fact that he gave evidence in cross-examination that he had no idea that in early February 2011, Suncorp had (for the third or fourth time) threatened to sell the Forest Lodge Property pursuant to its powers of mortgagee sale; and no idea of what had occurred regarding the deceased's financial position during the two years prior to February 2011. It is said that Mr Andreacchio's evidence in that regard is implausible having regard to the fact that he was aware that Suncorp was the lender and that he had spoken to someone in Queensland who "asked me how the sales were going" and that while selling properties at the Summer Hill development he was "aware that the bank was hounding us, especially for a few sales very quickly".
It is noted that Mr Andreacchio did not express any concerns he had about discussing the reserve price to be set for the auction of the Forest Lodge Property in April 2009 with Ms Chyna Schein and Mr Mohr; and that, despite the fact that Mr Andreacchio was directed to draw cheques by Ms Chyna Schein in favour of Mr Mohr from the proceeds of the rent of the Forest Lodge Property, he did not raise any concerns he had with Ms Bale (which the defendants attribute to Mr Andreacchio's interest at that time with the potential development of the Forest Lodge Property).
It is noted that Mr Andreacchio's evidence as to the apparent changes in the deceased's behaviour were limited to the period after the deceased married Ms Chyna Schein in 2008; and that Mr Andreacchio accepted that in 2008 and 2009 he did not have any knowledge or insight as to what was going on in the deceased's personal life regarding his relationship with Ms Chyna Schein.
On the whole, I considered Mr Andreacchio to be an honest witness who was seeking to give his recollection of events truthfully. Certain of his evidence had the ring of truth to it (in particular, his response to questions relating to Mr Zounis' email communications). I accept that Mr Andreacchio, while privy to discussions with Mr Zounis as to a proposed redevelopment of the Forest Lodge Property was maintaining some distance from him. However, I treat with some caution his evidence as to the deceased's cognitive decline.

[74]

Mr Darwiche

There were quite extensive submissions for Ms Bale adverse to Mr Darwiche as a witness. In summary, it is submitted that Mr Darwiche's evidence was confused, beset by speeches, argumentative, and in parts an obvious lie. It is said that Mr Darwiche gave contradictory evidence in his affidavits and yet further versions of events in his oral evidence that contradicted his affidavit evidence.
In particular, Ms Bale refers to Mr Darwiche's evidence in cross-examination as to the following matters: the conversation to which Mr Darwiche deposed at [15] of his affidavit affirmed 21 February 2019, responding to Ms Breust's account of her telephone conversation with him in relation to the issue of notice of the proceeding (see T 193.18-194.26); Mr Darwiche's inconsistent statements as to his understanding of the importance of an affidavit and whether he had read his affidavit before signing it, blaming his solicitors for inconsistencies in his affidavit (T 194.15; T 194.23); Mr Darwiche's evidence as to the incorporation of Kimberley Developments, including that Mr Churchill had probably falsely filled out the application for registration form and signed it purportedly on his behalf; and the purpose for its incorporation; his evidence at T 204.48-50, that he only knew he was a director of the company "from what Martin [Churchill] told [him]".
Ms Bale contends that, in his evidence as to the purpose of Kimberley Developments, Mr Darwiche was distancing himself for the original position that the company was set up for the purposes of obtaining cleaning work for both sites and in cross-examination introduced the idea, for the first time, that he set the company up for the development of the properties.
It is also noted that Mr Darwiche gave conflicting accounts as to how he received a copy of the agreement annexed to his affidavit: first, that the deceased handed him a copy of the agreement; later, in a separate affidavit, that it was in fact Mr Churchill that proposed the possibility of being a part of the development (not the deceased); and in cross-examination that there were many agreements "floating around" and that the agreements referred to in the various affidavits were not in fact the same. Ms Bale submits that the purposes of this new position is to explain away the contradictory statements across his affidavits, noting that Mr Darwiche gave inconsistent evidence as to who it was that he had spoken to (and that perhaps it could have been either the deceased or Mr Churchill) but denied the obvious inconsistency as to who gave him the agreement (whether it was Mr Churchill or the deceased) saying that "[i]t was a long time ago, it could be either one, I don't know I can't really remember".
Ms Bale says that the suggestion in Mr Darwiche's oral evidence that the deceased offered the Forest Lodge Property to him for $590,000, considering the money he owed him and the potential commission he was going to have to pay, and that it would have added up to close to $650,000 "anyways" is the first time Mr Darwiche has ever suggested that the deceased would sell the property to him for the stand-alone price of $590,000.
Reference is also made as to Mr Darwiche's denial that his role in the transaction was as a buyer and his evidence that he and the Trigas brothers were "like partners in this relationship" (see T 211.36) (by which he said he meant that "my belief is they buy it, and I look after it, and we're like partners in this relationship"), which Ms Bale contends is contradicted by Mr Darwiche's affidavit evidence and the evidence of Mr Theo and Mr Arthur Trigas (see for example Mr Darwiche's second affidavit at [14]-[15]).
Ms Bale points also to Mr Darwiche's evidence as to the form of the alleged contract, noting that Mr Darwiche: said that he had no idea how a date got there or how a signature made its way onto the document (despite the fact he annexed a copy to his own affidavit); denied that the agreement attached to his affidavit was definitely the one given to him by the deceased (cf his affidavit) (T 222.18); refused to concede that the agreement dated 21 February 2011, a form of which he admitted was given to him in February 2011, could be the same one (T 224.21); maintained that he was unaware that the document was executed or signed; agreed that his evidence was that he was taken through the document (by the deceased) in detail (see [13] of his affidavit), saying that this was "to try and convince him of how good a deal it was" (T 216.22) but then denying that he ever went into the document with detail (see at T 216) and saying that agreement is "not known to me" and denying that he understood any specifics of the deal (T 219). It is noted that Mr Darwiche also would not concede that in his affidavit he had deposed that the deceased had told him "his daughter didn't think he was of a sound mind" (saying "that's not how I read it"). (At [49] what he had deposed to was that "[h]e [in context meaning the deceased] mentioned to me that his daughter didn't think that he was of a sound mind and he did tell me that his daughter had taken him to a tribunal trying to get a power of attorney over his affairs". The suggestion that Mr Darwiche was not there deposing that the deceased had told him his daughter did not think he was of sound mind is untenable.)
Insofar as Mr Darwiche asserted in his cross-examination that he would not lie, the plaintiff points to Mr Darwiche's criminal record (see Ex D) and to the cross-examination in relation to this (see at T 235).
Ms Bale also refers to the evidence given by Mr Darwiche as to the receipt of scrap batteries (in satisfaction of the $38,000 he claims was part of the purchase price) and points out that the first time that Mr Darwiche had stated that he never received the sum of $38,000 and that he was never paid the money by Mr Theo Trigas after the transaction was in his oral evidence. It is said that this evidence is inconsistent with Mr Darwiche's affidavit and does not sit comfortably with his later assertions that whenever he needed cash he would go to Mr Marino Trigas and he would give him cash (see at T 249.25).
As to the evidence that Mr Arthur Trigas wanted a receipt for the cash allegedly provided at the time the transfer was signed, Ms Bale says that the confusion in cross-examination on this issue (due, it is accepted, to confusion in the question as to who was seeking the receipt - see at T 250.12-250.50), Ms Bale says that the fact that Mr Darwiche did not appreciate this (the error in the question) at the start "only adds weight to the likelihood the whole thing is a lie". (In this regard, I do not accept that the confusion in the question assists the plaintiff - as it is quite possible that Mr Darwiche had simply not focused on the question and had not noticed the error.) Ms Bale says that Mr Darwiche's evidence as to the actual payment of the cash and failure to get a receipt in return was argumentative and made little sense. It is submitted that it is counterintuitive to conclude that reasonable business people, acting rationally, would not issue a proper receipt for a vast amount of cash; and that Mr Darwiche's evidence makes even less sense when it is noted that the transfer document does not identify how much money had been paid in cash and that a contract for sale has never been produced by any of the defendants.
Finally, Ms Bale points to the evidence of Mr Darwiche to the effect that it was Mr Churchill's fault that Mr Theo Trigas was not a shareholder, director, company secretary or officer bearer of Kimberley Developments; that Mr Churchill was not representing Mr Darwiche in any capacity on 21 February 2021; and that Mr Theo Trigas was represented by Mr Churchill who acted for and signed for the company. Ms Bale points out that, legally, Mr Theo Trigas had nothing to do with the company at that time.
Ms Bale submits that, overall, the evidence of Mr Darwiche was clearly fabrication. It is said that Mr Darwiche's answers were self-serving; that he was unwilling to accede to matters of fact (such as the words of his own affidavit) that did not align with the "new" version of events he was asserting; and that Mr Darwiche's evidence in the witness box bore little, if any, resemblance to the evidence he had previously given in his affidavit.
In particular, Ms Bale says that Mr Darwiche: has lied about receiving the phone call from her solicitor (stating that he could not remember it and then that it must have been someone else answering using his name) although he had already deposed to a version of the phone call in his own affidavit; gave three separate (and contradictory) explanations as to how he came to be in possession of the 21 February Agreement (in two separate affidavits - one that he got it from the deceased; another he got it from Mr Churchill; and in cross-examination that there were multiple drafts of the agreement and he had received them from both parties); attached the 21 February Agreement to both his affidavits and did not state anywhere that it was not signed or that the date had not been affixed. As to the last, it is noted that neither affidavit suggests that Mr Darwiche got the agreement from the deceased; and that the effect of Mr Darwiche's evidence is thus simply that a copy of the agreement is attached as received from either the deceased or Mr Churchill, depending on which version is to be believed.
Ms Bale says that Mr Darwiche's account of the stated purpose for the incorporation of Kimberley Developments (which changed between his affidavit evidence and his cross-examination) is vague; that it makes little sense; and that it was fabricated to try to give some innocuous explanation for the existence of the company aside from the terms of the 21 February Agreement.
Ms Bale thus says that Mr Darwiche's evidence should be rejected in its totality unless it is directly corroborated by an unimpeachable piece of objective documentary evidence. In that regard it is said that almost all aspects of Mr Darwiche's evidence are fabrications designed to try and explain away that to which the overwhelming objective evidence points (namely, that Mr Darwiche persuaded the deceased to enter into the 21 February Agreement).
As to my observations of Mr Darwiche (who Mr Arthur Trigas said was "not the smartest tool in the shed" - see at T 273.37), I consider that he was argumentative and confrontational in the virtual witness box (see at T 191; T 193; T 195, for example) and more than once he became testy in the course of cross-examination. So, for example, at T 195, Mr Darwiche said "I get a lot of phone calls from a lot of people even the taxation department. I mean is that what you want me to say"; at T 194.27 confronted with inconsistency in his affidavit evidence, "well some of it would be accurate wouldn't it?"; at T 196 "why would I?"; and at T 238 "you'd have to ask Martin" (presumably knowing full well that Mr Churchill was not giving evidence in the proceeding or at least that he had not subpoenaed Mr Churchill to give evidence); at T 241 that "well a lot of things don't appear in writing don't it" and then "why don't you get the paperwork for Mr Schein and see how much he paid me". At T 257, Mr Darwiche asked "how am I supposed to talk to Churchill after he got locked away?"
Tellingly, at T 196, there was the following evidence by Mr Darwiche as to his affidavit evidence: I didn't fabricate anything. If this - this wasn't written by me. If this was done by a lawyer it was just agreed to some questions he gave me and then I signed it. I didn't think this matter was going to go anywhere. Later on when I looked at the contract there is no signature on it … I rarely paid attention to anything I was doing.
Mr Darwiche suggested that it was only as to the last of his affidavits that he "really applied" himself and paid more attention to what he was doing and said that the other ones "that was just as cheap as I can get it done and as quick as I can get it done on the go" (T 196). Mr Darwiche emphasised that "I don't pay as much attention to a lot of things"; that he did not pay much attention to what the lawyers were doing; and Mr Darwiche agreed (at T 197) that at first he was happy to go along with more or less what was put to him. At T 197.15-197.17, Mr Darwiche said: I relied upon my solicitors, or the solicitor that was preparing the document for to be looking after what my interests were. I didn't get into it, I mean, you don't get a baker if you cook your own bread.
Mr Darwiche said more than once that he did not read his affidavit and that he relied on what was done for him (T 197; and see T 211); and that the way things were expressed in his affidavits were due to his solicitors (see at T 214). So, for example, after being pressed for some time in cross-examination as to the document attached to his own affidavit Mr Darwiche said that he had attached a copy of the agreement that came in the statement of claim "because that's what my solicitor told me to do" (T 232.25).
There is no doubt that Mr Darwiche's oral and affidavit evidence was inconsistent on a number of issues, not least as to how he came to receive the 21 February Agreement, whether he read it or was taken through it in detail, whether the copy annexed to his affidavit was the one he was presented with (by whoever it was that presented it to him), and whether it was signed or dated when he received it. Mr Darwiche said more than once that there were a lot of agreements "floating around" (see for example at T 208; T 222; T 242) although there were certainly not a lot of different copies of the agreement in evidence. Mr Darwiche denied that the document was drafted by him or on his instructions (T 225) and denied that it was executed on the same day the transfer of property was signed; could not explain why the document was dated 21 February 2011 (see at T 224); and was emphatic that the document was a draft (T 218; T 220).
Unfortunately, the only conclusion that can be drawn from Mr Darwiche's evidence is that he was cavalier (to say the least) in the preparation and execution of his affidavit evidence (despite the fact that he said he understood the importance of affidavit evidence - and one would think that someone not unfamiliar with the criminal justice system would well understand this). I am driven to conclude that Mr Darwiche similarly has a cavalier attitude to the truth. He certainly did not appear troubled by the many inconsistencies between his affidavit and oral evidence; and was only too ready to blame his legal representatives for any such inconsistencies or errors. Aspects of his evidence were frankly implausible (such as the suggestion that the deceased had taken him in detail through the document - even had the deceased been capable of so doing which I very much doubt).
The bottom line is that Mr Darwiche was not a credible witness and, regrettably, I cannot accept anything he says that is not supported by objective contemporaneous evidence. While I accept that (as noted above) just because a witness is disbelieved on particular matters does not mean that the witness should be disbelieved on all matters, there were simply so many inconsistencies and self-serving statements by Mr Darwiche that I have no confidence in his evidence as a whole. I also consider that on occasion his evidence was evasive (see at T 220).
Finally, I note that Mr Darwiche was also quick to impugn Ms Bale's motivation and to accuse Ms Bale of trying to get access to the deceased's money (T 228) (an accusation that seems to me to be quite unfounded on the evidence and which does Mr Darwiche little credit). Mr Darwiche was adamant that the deceased was "very lucky that Theo came along and purchased" the property as there was no way the deceased was going to get $650,000 from anyone else with all the contamination on the land and the way it was situated (inconsistent with the bid at auction made by Mr Moore); and that otherwise the bank would have taken it and the deceased would have got nothing (which assumes that the deceased in fact received the payment alleged to have been made in cash) (see T 241). Confronted with the fact that Mr Moore had offered $650,000 at auction, Mr Darwiche's dismissive (and unsympathetic) response was that the deceased "should have taken it" if that had been offered (T 241).

[75]

Mr Arthur Trigas

Ms Bale says that Mr Arthur Trigas' evidence, similarly to that of Mr Darwiche, often conflicted with his own affidavit evidence and changed significantly throughout the course of his cross-examination. It is said that his evidence was also beset by speeches and argumentative answers.
As to the evidence given by Mr Arthur Trigas in cross-examination, reference is made to the following: the belated evidence as to payment being made to Mr Darwiche in scrap batteries (coincidentally or otherwise this emerging the day after it had been raised for the first time by Mr Darwiche); the lack of any record of how much scrap or batteries were paid to Mr Darwiche; the inconsistency between giving scrap batteries to Mr Darwiche free and them being given in payment of the debt Mr Darwiche claimed the deceased owed him; and the inconsistency between Mr Arthur Trigas' evidence that "[w]e don't give Albert cash" and Mr Darwiche's evidence that he always went to Mr Marino Trigas when he needed cash.
Ms Bale points to inconsistency between Mr Arthur Trigas' evidence in his affidavit as to the registration of a company for the project, Mr Arthur Trigas stating that he actually meant that Mr Churchill would have done it on his behalf and that Mr Darwiche would not be able to do so.
It is noted that (contrary to Mr Darwiche's evidence), Mr Arthur Trigas stated that the document with handwritten notes and underlining on it (annexed to his affidavit) was the copy of the agreement that was shown to him; and gave contradictory evidence as to what parts of the agreement he read (i.e., only the underlined bits and then that "[n]o, I didn't read all the underlined bits...only the dollar value"). Mr Arthur Trigas was blunt in his assessment of the draft agreement as "crap" and "rubbish" and said (with some feeling) at T 281 that "no way in the world would the Trigas family or company be involved in a piece of crap like that - rubbish nonsense".
Mr Arthur Trigas stated that all the Trigas' conveyancing was done by Cassab solicitors at Bankstown; and that the agreement would not have been acceptable to Cassab; and said that they did not use Cassab on this transaction because they ran out of time and trusted Mr Churchill (although he had never met Mr Churchill before - T 304).
Ms Bale points out that Mr Arthur Trigas gave evidence in cross-examination (this being the first time it was suggested) that the offer that was first made was $590,000 minus $38,000 (giving an apparent initial offer of $552,000) (see at T 280) and that the deceased "pushed us up; good on him" (T 280). Ms Bale points out that this version of events does not accord with either Mr Darwiche or Mr Theo Trigas' evidence.
Ms Bale submits that Mr Arthur Trigas' evidence should be rejected as fabrication. It is submitted that it is reasonably clear that Mr Arthur Trigas colluded with Mr Darwiche to introduce evidence that he was paid in undocumented scrap or used batteries (it being said to be too much to accept that by coincidence, overnight, Mr Arthur Trigas had some kind of epiphany and realised that his evidence should be amended in this way, to accord with evidence that had emerged only in the viva voce evidence of Mr Darwiche the afternoon before).
It is said that the balance of Mr Arthur Trigas' evidence suffered from the same contradictions that beset the evidence of Mr Darwiche (referring to Mr Arthur Trigas' evidence as to what he had read in the agreement); and that Mr Arthur Trigas' evidence as to how his father came to be in the possession of so much cash was vague and ultimately non-responsive. It is said that Mr Arthur Trigas gave no satisfactory explanation as to how his father would have come into possession of hundreds of thousands of dollars in cash.
Further, Ms Bale argues that it makes little commercial sense for the initial offer having been less than what both Mr Darwiche and Mr Arthur Trigas knew the tenant was willing to offer ($650,000); Mr Arthur Trigas' explanation being "you try your luck". (Pausing there, the suggestion that Mr Arthur Trigas was simply trying his luck to secure a lesser purchase price strikes me as one of the more credible aspects of the defendants' evidence. The overwhelming impression I gleaned from the defendants' evidence was that an opportunistic attempt to secure the property at a lesser price would not have been unusual - the response "you try your luck" followed by the laconic comment that the deceased "pushed us up good on him" seems to me quite consistent with such an approach. What is less credible is that the deceased was the one exercising any real negotiating power in this scenario.)
Nevertheless, Ms Bale's submission is that the explanation Mr Arthur Trigas offered for the deceased accepting $590,000 for the sale when the deceased had an offer of $650,000 (that the deceased wanted the money in cash and that it was in effect somewhere close to $650,000 when the money owed to Mr Darwiche and agents' fees is added) was fabrication aimed at trying to explain away the obvious lack of commerciality of the transaction.
Ms Bale thus submits that the entirety of the evidence of Mr Arthur Trigas should be rejected.
My observation of Mr Arthur Trigas was that he was keen to dismiss the alleged contract as a draft (stating at T 279 that all he remembered was some underlining and drawing attention at T 275 to the date being in different font); and to distance himself from knowledge of its contents (see at T 284). Mr Arthur Trigas was also seemingly keen to distance himself from knowledge of the company, Kimberley Developments, at all (see at T 284).
Mr Arthur Trigas described Mr Darwiche as "like a family member" (T 271.6) and was at pains to emphasise that the alleged agreement was not one in which he or his family or company would be involved (see T 278.8-278.18; 281.47). Mr Arthur Trigas was adamant that he read the underlined parts and question marks at the time, and that the document was signed but undated (T 276.5-276.45).
The inconsistencies in Mr Arthur Trigas' evidence and the belated evidence of matters to which Mr Darwiche had only the previous day deposed, as well as the new evidence of an initial offer not referred to by any of the other defendants, give me cause to doubt the credibility of Mr Arthur Trigas. I do not go so far as to make a finding of collusion or fabrication of evidence. However, I am left with real doubts as to the credibility of Mr Arthur Trigas (not helped by the fact that this conveyancing transaction is far removed from the standard conveyancing transaction - no contract for sale of land in evidence and a frankly implausible account of the payment of a large sum of cash supposedly held in a home safe and the result of a successful business of the sale of cigarettes); and, as with Mr Darwiche, I exercise caution before accepting his evidence where it is not corroborated by contemporaneous objective evidence.

[76]

Mr Theo Trigas

Ms Bale points to significant inconsistencies between Mr Theo Trigas' affidavit evidence and his oral evidence. It is noted that (as did Mr Darwiche), Mr Theo Trigas seeks to blame his previous solicitors for the contradictions. It is also noted that Mr Theo Trigas contradicts Mr Darwiche's account that they were partners.
Ms Bale says that Mr Theo Trigas' evidence as to how he came into possession of the agreement annexed to his affidavit significantly departs from Mr Darwiche's explanation, noting that in cross-examination, Mr Theo Trigas stated that the agreement annexed to his affidavit was the agreement that Mr Darwiche showed him.
Ms Bale points to inconsistency in that, in cross-examination, Mr Theo Trigas stated that he did not read the document (cf [10] of his second affidavit sworn 25 February 2020 that "at the above time I read this document"). It is said that the evidence given by Mr Theo Trigas, that he never saw the agreement until his solicitor showed it to him and that he did not read it at the time, is contradicted by [10] of his second affidavit (and it is noted that Mr Theo Trigas conceded that the affidavit must have been based on information provided by him).
Ms Bale argues that it is inconsistent with Mr Theo Trigas' acceptance that he is an astute and savvy businessman that he never deals with property documents after a deal is made (including the contract for the sale of land), and that he had made no attempt to obtain this material from Mr Churchill even when he went to gaol (Mr Theo Trigas' evidence being that Mr Arthur Trigas told him that Mr Churchill had lost the contract for sale and so he did not attempt to contact him at all).
Ms Bale submits that Mr Theo Trigas' evidence should also be rejected as fabrication. It is said that Mr Theo Trigas tried in cross-examination to distance himself from the narrative he swore was true in his affidavit (and, in particular, tried to distance himself from ever reading the agreement, despite the fact he deposed to doing just that).
Ms Bale also points to the lack of explanation for the fact that, if Mr Churchill was solely in possession of the contract ("the receipt" for the alleged cash payment) and "somehow managed to lose it", and was also sufficiently trusted by Arthur and Theo Trigas to perform a conveyance they would normally leave to Cassab Solicitors, the defendants would be expected to, but did not call him or explain their failure to do so.
My observation of Mr Theo Trigas is, again, that the inconsistencies between his oral evidence and his affidavit evidence mean that caution must be exercised before accepting either version as the truth. Mr Theo Trigas was not an argumentative witness. However, his account of events (as was that of both Mr Darwiche and Mr Arthur Trigas) is inherently implausible (not least, the entry into a purchase transaction allegedly involving a large payment of cash for which there is no record). Mr Theo Trigas gave inconsistent evidence as to what he had read in the alleged agreement and sought to distance himself from involvement in property transactions ("I don't engage in [property transactions] my staff do" - see T 303.42).
In his second affidavit (at [27]) which was read as an assertion, not for the truth of the facts asserted, Mr Theo Trigas had deposed that Mr Churchill had set up the company (Kimberley Developments) for Mr Darwiche and that Mr Theo Trigas had to arrange the change of directorship at a later date when he was informed that Mr Churchill had not done so. This is consistent with Mr Arthur Trigas' evidence that Mr Churchill advised that he created the company Kimberley Developments and he would make the necessary changes to the directorship from Mr Darwiche to Mr Theo Trigas (see Arthur Trigas' affidavit affirmed 25 February 2020 at [18]). However, during his cross-examination Mr Theo Trigas gave evidence that he believed he was a director of Kimberley Developments on 21 February 2011 (T 305.50) and denied in his evidence that he was always in substance a director of Kimberley Developments (T 306.35).

[77]

Overall conclusion as to defendants' evidence

All in all, I considered that each of the defendants' main witnesses were unsatisfactory and not credible witnesses.
Ms Bale says that a compelling reason to accept her version of events is that the defendants are clearly lying. (Pausing here, while I have serious reservations as to the evidence of each of the defendants' witnesses, I do not make findings of dishonesty as such.) In support of this submission, Ms Bale points out that the amount of $590,000 is recorded as the sale price on the transfer and that this is the same amount noted in the agreement as the sale price. It is submitted that, to avoid the obvious conclusion that the consideration that the deceased was to receive was (in part) the 60% shareholding in Kimberley Developments as prescribed in the 21 February Agreement, the defendants had to demonstrate that the deceased did receive $590,000 worth of consideration. Thus, it is said, the story of the unproven cash transaction (for which it is said no receipt - other than the transfer or contract itself - was asked for or obtained; and for which no contract of sale was ever produced) was maintained. Ms Bale says that if the cash transaction story is disbelieved then the only logical conclusion left is that the 21 February Agreement represented the basis on which the deceased agreed to transfer the property to the control of Mr Darwiche via Kimberley Developments.
Ms Bale points out that lies can be used to corroborate a plaintiff's case if "the liar cannot give an innocent explanation of proven facts", or is "unable to account for what the witnesses say they saw in any way consistent with his own innocence which are capable of providing corroboration" (reference being made to R v Heyde (1990) 20 NSWLR 234 (R v Heyde) at 236 per Clarke JA, which is said to be here apposite). Ms Bale says that the defendants had to lie because they are unable to account for how they extracted the transfer from the deceased if not through the promises outlined in the Agreement.
Ms Bale contends that the "whole narrative" of the defendants should be rejected as lies. Ms Bale says that they could not agree amongst themselves how they came into possession of the agreement, or if they read it (in whole, in part, underlined or otherwise), or simply not at all; and that all three defence witnesses distanced themselves from their own affidavit evidence, and suggested that to the extent that their affidavits were wrong, the mistake was attributable to a solicitor's error. It is noted that Mr Darwiche gave multiple explanations as to how he came into possession of the agreement and whether or not he had read it (initially he claims he went through the agreement in detail with the deceased, he then later essentially denied that he had read it at all) and that Mr Arthur Trigas also gave contradictory evidence as to whether he read the agreement or not. Ms Bale argues that the fact that there is no documentation to support the alleged cash transaction at all is powerful evidence that it simply did not happen (invoking the statement of Hammerschlag J in Sergienko v AXL Financial Pty Limited at [1]).
Ms Bale maintains that Mr Darwiche (who she describes as a serious criminal) lied about a series of matters (as noted above). Ms Bale contends it is not plausible that the price for which Arthur and Theo Trigas purchased the property for was coincidentally the exact same price that was noted in the 21 February Agreement and says that the manner in which the defendants assert that the sale price was actually $650,000 is self-serving, confused and tortured (and an obvious lie to account for the fact that selling the property at $590,000 made no commercial sense). It is noted that the defendants themselves concede in their evidence that the deceased had an offer of $650,000 from Mr Moore. Further, it is said that the evidence as to Mr Darwiche being paid in batteries is fabrication; an account concocted to explain the $38,000 allegedly owing to Mr Darwiche (and it is said that the witnesses colluded in this regard).

[78]

Defendants' submissions as to the defendants' evidence

The defendants emphasise (and I accept) that it does not follow from rejection of part of the evidence of a witness that the whole of that witness' evidence must also be rejected even if it is found that the witness was lying (referring to what was said by O'Loughlin J in Cubillo v Commonwealth (2000) 103 FCR 1; [2000] FCA 1084 at [124]; and to the legal principles relevant to fact finding where credit is in issue as set out by Kunc J in Pavlis v Pavlis [2021] NSWSC 1117 at [158]-[167]).
Insofar as Ms Bale has highlighted inconsistencies between the affidavit and oral evidence of the defendants' witnesses, the defendants invoke the observation of Nettle and Gordon JJ in Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 at [112] to the effect that, having regard to the "oft unspoken reality" as to the manner in which lay witness statements are liable to be "workshopped, amended and settled by lawyers", it is usually the assessment of the oral evidence of the witness that is of paramount importance. In this regard, the defendants refer to the cross-examination as to what Mr Darwiche meant by his affidavit evidence as to the conversation with the deceased in which Mr Darwiche deposed that the deceased "mentioned to me that his daughter didn't think that he was of sound mind". Mr Darwiche said that what he meant there was that "[h]is daughter was playing out for him to be like he was crazy" and went on to say that in his view the deceased could make decisions for himself (see T 227.19).
The defendants say that, while there were some inaccuracies in the affidavit evidence (as borne out by the cross-examination), the defendants' evidence was consistent on the central issues (namely the rejection of the 21 February Agreement proposed by the deceased, the subsequent agreement to purchase the land for $590,000, the cash payment, the discharge of the mortgage and the deceased's capacity in early 2011). The defendants reject the contention by Ms Bale that they colluded to concoct their version of events; the defendants submit that their versions are consistent because that was what actually occurred.
The defendants contend that their version of events is supported by: the absence of a signed copy of the 21 February Agreement; the absence of any steps taken by the parties to perform the terms of the 21 February Agreement; the deceased's acknowledgement of the receipt of $590,000 in the transfer; the fact that the Forest Lodge Property was actually transferred to Kimberley Developments incurring a stamp duty obligation; the payment of stamp duty and the Duties Notice of Assessment; Suncorp's position regarding mortgage default; the discharge of the Suncorp mortgage; and the absence of any complaint by anyone at any time prior to the commencement of proceedings about the defendants' alleged failure to perform their obligations pursuant to the terms of the 21 February Agreement.
I accept that much of the accounts given by the defendants' witnesses is implausible and self-serving; and that the last minute changes in evidence give rise to suspicion as to collusion. However, collusion is a serious finding to make and I am not persuaded that it is appropriate in the present case. Suffice it to note that I considered the defendants' witnesses not to be credible and I do not accept their evidence unless corroborated independently (and by objective contemporaneous evidence).

[79]

Failure to call Mr Churchill to give evidence - Jones v Dunkel

That brings me to the Jones v Dunkel inference sought by Ms Bale in respect of the defendants' failure to call Mr Churchill. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 establishes that the unexplained failure by a party to call witnesses may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case. In order for such an inference to arise, the witness must be one that would be expected to have been called (see Payne v Parker [1976] 1 NSWLR 191 at 200-202 per Glass JA).
Ms Bale says (but I note that this is disputed) that the defendants did not explain why Mr Churchill was not called, save an assertion (as a matter of fact, but not of explanation) from the Bar table that Mr Churchill is currently incarcerated. It is submitted that the mere fact of incarceration is not a legitimate reason for a party not to call a witness; and it is said that no actual evidence was adduced by the defendants of efforts undertaken to secure Mr Churchill's evidence. This submission is disputed by the defendants, who argue that Ms Bale has failed to have regard to the email dated 9 September 2021 sent to the defendants by Mr Churchill's former solicitors, in which it was communicated that Mr Churchill did not propose to discuss the matter with the defendants or provide evidence on their behalf (see Ex 12). (I interpose to note that the letter draws attention to the fact that it was only on 30 August 2021 that the defendants advised they wished to call Mr Churchill in their case.)
The adverse inferences that Ms Bale submits should be drawn are to the effect that: Mr Churchill's evidence regarding the drafting of the 21 February Agreement and the alleged payment of cash would not have assisted the defendants; and that Mr Darwiche had registered Kimberley Developments (contrary to Mr Darwiche's asserted lack of knowledge on this point) and was its de facto and de jure director (i.e., not Mr Theo Trigas) at the time the property was transferred. It is submitted that, additionally, the inference may be drawn that Mr Churchill signed on behalf of the transferee (Kimberley Developments) at the direction of Mr Darwiche given his role as director of Kimberley Developments (contrary to his assertion that Mr Churchill was the solicitor of Arthur and Theo Trigas at the time of the transfer).
It is submitted that that the whole case advanced by Ms Bale (that the defendants colluded with Mr Churchill to deprive the deceased of his property by way of a false promise of partial ownership in a development of the land) can be more readily accepted because, on the defendants' own evidence, Mr Churchill was central to each step of the 21 February Agreement. It is submitted that the absence of evidence from Mr Churchill (given the defendants' case is that the entire purchase was legitimate and proper) is simply bizarre.
Ms Bale refers to the principles of law as they relate to Jones v Dunkel inferences as summarised by Campbell J, as his Honour then was, in Manly Council v Byrne [2004] NSWCA 123 at [44]-[54]; and reference is made also in this context to RPS v R (2000) 199 CLR 620; [2000] HCA 3 at [26] per Gaudron ACJ, Gummow, Kirby and Hayne JJ. It is noted that Jones v Dunkel inferences may be drawn even where a witness is equally available to both the plaintiff and defendant, as the Court is entitled to assess by whom calling the witness would be "more natural". It is sometimes expressed that a Court may expect a witness to fall into "one camp" or the other.
Ms Bale says (and broadly I agree) that Mr Churchill was a witness who would naturally be expected to fall into the "camp" of the defendants, on the basis that he was their solicitor, and signed the crucial transfer document which deprived the deceased of the Forest Lodge Property. It is submitted that if the defendants' case were to be accepted, it would have necessitated the giving of evidence of Mr Churchill on those matters. (Part of the difficulty here, however, is that Mr Churchill appears also to have acted for Ms Chyna Schein (and through her the deceased) in relation to the transaction or at least to have been understood by them to be acting for all the parties.)
Ms Bale points out that the evidence of all three defence witnesses is replete with references to Mr Churchill's involvement in the transaction and that, from the outset of this proceeding the defendants (or at least some of them) were in telephone contact with him (so, for example, referring to Mr Darwiche's evidence that Mr Churchill informed him of the proceeding - see Mr Darwiche's affidavit affirmed 21 February 2019 at [7]; T 253.14).
Insofar as Mr Theo Trigas gave evidence that his brother, Mr Arthur Trigas, had been told by Mr Churchill that he had lost all documents relating to the transfer, it is said for Ms Bale that direct evidence of this from Mr Churchill would have been of obvious assistance to the defendants. Further, Ms Bale argues that Mr Churchill could have given evidence of: his role in the transaction (which Ms Bale says is mired in uncertainty); as to the alleged cash payment made on 21 February 2011 and what occurred at that meeting; as to who completed the application for registration of Kimberley Developments (himself or Mr Darwiche); as to who drafted up the 21 February Agreement (himself or the deceased); as to whether a contract for sale of land was drawn up, and where copies of it were kept and whether and how it had been lost; as to who had given him the authority to sign the transfer document on behalf of Kimberley Developments; and as to the change of directorship of the company (the form for which was filed 12 months after the change there recorded).
Ms Bale says that the failure of the defendants to call their own solicitor (though, as noted above, Mr Churchill seems to have adopted a role acting for all the parties in the transaction) to give evidence to support their version of events, and in whose possession they left the only alleged paper evidence of the validity of their purchase of the Forest Lodge Property, is unexplained and should lead to the drawing of adverse Jones v Dunkel inferences.
As adverted to above, the defendants cavil with the proposition that there was no explanation for the fact that Mr Churchill was not called (in circumstances where he was incarcerated) and they cavil with the proposition that he was in "their camp". Complaint is made by the defendants as to the extensive reliance in Ms Bale's closing submissions to the defendants' alleged failure to call Mr Churchill as a witness, or to explain the failure to call him. The defendants point to the evidence as to Mr Churchill's incarceration and say that there have been steps taken by the defendants to procure him as a witness. Further, it is said that the submissions in this regard ignore the fact that Mr Churchill was previously a party to the proceeding and acted for the deceased, as well as Kimberley Developments on the subject transaction.
The defendants emphasise that the onus is on Ms Bale to prove to establish her pleaded case (referring to the approach set out by Sackar J in Lorretta Kistmah Craig v Kia Silverbrook [2013] NSWSC 1687 at [125]-[126]).
Insofar as Ms Bale asserts that the defendants did not explain why Mr Churchill was not called save an assertion "from the bar table that Mr Churchill is currently incarcerated" and that "no actual evidence was adduced … of efforts undertaken to secure [Mr Churchill's] attendance", the defendants say that this submission ignores: the evidence adduced by Ms Bale's counsel during the cross-examination of Mr Darwiche that Mr Churchill was incarcerated at the beginning of 2020 and the documentary evidence which suggests that may have in fact occurred around August 2020; the email from Mr Churchill's former solicitor (Mr Michael Thornell of K & L Gates) in which he confirmed that, as at 2 September 2021, Mr Churchill was in Long Bay Correctional Facility on remand pending hearing of his criminal matter that was scheduled to commence on 9 September 2021 (i.e., during the hearing of the present proceeding); and the evidence of the defendants' attempts to secure Mr Churchill as a witness and his refusal (communicated through Mr Thornell) that he would not be willing to discuss the matter with the defendants' legal representatives or to give evidence on their behalf.
The defendants say that the above is sufficient to defeat the plaintiff's Jones v Dunkel submission. Further, the defendants say that Ms Bale's Jones v Dunkel submission ignores the fact that: Mr Churchill was a party to the proceeding until 3 November 2020; and that Mr Churchill acted for both the deceased and the defendants in relation to the subject transaction.
It is noted that the fact that Mr Churchill was retained by the deceased was the basis for the claim made against him and one of the particulars of the breach of his duty of care to the deceased was said to be acting for both the deceased and Mr Darwiche on the transaction. The defendants say that it was not therefore "more natural" for the defendants to have called Mr Churchill. It is noted that Ms Bale pleads in this proceeding that Mr Churchill drafted the Agreement and that it is Ms Bale who must prove each element of the cause of action. As such, it is submitted that Mr Churchill would be expected to be called by Ms Bale, rather than the defendants.
As to the fact of Mr Churchill's incarceration, I accept that this is not a satisfactory explanation for the fact that he was not called to give evidence. There might have been logistical difficulties involved but it is by no means unheard of for prisoners to be subpoenaed to give evidence in court proceedings. What makes it less "natural" to expect the defendants to call Mr Churchill is the fact that he was himself a defendant (until settlement of the claims against him). However, after the claims against Mr Churchill were resolved that difficulty would not have arisen; and I accept that, as between Ms Bale and the defendants, it would be more natural to expect the defendants to call Mr Churchill than for Ms Bale to have done so. It should be noted that Mr Darwiche gave evidence (at T 253.3-253.8) that he had known Mr Churchill for some twenty years and he was in fairly close contact with Mr Churchill over the years. (Moreover, it is clear that Ms Bale did attempt to make enquiries of Mr Churchill and requested all paperwork associated with the deceased since 3 June 2008 to no avail - see her letter dated 18 January 2017 addressed to Mr Churchill, annexed and marked "Y" to her affidavit sworn 26 November 2018.)
Thus, I would be inclined to accept that the requirements for a Jones v Dunkel inference are here satisfied at least from after the time at which the proceeding against Mr Churchill had been dismissed. However, it must be noted that even if such an inference is drawn it cannot be used to supply missing gaps in the evidence and can only strengthen inferences otherwise available on the evidence (and where there are competing available inferences) (see Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2022] NSWSC 144 at [273]).
In the circumstances, I do not rely on any such adverse inference for the conclusions that I have reached on the factual matters for determination (as I explain below).

[80]

Factual findings sought by the plaintiff

Ms Bale submits that the following findings should be made as to what happened.
First, that Mr Darwiche met the deceased some time in 2010 when Mr Darwiche was contracted to undertake clean-up works to the property (see Mr Darwiche's second affidavit affirmed 25 February 2019 at [7]; Mr Darwiche's third affidavit sworn 24 February 2020 at [18]; Mr Andreacchio's affidavit sworn 19 September 2020 at [5]) and that he was apparently introduced to the deceased by Mr Churchill (see Mr Darwiche's second affidavit at [6]).
Apart from the uncertain import of a finding that there was "apparently" an introduction, there does not appear to be any real dispute that Mr Darwiche first met the deceased in or around 2010 (at least after the unsuccessful April 2009 auction); nor that Mr Darwiche was engaged to carry out clean-up works on the property. Mr Andreacchio's evidence (at [7]-[8] of his second affidavit) and Mr Moore's evidence supports such a finding (and that Mr Darwiche demolished a shed on the property) (see Mr Moore's affidavit sworn 13 February 2019 at [9]; see also T 174.22-174.33). Accordingly, I find that Mr Darwiche met the deceased in around 2010; that Mr Darwiche's services were retained for the clean-up of the property, extending to the demolition of a shed; and that Mr Churchill introduced Mr Darwiche to the deceased. As to who instigated the introduction of Mr Darwiche to the deceased, on the balance of probabilities I would accept that it is likely that it was Mr Churchill who introduced Mr Darwiche to the deceased, having regard to the evidence that Mr Churchill was a long term friend or associate of Mr Darwiche and that Mr Churchill seems to have been known to Ms Chyna Schein and apparently Mr Mohr (insofar as Mr Churchill's involvement as a solicitor or witness on various documents seems to have occurred at the behest of Ms Chyna Schein not the deceased - whose solicitor for some time had been Mr Hancock).
Second, that Mr Darwiche became aware that the deceased was in mental decline (reference being made to Mr Darwiche's third affidavit at [49] where Mr Darwiche deposed to the deceased having mentioned that his daughter thought he was not of a sound mind and made reference to a matter in the Tribunal); and likely vulnerable to being taken advantage of financially.
For Ms Bale, it is said that the evidence that the deceased was in mental decline and in danger of being taken advantage of (at the relevant time) is well documented (though this refers to a large extent on the medical records that I have not admitted as truth of the matters there recorded). As noted, reliance is placed on Mr Darwiche's own evidence as to his awareness that concerns had been raised as to the deceased's mental health (see his third affidavit at [49]); and to the fact that there was reference at cl 31 of the 21 February Agreement to the deceased having had a power of attorney appointed and being involved in proceedings in the Guardianship Tribunal. Further, it is said that the lay evidence of the deceased's mental decline (given by Mr Andreacchio and Ms Bale) was not challenged in cross-examination; and it is noted that Mr Darwiche conceded that he knew the deceased had a power of attorney appointed to his affairs. (I do not consider that the fact that Mr Darwiche knew that the deceased's daughter had thought he was not of sound mind or that there was a challenge in the Tribunal to a power of attorney that had been granted, amounts to awareness of the deceased's mental decline as such; and I have difficulty with the proposition that Mr Darwiche, having only recently met the deceased, was or would have been able to form a view as to any decline as such (since he would not have a benchmark or baseline from which to judge the deceased's cognitive ability). I do, however, accept as genuine Ms Bale's evidence as to her observations of the deceased's declining health and cognitive ability; and I would also accept Mr Andreacchio's lay observations as to his dealings with Mr Darwiche.)
Ms Bale says that the fact that the deceased entered into a such an uncommercial agreement is perhaps the strongest evidence of his mental decline and inability to protect his own interests. That submission is of course predicated on an assumption that the deceased did indeed enter into the 21 February Agreement (which I address below) and it also must be considered in the context of the significant financial pressures then confronting the deceased.
I have difficulty with the proposition that the conversation to which Mr Darwiche deposed in his affidavit evidence would have put him on notice of any cognitive decline on the part of the deceased at that stage. First, as adverted to above, a statement that the deceased's daughter thought he was of unsound mind does no more than raise the issue of potential mental decline - and would be equally consistent with the deceased being of sound mind and simply upset that it be suggested otherwise by his daughter. The fact that someone thinks an elderly parent is of unsound mind of itself says little or nothing as to whether that is in fact the case - it would be necessary to know much more about the circumstances in or basis on which that view was held. Second, I do not consider much weight can be placed on awareness of proceedings in the Guardianship Tribunal to challenge the power of attorney (particularly since it is not clear what Mr Darwiche knew about them and in any event the determination of the Tribunal at that stage was that the deceased was capable of making his own decisions). Third, as noted above, if Mr Darwiche had only been introduced to the deceased in around late 2010, Mr Darwiche could have had no 'baseline' (so to speak) from which to assess any mental decline or otherwise on the part of the deceased.
Certainly, I accept that over the period of time in which Mr Darwiche knew the deceased it would have been possible for him to have observed changes in behaviour and the like which could have pointed a reasonable observer in his position to the conclusion that the deceased was declining in his mental acuity. However, it is not clear that the dealings between the deceased (who by 2009 was living in Woolgoolga) and Mr Darwiche (who does not present as the most astute observer of events) from around 2010 were very extensive so as to permit the inference to be drawn that Mr Darwiche must necessarily have observed a mental decline on the part of the deceased in the period from 2010 to, relevantly, early 2011. It is also relevant in this context that others dealing with the deceased in that period (in particular, Mr Hancock) did not appear to question the deceased's then mental capacity; and, as noted, the Tribunal in 2008 had found the deceased capable of making his own decisions.
More problematic is the issue as to whether Mr Darwiche became aware that the deceased was vulnerable to being taken advantage of financially (something that was clearly a concern to Mr Hancock, for example, at the time that he sent his letter of 13 June 2008 to the deceased; and which was also a concern to Ms Bale at the time).
There are to my mind a number of indications that support the conclusion that the deceased was vulnerable to exploitation in the period from 2008 - he was elderly; he was grieving the loss of his first wife and seeking a companion; he had formed a relationship with a much younger woman (in circumstances that are not clear on the evidence) and had apparently accepted an arrangement whereby Mr Mohr had also moved into his home and had permitted him to have access to his financial affairs; and he had suffered a number of physical incidents (where he had displayed confusion or loss of consciousness) which must have indicated a concern as to his physical (if not also mental) health. However, Mr Darwiche was not introduced to the deceased until sometime after April 2009 (most likely in 2010) and it is by no means clear that Mr Darwiche was on notice of many (if not any) of the matters referred to above.
What must, however, have been clear to Mr Darwiche by February 2011 was that the deceased was elderly, under some financial pressure from his lenders (since that was recorded in the 21 February 2011 Agreement), was dependent on Ms Chyna Schein (his attorney), and was someone about whom concerns as to his cognitive ability had at least previously arisen. As to the fact that the deceased (on Ms Bale's case) entered into the 21 February Agreement on uncommercial terms, I accept that they were uncommercial and that they strongly suggest that Mr Darwiche took advantage of the deceased (but the extent that he was able to do so because of an awareness of the deceased's mental decline is somewhat moot, as opposed to his general vulnerability based on the influence of others around him, such as Ms Chyna Schein and Mr Mohr, and the financial pressure under which he was suffering at the time). I therefore cannot comfortably conclude that Mr Darwiche was aware (in the period from 2010 to 2011) of the deceased being in mental decline (and therefore likely vulnerable to financial exploitation). Rather, I consider that the evidence comfortably establishes that Mr Darwiche was aware by 2011 of the deceased's vulnerability to exploitation by reference to the factors to which I have referred above.
Third, that in February 2011 Mr Darwiche had become aware that the deceased was interested in developing the Forest Lodge Property. (In this regard it is noted that Mr Andreacchio gave evidence that in September 2010 he had been given money by Ms Chyna Schein to undertake a development study with a view to putting in a development application (see Mr Andreacchio's second affidavit at [27]) and that those attempts to develop the property did not bear fruit.)
As to this, I accept that Mr Darwiche became aware in early 2011 that the Forest Lodge Property might be available for sale. It is not so clear that Mr Darwiche became aware at that stage of failed attempts to secure a development proposal for the property. However, it does appear that Mr Darwiche was aware of plans to develop the property and came into possession of a letter dated 3 September 2010 from Mr Andreacchio addressed to Mr Zounis which sought expressions of interest for a development proposal opportunity (see Ex 4 to Mr Darwiche's third affidavit; see also at [52]).
Fourth, that at around this time the deceased was under financial pressure from Suncorp to refinance his loans secured over the Forest Lodge Property. There is no doubt that this was the case (see the matters referred to in the chronology of events above) and I so find.
Fifth, that, at around some time in February 2011, Mr Darwiche (with the help of Mr Churchill) put together the 21 February Agreement by which the deceased would sell the Forest Lodge Property to Kimberley Developments for $590,000. Ms Bale says that the agreement contemplated that the deceased would not be paid cash but would receive consideration comprising (see cl 30 of 21 February Agreement) "the discharge of the outstanding Mortgage, the shareholding in the company and for settlement of monies owed to Darwiche in respect of the clean-up and improvement of the property and other services". Ms Bale says that the deceased was never to receive any cash payment; rather, that the agreement was that the mortgage would be paid out and he would receive a 60% shareholding in the company.
Ms Bale maintains that the 21 February Agreement is drafted in such a fashion as to be so advantageous to Mr Darwiche that it is silly to suggest it was drafted by the deceased or anyone acting for him. Ms Bale argues that the fact that Mr Darwiche (or Mr Churchill, on his behalf) drafted the agreement is said to be further supported by the fact that Mr Darwiche (or Mr Churchill, on his behalf) filled out the ASIC form incorporating Kimberley Developments (ensuring that there were Class A and B shares in accordance with the terms of the agreement).
It is noted that Mr Darwiche's evidence is that: Mr Churchill set up Kimberley Developments and made Mr Darwiche director, without Mr Darwiche's knowledge; because Mr Churchill registered the business, and because the ASIC 'Application for Registration as an Australian Company' form bore both Mr Darwiche's name and signature (although on his evidence this signature was not his) the steps taken by Mr Churchill were done so fraudulently; despite the above, when Mr Churchill signed the transfer document in February 2011, he did so in his capacity as the solicitor for Mr Theos Trigas, because it was Mr Theo Trigas who was in fact (if not at law) the director and controlling mind of Kimberley Developments.
The evidence of Mr Arthur Trigas regarding Mr Churchill's role in the case was of similar import, to the effect that: Mr Churchill registered Kimberley Developments (thus, it is said, increasing the confidence with which it can be concluded that Mr Churchill did so by signing Mr Darwiche's name to it, or reducing the confidence in which it holds the evidence of both witnesses); and that the entirety of the purported sale on their case ($590,000, representing some form of "deal" involving Mr Darwiche and agency fees) was acceptable because the deal needed to be done quickly, and the defendants trusted Mr Churchill as their solicitor.
I address in due course the issue as to whether there was a binding agreement to the effect contended for by Ms Bale. Suffice it at this stage to say that there is doubt in my mind that the document referred to in these reasons as the 21 February Agreement was a document drafted by Mr Churchill. Given the lamentable drafting of the document, it is difficult to see that even the most incompetent solicitor could have prepared it - although I accept that I have no idea as to the competence or otherwise of Mr Churchill as a solicitor.) It looks on its face more likely to be a document cobbled together (the product of a cut and paste exercise so to speak) from other documents. The repetitive nature of its contents and the non-sequential clause numbering; as well as the different fonts and alignment of clauses; all point to such a conclusion. That said, I consider it most likely that Mr Churchill did have some input into the drafting of the agreement because of the clauses that clearly favour his interests (by reference to the clauses giving priority to and security in respect of his fees).
I do not consider it likely that the agreement was drafted by the deceased - not least because it does not seem to be in his interests in a number of respects but also because there is no reason to think that, if the deceased had wanted an agreement to be prepared of this kind, he would not have retained his longstanding solicitor (Mr Hancock) to prepare it. It is also relevant to note that the coversheet to the 21 February Agreement does not contain reference to any solicitor's firm as having drafted the agreement.
There is also the possibility (not addressed in the evidence or submissions) that the agreement was prepared by one or other of Ms Chyna Schein and Mr Mohr (whether with or without the assistance of Mr Darwiche and/or Mr Churchill). This could also explain the infelicitous drafting but not the clauses clearly for the advantage of Mr Churchill.
Ultimately, I think it most likely (on the balance of probabilities) that the 21 February Agreement was prepared by a lay person (with input from Mr Churchill). It seems to me equally plausible that it was a document prepared by Ms Chyna Schein and/or Mr Mohr as it is that it was prepared by Mr Darwiche (but in either case it seems to me almost unarguable that it was prepared with reference to or input from Mr Churchill to some extent and that it was put to the deceased with Mr Darwiche's support or concurrence).
Sixth, that, on 21 February 2011, the deceased, Mr Darwiche and Kimberley Developments entered into the 21 February Agreement; and Mr Churchill and the deceased executed the transfer of title instrument.
Ms Bale says that the evidence of Mr Moore supports the proposition that Mr Darwiche assumed control of the property as though he owned it (noting that Mr Moore formed the view that Mr Darwiche was the owner of the Forest Lodge Property and that Mr Moore had never met Arthur and Theo Trigas). Ms Bale also points to the evidence of Mr Andreacchio, who she says is the closest this case has to a disinterested third party, to the effect that the agreement as annexed to his affidavit was the agreement he understood the deceased to have had entered into with Mr Darwiche (see Mr Andreacchio's second affidavit at [10]) (but also noting that Mr Andreacchio believed the entire transaction to be "a sham" - see his second affidavit at [11]). It is noted that Mr Andreacchio had never met Arthur and Theo Trigas and believed (as did Mr Moore) that Mr Darwiche controlled Kimberley Developments and the Forest Lodge Property.
It is said that, if it be accepted (as Ms Bale contends) that the deceased received no money for the transaction, then this is powerful evidence that the deceased thought he was entering into the 21 February Agreement. It is noted that Ms Chyna Schein believed that the deceased had an interest in the Forest Lodge Property (referring to her evidence to the Guardianship Tribunal) and that Ms Chyna Schein tendered the agreement (a copy of which is annexed to Ms Bale's affidavit as support for that proposition (see Ex C at p 13)) and gave evidence to the Tribunal that she had been trying to get in touch with Mr Darwiche without success.
Ms Bale says that Ms Chyna Schein's evidence to the Guardianship Tribunal is inherently plausible because Ms Chyna Schein admitted that her interest (as the deceased's "soon to be ex-wife") was aligned with that of the deceased in enjoying some benefit from the purported share of Kimberley Development. It is noted that Ms Chyna Schein told the Tribunal that she had had no reason to continue to act as the deceased's carer in his late decline except for the fact that she had continued to believe she was entitled to a portion of the financial benefit from the transaction.
This particular (sixth) finding sought by Ms Bale is critical to the alternative claim brought for breach of contract. There is little doubt as to the second limb of the sixth finding for which Ms Bale contends. The transfer of title document was registered and it purports on its face to bear the signatures of both the deceased and Mr Churchill. There was no challenge made as to the authenticity of the signature of the deceased on the document (and it is sufficiently similar to other signatures purportedly of the deceased to warrant the conclusion, to the lay observer, that it is his signature); and I so find. However, the first limb of this sixth finding is more difficult; not least because there is no document in evidence that bears the signature of Mr Darwiche or any person purportedly on behalf of Kimberley Developments.
There is no dispute by Mr Darwiche that he was provided with a proposed (or draft agreement) to the effect of that on which Ms Bale here relies (and each of Arthur and Theo Trigas accept that he also was shown such a document). However, as referred to above, there is much dispute as to who provided the document to whom (and the form it was in when provided to Mr Darwiche and then shown to Arthur and Theo Trigas).
To repeat the salient evidence, Mr Darwiche gave evidence that: the deceased gave him the "draft agreement" (see his second affidavit at [13]), although he resiled from this in his third affidavit and in oral evidence and ultimately said that either Mr Churchill or the deceased gave it to him; and that the document attached to his affidavit was not the form in which the document was given to him (simply being a draft and one of many agreements that were "floating around"); and Mr Arthur Trigas made much of the fact that the document bore underlining.
I would comfortably draw the inference that the document that was shown to Mr Darwiche (and signed by the deceased and Ms Chyna Schein) did not contain the handwritten annotations that now appear on the copy annexed to his affidavit (since, as already noted, the content of those annotations makes it more than tolerably clear that they were written after the event). I would also conclude that the underlining was not on the document at the time it was provided to Mr Darwiche or signed by the deceased and Ms Chyna Schein (because this would be inconsistent with the fact that there was one amendment to the document that was initialled but the underlining was not so initialled).
I would also infer that the document in evidence is a copy of one that was retained by Ms Chyna Schein, since Ms Bale's evidence was that it was shown to her (for the first time) at NCAT on 11 August 2016. However, that gives rise to some doubt (as adverted to above) because, if the agreement was executed and exchanged in counterparts, one would expect that the deceased and Ms Chyna Schein would have retained the copy signed by Mr Darwiche; and Mr Darwiche would have retained the copy signed by the deceased and Ms Chyna Schein.
I would also draw the inference that the document as signed by the deceased and Ms Chyna Schein was not understood or intended by them to be a draft (since it is not consistent with ordinary practice to sign documents - particularly going to the trouble of initialling handwritten amendments thereto - which are intended only to be draft documents and to have no formal effect).
The difficulty I have is that, in the absence of a document signed by Mr Darwiche, I cannot be satisfied on the balance of probabilities that there was any exchange of counterpart contracts in the form of the 21 February Agreement. The strongest evidence in favour of the conclusion that there was in fact such an exchange is the incorporation of Kimberley Developments (particularly the fact that there were two classes of shares issued - the Class A and Class B shares; with Mr Darwiche as the sole director on incorporation) which is consistent with an agreement or understanding that the company was to be established as provided for under the 21 February Agreement.
However (and notwithstanding my serious reservations as to Mr Darwiche's credibility), I cannot be sufficiently confident that signed contracts were in fact exchanged between Mr Darwiche and the deceased with the intent that they be contractually binding.
What I do, however, comfortably find (on the balance of probabilities) is that Mr Darwiche persuaded the deceased to sell or transfer (to the deceased and/or to Ms Chyna Schein on his behalf) the Forest Lodge Property to Kimberley Developments on the basis of a representation to the effect that the property would be developed in a joint venture along the lines set out in the 21 February Agreement - since that is the logical explanation both for the incorporation of Kimberley Developments with the differential shareholding and for the understanding expressed by Ms Chyna Schein at the 2016 NCAT hearing (incorrect or otherwise as it may have been) as to the proportionate shareholding that was to be held by the company that was to carry out the contemplated development of the property. In that regard, I do not rely on the statements made by Ms Chyna Schein to the Tribunal as to the truth of the matters there deposed but, rather, as to the fact that she expressed that understanding to the Tribunal (consistently with the document on which she had witnessed the deceased's signature). I address the import of that finding on the claims here made by Ms Bale in due course.
Seventh, Ms Bale contends for a finding that some time after the 21 February Agreement was signed, Mr Darwiche obtained the funds to discharge the mortgage over the Forest Lodge Property and effected the transfer "from the Trigas brothers and Super Start". As to this finding, there is evidence that the outstanding mortgage amount was paid by Super Start and I so find. I do not understand the reference to the "transfer" from the Trigas brothers and Super Start, as so phrased. Certainly, it is clear that the shareholding in Kimberley Developments was transferred to Mr Theo Trigas (and Super Start obtained funds from the facility secured over the property).
Eighth, Ms Bale seeks a finding that the shares in Kimberley Developments were never transferred to the deceased in accordance with the 21 February Agreement. There is no doubt (and it is not disputed) that no shares in Kimberley Developments were issued or transferred to the deceased. The defendants dispute an obligation to do so. I have recorded above the findings I make as to the alleged 21 February Agreement.
Ninth, that, from time to time Ms Chyna Schein tried to make enquiry of Mr Darwiche but Mr Darwiche had not spoken to her in a year and a half (Ex C at p 28). Insofar as this finding seems to be based on an acceptance of the truth of what Ms Chyna Schein told NCAT, I cannot make such a finding. I note that this was what Ms Chyna Schein told NCAT but she was not available to be tested on that evidence. Further, whether or not Mr Darwiche was avoiding communicating with Ms Chyna Schein would be a matter of no more than speculation on the evidence; and I do not consider it appropriate to make any such finding.
Tenth, that the Forest Lodge Property was never developed. There appears to be no dispute as to this; and I so find.
Finally, that the whole transaction was a sham designed by Mr Darwiche to extract from the deceased a transfer of the Forest Lodge Property. It is submitted by Ms Bale that Mr Darwiche knew that the deceased was in failing mental health and was not in a position to protect his interests and was under pressure from the bank to refinance; and knew that the deceased wished to try and develop the property and retain an interest in it. It is submitted that Mr Darwiche tailored a sham transaction that appeared to satisfy the deceased's wish to develop the Forest Lodge Property (and to deal with his issues with the bank without the deceased having to give up his entire interest in the Forest Lodge Property).
As to this last finding for which Ms Bale contends, it appears to be inconsistent with the earlier finding contended for in relation to entry into the 21 February Agreement. In other words, if what is contended for is that the whole transaction was a sham then that must carry with it the conclusion that Mr Darwiche never intended to be bound by the 21 February Agreement (and hence there would appear to be a difficulty in Ms Bale's alternative claim based on a breach of such a contract). As to the deceased's mental health and Mr Darwiche's awareness thereof, it is clear that the deceased at some point lost capacity. However, the point at which his mental health declined is not clear (and Mr Darwiche's awareness of this in those circumstances is also unclear) - see my finding above.
Turning then to the claims that are here pressed by Ms Bale, I address each as follows.

[82]

Plaintiff's submissions

Ms Bale submits that the impugned transaction resulted from a proposal by Mr Darwiche to develop the Forest Lodge Property and contends that this proposal was reduced to writing (the 21 February Agreement), which contemplated that, as consideration for the Forest Lodge Property being transferred to Kimberley Developments, the deceased was to receive 60% non-voting Class B shares in Kimberley Developments (with Mr Darwiche to retain 40% of the Class B shares and the discretion to do as he wished with the property; apparently without any obligation to account to the deceased). It is noted that under the terms of the 21 February Agreement, the deceased was also to receive a payment of $590,000, comprising of the discharge of the outstanding mortgage over the property with Suncorp and what was said to be a debt owed to Mr Darwiche for "cleaning work".
Ms Bale says that the 21 February Agreement contemplates that Mr Darwiche would develop the Forest Lodge Property in a manner that would be mutually beneficial to the deceased and Mr Darwiche through their respective interests in Kimberley Developments. The complaint here made is that, although the Forest Lodge Property was transferred to Kimberley Developments (said to be in performance of the 21 February Agreement) in February 2011, neither the shares nor the contemplated payment of money was ever received by the deceased. It is said that the only part of the 21 February Agreement with which Kimberley Developments and Mr Darwiche complied was the payment out of the mortgage; and it is noted that no developments or improvements have ever been made to the Forest Lodge Property.
Ms Bale contends that the deceased had been suffering significant mental decline for some time prior to the transfer and that, by the time the sale of the Forest Lodge Property took place in February 2011, the deceased's mental state had significantly deteriorated due to the effects of Alzheimer's disease. Reliance is placed in this regard on the deceased's contemporaneous medical records diagnosing the deceased with Alzheimer's dementia (in that regard I have noted the objections above and the limits on that evidence). (Ms Bale does not now press the issue as to incapacity as such.) It is also noted that the solicitor that acted on the sale (Mr Churchill) was not the deceased's usual solicitor; and it is said that he acted for all parties in the transaction.
In written submissions it is said that, if the transfer is not set aside on the basis of unconscionable conduct (with which I deal below), Ms Bale seeks in the alternative that the 21 February Agreement be specifically performed; specifically, that the deceased's estate receive the 60% shares promised in the terms of the 21 February Agreement. (I note that in the amended statement of claim, Ms Bale sought a declaration that the plaintiff has validly rescinded the 21 February Agreement and damages for breach of contract, but Ms Bale appears to have withdrawn from this position in written submissions.)
Ms Bale submits that the fact that the deceased did not retain a signed copy of the agreement is no bar to a finding that the 21 February Agreement represented the terms upon which the deceased agreed to transfer the Forest Lodge Property to Kimberley Developments; noting that acceptance can be inferred from conduct if that inference is indicated by the objective circumstances (Ms Bale here referring to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 where Kirby P, as his Honour then was, cited with approval Brogden v The Directors of the Metropolitan Railway Company (1877) 2 App Cas 66 at 530).
Ms Bale contends for a finding that the parties agreed to transfer the Forest Lodge Property on the terms as outlined in the 21 February Agreement because: the 21 February Agreement is signed and dated the same day as the transfer was executed and registered; the 21 February Agreement contemplated that the Forest Lodge Property would be transferred to Kimberley Developments, which is what actually occurred; and there is no competing contract or other written document in evidence which outlines the basis upon which the Forest Lodge Property was to be transferred or the parties' intentions in this regard. Ms Bale contends (and I accept the force of this contention) that the defendants' version of the transaction is inherently unbelievable; and says that this strengthens the probability that the 21 February Agreement reflects the terms upon which the parties agreed to transfer the Forest Lodge Property.
Ms Bale maintains that Kimberley Developments and Mr Darwiche have breached the contract by not providing 60% of the shares in the company or providing $590,000 in consideration. It is said that Kimberley Developments has also breached the contract by encumbering the Forest Lodge Property to secure a $700,000 loan that has been forwarded to Super Start. As noted, in written submissions, Ms Bale seeks either specific performance of the contract providing the 60% shareholding in Kimberley Developments or damages. Pausing here, this submission assumes that Kimberley Developments was itself a party to the agreement comprised in the 21 February Agreement (which seems to me to be problematic as I discuss below).
In the further alternative, Ms Bale says that, if it is concluded (as the defendants claim) that the Forest Lodge Property was simply purchased for $590,000, then the only consideration that was received was the removal of the mortgage over the property in favour of Suncorp in the amount of $288,242.63. Ms Bale says that, if it be accepted that the defendants' asserted cash payment is a concoction, then there is a debt owing in the amount of $302,000 plus interest as against Kimberley Developments.

[83]

Defendants' submissions

The defendants deny that Mr Darwiche entered into the 21 February Agreement and say that all of the causes of action that rely on the 21 February Agreement must fail.
The defendants' case, in essence, is that Mr Churchill initially proposed the 21 February Agreement to Mr Darwiche on the deceased's behalf but that Mr Darwiche rejected the proposal; and that, ultimately, there was an agreement reached between Mr Theo Trigas and the deceased (who it is said had been introduced by Mr Darwiche after the deceased expressed an interest to sell the land to Mr Darwiche), whereby Kimberley Developments purchased the Forest Lodge Property for the sum of $590,000.
The defendants contend for the following findings on the basis of their evidence: that the deceased proposed the 21 February Agreement to Mr Darwiche and that it was not accepted by Mr Darwiche or the Trigas family and the parties agreed to a straightforward sale of the Forest Lodge Property in the form of a standard form contract for the sale of land; that on 21 February 2011, Mr Darwiche and Mr Arthur Trigas drove from Sydney to Woolgoolga to meet with the deceased, Ms Chyna Schein and Mr Churchill at the deceased's (Woolgoolga) residence; that Mr Arthur Trigas gave the deceased $302,500 in cash and the contract for the sale of land was executed as was the transfer; that there was no separate receipt issued for the cash payment as the purchase amount was recorded in the contract for the sale of land and the transfer; that Mr Churchill retained the contract for the sale of land and arranged for it and the transfer to be stamped; and that Super Start discharged the Suncorp mortgage in the sum of $288,242.63 and paid the stamp duty in the sum of $22,060.00.
The defendants contend that payments were made in accordance with the deceased's direction on behalf of Kimberley Developments by Mr Theo Trigas (namely, $288,242.63 to Suncorp to discharge the mortgage secured against the Forest Lodge Property and $302,000 in cash). It is said that the relevant stamp duty component for the transfer was also paid by Mr Theo Trigas on behalf of Kimberley Developments.
It is the defendants' case that the parties agreed to the sale of the Forest Lodge Property which was memorialised in a standard form Contract for Sale of Land and a Transfer of Land (Transfer), which were both signed on 21 February 2011. It is accepted that there is no copy in evidence of any such Contract for Sale of Land (and the defendants say that they do not have a copy of any such contract). However, reliance is placed on the fact that the transfer was stamped by the Office of State Revenue with a $10 stamp and that the Duties Notice of Assessment refers to an "Agreement for sale of land".
Further, reliance is placed by the defendants on s 54A of the Conveyancing Act, which prohibits an action or proceedings brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged. The defendants emphasise that there is no memorandum or note signed by Mr Darwiche, nor anyone on his behalf; and the defendants submit that the evidence relied upon by Ms Bale does not establish that the parties' conduct evidenced an agreement to be bound by the 21 February Agreement, or that there was part performance of the 21 February Agreement.
The defendants say that the absence of an executed copy of the 21 February Agreement is relevant for two reasons: first, that it is consistent with the defendants' case that, although proposed by the deceased or Mr Churchill to Mr Darwiche, it was rejected (and the parties entered into a standard Contract for the Sale of Land); and, second, having regard to the operation of s 54A of the Conveyancing Act.
The defendants emphasise that, in the absence of a duly executed agreement, in order to succeed on the contract claim Ms Bale must establish that the parties considered themselves bound by the 21 February Agreement and that it is not enough to establish conduct consistent with what are alleged to be the terms of the alleged binding agreement (the defendants here referring to Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321 at [77] per Robb J; Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [39]-[40] per Sundberg J).
It is noted that, in opening submissions, Ms Bale submitted that the 21 February Agreement provided, inter alia, that the Forest Lodge Property was to be transferred by the deceased to Kimberley Developments in return for 60% of Class B non-voting shares in the company (citing cl 4.1) and $590,000 (citing cl 26) (as summarised above); but that in closing submissions Ms Bale contends for a finding that the deceased received no money for the transaction and that this was consistent with the terms of the 21 February Agreement.
The defendants say that the contention that the 21 February Agreement did not provide for the payment of money to the deceased in exchange for the Forest Lodge Property is inconsistent with the terms of the 21 February Agreement for the following reasons.
First, that the 21 February Agreement unequivocally states that a separate contract for the sale of land would be entered into by the parties. The defendants say that it should be inferred that a standard contract for the sale of land ordinarily acknowledges the payment of monetary consideration by the purchaser to the vendor.
Second, that the 21 February Agreement records that: the parties agreed on a purchase price of $590,000 "based on a listing by A Licensed Real Estate agent for $600,000" and agreed that the Forest Lodge Property would be sold by the deceased to Kimberley Developments for $590,000; and the deceased acknowledged receipt of the sum of $590,000 for the sale of the Forest Lodge Property comprising of the discharge of the outstanding mortgage, the shareholding in Kimberley Developments and for settlement of moneys owed to Mr Darwiche in respect of the clean-up and improvement of the Forest Lodge Property and other services. Therefore, it is submitted that the 21 February Agreement itself is ambiguous as to whether or not there would be a monetary component paid to the deceased.
The defendants say that Ms Bale does not point to any other evidence that establishes that the defendants acted in a manner that positively indicates that they considered themselves to be bound by the Agreement. It is noted that Kimberley Developments was incorporated on 9 February 2011, whereas the 21 February Agreement is dated 21 February 2011; and (though it seems to me that the following matters are equally consistent with a submission that there was a breach of the agreement) that there was no transfer of shares (cl 4.1), there were no steps taken towards a joint development (cl 5), there were no dividends paid (cll 14-15) and there was no replacement finance arranged (cll 21 and 23).
The defendants argue that there is evidence that the parties, and in particular the deceased, acted in a manner that was inconsistent with the terms of the 21 February Agreement, pointing to cl 31 (which it is said envisages that Ms Chyna Schein would sign the documents on the deceased's behalf) and noting that neither the 21 February Agreement nor the transfer was signed by Ms Chyna Schein pursuant to the power of attorney granted to her on 3 June 2008; rather, both documents were signed by the deceased in his own capacity and witnessed by Ms Chyna Schein.
The defendants say that there are further reasons for their own evidence to be preferred on this issue, referring in this regard to the Duties Notice of Assessment (Ex 9) and to the failure to complain.
As to the former, it is noted that the Duties Notice of Assessment records the document type as "Agreement for sale of land" with an execution date of 21 February 2011 and a dutiable amount of $590,000. The duty assessed was $22,060 (comprising $22,040 and $10 for a duplicate; and $10 for the transfer). The duties assessment number (6177289-001) corresponds with the handwritten number on the transfer.
The defendants say that the transfer could not have been stamped with a $10 stamp unless the agreement which contemplates that transfer was stamped with ad valorem duty, noting that it is essential that the agreement was "entered into" for it to be a dutiable transaction. The defendants say that the presumption of regularity applies where some action has been taken which depends for its validity on the completion of prior formalities. It is submitted that, in the absence of evidence to the contrary, it can be presumed that there was compliance with the formalities. It is the defendants' case that the document that was in fact stamped with ad valorem duty was a Contract for Sale of Land executed by the parties on 21 February 2011, which settled on 24 February 2011. It is noted that the ad valorem duty payable on $590,000 as at 22 February 2011 was $22,040 (and that this accords with what is recorded on Ex 11).
I interpose to note that the presumption of regularity applies only where what is in question is compliance with formal requirements; it cannot be invoked to determine a substantive issue, such as the existence or terms of a missing contract (see Chase v Chase [2020] NSWSC 1689 at [34]-[35] per Rein J, where the presumption was held to be inapplicable to prove the existence and terms of a trust deed; see also Twigg v Twigg [2022] NSWCA 68 at [26] per Brereton JA (with whom Bell CJ and Payne JA agreed); Burnside v Mulgrew; Re the Estate of Grabrovaz [2007] NSWSC 550 at [25] per Brereton J (as his Honour then was)). Accordingly, I do not accept that the defendants can rely on the presumption of regularity to compensate for the paucity of evidence as to the contract.
The defendants say that the agreement on which Ms Bale relies (the 21 February Agreement) cannot on any view have been stamped; and that if counterparts of that contract had been exchanged (as contemplated by the 21 February Agreement) the copy stamped would have to have been the copy signed by the deceased. It is noted that Ms Bale has not adduced a stamped copy of the 21 February Agreement.
The defendants say that the reference on the Duties Notice of Assessment to the document type as "Agreement for sale of land" also supports a finding that the 21 February Agreement was not stamped and they seek an inference that the 21 February Agreement would not have been described in that way. The defendants accept that they have been unable to locate a copy of a Contract for Sale of Land executed on 21 February 2011. They say that the evidence is that it was retained by Mr Churchill and that, despite the defendants attempting to obtain a copy, nothing has been produced.
The Duties Notice of Assessment recorded that Kimberley Developments was liable to pay the sum of $22,060 which was due on 3 March 2011. The defendants say that the evidence establishes that the sum of $22,060 was paid out of the Super Start NAB Business Cheque account on 24 February 2011, as authorised by Mr Theo Trigas.
The defendants further say that if the parties had entered into the 21 February Agreement (which they accept essentially provides for a joint venture), there would have been no need to transfer the Forest Lodge Property to Kimberley Developments and thereby incur an obligation to pay stamp duty.
The defendants thus maintain that Ms Bale's case fails to engage with the Duties Notice of Assessment. It is noted that the proposition put to Mr Darwiche in cross-examination that the 21 February Agreement was signed at the same time as the transfer and that he obtained a copy of the transfer, and registered it, ignores the fact that the transfer could not have been stamped unless the agreement which contemplates that transfer was stamped with ad valorem duty. The defendants say that Ms Bale has not explained how it came to be that the transfer was stamped (assuming that the 21 February Agreement was in fact the operative agreement as between the parties).
As to the submission based on the failure to complain, reference is made to the observations by Sackar J in Sybil Dawne Hintze v Ratna Tsering [2018] NSWSC 1190 at [58]ff. Emphasis is placed on the absence of any complaint from the deceased or Ms Chyna Schein (or anyone else) that the defendants failed to comply with their obligations under the 21 February Agreement. It is said that the probative value of that failure to complain is significantly enhanced by the following: that the 21 February Agreement was dated 21 February 2011 (some seven years before the present proceeding) and at the latest, on her own evidence, Ms Bale became aware of the existence of the 21 February Agreement on 11 August 2016; that the deceased lived with Ms Bale from 2015 until his death in early 2021 (though I interpose here to note that for at least part of that period it is likely that the deceased's mental capacity had declined considerably); that Ms Bale attended the Forest Lodge Property in October 2016 and spoke to Mr Moore when she was informed by him that Mr Darwiche was his landlord and that Ms Bale was subsequently informed by Mr Andreacchio that the Forest Lodge Property was going to be sold in October 2016 and she should place a caveat on it; and that Ms Chyna Schein was aware of and involved in the transaction (having witnessed the deceased's signature on the transfer). It is submitted that, in circumstances where, on Ms Bale's own evidence, Ms Bale was concerned with Ms Chyna Schein's intentions regarding the deceased's assets and finances, the absence of any complaint from Ms Chyna Schein is most telling.
Further, it is noted that (as at 2011) the deceased had recently completed the Summer Hill development. It is said that the deceased was experienced and familiar with what was involved in that development and that this experience makes his failure to complain about the fact that the defendants had not taken any steps to transfer the shares in Kimberley Developments or to develop the Forest Lodge Property even more relevant.
The defendants say that, even if it is accepted that Ms Bale only became aware of the transfer in August 2016, Ms Bale has not adduced any evidence of any steps she took to ascertain what benefit the deceased had received for entering into the Agreement. It is submitted that this is telling in light of the fact that the deceased lived with Ms Bale between 2015 and his death in early 2021, the defendants pointing to the fact that Ms Bale does not refer to any conversation that she had with the deceased about the sale of the Forest Lodge Property; nor as to any conversations she had with Mr Moore or Mr Andreacchio on the issue.
Reference is made in this context to Gray v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 209 at [123] per Adamson J as to the availability of an inference from an unexplained failure to adduce evidence (the Court of Appeal there citing Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 (per Handley JA)). The defendants say that such an inference should be drawn even more readily in circumstances where the very person who could have been expected to give such evidence (Ms Bale, who was reunited with the deceased in 2015) failed to adduce any such evidence.
The difficulty with the above submission is that I am not satisfied that the deceased was or would have been capable of giving Ms Bale any relevant information about the transaction in the period from 2015/2016 (even accepting that Pastor Vaughan's observations at the time the deceased left Woolgoolga suggested some awareness on the part of the deceased as to his social situation); and the position in that regard would unarguably have worsened as the deceased's cognitive ability deteriorated (as it is beyond question it did in the period prior to his admission to a nursing home and eventual death). Relevantly, Ms Bale's evidence was that she had questioned the deceased about the matter (after she first learnt about the 21 February Agreement at the NCAT hearing in 2016) and that the deceased had no recollection of Kimberley Developments or Mr Darwiche. For the same reason I draw nothing from the lack of evidence from Ms Bale as to any discussion with the deceased in the period of five years that the deceased lived with her as to the subject transaction or any complaint about the transaction (that being a matter that the defendants say weighs heavily against a finding that the parties entered into the 21 February Agreement). Even more problematic is the submission by the defendants that Ms Bale failed to adduce any evidence from the deceased himself during the period that the proceeding was on foot (it being commenced in 2018) and before his death in early 2021.
The defendants also point to the evidence of Mr Andreacchio as to his awareness of the sale and transfer of the Forest Lodge Property pursuant to the 21 February Agreement and that he continued to speak to Mr Darwiche "every few weeks" in the period February 2011 until 2 June 2014 and note that Mr Andreacchio did not give any evidence as to any complaint by the deceased or anyone on his behalf that he could have communicated to Mr Darwiche about any obligations under the 21 February Agreement that were not being fulfilled. Again, this suffers from the assumption that the deceased was capable and in communication with Mr Andreacchio in the relevant period.
Further, the defendants say that the deceased (before his death) and Ms Bale were in the possession of the defendants' evidence about the cash payment for a considerable period of time. In that regard, it must be borne in mind that the proceeding was commenced in 2018 but the defendants' evidence was not served until 21 February 2019. Therefore, the window of opportunity (if there was indeed one at all) for Ms Bale to ascertain information from the deceased as to the alleged cash transaction was small.
Nevertheless, the defendants submit (on the basis of the above matters) that it should be inferred that: the deceased's evidence would not have assisted Ms Bale on the issue as to whether the 21 February Agreement was the instrument that memorialised the sale of the Forest Lodge Property; the evidence of the deceased, Mr Moore and Mr Andreacchio would not have assisted Ms Bale on the issue of what benefits the deceased did or did not receive as a result of the sale of the Forest Lodge Property; and the deceased's evidence would not have assisted on the issue of whether or not he received the cash payment. I cannot comfortably draw any such inference in circumstances where, on any view of things, as the deceased's life came to an end he was suffering from cognitive disability and where I accept Ms Bale's evidence that she made enquiry of the deceased about the transaction after she became aware of the 21 February Agreement, and he was unable to provide any information.
The defendants submit (contrary to Ms Bale's submission that Mr Darwiche, with the help of Mr Churchill, put together the 21 February Agreement) that it is more than likely that Mr Churchill drafted the 21 February Agreement, but they deny that it was done on Mr Darwiche's instructions. It is submitted that the unusual benefits conferred on Mr Churchill by cll 24-25 (which the defendants accept are drafted to provide Mr Churchill with a significant advantage for his role in the transaction) strongly suggest that Mr Churchill drafted the 21 February Agreement. I have already made findings in this regard. I think it most unlikely that this document was drafted by a lawyer (or at least by a lawyer with even a passable degree of competence) but I accept that it is likely that Mr Churchill had input into the drafting of the document (having regard to the clauses that operate in his interest).
Where I differ from the defendants' conclusions as to the document is that the defendants maintain that the terms of the 21 February Agreement strongly suggest that the document was more likely drafted by Mr Churchill on the deceased's instructions than on Mr Darwiche's instructions. I disagree.
In support of their conclusion, the defendants point to the following matters.
First, that the 21 February Agreement includes references to information that was in the deceased's exclusive knowledge, including that the parties agreed on a purchase price of $590,000 "based on a listing by A Licensed Real Estate agent for $600,000 … [which] was not able to obtain any acceptable offers …". The defendants submit that it should be inferred that this was a reference to the attempts by Mr Andreacchio to sell the Forest Lodge Property in 2010, after the unsuccessful auction in 2009. It is said that while Mr Darwiche knew about Mr Moore's highest bid of $650,000 at the 2009 auction, he did not know that Mr Andreacchio had subsequently advertised the Forest Lodge Property for sale for $600,000.
The difficulty I have with this submission (apart from the fact that I can place no weight on Mr Darwiche's account of events, having regard to my conclusions as to his credibility as a witness) is that Mr Andreacchio and Mr Darwiche were in communication during the period in which it is said that the Forest Lodge Property was subsequently advertised for sale for $600,000; and if in fact the sale was so advertised it is perfectly plausible that Mr Andreacchio would have communicated this to Mr Darwiche. Therefore, I cannot assume that this was knowledge exclusive to the deceased (even apart from the fact that it is more likely that any listing at this price was on instructions from Ms Chyna Schein and/or Mr Mohr, since they were directly involved in the setting of the reserve for the unsuccessful 2009 auction and were providing instructions as to the distribution of rental from the property; not the deceased).
Second, that the proposed development of the Forest Lodge Property was an idea that was being "floated" by the deceased and/or Ms Chyna Schein. It is said that Mr Andreacchio's evidence confirms that steps were taken in relation to the proposed development including that $15,000 was provided to him on behalf of the deceased to conduct a feasibility study. I note that Mr Andreacchio's evidence is that he quoted to Ms Chyna Schein and Mr Max Mohr an amount of $15,000 to complete the study (T 153.1-153.10) and that Ms Chyna Schein sent $15,000 to Mr Andreacchio in September 2010 (see Mr Andreacchio's second affidavit at [27]). Further, Mr Andreacchio is emphatic in his evidence that the deceased was disinterested in his affairs from 2009 and would tell Mr Andreacchio "just [to] do what Chyna says" (see his second affidavit at [20]-[21]). Thus, while it is possible that the idea was "floated" by Ms Chyna Schein, Mr Andreacchio's evidence undermines the defendants' submission that the idea was "floated" by the deceased.
There was certainly evidence suggesting that the development potential for the Forest Lodge Property was a matter of some consideration by various people (not simply the deceased and/or Ms Chyna Schein) at the time; and Mr Andreacchio did pay for a feasibility study at the time. However, as noted earlier, Mr Churchill also seems to have been copied into at least one of Mr Zounis' communications in relation to a proposed development. Therefore, little can be drawn as to the authorship of the 21 February Agreement from the fact that it contemplated a proposed development of the property. It is certainly not clear whose idea it was to canvas the development potential of the property.
Third, that the reference in cl 32 to the deceased being in default of the mortgage with Suncorp who were to take possession of the Forest Lodge Property was a matter that was exclusively in the deceased's knowledge. Again, I cavil with the proposition that this was a matter exclusively within the deceased's knowledge. Ms Bale's evidence suggests that, from around the time of the deceased's marriage to Ms Chyna Schein, Mr Mohr was going through the deceased's "paperwork" (the timing of which is corroborated to an extent by the complaints recorded by others as having been made by Ms Bale at the time). Moreover, Ms Chyna Schein held the deceased's power of attorney from 3 June 2008 and it is clear from Mr Hancock's letter of 13 June 2008 that he had accepted that he was instructed to communicate with Ms Chyna Schein (as indeed Ms Bale had directed Suncorp to do at around this time). Therefore, knowledge of default notices or the like from Suncorp would almost certainly have come to Ms Chyna Schein and it is not much of a stretch to infer that it would also have come to Mr Churchill's attention. Certainly, I cannot conclude that his was a matter exclusively within the deceased's knowledge.
Fourth, that the 21 February Agreement included terms that were beneficial to the deceased, reference being made by way of example to cl 28 (which, as noted earlier, provided that the deceased requested a waiver of immediate payment of the items which are normally paid up to and including the date of settlement and requested that Mr Darwiche and Kimberley Developments assist him by delaying in calling upon such contributions). It is said that, had Mr Darwiche proposed the terms of the 21 February Agreement to the deceased, the inclusion of those terms would have been unnecessary and burdensome on Mr Darwiche. I accept that cl 28, on its face, was to the advantage of the deceased. However, it might also have been seen to operate in Mr Darwiche's favour if what he was seeking was an immediate transfer of, and control over, the Forest Lodge Property and deferral of such contributions was one way of making the "deal" more attractive to the deceased (particularly at a time when the deceased was under financial pressure). Therefore, I cannot simply assume that clauses of this kind point to the document having been drafted on the deceased's instructions. Moreover, a clause such as this stands in stark contrast to the clauses in favour of Mr Darwiche himself (not least the clauses providing for him to be credited with all expenses made in relation to the proposed development and as to what was to happen if the proposed development did not proceed).
Thus, I am not persuaded that the finding sought by the defendants (that Mr Churchill drafted the 21 February Agreement on the deceased's instructions) should be made. I have concluded (as noted earlier) that on the balance of probabilities it is most likely that Mr Darwiche was responsible for the drafting or instructions for the drafting of the 21 February Agreement, with input from Mr Churchill (not the deceased).
As to the submission by Ms Bale that there should be a finding that there was no cash payment made to the deceased (and that this in turn is evidence of the parties' intention to be bound by the 21 February Agreement), the defendants contend for a finding that the cash payment was made to the deceased as described in the defendants' evidence.
The defendants say that there is contemporaneous and objective evidence that supports a finding that the cash payment was in fact made to the deceased (here pointing to the transfer that was registered in respect of the sale); and point to the absence of any evidence in Ms Bale's case that the deceased did not receive the cash payment to refute the defendants' affidavit evidence (including the lack of evidence of any conversation with the deceased to ascertain whether he accepted or denied that the cash payment had in fact been made - as to which I have already commented above).
The defendants cavil with the submission by Ms Bale that there was no record of the cash transaction. The defendants maintain that there was such a record (namely, the contract for the sale of land albeit that it now cannot be located) and the transfer. As to the defendants' reliance on the first of those matters (the contract for the sale of land), a missing document can hardly be said to be a record of any transaction - reliance on such a document begs the question as to whether there was any such document at all (and, if so, what were its terms). Indeed, this is a matter on which Mr Churchill's evidence could be expected to have shed light (and on which a Jones v Dunkel inference would be available to be drawn to the effect that nothing Mr Churchill could have said would have assisted the defendants' case in this regard).
The defendants' reliance on the registered transfer is of more assistance to their contention on this issue. The defendants say that the transfer has significant probative value, noting that it was signed by the deceased and stamped by the Office of State Revenue and that it records as consideration that "[t]he transferor acknowledges receipt of the consideration of $590,000". Reference is made to the decision of Brereton J (as his Honour then was) in Talevski v Talevski [2007] NSWSC 945 at [20]-[22], in which his Honour emphasised the significance of an acknowledgment of receipt of consideration in a registered transfer, stating that a fundamental purpose of documents of record (such as conveyances and transfers) is "to create a formal record for the future of important aspects of transactions in order to minimise scope for later disputation" and that "particularly with the passage of time, a court should not easily be persuaded to disregard as inaccurate such formal matters of record".
The defendants say that the following matters are also relevant to the weight to be attached to the transfer and the absence of any evidence of complaint from anyone until now: the requirement, if a registered proprietor intends to transfer land, to execute a transfer in the approved form; the requirement that the Registrar-General not register a transfer except in the manner provided by the Real Property Act 1900 (NSW) (Real Property Act); the fact that the Registrar-General may refuse to register or reject a transfer if it is not accompanied by a "fully completed" notice in the approved form (which notice is taken to accompany the transfer if before presentation of the transfer the notice is lodged electronically in a form and in the manner approved by the Registrar-General); that a transfer form, until registered in the manner provided in the Real Property Act, does not have the effect of transferring the land; that, after the registration of the transfer, except in the case of fraud, the land is held free from unregistered interests; and that, upon registration, a dealing has the effect of a deed duly executed by the parties who signed it.
The defendants place significance on the fact that Ms Bale does not challenge the evidentiary value of the transfer but merely submits that there is no documentation to support the alleged cash transaction. The defendants submit that significant weight should be given to the transfer and to the deceased's unequivocal acknowledgement of the receipt of the consideration of $590,000.
Insofar as Ms Bale also submits that the contract for the sale of land was the only alleged paper evidence of the validity of the purchase of the Forest Lodge Property, the defendants say that this ignores the existence, and the probative value, of the transfer. The defendants maintain that the transfer provides objective support for the defendants' case that it was signed at the time that the cash payment was made to the deceased (and that their evidence was also consistent on this issue).
I accept that caution must be exercised before an acknowledgement of the kind contained in the registered transfer is disregarded or treated as inaccurate. However, it is also worth noting that the specification on the transfer of consideration in the sum of $590,000 is not inconsistent with the manner in which the 21 February Agreement was drafted (see cl 30); i.e., it is not inconsistent with the intention of the parties being that a value of $590,000 would be expressed as consideration (on the contemplated contract for sale of land to be signed at the same time and, presumably, on the formal transfer) but that this was to be comprised of the components there set out (discharge of the outstanding mortgage, issue of shares in the company that it was contemplated would carry out the development, and discharge of the amount stated to be owing to Mr Darwiche for the cleaning up of the property). It is not unheard of for a transfer to acknowledge consideration in a nominated amount where such consideration has been taken to be satisfied other than by a monetary payment (see, for example, though I accept in a very different context, as was said to be the case in Cong v Shen [2021] NSWSC 1206). Moreover, insofar as the purpose recognised by Brereton J in Talevski v Talevski was to create a formal record to minimise scope for later disputation, that purpose would surely give way where a case of equitable fraud is raised (as is the case here).
The defendants query why they would concoct the "cash transaction story" (see Ms Bale's closing submissions) if Mr Darwiche in fact proposed the 21 February Agreement to the deceased. It is submitted that it does not make sense that the defendants would include the amount of $590,000 in the 21 February Agreement, and on the transfer, if there was never an intention to make any cash payment to the deceased. The defendants say that, on Ms Bale's case, the terms of the 21 February Agreement could have been limited to the transfer of shares in Kimberley Developments and the discharge of the mortgage in exchange for the transfer of the Forest Lodge Property to Kimberley Developments; and that stamp duty would then have been paid on a valuation of the Forest Lodge Property. It is said that there was no utility in referring to the sum of $590,000 in the 21 February Agreement or the transfer.
In this regard, the defendants point out that, if the consideration payable for the transfer was non-monetary (as is suggested by Ms Bale), a valuation of the Forest Lodge Property would have been required by the Office of State Revenue, resulting in added complexity and probable delay. It is submitted that there was a real and imminent risk (see the email dated 18 January 2011 from Suncorp) that Suncorp would take steps to exercise its power of sale or foreclosure pursuant to its mortgage of the Forest Lodge Property if the debt was not discharged in full by 14 February 2011 (and hence the perceived disadvantage of any delay arising from a non-monetary consideration).
To my mind, this simply makes more plausible the scenario that the monetary amount was specified on the transfer (and perhaps on any contract for sale of land that was prepared but is now missing), so as to facilitate the stamping of the contract and transfer (and the registration of the transfer) but that the parties were proceeding on the basis outlined in the 21 February Agreement (namely, that the consideration was to be treated as comprised of the components referred to above, including the issue of shares in Kimberley Developments).
Thus, I cannot accept that the above matters warrant a finding that there was a cash payment made to the deceased (as the defendants contend). There is simply no objective record of such a cash payment being made (no withdrawal of funds from a bank - it being said to have been taken in cash from a safe; no deposit of funds into any bank account of the deceased; and no receipt having been issued, as such). The implausibility of a large sum of cash being taken from Mr Marinos Trigas' safe, wrapped in bundles (as graphically described in the defendants' evidence, which suggested some familiarity with such cash transactions), and driven some distance to be handed over in such an unorthodox conveyancing transaction as is here described (and without any contract for sale of land apparently being retained by any of the parties - seemingly, on the hearsay evidence, having simply been "lost" by the solicitor acting on the transaction), taken with the serious reservations I have as to the credibility of the defendants, means that I cannot accept the defendants' explanation of events. This is another issue on which Mr Churchill's evidence could have shed light (and again an issue on which a Jones v Dunkel inference would be available to be drawn, that such evidence would not have assisted the defendants' case). In any event, it is not necessary to resort to such an inference, because I am simply not satisfied to the requisite degree of satisfaction that there was any cash payment made on 21 February 2011.
The defendants further say that there should be a finding that, as at March 2010, the deceased was prepared to accept $600,000 for the Forest Lodge Property (relying upon the document obtained on subpoena from Mr Andreacchio's files in which there appears to be an advertisement for sale of the property in that amount. The defendants say that Mr Andreacchio's explanation regarding the typographical errors on the advertisement for the Forest Lodge Property (i.e., that he maintained was an advertisement for the lease of the property) should not be accepted. First, it is said that there was no need for the property to be advertised for lease as Mr Moore remained a tenant throughout the period that Mr Andreacchio managed the Forest Lodge Property. (However, the copy of the lease in evidence indicated that it was for a term of one year expiring in early 2010, which is not inconsistent with an advertisement of the property for lease at around that time). Second, it is said that Mr Andreacchio's explanation regarding the "total misprint" of the inclusion of a price guide of $600,000 is implausible in light of the other references on the document to the land size. It is noted that Mr Andreacchio also did not provide any explanation for the inclusion of the words "Inspect Saturday 10.30am, auction at 11am", other than that was an additional typographical error. I accept that those references on the document are not consistent with it being referable to a proposed lease. However, it is not inconceivable that it was a document adapted from the advertisement for sale of the property prior to the 2009 auction (consistent with Mr Andreacchio's explanation of typographical error); and it is not suggested that there was any further auction scheduled after the earlier unsuccessful 2009 auction. Therefore, the significance of this document to my mind is moot.
Moreover, if the document represented a preparedness on the part of the deceased to accept the sum of $600,000 for the Forest Lodge Property at some time in 2010, this does not explain why there would have been no attempt to renew the offer from Mr Moore (bearing in mind that he apparently also had a first option over the property).
The defendants point to the fact that (as is not disputed) in the period leading up to 2011, the deceased had been involved in a development of townhouses on the Summer Hill land, and that there had been numerous issues with that development, which had cost the deceased a substantial sum of money. It is noted that Suncorp had provided at least $4,400,000 secured against the development and the Forest Lodge Property; and the defendants say that the position in early 2011 was that: the deceased was unable to pay what was owing to Suncorp (by the time of the sale of the Forest Lodge Property this being in excess of $285,000); the deceased's business had closed; and the deceased had sold the family home in Gordon. It is not disputed that the Forest Lodge Property was the last remaining piece of real property that the deceased owned (though I note that it was rented at the time). (Thus, the defendants maintain that the transaction for the sale of the Forest Lodge Property was not improvident at the time.) The defendants note that it is not in dispute that Mr Theo Trigas discharged the mortgage owing over the Forest Lodge Property by making a payment to Suncorp in the sum of $288,242.63.
As to the above matters, there is difficulty in my opinion in ascribing any logical explanation to a transaction as unorthodox as that which the defendants contend here occurred; and I pause to note that the financial difficulties of the deceased at the time simply highlight the special disadvantage under which he was labouring (see in due course below the consideration of the unconscionable conduct claims).
The defendants rely in defence of the claims for breach of contract on s 54A of the Conveyancing Act (which prohibits an action or proceedings brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged). In this regard, the defendants note that there is no such memorandum or note signed by Mr Darwiche, nor anyone on his behalf, in relation to the alleged 21 February Agreement (and that this is accepted by Ms Bale, who does not plead otherwise).
Reference is made to Phung v Phung [2019] NSWSC 117 (at [59]; [62]-[63]) where Darke J considered part performance in circumstances where there was no note or memorandum to satisfy s 54A of the Conveyancing Act. His Honour there noted that acts relied upon as part performance "must be unequivocally, and in their own nature referable to some such agreement as that alleged", citing, inter alia, Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39 where Kiefel CJ, Bell, Gageler and Keane JJ (at [49]) noted that "unequivocal referability is concerned with the proof of acts partially executing a transaction that remains uncompleted, and that proof of the agreement that had been made was not required to show the equity to have the transaction completed" and (at [54]) that "[t]he equity to have the transaction completed arises where the acts that are proved are consistent only with partial performance of a transaction of the same nature as that which the plaintiff seeks to have completed by specific performance".
The defendants say that Ms Bale has failed to establish that there has been part performance of the 21 February Agreement and therefore that s 54A provides a complete defence to her claim.
The defendants further plead that Ms Bale's claims for breach of contract are not maintainable as they have been brought after the expiration of a limitation period of six years, relying on ss 14 and 23 of the Limitation Act 1969 (NSW). It is noted that the 21 February Agreement provided that the transfer of shares in Kimberley Developments would occur upon the signing of the 21 February Agreement, on the signing of the agreement for the sale of land and on the signing of the Transfer. The defendants say that the signing of the contract for the sale of land and the Transfer occurred on 21 February 2011. Accordingly, it is submitted that any claims arising out of the 21 February Agreement should have been commenced prior to 21 February 2017.
Insofar as Ms Bale asserts that the deceased was under a relevant disability for the purposes of s 52 of the Limitation Act (which provides that where a limitation period has commenced to run and the person having the cause of action is "under a disability", the running of that limitation period is "suspended" for the duration of the disability), the defendants refer to Mclaughlin v Burrows [2021] NSWCA 170 in this context. There (at [15]), it was said that "[a] person is 'under a disability' if the person is for a period of 28 days or more 'incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises', by reason of 'any disease or any impairment of his or her physical or mental condition'" (see s 11(3)(b)).
Reference is made by the defendants to Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 where Campbell JA (with whom Basten JA and Handley AJA agreed) said (at [152]) that there needs to be "an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period" and (at [140]) that "[i]n a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with", including "seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action".
The defendants say that there is no evidence at all to establish that the deceased was incapable of, or substantially impeded in, the management of his affairs in relation to the causes of action the subject of the present proceeding at the relevant time. It is noted that the deceased was living with Ms Bale during the period that the limitation period expired. The defendants say that the absence of evidence from Ms Bale or from medical experts on this issue is fatal to reliance on s 52 of the Limitation Act.
By her reply (filed in court on 3 September 2021), Ms Bale pleads reliance on ss 16 and 36 of the Limitation Act (on the basis that the action is founded on a deed and that the claim is to enforce an equitable estate or interest in land, respectively). The defendants' response to this is as follows.
First, as to the proposition that the 21 February Agreement is a deed, reference is made to the observations by Darke J in Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSWSC 379 (from [48]-[49]; [70]-[72]) as to whether an instrument is a deed (his Honour there referring to what was said in B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) at [12.350] and 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] 2 Qd R 302; [2010] QCA 245 at [32]).
The defendants submit that the 21 February Agreement is not a deed for the purposes of s 16 of the Limitation Act. It is submitted that the language used throughout the 21 February Agreement is inconsistent with the document being construed as a deed. The defendants note that the document is called an "Agreement", that it provides for consideration to pass between the parties and that it does not contain the words "signed, sealed and delivered" in the execution block or anywhere else in the document. Further, it is noted that the 21 February Agreement provided that "this Agreement shall be [of] no force and effect until the counterparts are exchanged". It is submitted that this clause evinces an intention by the party executing the 21 February Agreement not to be bound immediately.
Second, as to the proposition that the claim is for an equitable estate or interest in the land, the defendants complain that Ms Bale has not articulated how her claim is a cause of action for an equitable estate or interest in land. (I refer below to Ms Bale's submissions in response to this.)

[84]

Reply submissions

In reply submissions, Ms Bale confirmed that her case (as to the question of no consideration or no adequate consideration for the transfer) is that the defendants did not provide the deceased with a 60% shareholding in Kimberley Developments, or develop the Forest Lodge Property, as agreed. The complaint is that the deceased received nothing other than the payment of the outstanding mortgage to the bank; and, thus, it is said that no consideration or adequate consideration was paid.
As to the defendants' submissions as to the Duties Notice of Assessment, Ms Bale maintains that these are of little assistance because there is no evidence as to what contract was stamped or what obligations that contract placed on the parties. Ms Bale argues that at the highest this indicates that a contract was stamped for duty but it is said that even if the contract for sale of land was in standard form (and was not a copy of the 21 February Agreement), it is still unclear if that contract contained special conditions including the transfer of shares in Kimberley Developments to the deceased.
Ms Bale says that the defendants (contrary to their submissions) did little to try to obtain a copy of the contract (simply issuing a subpoena days before the hearing and years after the proceeding was commenced. It is noted that this was long after Mr Churchill had been incarcerated (and it is suggested - though there is no evidence of this - that this would have been after receivers had been appointed to his legal practice). Ms Bale argues that the defendants could never have seriously expected a reply to a call for documents in such circumstances. Ms Bale submits that the late subpoenas were not a genuine attempt to secure a copy of the contract and were nothing more than a last-minute attempt to try to shield the defendants from the inevitable observation that they had otherwise done nothing to secure the most central piece of evidence supportive of their case theory. In this regard, it is noted that the defendants' affidavit evidence was silent on the issue of the contract being "lost"; the only evidence of this coming by way of hearsay in cross-examination (which Ms Bale says should be rejected).
Ms Bale contends that the absence of the contract is far from a neutral point. Accepting that she bears the onus, Ms Bale nevertheless invokes the principles in Blatch v Archer (1774) 1 Cowp 63, at 65; 98 ER 969 at 9 (Blatch v Archer) and contends that, where relevant facts are peculiarly within the knowledge of a defendant or where the defendant has greater means to produce evidence relating to those facts, then, provided the claimant provides sufficient evidence from which the matter can be inferred, the defendant comes under an evidentiary burden, or an onus of adducing evidence such that would explain the controversy (here referring to what was said by Black J in In Re Sirrah Pty Ltd (In Provisional Liquidation) [2021] NSWSC 413 at [135], where his Honour made reference to the observations of Sifris J in KQ International Trading Pty Ltd v Yang [2016] VSC 146 (at [132])).
Ms Bale contends that, she having called into question the transaction for the purchase of the Forest Lodge Property and having provided evidence to support the allegations, the defendants have an evidentiary onus to provide evidence such as to prove the bona fides of the transaction and that they have failed to do so. Ms Bale argues that the problem with the lack of documents is exacerbated by the fact that the defendants had the greater means to produce evidence attesting to the providence of the transaction. It is noted that the defendants were in contact with Mr Churchill during the proceeding until his incarceration (whereas the deceased was in a nursing home for much of the proceeding before his death).
As to the defendants' submissions based on a failure to complain, Ms Bale says that it was the deceased's inability to protect his own interests due to his declining mental capacity that made him a target for the defendants; and that they knew he was beyond hiring lawyers and instituting proceedings to protect his own interests (if he ever again possessed enough mental faculty to realise that he had been duped). (This submission raises both the issue as to the deceased's vulnerability to exploitation and the issue of capacity - the latter not being established by any expert evidence in the present case.)
Ms Bale says that, in any event, if her version of events is accepted (i.e., as to the 21 February Agreement), then Mr Darwiche was supposed to be developing the Forest Lodge Property for the mutual benefit of the deceased and using the income gained from the property for that purpose. It is said that, as such, the deceased was likely not expecting an immediate return or the regular payment of rent; that it was not a transaction that was intended to provide immediate remuneration; and thus that there was no basis to complain at the outset. (There is some force to this submission in my opinion even if the 21 February Agreement was not a binding contract; because the transaction contemplated by that document was not one that would produce an immediate return and not one that contemplated a cash component of the consideration to the deceased on the signing of the agreement and transfer of the land.)
Insofar as the defendants contend that there is no evidence of what steps Ms Bale took to ascertain if the deceased had received any benefit from the transaction, Ms Bale points to the fact that the deceased's bank account statements from the period of the transaction are in evidence (at Ex A) and do not show any deposit that would reflect part or all of the proceeds of the alleged sale (and it is noted that the defendants did not suggest otherwise in cross-examination).
Reference is made to Ms Bale's (unchallenged) evidence that after she became aware at the 2016 NCAT hearing of the agreement, Ms Bale consulted the deceased who had "no recollection and could not tell [her] who Albert Darwiche or Kimberley Developments were" (see at [80]). Ms Bale therefore agrees that the evidence of the deceased would not have assisted her case but says that this is because, by the time that Ms Bale became aware of the questionable nature of the transaction (in 2016 at the Guardianship Tribunal hearing), the deceased was unable to recall anything about the transaction.
Reference is also made to Ms Bale's (again, unchallenged) evidence that, after the Guardianship Tribunal hearing, she engaged a solicitor (Mr Peter Steele) to try to contract Mr Darwiche and Mr Churchill and that this was unsuccessful. Ms Bale's evidence is that she then tried to call Mr Darwiche and Mr Churchill herself but did not receive any reply. It is noted that Ms Bale sent a letter by registered post to Mr Churchill to obtain a copy of all of her father's documents that were held in his possession, the letter stating that: At the Guardianship Tribunal, China/Chyna Schein presented a copy of a contract between Albert Darwiche and Michel Schein. They directed that I make contact with Albert Darwiche, as Michel Scheins enduring power of attorney. Would you have the contact details of Mr Darwiche and pass them on to me, please? Would you please send all the paperwork that is associated with Michel Schein since 3 June 2008.
Ms Bale submits that, far from drawing an inference from any alleged failure to complain, there should be drawn an inference of consciousness of guilt from the fact that Mr Darwiche and Mr Churchill avoided speaking to her. It is noted that Mr Churchill did not provide the documents as requested and it is said that Mr Darwiche avoided service of the proceeding (an issue to which her solicitor, Ms Breust, gave evidence). Ms Bale says that these are not the actions of litigants with nothing to hide. Pausing here, I do not draw any adverse inference from the alleged failure to complain (for the reasons submitted by Ms Bale and as discussed earlier). However, nor can I conclude that the failure to respond to Ms Bale's queries (or attempts by her legal representatives to make contact with Mr Darwiche and Mr Churchill) that this amounts to a consciousness of guilt.
In reply to the defendants' submissions based on s 54A of the Conveyancing Act, Ms Bale emphasises that equity will not permit a statue to be used as a cloak for fraud (including equitable fraud), referring to Rochefoucauld v Boustead [1897] 1 Ch 196 at 206; Organ v Sandwell [1921] VLR 622 at 630.
In any event, Ms Bale contends that the 21 February Agreement has been part performed, in that the Forest Lodge Property was transferred as contemplated in the 21 February Agreement. It is submitted that such a transfer was clearly a part execution of the substance of the 21 February Agreement, done upon the faith of the 21 February Agreement (reference being made to Francis v Francis [1952] VLR 231 at 340).
As to the defendants' submission that the 21 February Agreement is not a deed for the purposes of s 16 of the Limitation Act, in reply submissions for Ms Bale it is noted that this is a matter of construction having regard to all of the surrounding circumstances in order to determine whether the parties intended the agreement to be a deed or not (reference being made to the decision of Brereton J, as his Honour then was, in Re Cummings Engineering Holdings Pty Ltd [2014] NSWSC 250 at [52]).
Ms Bale says that the answer to the defendants' argument is that she is here seeking that the transfer of the property to Kimberley Developments be set aside. It is said that the transfer document is a deed and has the effect of a deed on the parties upon registration (referring to s 36(11) of the Real Property Act). Hence, it is said that this is an action founded on a deed for the purposes of s 16.
Further, reference is made to the decision of Young J, as his Honour then was, in Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 327-373 to the effect that statutory based forms of transfer of Real Property Act lands were deeds since they were cast in the most solemn form applicable to deal with the particular land.
As to Ms Bale's claim to have an equitable estate or interest in the land, Ms Bale asserts that Kimberley Developments holds the Forest Lodge Property on trust for it and seeks an order that Kimberley Developments execute an instrument and do all things necessary to convey the property back to Ms Bale (as executor of the deceased's estate) (see prayer 3). Ms Bale contends that this is an equitable estate in the land for the purposes of s 36 of the Limitation Act.

[85]

Determination

As to the breach of contract claims, as noted earlier, I would infer that the annotations and underlining on the copy of the 21 February Agreement that is in evidence were placed on the document sometime after it was signed (by Ms Bale - since there is a reference there to "dad"; and hence the annotations cannot have been on the document in 2011 because Ms Bale only saw a copy of the document in 2016).
The document itself appears to have been signed with some formality (being witnessed and with the one correction thereto being initialed). The document bears all the hallmarks of a document drafted by a non-lawyer (but cobbled together from other documents perhaps drafted by a lawyer): its numbering is not sequential; its alignment is not consistent; its content is repetitive; there is no attribution on the coversheet to any lawyer or firm of solicitors; the font is not consistent; and parts appear to have pro forma headings. That said, I would infer that the document was drafted with reference to, or the assistance of, Mr Churchill (because it is clearly to his benefit that his fees have priority and be charged against the Forest Lodge Property) and I do not accept that it is likely that the deceased gave Mr Churchill instructions for the drafting of the document (noting that Mr Churchill was a longtime associate or friend of Mr Darwiche; and that the agreement was not on its face to the deceased's advantage - see the provisions for crediting of payments or reimbursement of expenses to Mr Darwiche and his ownership of intellectual property and the like, to which I have earlier referred).
I have explained my concerns as to the credit of the respective witnesses called in the defendants' case. I cannot place any weight on the defendants' (inconsistent) accounts in relation to the provenance of the 21 February Agreement or their protestations that it was not accepted. That said, there is no document in evidence that is signed by Mr Darwiche (the named counterparty thereto) and no evidence as to exchange of counterparts with the intent that it become contractually binding (and the retention by Ms Chyna Schein of a document with original signatures thereon (which is what Ms Bale recalls seeing at NCAT and which Ms Bale says the Tribunal asked her "to follow up on", see T 32.50-33.2) would suggest that there was no such exchange of counterpart contracts).
Ms Chyna Schein's evidence at NCAT (admitted as to the fact of what she there said, not as to the truth of what she said) shows an understanding or belief on her part that there was such an agreement (and would be consistent with Ms Chyna Schein seeking to maintain access to the deceased's assets - since any interest in the Forest Lodge Property would be the only remaining asset of the deceased); but this must be balanced against the fact that Ms Chyna Schein also expressed the (demonstrably incorrect) understanding that the Forest Lodge Property remained owned by the deceased. In other words, Ms Chyna Schein's understanding of the arrangements in relation to the Forest Lodge Property, as at August 2016, was not reliable.
As to the involvement of Arthur and Theo Trigas in the transaction, there is no evidence of any ability of Mr Darwiche in his own right to finance the acquisition of the Forest Lodge Property or to carry out a development in relation to that property (which makes plausible the defendants' account that he approached the Trigas brothers in relation to the proposed development; and that, if not a joint venture as such, there would be some involvement of those parties in any proposed development). However, the company (Kimberley Developments) was clearly incorporated with Mr Darwiche as its director and sole shareholder; and the incorporation of the company with a Class A and Class B shareholding structure is consistent with the 21 February Agreement that I have concluded was prepared by Mr Darwiche with the assistance or input from Mr Churchill and presented to the deceased by or with Mr Darwiche's support and concurrence.
What is left unexplained (since I cannot accept the evidence of the defendants at face value and neither Mr Churchill nor Ms Chyna Schein gave evidence in the proceeding) is what actually occurred at the time that the transfer form in respect of the Forest Lodge Property was signed. I accept that it is likely that the transfer was signed in Woolgoolga (the deceased and Ms Chyna Schein living there at the time) since the transfer bears the signatures of the deceased and Ms Chyna Schein as witness, and that at least Mr Churchill must have attended at the time it was signed. It is not insignificant that he signed as solicitor for the transferee. As noted, the transfer form acknowledges consideration in the sum of $590,000; and the transfer form was stamped with duty of $10 (suggesting that some other document had been stamped for the duty payable on the sale of the property). However, no contract for sale was in evidence and I do not accept that it can be inferred that there was a contract for sale in any particular form (let alone the terms of the standard form contract for sale of land in New South Wales). All that can be concluded is that there was some document put to the Office of State Revenue which was accepted as being liable for stamp duty in an amount corresponding to a purchase price of $590,000 (most likely a document prepared by Mr Churchill and, for all I know, a contract in the form of that which was in evidence as the 21 February Agreement, perhaps with a statement as to the payment of consideration thereunder). That does not persuade me (to the requisite degree of satisfaction) that there was a cash payment made in that (or any) amount to the deceased on 21 February 2011.
I do not accept the defendants' account of the way in which the purchase price was comprised; nor do I accept the colourful (and to my mind inherently implausible) account of large sums of cash being taken from the late Mr Marinos Trigas' safe and delivered to Woolgoolga in a black computer bag - the detail of which emerged only in cross-examination - to be counted by the deceased. Nor do I accept the convenient way in which it is said by the defendants that the practical effect of the transaction was the same as if the deceased had received the sum of $650,000 that had been rejected at auction previously; which evidence was redolent of an attempt at ex post facto justification of the stated consideration on the transfer document).
Therefore, I am left with the (on any view infelicitously) worded 21 February Agreement that I am comfortably satisfied was put to the deceased by Mr Darwiche or by Mr Churchill on Mr Darwiche's instructions or with his concurrence (and, on its face, accepted by the deceased - since he signed it with Ms Chyna Schein as his witness) as governing the arrangements for the proposed development of the Forest Lodge Property, on the one hand; and the evidence of the signed and registered transfer acknowledging consideration in the sum of $590,000 (but with no credible evidence that any such sum was ever paid to the deceased); and with arrangements clearly having been made consistent with a proposed joint venture for the development of the property in which the deceased was to have an interest through a shareholding in Kimberley Developments (i.e., the incorporation of the company). Whether Mr Darwiche ever intended to be bound by such a transaction is moot; but it seems to me that it is implausible that he did. In any event, the arrangements proposed seem intended to have given him ample latitude to do what he liked with the property (and left the deceased vulnerable to whatever Mr Darwiche then chose to do with it - indeed, the deceased was not even permitted to lodge a caveat to protect the interest that under the 21 February Agreement it was contemplated he would retain in the property or its development).
Ultimately, I am not persuaded (to the necessary degree of satisfaction, on the balance of probabilities) that there was a binding agreement between Mr Darwiche and the deceased on the terms of the 21 February Agreement, though I am comfortably satisfied that this was the arrangement that was put to the deceased (by Mr Darwiche with the assistance of, or input from, Mr Churchill) and on the basis of which the deceased was persuaded or induced to sign the transfer document in relation to the sale of the Forest Lodge Property to Kimberley Developments.
I am also not persuaded that there was any monetary consideration actually paid to the deceased for the transfer of the property to Kimberley Developments (though it is not disputed that there was a payment made by Mr Theo Trigas - although in some submissions it is suggested that it was Super Start which made the payment - to discharge the mortgage debt to Suncorp). That conclusion is reinforced by the deceased's bank statements that are in evidence (Ex A).
One might well think it unlikely that Ms Chyna Schein would have participated or assisted the deceased to participate in a transaction in which the property was transferred without any monetary consideration. However, for what it is worth, the understanding as expressed by Ms Chyna Schein at the 2016 Tribunal hearing seems to have been that the property was to be retained by the deceased and that the arrangement was for him to gain a shareholding in Kimberley Developments and participate in the profits of any development in that way (and indeed this seems likely to have been the basis on which Ms Chyna Schein sought to resist the revocation of the power of attorney she held in respect of the deceased - since Ms Chyna Schein appears to have been wishing to preserve a claim for half of the deceased's assets , whereas if the Forest Lodge Property had already been sold for the acknowledged consideration there would be nothing left to preserve).
The telling point in this whole sorry saga is that there is simply no documentary evidence of any transfer of funds as consideration for the transfer. The subsequent payment of the mortgage amount does not assist the defendants in this regard because that was after the transfer was registered and is consistent with the proposed joint venture arrangement and components for the purchase price contemplated under the 21 February Agreement in any event.
In those circumstances, I have concluded on the balance of probabilities that there was no monetary consideration paid for the transfer of the Forest Lodge Property (other than the discharge of the Suncorp mortgage, which Ms Bale accepts can be taken to be part of the purchase price). Assuming for this purpose the deceased's capacity to understand the transaction at all (something of which the defendants' witnesses seemed adamant was their perception, although at least in the case of Mr Arthur Trigas this seemed to be based on nothing more than the youth of the deceased's wife - see at T 314), I find that the deceased was persuaded to sign the transfer document (and thus to part with ownership of the Forest Lodge Property) on the understanding that there was an agreement or arrangement for its development along the lines set out in the 21 February Agreement and in which he would participate through a shareholding in the company that was to carry out the development. (That is consistent with the deceased having a desire to retain an interest in the property and with the deceased being prepared to accept a sum lower than that which had been rejected at auction in 2009.)
The alternative claim based on a binding contract in terms of the 21 February Agreement thus fails; in which case it is not necessary to consider the limitation defences raised to that claim. Suffice it note that I have no little doubt as to the deceased's ability to manage his affairs in the period at least from January 2016 onwards; and would have found on the evidence that he was under a relevant disability (for Limitations Act purposes) from that point onwards (which is within the limitations period for a breach of contract claim).

[86]

Contracts Review Act claim

Next, I turn to the claims against Kimberley Developments and Mr Darwiche under the Contracts Review Act, namely that the 21 February Agreement is an unjust contract within the meaning of s 7 of the Contracts Review Act or under the general law. These claims appear to be premised on the 21 February Agreement being a binding contract (and hence would fail having regard to the conclusion reached above). Nevertheless, for completeness I note that Ms Bale presses these claims on the same basis that Ms Bale claims unconscionability at general law. Further, I note that there was some argument in opening submissions to the effect that the transfer (operating as a deed) of the Forest Lodge Property was itself unjust within the meaning of the Contracts Review Act.
In opening submissions it was said that, at the time of the sale of the Forest Lodge Property in February 2011, the deceased's mental decline was such that he was no longer able to comprehend complex transactions, would only give minimal and non-responsive answers in conversation and seemed to be disinterested in his affairs generally; and his condition was such that he could no longer protect his own interests. The submission as to capacity ultimately became a submission as to the vulnerability of the deceased to exploitation.
Ms Bale contends that the deceased's estate is entitled to have the transfer declared void effective from when the contract was made (for the purposes of s 7(2) of the Contracts Review Act). Ms Bale's submissions in this regard turn on the argument that the 21 February Agreement to transfer the Forest Lodge Property was unjust withing the meaning of the Contracts Review Act, having regard to the matters outlined in s 9(2) of the Contracts Review Act. In particular, it is said that there was a material inequity in the bargaining power between the deceased on the one hand and Kimberley Developments and Mr Darwiche, on the other hand; as the deceased was unable reasonably to protect his interests (see s 9(2)(a) and (e) of the Contracts Review Act); that the deceased was unable to negotiate complex contractual terms such as those that ultimately made up the 21 February Agreement and would not have understood the true effect of the terms of the 21 February Agreement (see s 9(2)(b) and (c) of the Contracts Review Act); that the 21 February Agreement is drafted in confusing and ambiguous terms (see s 9(2)(g) of the Contracts Review Act); that the deceased did not receive independent legal advice as Mr Churchill was advising all parties to the 21 February Agreement (see s 9(2)(h) of the Contracts Review Act); that the deceased did not have the capacity at the time to understand the true nature and effect of the 21 February Agreement (see s 9(2)(i) of the Contracts Review Act). Further, it is noted (see s 9(5) of the Contracts Review Act) that the deceased has not received any transfer of shares, dividends or other consideration for his transfer of the Forest Lodge Property to Kimberley Developments.
Ms Bale relies on the same matters in this context as those propounded in her claim based on unconscionability at general law (see below) and says that if those matters are established then it would follow that the elements of the Contracts Review Act have been made out. As noted, the relief sought is for the transfer to be declared void (see s 7(2) of the Contracts Review Act).
The defendants submit that the pleaded claims pursuant to the Contracts Review Act are statute barred (T 359.7-359.15). In light of the concession made by Ms Bale as to the evidence not going far enough to establish incapacity, the defendants argue that it must follow that the plaintiff cannot establish a relevant disability within the meaning of s 52 of the Limitation Act, and that any cause of action that is subject to the six-year limitation period in s 14 is statute barred. As noted above, Ms Bale seeks a declaration "generally" that the deceased was under a relevant disability at the time of entering into the 21 February Agreement (for the purposes of s 52 of the Limitation Act in answer to the limitation defence raised by the defendants).
As to the substance of the Contracts Review Act claims, the defendants' submissions appear to be those raised in response to the claims of unconscionable conduct and I consider those submissions below before making a determination on the Contracts Review Act claims themselves.
Suffice it for present purposes to say that, of the complaints made in the pleading in respect of these claims, I find as follows: there was a material inequality in bargaining power as between the deceased on the one hand and Mr Darwiche and Kimberley Developments on the other (albeit not because the deceased is established to have been suffering from dementia in early 2011 but because of his vulnerability to exploitation - see below - and the admitted financial pressure under which he was then operating); the terms of the 21 February Agreement were confusing and not readily understandable (including as to how the arrangements in relation to the proposed shareholding were to operate); the deceased had no independent advice in relation to the 21 February Agreement; and the agreement contained in the 21 February Agreement was, on its face, improvident and not in the best interests of the deceased (not least because the provision for payment of consideration in relation to the transfer was not clear).

[87]

Claims of unconscionable conduct

The unconscionable conduct claims against Kimberley Developments and Mr Darwiche are made relying on ss 20, 21 and 22 of the Australian Consumer Law) (see [35]-[46]) and, in the alternative to the statutory relief claimed, for unconscionable conduct under the general law (see [46A]).
Ms Bale contends that the deceased's estate has personal equities as against the defendants such that it would require the registered proprietor to transfer the property back to the estate despite registration (citing Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 at 384-385). Primarily, Ms Bale argues that the defendants took advantage of the deceased's declining cognitive ability or position of vulnerability (not now putting this as high as a lack of capacity as such). (The knowledge of that "cognitive degeneracy and or dementia" is put by reference to cl 31 of the 21 February Agreement (which to my mind is not made good - since a provision of that kind could equally be included to protect against later cognitive disability and is not an acknowledgment of such a condition at that time).
The pleading of unconscionable conduct for the purposes of the statutory claim for relief includes that Mr Darwiche and Kimberley Developments: ([35]) knew the deceased was suffering cognitive degeneracy and or dementia: ([36]) ensured that the terms of the agreement gave them an unfettered discretion to deal with the deceased's property generally as they chose in circumstances where they knew that the deceased was unable to negotiate terms or protect his interests; ([37]) ensured that the terms of the agreement gave them unfettered discretion not to pay any profit or rental proceeds to the deceased; ([38]) sought to prevent the deceased from attempting to protect his property by registering a charge over it; ([39]) knew that the transaction was not in the deceased's best interests and "as such" knew that Ms Chyna Schein was acting outside the terms of her power of attorney; and ([40]) knew that Ms Bale was challenging the validity of the deceased's power of attorney.
The pleading then alleges that no profits or dividends have ever been paid to the deceased; that no shares have been transferred to the deceased; no consideration (or alternatively no adequate consideration was received for the property); and that Mr Darwiche and Kimberley Developments knew that the terms of the agreement would act unfairly on the deceased when they executed it and have refused to enter into any communication with Ms Bale or the deceased's representatives (see [41]-[46]).
The same facts and circumstances are relied upon for the claim of unconscionable conduct under the general law (see at [46A]).
As noted above, Ms Bale contends that, at the time of the sale of the Forest Lodge Property in February 2011, the deceased's mental decline was such that he was no longer able to comprehend complex transactions, would only give minimal and non-responsive answers in conversation and seemed to be disinterested in his affairs generally; and his condition was such that he could no longer protect his own interests. Ms Bale contends that Mr Darwiche never intended to transfer any shares in Kimberley Developments to the deceased or to develop the Forest Lodge Property. It is said that Mr Darwiche proposed the 21 February Agreement and incorporated Kimberley Developments as vehicles for him unconscionably to procure the consent of the deceased to transfer the Forest Lodge Property and that the 21 February Agreement was a sham.
Although in opening written submissions Ms Bale argued that the deceased was plainly suffering from more than just slight cognitive decline, as already noted that issue of incapacity is no longer pressed. However, Ms Bale still points to the references in the medical records and the lay evidence (including from Mr Andreacchio); and to the terms of the 21 February Agreement itself as evidence of cognitive decline and a lack of judgment resulting in the deceased being unable to protect his own interests.
In that regard, Ms Bale contends that the transaction itself, as recorded in the 21 February Agreement, was complex, ambiguous and uncommercial; that the 21 February Agreement is poorly drafted (it being said that, even without any suggestion of cognitive decline, it is difficult to understand if not nonsensical in parts). It is noted that the 21 February Agreement purported to give Mr Darwiche an "absolute unfettered discretion" to do what he deemed necessary to develop the property (per cl 4.2); that the transaction involved a division of shares, and the shares had different rights attached to them for the purpose of controlling the company; and that the 21 February Agreement outlined a regime for the apportionment of Class A and Class B shares, with the Class A shares only having voting rights. It is noted that the 21 February Agreement does not specifically state who will get the Class A shares (cl 4.3 referring only to Class B shares).
Ms Bale also points to the fact that the 21 February Agreement uses vague terms (for example, that it is "envisaged" that the deceased would be entitled to profits and dividends without explaining how and when such payments were to be made); and that it permitted security to be taken over the property by Mr Churchill to secure his fees (at cl 4.3) and provided that both Kimberley Developments and Mr Darwiche and the deceased would be liable for his fees.
It is noted that the 21 February Agreement does not contemplate that the deceased would obtain any payment from the promised $590,000; rather, the consideration would comprise "of the discharge of the outstanding mortgage, the shareholding in the company and for settlement of monies owed to Darwiche in respect of the clean-up and improvements of the property and other services"; and that there is no amount given for the value of the "clean up" or "improvements of the property". Further, Ms Bale points to the statement recorded in the 21 February Agreement that the deceased advised Mr Darwiche that he wished to be a "passive investor" (cl 4.3).
As noted above, the 21 February Agreement provided that the deceased would sign a transfer of title conveying the land to Kimberley Developments upon signing the agreement (Ms Bale says without apparently any separate contract for the sale of the land - though the terms of the document do seem to contemplate a contract of sale of some kind) (see cl 4.3). Ms Bale points out that there was apparently to be no settlement of water rates, council rates and land tax and that, although the deceased would owe these amounts to Kimberley Developments and Mr Darwiche, they would only be payable when "Darwiche determines that they must be paid" (cl 4.3).
Ms Bale says that other parts of the 21 February Agreement reflect matters that are factually wrong and/or "legally dubious", namely that: the deceased was to "acknowledge that he had no rights to place caveats or other restrictions on the property" (cl 4.3); and that the Forest Lodge Property was listed for $600,000 and the deceased was not able to obtain any acceptable offers (cl 4.3). As to the latter, Ms Bale says that there is no evidence of this; and that it is contradicted by Mr Andreacchio's evidence (he having stated that the deceased had previously rejected offers of $650,000) and that Mr Moore, the tenant of the property, offered $650,000 at auction and it was rejected. However, as noted above, there was in evidence a document which purported to advertise the property for sale with a guide of $600,000.
It is submitted that, even without mental decline, one would struggle to understand the terms of the 21 February Agreement that purported to record the basis that the deceased transferred the Forest Lodge Property; and that it is incapable of being properly understood by anyone (for the reason that it does not disclose who would receive the Class A shares and therefore control the voting).
Ms Bale accepts that she needs to show that Kimberley Developments and Mr Darwiche had knowledge of the deceased's mental decline (again, not now asserting this to be mental incapacity as such) but says that such knowledge can be constructive knowledge (referring to Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29 at [68], where it was said that actual knowledge is not necessary).
Ms Bale submits that the facts as known to Mr Darwiche (and therefore to Kimberley Developments) were such as to raise in the mind of any reasonable person a very real question as to the deceased's ability to see to his own affairs, referring to the following matters.
First, Ms Bale contends that, on Mr Andreacchio's account, the entirety of Mr Darwiche's narrative as to how the Forest Lodge Property came to be transferred would necessarily be rejected (and it is argued that, if this is a lie on the part of Mr Darwiche, then this corroborates the alternative view of the facts (namely, that Mr Darwiche knew that the deceased lacked the capacity to understand the 21 February Agreement and he took advantage of that weakness). Reference is made in this regard to what was said in Steinberg v Federal Commissioner of Taxation (at 694) as to circumstances in which an inference can be drawn from the fact that the witness has told a false story (i.e., of consciousness of guilt) and that "if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of an alternative state of facts"; and to R v Heyde at 236, where Clarke JA said, in a passage cited with approval in Urjraso v NRMA Insurance Ltd (unreported, Court of Appeal, NSW, CA 40353 of 1990, Mahoney CJ, Priestley and Handley JJA, 14 December 1992) that "it is only lies which suggest the liar cannot give an innocent explanation of proved facts, or that he is unable to account for what witnesses say they saw in any way consistent with his own innocence which are capable of providing corroboration". Reference is also made to the application of this principle by Rein J in considering the credit of witnesses with competing versions of events as they relate to the sale of a property in Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 at [36]. Ms Bale says that Mr Darwiche has lied because he cannot properly explain the fact of the transfer of the Forest Lodge Property to Kimberley Developments.
Second, reference is made to the statement in cl 4.3 of the 21 February Agreement to the effect that Ms Chyna Schein has a power of attorney over the affairs of the deceased and that the deceased "advises Albert Darwiche that such Power of Attorney was challenged in the Guardianship Tribunal of New South Wales and was upheld to be a valid Power of Attorney".
Ms Bale argues that if it is accepted that the entire agreement (including cl 4.3(31)) was the proposal of Mr Darwiche then this amounts to an admission, against interest, by Mr Darwiche and Kimberley Developments that they knew that the deceased lacked the capacity to enter into the agreement. Further, it is submitted that the above statement was a "self-serving and clumsy attempt to head off future attacks on the validity of the transfer, which those defendants must have known were coming". It is submitted that the insertion of this clause in itself is powerful evidence of the knowledge of Mr Darwiche and Kimberley Developments of the deceased's mental decline; alternatively, that even if Mr Darwiche did not draft the clause, it is noted that he still admits to having read it and "considered" it. It is submitted that, on that view of the case, Mr Darwiche was aware that the deceased was suffering mental decline such that his capacity was being challenged in the Guardianship Tribunal. (Pausing here, the difficulty in this submission is that the challenge to the deceased's capacity was not upheld in the 2008 challenge; and I see no basis to conclude that simply being aware of the fact of such a challenge is evidence of awareness of mental decline as such.)
Third, it is said that if Mr Andreacchio is accepted as a witness of truth, his evidence (coupled with the contemporaneous medical records) makes clear that the deceased was in such a state that no reasonable person could not have formed a serious concern as to his capacity to understand the transaction at the very least. I have dealt with this issue above when determining the factual findings sought by Ms Bale. The difficulty is that one would need to have a "baseline" against which to test any observations of mental decline, at least unless they were so evident as to be unmissable (and that cannot have been the case as at 2008 having regard to the conclusions reached in the NCAT proceeding and the fact that Mr Hancock was still comfortable taking instructions from the deceased in 2008). Moreover, the relevant time at which knowledge must here be tested is 2011.
As to the deceased's position of disadvantage, Ms Bale refers to the contemporaneous medical notes as clearly establishing that the deceased was suffering from cognitive decline exacerbated by the death of his first wife. Taken with the lay evidence of Ms Bale and Mr Andreacchio, it is said that the deceased was in serious mental decline by February 2011. As adverted to above, Ms Bale argues that the unusual and out of character nature of the transaction is itself strong evidence of the deceased's mental decline. As noted, Ms Bale argues that the 21 February Agreement itself appears to acknowledge (by cl 4.3(31)) that the deceased was in cognitive decline (though I do not accept this is the meaning to be accorded to this; rather it would seem that cl 31 was included on the basis that Ms Chyna Schein would sign the agreement pursuant to her enduring power of attorney).
Ms Bale argues that the terms of the 21 February Agreement give an uncommercial and disproportionate advantage to Mr Darwiche; noting that Mr Darwiche is given absolute and sole discretion to do as he will with the Forest Lodge Property and that the deceased was not even permitted to encumber the property to protect his interests. It is submitted that the agreement was drafted by Mr Churchill (who acted for all parties on the transaction) and that it can safely be concluded that Mr Churchill was acting in the interests of Mr Darwiche to the detriment of the deceased. It is submitted (and I would accept) that this lack of independent legal assistance to see to the deceased's interests is another reason the deceased was at a disadvantage.
Reference is made to Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 (Blomley v Ryan) (at 371) where the solicitor for the agreement acted for both the vendor and the purchaser at the execution of the contract and was found to have failed to give him proper legal advice and protection; and that the High Court found that was further evidence of the vendor's disability. In the present case, it is said that Mr Churchill failed to protect the deceased's interests or give independent legal advice; it is said that he was only acting in the interests of Mr Darwiche.
Ms Bale submits that the transaction was clearly improvident; arguing that there is no cogent argument that would explain the transaction as commercial on any view. It is emphasised that: the Forest Lodge Property was valued at $1,200,000 by Colliers International on 4 February 2005; on 3 April 2009 the deceased received an offer for the property for $650,000; in August 2009 a bid was made at auction of $650,000 which was rejected as being below the reserve price of $1,000,000; in late 2010 Mr Andreacchio advised Mr Darwiche that the deceased was looking of offers of $1,000,000, having previously rejected lower offers (and says that Mr Darwiche agreed that was an appropriate price); and an offer had been rejected for a property next to the Forest Lodge Property (one-third of the size of the deceased's) of $1,300,000.
It is said that even if the defendants' argument (that they simply paid $590,000 for the property) is accepted, it is significantly less than prior offers to purchase the property in the preceding years and less than half the formal valuation in 2005. It is noted that Mr Andreacchio has deposed to his view that the deceased would not have consented to the sale of the property for less than $650,000 because he had already rejected this amount and further that he believed "the entire transfer was a sham". (I place no weight on this evidence because it is nothing more than lay opinion as to what the deceased would have done; and Mr Andreacchio's belief is irrelevant.)
Insofar as the defendants suggest that an impending foreclosure was the motivation behind the sale, Ms Bale maintains that there is no evidence of that, pointing to Mr Andreacchio's evidence referred to above. However, that is inconsistent with the position that emerged by reference to Suncorp's email.
Ms Bale argues that if it is accepted that the deceased did not receive any money for the transfer, as alleged, then it would necessarily follow that the transaction was a sham transaction and therefore improvident. (Certainly, I would accept that the transaction was improvident insofar as the transfer was signed without receipt of monetary consideration by the deceased.) Further, Ms Bale argues that, if her contention that the property was transferred pursuant to the 21 February Agreement is accepted, then the transaction was undoubtedly a sham transaction because: the 21 February Agreement bestowed unfettered discretion to Mr Darwiche to do as he wished with the property without any input from the deceased; the deceased was not permitted to secure his interest through an encumbrance on title; Mr Darwiche had no intention of even providing the shares entitling the deceased to maintain 60% ownership of the property; Mr Darwiche had already been paid for the "cleaning work" he claims made up part of the consideration; the 21 February Agreement did not contemplate that the deceased would receive any money at all, just forgiveness of an alleged debt and the shares; and Mr Darwiche had no intention of developing the property and in matter of fact did not develop the property. Again, it is submitted that, if it is accepted that Mr Darwiche's evidence of the transaction is a lie, then that adds corroboration to Ms Bale's contention that the real agreement was the agreement to develop the property and that it was proposed by Mr Darwiche with the assistance of Mr Churchill.
As to knowledge of the improvidence of the transaction, Ms Bale relies on the same submissions (i.e., the argument that cl 4.3(31) of the 21 February Agreement is an admission against interest that Mr Darwiche was aware of the deceased being under a significant mental incapacity; that the 21 February Agreement was a sham (a submission supported by a finding that Mr Darwiche's version of events is a lie); and by reference to the medical reports and lay evidence of mental decline. Ms Bale says that numerous witnesses (besides those seeking to rely on the transfer) give evidence of the deceased's inability to engage in anything other than basic conversation, and further observe that he was generally only able to give one-word answers or no answers at all.
It is submitted that, even without resort to the equitable presumption identified in Turner v Windever [2005] NSWCA 73, it is clear from the evidence that Mr Darwiche did take unconscientious advantage of the deceased's disability to procure his consent to transfer the Forest Lodge Property. In this regard, Ms Bale emphasises the strikingly disproportionate price at which the deceased sold the property to Kimberley Developments (an agreed consideration of $590,000 amounting to less than 50% of the $1,200,000 valuation placed on the property six years prior to the transfer). It is noted that in Blomley v Ryan (at 371), where the sale of the property at just over half its market valuation, it was said that the transferees were taken to have believed that the purchase was "not just a good bargain but a very substantial undervalue". Further, reference is again here made to the conversation in around late 2010, between Mr Andreacchio and Mr Darwiche about the failed auction of the property (see above). Ms Bale argues that Mr Darwiche knew what the deceased believed the property to be worth at the time and that it is impossible for the defendants to claim that this was in any way a "good bargain" rather than a substantial undervaluation. (It is argued that the defendants have in effect admitted it was undervalued by "concocting" the foreclosure story "in an attempt to explain the problem away". This submission, however, suffers from the problem that there is objective contemporaneous evidence that Suncorp was indeed threatening to exercise its power of sale, after numerous extensions of time granted for the discharge of its debt.)
Ms Bale says that there is no evidence any consideration was paid beyond the discharge of the mortgage. Further, it is said that (in order to obtain the property at a vastly reduced price which was not even paid), Mr Darwiche persuaded the deceased to execute the transfer under false pretences (namely in the belief that he would essentially retain 60% ownership in the property and the property would be developed by Mr Darwiche with a view to making a profit, whereas Mr Darwiche never had any intention of carrying out the terms of the 21 February Agreement; it was a sham).
It is thus submitted that the deceased was under a special disadvantage; that on either version of the transaction contended for, it was improvident; that Kimberley Developments and Mr Darwiche had the requisite knowledge; and, hence, it is said that it would be presumed that the improvident transaction was a consequence of the special disadvantage, and that the said defendants have unconscientiously taken advantage of the opportunity presented by the disadvantage (citing Turner v Windever at [106]).
On the basis that the defendants acted unconscionably and in doing so committed an equitable fraud as against the deceased in the transfer of the Forest Lodge Property, Ms Bale seeks equitable relief in the setting aside of the 21 February 2011 transaction (referring to Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14 where the High Court said that unconscionability works in two ways: in its strict sense, providing the justification for setting aside a transaction; and "more loosely" providing "the justification for not setting aside the transaction in its entirety or in doing so subject to conditions, so as to prevent one party obtaining an unwarranted benefit at the expense of the other"). Reference is also made to what was said by Lord Wright in Spence v Crawford [1939] SC (HL) 52 at 77; and to Elkofairi v Permanent Trustee Company Limited (2002) 11 BPR 20,841; [2002] NSWCA 413, where the Court, while rescinding an unjust mortgage by which the appellant stood ready to lose her home, ordered the appellant to bring to account the benefit she had received from the mortgage, including paying interest, to the lender. Ms Bale also refers to the approach followed in Elkofairi was followed in Perpetual Trustee Limited v Khoshaba [2006] NSWCA 41.
Ms Bale does not dispute that the mortgage over the Forest Lodge Property was discharged by Mr Theo Trigas (albeit, that she contends it is part of the perpetrated equitable fraud). However, Ms Bale submits that, while the payment of interest on such an amount has been a feature of some cases of restitution, it remains necessary to ensure that the defendants do not through their actions derive an "unwarranted benefit" of their own. It is submitted that the discretion should be exercised to refuse the defendants any interest on the mortgage sum amount.
Ms Bale's primary submission is that the defendants ought receive no more than the return of the mortgage sum; that no interest should be awarded, as the paying out of the mortgage in order to effect the transfer was simply the culmination of the defendants' "reprehensible plan" to divest the deceased of his last significant asset (i.e., the defendants' unconscionable conduct).
It is submitted that holding the deceased's estate liable to those who defrauded it for an amount of interest would be unreasonable and would, in effect, make the deceased the unwitting and unintentional term-deposit holder for the defendants. It is submitted that this would not be restitution, but a penalty to be paid on top of the injustice of the very act itself.
Ms Bale submits that, if it is concluded that interest must be paid, then it is said that the rate of that interest (given the span of time between the discharge and the payment) should be determined in the exercise of the discretion informed by the principles as to the return of the parties as close as possible to the status quo ante, while avoiding delivering up an "unwarranted benefit" to the wrongdoer.
Reference is made to Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23, where a contractual rate of interest existed between the parties in the mortgage deeds between them, and it was held that this would be properly allowed on top of the sum payable given that it appeared neither uncommercial nor unreasonable of itself. Ms Bale submits that if interest ought to be paid, the rate of interest should be no higher than the rate payable to the lender under the discharged mortgage on the Forest Lodge Property. It is said that this accords with applicable legal principle (referring to RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (2002, 4th ed, LexisNexis) at 351-362 and in particular [9-060]). It is submitted this approach would accord with the "cost" the deceased would have paid had the property remained under the mortgage (i.e., had it not been discharged in the equitable fraud), and therefore corresponds to the benefit the deceased derived by having the mortgage discharged early.
Ms Bale also seeks an order that the defendants account for the rental from the period 21 February 2011 until the present. It is submitted that this amount, payable with interest along with the plaintiff's legal costs should be set off against any amounts found to be owing to the defendants.

[88]

Defendants' submissions as to unconscionability

The defendants contend that Ms Bale has failed to establish any unconscionability (I note that undue influence is no longer pressed); in that they say that Ms Bale has failed to establish that the deceased did not understand the general nature of the transaction or that the defendants were aware (or ought to have been aware) of any cognitive incapacity. The defendants further say that, even if (which is denied) the deceased did not have the requisite capacity or did not understand the nature of the transaction, there is no evidence to establish that the defendants had any knowledge of his lack of capacity (nor that the defendants ought to have been aware of his lack of capacity).
As to the question of capacity, the defendants say that even if it is concluded (contrary to their submissions) that the 21 February Agreement is the operative instrument, there is insufficient evidence to conclude on the balance of probabilities that, as at 21 February 2011, the deceased was unable to understand the general nature of the transaction (which the defendants say - but I note this is a proposition with which Ms Bale cavils - was a "run of the mill" contract for the sale of land). The defendants refer to Geyer v Redeland Pty Limited [2013] NSWCA 338 at [54] as to what is involved in a finding on the balance of probabilities and refer to the well-known proposition that all evidence is to be weighed according to the proof which is in the power of one side to have produced and in the power of the other to have contradicted (Blatch v Archer at 65).
As to the medical evidence, the defendants point out that Ms Bale did not adduce any expert medical evidence on the issue of capacity (noting that it was open to Ms Bale to arrange for the deceased to be medically examined during the period from 2015 to 2021 and to obtain expert medical opinion based on the deceased's history, available medical records and any other relevant material). It is submitted that the fact that this did not occur results in a significant lacuna in her case. Further, the defendants say that the difficulty with the submissions made by Ms Bale on this issue is that most, if not all, of the evidence relied upon by Ms Bale and identified in her opening submissions was either not admitted or admitted subject to limitations on the use of the evidence (see above).
In relation to the evidence that was adduced by Ms Bale, the defendants say that there is an absence of any relevant medical evidence addressing the deceased's capacity in and around February 2011. It is noted that the entries in the clinical notes relied upon by Ms Bale (i.e., the notes dated 18 March 2011 and 28 April 2011) post-date the subject transaction. The defendant says that they are therefore not of any significance without expert medical opinion and should be given no weight.
Further, it is submitted that Ms Bale has selectively referred to the notes. The defendants point out that in the opening submissions (which are incorporated into the closing submissions at 37), Ms Bale relied on the fact that the North Coast Area Health Service Discharge Referral recorded that during the "neurological exam [the deceased] was confused and agitated". The defendants point out that what that note actually records is that the deceased was "confused and agitated on presentation but neuro examination in ED was grossly normal and CT brain was normal, showing only age related atrophy". It is noted that the remainder of the medical evidence relied upon by Ms Bale, including the opinions of Dr Veitch, the GP's clinical notes which reference "Alzheimer's dementia", Dr Regal, Dr Oxley and RN Price's outpatient notes were all admitted subject to a limitation made pursuant to s 136 of the Evidence Act.
The defendants point out that the deceased was seen by his general practitioner on 21 February 2011 at 10.22 am, the day that the transfer was signed; that the clinical notes recorded the duration of the examination was some 14 minutes 31 seconds; and that what is there noted is "discussed fluvax". The defendants emphasise that there was nothing recorded in those notes concerning the deceased's capacity.
Accordingly, the defendants submit that there is no admissible medical evidence upon which Ms Bale can rely to establish a finding that, as at 21 February 2011, the deceased did not understand the general nature of the transaction.
As to the lay evidence about the deceased's capacity, the defendants say that little weight should be given to Ms Bale's evidence as to the observations that she made of the deceased that are relevant to the issue at hand.
First, it is noted that Ms Bale ceased to have any close contact with the deceased between 2008 and 2015. The defendants refer to her evidence (see T 63.17-63.34) as to the extent of the contact in that period. It is noted that in 2009, the deceased moved to Woolgoolga (a lengthy drive from where Ms Bale lived) and did not return to live with Ms Bale until 2015.
Second, the defendants say that, even if it is accepted that there was a change in the deceased's behaviour as described by Ms Bale, there are a number of equally plausible explanations for that change which are unrelated to a decline in the deceased's cognitive capacity. The defendants point out in this context that, after the death of his first wife in August 2006, the deceased had met and started a relationship with Ms Chyna Schein whom he married in May 2008 (and hence they say that the deceased had a new focus in his life). It is noted that Ms Bale was concerned with Ms Chyna Schein's motivation in terms of the deceased's financial position but that, despite the fact that the deceased started to write Ms Bale letters, Ms Bale did not raise that issue with him or did not recall discussing that issue with him.
Third, the defendants point to the evidence that the deceased was financially distressed. The defendants point out that the deceased had borrowed somewhere between $4.4 million and $5 million to fund the Summer Hill development; that there had been delays with the development including delays due to the first builder leaving, and a dispute with the second builder over fees; and that the delays were costing the deceased a "lot of money in interest"; that there were court proceedings that the deceased lost; that the second builder garnisheed rental income from the development and put a writ on the family home; and that the deceased's longstanding solicitor, Mr Ken Hancock advised him that he would have to sell that house to pay the debts. It is said that the deceased's business was "just breaking even" and was closed down in January 2008 by Ms Bale and her husband, which upset the deceased.
As at 13 June 2008, the deceased owed Suncorp $6,183,384.54 and Commonwealth Bank $1,251,185.68 and was unable to pay his solicitor's fees in the sum of $28,800. The deceased had unsuccessfully tried to sell the Forest Lodge Property in April 2009; and was being threatened with enforcement action by Suncorp if a sale of the Forest Lodge Property was not effected on or before 14 February 2011, following numerous prior extensions in 2007, 2009 and 2010. Reference is made to the postscript in Mr Hancock's letter dated 1 October 2009 as to the position of Suncorp (see above).
The defendants say that all of the above matters would have caused the deceased distress and could be a reason for the change in his behaviour (if it was accepted that there was such a change).
Fourth, the defendants say that, despite the fact that Ms Bale relied on the deceased's failure to pay her husband outstanding arrears in terms of his employment, as evidence of the deceased's change in behaviour, Ms Bale accepted in cross-examination that the deceased did not have sufficient funds at that time to pay her husband the outstanding arrears because the funds were needed to undertake works the Council required before the Summer Hill development could be registered.
Fifth, it is submitted that there are significant problems with the credibility of Ms Bale as a witness (as noted earlier).
The defendants say that, without expert medical evidence to distinguish between what may be explicable as a dramatic change in the deceased's personal, domestic and social life and the problems that the deceased was apparently experiencing with Ms Chyna Schein in terms of his marriage and their relationship as opposed to a decline in his mental condition, Ms Bale has failed to establish any relevant decline in his condition.
Further, the defendants say that there is also other evidence which weighs against a finding that there was any decline in the deceased's mental condition at the relevant time.
First, reference is made to Ms Bale's evidence that in mid-2008 and until his death, the deceased had the awareness and capacity to speak to her in French both in person and on the telephone whenever Ms Chyna Schein was around (presumably, it is said, in an attempt to keep those conversations secret from Ms Chyna Schein). It is noted that Ms Bale, in cross-examination said that the deceased was very proficient in languages up until he died. The defendants submit that this is not the behaviour of a person suffering cognitive decline. (Pausing here, I cannot see how I could possibly make such a finding in the absence of expert evidence - it may well be, for example, that fluency in one's native or childhood languages is something retained until well into cognitive decline.)
Second, it is noted that Ms Bale also gave evidence in respect of the period some time prior to the deceased's marriage in May 2008 to Ms Chyna Schein, that the deceased was very open about the fact that that he was looking for someone to marry (or, I would add, as a companion, not necessarily for marriage) and that she did not have problems with that. It is submitted that this demonstrates that Ms Bale was not concerned about the deceased's capacity to engage in social interactions with people and that this is inconsistent with Ms Bale's subsequent evidence during cross-examination that she was "concerned that my father would be taken advantage of in 2008 because of his vulnerability on so many levels". I do not accept this. I understood Ms Bale's evidence to be that she was indeed concerned about the deceased's behaviour - and his vulnerability to exploitation; and it is corroborated by the contemporaneous accounts of her expressing such a concern to others; and by her unsuccessful attempt to challenge the revocation of her power of attorney in 2008.
Third, that in June 2008, Mr Hancock was obtaining instructions from the deceased regarding the Summer Hill development. It is said that there was no evidence that, at that time, Mr Hancock expressed any concerns regarding the deceased's capacity to give him instructions on what was presumably a complex transaction. I accept that Mr Hancock was seemingly comfortable in taking instructions from the deceased in 2008 (as I have already noted). However, it is telling that Mr Hancock was clearly concerned as to the deceased's change in instructions in June 2008 (as to Mr Mohr being asked to vacate the Gordon home) and I would infer that Mr Hancock considered the deceased vulnerable to exploitation in at least some contexts.
Fourth, that in July 2008, Ms Bale unsuccessfully challenged the power of attorney granted to Ms Chyna Schein in the Guardianship Tribunal by seeking to review the revocation of the power of attorney that had been granted to her previously. It is noted that the Tribunal determined that the deceased was capable of making his own decisions. I accept the force of this submission although (as the defendants themselves emphasise in their submissions) the relevant time to assess the deceased's position is not July 2008 - it is February 2011; and it is well understood that capacity must be tested by reference to the particular transaction at hand - and may fluctuate. Moreover, Dr Veitch's report that was before the Tribunal was relatively guarded in its terms. In any event, the question for present purposes is not capacity but vulnerability to exploitation.
Fifth, that in October 2008, Mr Andreacchio was writing directly to the deceased to update him on the status of the sales and rentals of the Summer Hill development.
Reference is also made to Mr Darwiche's evidence that, while he was performing the clean-up works at the Forest Lodge Property in 2010, the deceased taught him some French; and to Pastor Vaughan's description of a conversation that he had with the deceased on 17 February 2016 as "these were not like the confused ramblings of an old man, but rather a man who was deeply hurt and didn't know where to turn for help".
Further, the defendants say that if (which is denied) there was a relevant decline in the deceased's capacity, then Ms Bale bears the onus to establish that the defendants had knowledge of that decline (or incapacity).
As to Ms Bale's submission (based on Mr Darwiche's refusal in cross-examination to concede that the deceased advised him that his daughter was of the view that the deceased was not of "sound mind", that the entirety of Mr Darwiche's evidence should be rejected), the defendants say that this ignores Mr Darwiche's oral evidence (and falls into the "trap" described by Nettle and Gordon JJ in Masson as to reliance on documents settled by lawyers). Further, the defendants say (and I accept) that, even if Mr Darwiche did refuse to make the concession, that would not be a basis to reject the entirety of his evidence. (In any event, I have considered Mr Darwiche's evidence above.)
The defendants point out that the attempt by Ms Bale to have the power of attorney restored occurred in 2008; and, therefore, that evidence is not relevant to what Mr Darwiche knew or did not know in relation to the deceased's capacity in February 2011. (Pausing here, it might be relevant if Mr Darwiche had known of the deceased in 2008 and was able to compare his condition then and later in 2011 but it is not suggested that Mr Darwiche knew the deceased at that stage.) The defendants say that the fact that the 21 February Agreement referred to the appointment of Ms Chyna Schein under a power of attorney and that it was upheld following a challenge in the Guardianship Tribunal does not assist Ms Bale. (I agree.) It is noted that the 21 February Agreement is silent as to why the deceased had appointed Ms Chyna Schein as his attorney or why the power of attorney was challenged; and it is submitted that the challenge to the power of attorney could have occurred for any number of reasons. Thus, the defendants say that even if (which is denied) the deceased was incapacitated, Ms Bale has failed to establish that the defendants had or ought to have had any knowledge of that incapacity.
Further, the defendants maintain that the 21 February Agreement was not established to be unfair or unreasonable. The defendants contend that, by the time of the sale of the Forest Lodge Property, foreclosure on the property by Suncorp was imminent.
The defendants emphasise that, immediately prior to the sale to Kimberley Developments, the deceased was indebted to Suncorp in excess of $285,000; and that the deceased did not have any source of income other than the rent being paid by Mr Moore (approximately $2,000 per month). It is noted that, in the month prior to the sale, the deceased was incurring in excess of $3,500 per month in interest on the Suncorp facility (and that, prior to paying down the Suncorp facility in the sum of $180,000 in August 2010, the deceased was incurring in excess of $5,000 per month for interest.)
The defendants say that the deceased was firm on the price, despite Mr Theo Trigas' attempts to secure the Forest Lodge Property at a lower amount (see Mr Arthur Trigas' affidavit affirmed 25 February 2020 at [15]; see also Mr Arthur Trigas' evidence at T 280.45-281.10). I treat that evidence with no little degree of caution because I did not find either of the Trigas brothers to be credible witnesses; and the evidence is clearly self-serving. The suggestion that the deceased was in a strong (or equal) bargaining position to that of Mr Theo Trigas or Mr Darwiche, as at February 2011, seems to me to be risible.
Further, it is said that, even if there was an inequality in the negotiations (which is denied), the ultimate transaction was fair, just and reasonable (referring to Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 at 474 (Amadio)).
As to the question of relief, the defendants argue that if the deceased's estate is entitled to some form of relief the proper measure of damages should be limited to any difference between what was paid by Mr Theo Trigas in February 2011 (in this regard they maintain that Mr Theo Trigas paid cash of some $302,000 as well as discharging the mortgage, whereas I am not satisfied that a cash component was in fact paid to the defendant) and what the Forest Lodge Property could have been expected to achieve at (what the defendants say would have been the inevitable) mortgagee sale around that time. This is on the basis of the defendants' contention that, if the Forest Lodge Property had not been sold to Kimberley Developments, Suncorp would have taken possession of the Forest Lodge Property in satisfaction of the outstanding debt, pursuant to its powers of mortgagee sale. The defendants say that, based on the evidence, on the balance of probabilities any mortgagee sale was unlikely to achieve a sale of more than $650,000.
In addition, it is submitted that the defendants should have credit for the costs met by Kimberley Developments since owning the Forest Lodge Property from February 2011, net of the rent received from Mr Moore, which it is said is substantial. The defendants seek leave to adduce such evidence if Ms Bale's claim succeeds.
As noted above, the defendants say that the claims based on breach of contract and the Contracts Review Act are statute barred. They similarly say that the remaining equitable causes of action are also statute barred by the operation of s 23 of the Limitation Act. It is said that Ms Bale has failed to establish that the deceased was under a disability within the meaning of s 52 of the Limitation Act in order to avoid the operation of the limitation period.
It is convenient at this point to note the laches defence (which I deal with after addressing the constructive trust claims below).

[89]

Reply submissions

In her reply submissions, Ms Bale concedes that the medical evidence does not have the precision that would be necessary for there to be a finding that the deceased's impairment on 21 February 2011 was such that he did not have the capacity to understand the 21 February Agreement. However, it is said that this does not mean that the evidence of medical decline would not be accepted in aid of a finding that the deceased was labouring under a special disadvantage, of which the defendants were aware and of which they took unconscionable advantage.
Reference is made in that regard to Antov v Bokan [2018] NSWSC 1474 where reliance had been placed on medical records submitted to the Guardianship Tribunal to prove incapacity (see at [60]) and, although the evidence did not support a finding of a lack of capacity to execute the relevant agreement at the particular point in time (see at [540]), I concluded that the deceased's condition was such that she was in a situation of special disability or disadvantage, and that the relevant defendant must have known this, thus grounding a finding of unconscionable conduct (see at [563]).
Ms Bale says that in the present proceeding even though the medical records would not necessarily support a finding that the deceased lacked capacity at the time of the 21 February Agreement, when taken with other evidence of his mental decline it would be accepted that the deceased was under a special disadvantage and could no longer protect his own interests.
It is reiterated that the defendants had knowledge of the deceased's special disadvantage on the basis that Mr Darwiche conceded that the deceased told him about it and Mr Darwiche also knew the deceased had a guardian and had been before the Guardianship Tribunal.
Finally, it is said by Ms Bale that it was never put to Mr Andreacchio or Ms Bale in cross-examination that they were mistaken about the evidence they gave as to the deceased's mental decline; and it is submitted that this evidence should be accepted as uncontested.

[90]

Determination

As the claims for statutory relief for unconscionable conduct and the claims at general law for unconscionable conduct were brought on the same facts and circumstances, it is appropriate to consider those together.
At general law, a transaction may be voidable where a party makes unconscientious use of his or her superior position or bargaining power to the detriment of a party who suffers from some special disability or is a placed in some special situation of disadvantage (see Amadio at 412 per Mason J). The essence of such disadvantage or weakness is that the party is unable to judge for himself or herself (see Amadio at 425 per Deane J, there citing McTiernan J in Blomley v Ryan at 392). Accordingly, it is not necessary to show that the ascendant party is dishonest; rather, what must be shown is that the ascendant party either had actual knowledge of, or knew of the facts which are such as to raise in the mind of any reasonable person a very real question as to the weaker party's ability to make a judgment as to what was in his or her best interests (see Amadio at 413 per Mason J).
In Amadio, Deane J noted (at 474) that: The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd v Whitelaw, at p. 720; Watkins v Combes, at pp. 193-194; Morrison v Coast Finance Ltd, at p. 713). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.
Deane J went on in Amadio (at 474) to note that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which: (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it …
His Honour there noted that where such circumstances are shown to have existed "an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable".
In Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 at 713 (to which Deane J referred in the passage extracted above), the elements of an unconscionable bargain were set out by Davey JA as follows: On such a claim the material ingredients [of an unconscionable bargain] are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of these circumstances, it creates a presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable …
Deane J in Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 (Louth v Diprose) at 637 identifies two prerequisites to the engagement of equity's jurisdiction to relieve against unconscionable dealing: first, that a party to the transaction was under a special disability in dealing with the other party such that "there was an absence of any reasonable degree of equality between them"; and, second, that that special disability was sufficiently evident to the other party to make it prima facie unfair or unconscionable for that other party to have procured, accepted or retained the benefit of the disadvantaged party's assent to the impugned transaction "in the circumstances in which he or she procured or accepted it". Thus, in this formulation of this second element, it is not merely knowledge of the special disability which renders the impugned transaction unconscionable; rather, it is the combination of such knowledge and the circumstances in which the assent of the disadvantaged party to the transaction was procured or accepted. Deane J further observed (at 638) that "[t]he intervention of equity is not merely to relieve the plaintiff from the consequences of his own foolishness. It is to prevent his victimisation".
Reference was made in submissions by Ms Bale to Turner v Windever, where Austin J adopted (see at [105]) the following summary of the elements of unconscionable dealing (based on cases such as Blomley v Ryan per Kitto J; Amadio; Louth v Diprose; and Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 (Bridgewater)): first, that the weaker party must, at the time of entering into the transaction, suffer from a special disadvantage vis-a-vis the stronger party; second, that the special disadvantage must seriously affect the weaker party's capacity to judge or protect his or her own interests; third, that the stronger party must know of the special disadvantage (or know of facts which would raise that possibility in the mind of any reasonable person); fourth, that the stronger party must take advantage of the opportunity presented by the disadvantage; and, fifth, that the taking of advantage must have been unconscientious. His Honour observed that, once the first three of those elements is established and the improvidence of the transaction shown, the plaintiff's task is "made easier by an equitable presumption to the effect that the improvident transaction was a consequence of the special disadvantage, and that the defendant has unconscientiously taken advantage of the opportunity presented by the disadvantage" (see at [106]).
More recently, in Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2012] HCA 25 (Kakavas) (at [152]; [154]) the High Court noted that unconscionable dealing is a species of equitable fraud and referred to Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 (at [39]), saying that Gaudron, McHugh, Gummow and Hayne JJ there "did not welcome the use of constructive notice to establish that a transaction is impeachable for equitable fraud". Their Honours read Mason J's observation in Amadio as speaking of wilful ignorance (that being "for the purposes of relieving against equitable fraud, … not different from actual knowledge" (see Kakavas at [156])); reference also being made in this context to the statement by Lord Cranworth LC in Owen v Homan (1853) 4 HL Cas 997 at 1035; 10 ER 752 at 767). Thus, in approaching the question of the requisite knowledge of the deceased's special disadvantage, constructive notice may not be sufficient to engage the principle against unconscionable dealing.
(See also as discussed in Turner v O'Bryan-Turner (2022) 398 ALR 711; [2022] NSWCA 23 (Turner v O'Bryan Turner) at [138]-[150] per White JA, there in the context of establishing requisite knowledge of a breach of fiduciary duty; see in particular [143], where his Honour cited the remarks of Nourse LJ (with whom Ward and Sedley LJJ agreed) in Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Akindele [2001] Ch 437 at Ch 455, who said that what was required was that "the recipient's stated knowledge should be such as to make it unconscionable for him to retain the benefit of receipt"). In Kakavas, the High Court (at [161]) referred to ("[e]quitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind").
The requisite disadvantage or disability must be one which seriously affects the ability of the weaker party to make a judgment as to his or her own best interests (see, particularly, Amadio at 462 per Mason J, as his Honour then was; Turner v Windever at [105] per Austin J). There is also a distinction between knowledge of a special disability and exploitation of that disability.
There may be room for debate as to whether the reference to an equitable presumption is apt (or consistent with what has now been said in Kakavas or, indeed, with Brennan J's observations in Louth v Diprose - see below) (and, in that regard, see the discussion in Amit Laundry v Jain [2017] NSWSC 1495 as to the nature of presumptions - they being aids to evidentiary determination (described as "the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts" in Mackowik v Kansas City St J & C B R Co 94 SW 256, 262 (1906), quoted with approval in Neilson v Letch (No 2) [2006] NSWCA 254 at [26] per Mason P with whom McColl and Basten JJA agreed)). However, what is abundantly clear is that, once the requisite elements of a special disadvantage, knowledge of that special disadvantage and improvidence of the transaction are established, there is at least an evidentiary onus on the stronger party to show that the transaction was fair, just and reasonable or it may readily be concluded that the improvident transaction was procured by the unconscientious taking of advantage of that special disadvantage.
In Louth v Diprose at 632, Brennan J's formulation (slightly different from that of Deane J, with whom Dawson, Gaudron and McHugh JJ agreed) (see at 637) is to the onus being cast upon the stronger party to show that the transaction was fair, just and reasonable where there is a special disability "with the consequence that there was an absence of any reasonable degree of equality between them" and that special disability was "sufficiently evident to the other party to make it prima facie unfair or 'unconscionable' that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it". His Honour went on to say (at 632) that the inference that the gift is the product of the exploitation may be drawn after "it is proved that substantial property has been given by a donor to a donee after the donee has exploited the donor's known position of special disadvantage"; and his Honour said that it must arise "from the facts of the case; it is not a presumption which arises by operation of law".
As to the statutory prohibition on unconscionable conduct (contained in s 20 of the Australian Consumer Law), this applies to unconscionable conduct generally, provided it occurs in trade or commerce. The legislation does not alter or extend the term unconscionable conduct beyond what is recognised under the general law (see Jeannie Marie Paterson, Corones' Australian Consumer Law (2019, 4th ed, Thomson Reuters) at [4.40]; see also ACCC v Samton Holdings Pty Ltd (2002) 117 FCR 301; [2002] FCA 62 at [49]-[50] per Gray, French and Stone JJ). However, ss 236 and 237 of the Australian Consumer Law provide for a limitation period of six years, and so the plaintiff's claim is statute-barred to the extent it is based on the Australian Consumer Law unless reliance can be placed on the relevant disability in this regard (as discussed earlier).
I have concluded that there was unconscionable conduct on the part of Mr Darwiche and Kimberley Developments in relation to the circumstances in which the Forest Lodge Property came to be sold. That is, that the underlying transaction (and not the 21 February Agreement) was unconscionable and is liable to be set aside. I have reached this conclusion for the following reasons.
First, as to the existence of a special disadvantage, it is not disputed that the deceased was elderly at the time of the transaction and, whatever his mental capacity might have been diagnosed as being at the time, he was in an obvious position of vulnerability - being dependent on his much younger wife for care and support (she holding his power of attorney). What is clear from the objective fact of his admissions to hospital around the time of the sale transaction is that the deceased had failing physical health. Significantly, the deceased was by then far removed in terms of location from his daughter, Ms Bale; and had no independent legal advice.
In Bridgewater, Gleeson CJ and Callinan J noted (at [41]) that absence of legal advice, like age, or infirmity, may be of factual importance in determining whether special disability or weakness exists. In that regard, while the defendants suggest that Mr Churchill was acting on the deceased's behalf or on his instructions (in relation to the drafting of the 21 February Agreement), I am not satisfied that the deceased received independent legal advice. Mr Churchill was a longstanding friend or associate of Mr Darwiche (and both appear to have had a chequered history, to say the least - Mr Darwiche referring to periods in which they were friends and periods in which they had little to do with each other; but at least at the time of the proceeding Mr Darwiche was in contact with Mr Churchill). At the time of the sale, Mr Churchill signed the transfer as solicitor for the transferee.
Further, the defendants' emphasis upon the deceased's financial need, given the imminent risk of foreclosure on the Forest Lodge Property, in my view tells against any equal footing between the parties; rather, I consider this to be a circumstance that affected the deceased's ability to conserve his own interests and contributed to his position of disadvantage.
Second, as to whether Mr Darwiche (and through him Kimberley Developments) had the requisite knowledge of that special disadvantage or disability, it is clear that (irrespective of whether Mr Darwiche was on notice of any declining capacity on the deceased's part) he was aware of the deceased's age and, on his own evidence, Mr Darwiche was aware of the deceased's financial difficulties (see Mr Darwiche's second affidavit at [14]; Mr Darwiche's third affidavit at [69]). Mr Darwiche also knew that Ms Chyna Schein held the deceased's power of attorney (from which he knew that the deceased was at least vulnerable to potential abuse in the exercise of the power of attorney). Moreover, Mr Darwiche knew that at least to some extent the deceased was dependent on Ms Chyna Schein (insofar as he had deposed that she was always in attendance at their meetings).
Mr Darwiche must also have known (or must have been wilfully blind) to the fact that the deceased had no independent legal advice, since the only lawyer who had any involvement in the transaction was Mr Churchill - who was signing as solicitor for the transferee) and, on the findings I have made, the 21 February Agreement was one that was most likely drafted by Mr Darwiche or on his behalf by Mr Churchill and in any event with the latter's input and assistance. (The Trigas brothers' evident disdain for the draft agreement - in emphatic terms - is not inconsistent with it being prepared by or on Mr Darwiche's instructions, since Mr Trigas bluntly described (albeit a malapropism) Mr Darwiche as "not the smartest tool in the shed" at T 273.37.) And Mr Darwiche's proposed involvement in the transaction is consistent with the incorporation of Kimberley Developments with Mr Darwiche as the sole shareholder and director (and with Mr Theo Trigas not becoming a director until some time after the transaction). Indeed, the lack of ability on the part of Mr Darwiche to finance a development is not inconsistent with him being the controlling mind of Kimberley Developments at the relevant time (since the proposed transaction was to be entirely at Mr Darwiche's discretion and, once the mortgage was discharged - as to which it was not surprising that Mr Darwiche sought Mr Trigas' assistance, there was little required of Mr Darwiche and his company owned the legal title such that it was open to it to refinance (as eventually happened)).
This amounts to knowledge of the special disability in the present case, namely the vulnerability to exploitation.
As to whether the relevant defendants unconscientiously exploited that special disadvantage or disability, as noted, I have concluded that (on the evidence) there was no monetary compensation paid to the deceased on the transfer. That is explicable if the deceased's understanding was that the consideration was to be in the form of the benefits from a proposed joint development and the issue of shares in Kimberley Developments (as I have found was how the arrangement was put to the deceased). However, none of that occurred.
There is no evidence from which I could conclude that the deceased (or Ms Chyna Schein, whether in her capacity as his attorney or otherwise) understood (without the benefit of any independent legal advice) the terms of the transaction (and, as Ms Bale points out, there are aspects of the agreement that simply do not make sense such as the failure to identify the Class A shareholders). Indeed, Ms Chyna Schein's mistaken belief that the deceased continued to own the Forest Lodge Property in 2016 during the NCAT hearing reinforces this conclusion.
Therefore, while there is a paucity of evidence in respect to the events that led to the transfer of the Forest Lodge Property, I can comfortably infer that, not only was there was a lack of assistance or explanation from Mr Churchill as to the transaction (where assistance or explanation of some kind was clearly necessary) (see Stubbings v Jams 2 Pty Ltd (2022) 399 ALR 409; [2022] HCA 6 at [94]; Blomley v Ryan at 405 per Fullagar J), but further that Mr Darwiche made representations to the deceased (and Ms Chyna Schein), in the context of the document provided to them and which they clearly executed with some formality, that the transfer would be in the context of an arrangement for the development of the Forest Lodge Property (and that the deceased would retain some interest in the property or obtain some benefit through a shareholding in the company that was to develop or act as borrower for the development of that property - i.e., Kimberley Developments).
Third, as to the improvidence of the transaction, I consider that the transaction was grossly improvident in that, while it enabled the deceased to discharge the mortgage to Suncorp, it left him with no monetary consideration for the sale of his only remaining asset (and even on the defendants' account, had the property been sold to Mr Moore at the time the offer was rejected or even in 2011) the deceased would have obtained roughly half of the sale proceeds.
Therefore, I consider that it fell to Mr Darwiche and Kimberley Developments to put forward evidence to show that the transaction was fair, just and reasonable such that it can be found not to have been procured by unconscientious dealing; and I am not satisfied that they have satisfied that evidentiary (albeit not legal) burden.
Equitable intervention is justified not merely to relieve the deceased from the inadequacy of consideration, but (as noted in the above authorities) to prevent his victimisation. While I accept that Mr Darwiche may not have known of the deceased's cognitive decline (or extent of that decline; and I cannot assess the extent of that decline in any event), I am confidently satisfied that Mr Darwiche knew about the deceased's advanced age, his lack of independent legal advice and his poor finances. Indeed, the pressure of the (said to be imminent) foreclosure was relied upon by the defendants as an explanation for the circumstances in which the transfer was executed and that the Trigas brothers' usual conveyancers did not act on the transaction.
As to Mr Darwiche's awareness of the deceased's dependence upon Ms Chyna Schein, Mr Darwiche's own evidence was that Ms Chyna Schein was always present at their meetings (see his third affidavit at [28]), and that the 21 February Agreement expressly referred at cl 31 to Ms Chyna Schein's valid power of attorney in respect of the deceased. Mr Darwiche's pursuit of the benefit from the deceased, by putting to the deceased the shareholding arrangement to induce him to transfer ownership of the Forest Lodge property, is suggestive of predatory behaviour (though I note that even if I am wrong as to this factual finding, the equity to set aside the contract is enlivened by passive acceptance of that benefit as well as active pursuit - see Bridgewater at [122] per Gaudron, Gummow and Kirby JJ; Lopwell Pty Ltd v Clarke [2009] NSWCA 165 at [52] per Macfarlan JA (with whom Ipp and Campbell JJA agreed); see also Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 at [149] per Nettle and Gordon JJ).
In circumstances where there is serious reason to doubt that the deceased appreciated the significance of the transaction (particularly in light of the evidence that the deceased had rejected two previous offers of $650,000) and serious reason to conclude that the deceased was dependent on Ms Chyna Schein at the time, I find that the deceased and Mr Darwiche were meeting on unequal terms and that Mr Darwiche was well aware of the deceased's vulnerability to exploitation (indeed I accept Ms Bale's submission that this was what made the deceased a target for exploitation).
In the absence of a logical explanation for the transfer in the unorthodox circumstances that I find occurred, I therefore conclude that Mr Darwiche (and through him Kimberley Developments) unconscientiously took advantage of his superior position in order to obtain a benefit to the deceased's disadvantage through a grossly improvident transaction, and that Ms Bale has established her claim for relief on the basis of unconscionable conduct at general law.
I do not accept the defendants' submissions that the plaintiff's claim for unconscionable conduct is statute barred. Statutes of limitation do not generally apply to the equitable claims except insofar as any provision thereof may be applied by the court by analogy (see s 23 of the Limitation Act; see also J W Carter, Greg Tolhurst and Keith Mason, Mason & Carter's Restitution Law in Australia (2021, 4th ed, LexisNexis) at [2736]). For the reasons set out by Merkel J in Gregg v Tasmanian Trustees Ltd (1997) 143 ALR 328; [1997] FCA 128 at 365-366, I do not consider that the Australian Consumer Law applies by analogy to limit the plaintiff's claims in equity. A statute only applies by analogy where the Act in terms bars the equitable remedy, and when it is conscionable to do so (see also Michael Liu, 'Application of Limitation by Analogy: Equity Exceptions' (2016) 25 Australian Property Law Journal 150). In the present case, I consider that it would be unconscionable to bar the plaintiff's equitable remedy to have the transaction set aside, in light of my findings as to when Ms Bale first became aware of the circumstances of the transaction (see further discussion below as to the defence of laches).

[91]

Laches

This brings me to consider the defence of laches. Reference is made by the defendants to Kaye v Strandbags Group [2006] NSWSC 1015 where Campbell J (as his Honour then was) identified the two different types of laches (see at [62]) and referred to a defence of laches relating to mere delay (see from [63]-[64]). The defendants say that the following factors are relevant to this defence.
First, that Mr Theo Trigas gave evidence that the Forest Lodge Property had been used to obtain a loan in May 2012 for the sum of $400,000, which loan was increased to $700,000 in September 2017. In those circumstances, it is said that, due to the absence of any complaint to the defendants from anyone after 21 February 2011 that there were any issues with the sale of the Forest Lodge Property, and the use that Mr Theo Trigas and Super Start have made of the Forest Lodge Property, it would be inequitable now to permit Ms Bale to complain and to obtain the relief she seeks.
Second, in terms of the length of the delay, it is submitted that it should be found that Ms Bale was aware of the sale of the Forest Lodge Property as at March 2011. It is noted that Ms Bale was using or had access to a particular email address and that the objective documentary evidence establishes that that particular email address was included on email correspondence from Mr Zounis sent on 21 March 2011, in which he confirmed his understanding that the Forest Lodge Property had been sold by the deceased. The defendants point out that Ms Bale did not dispute that she received that email; rather, her evidence was that she could not recall if she had received it.
It is submitted that even if such a finding (i.e., as to Ms Bale's awareness of the sale as at March 2011) is not made, Ms Bale's evidence was that she had assumed that the Forest Lodge Property had been sold when the deceased became a pensioner in April 2011 (although the defendants accept that the evidence is not clear if Ms Bale was aware of that fact in 2011 or in 2015). The defendants say that, at the very latest, Ms Bale became aware of the transfer of the Forest Lodge Property to Kimberley Developments in August 2016.
It is noted that this proceeding against Kimberley Developments and Mr Darwiche was not commenced until 24 July 2018 and that Mr Theo Trigas and Super Start were not joined as parties until 10 June 2019. The defendants say that, having regard to the issues in the proceeding, that period of delay is inordinate. Taking into account the fact that the deceased lived with Kimberley Developments from 2015 and that there is no evidence of any complaint or communication to the defendants regarding the alleged non-compliance with their obligations under the 21 February Agreement, it should be found that the deceased (and now Ms Bale) have abandoned any rights they may have had in relation to the 21 February Agreement.
I accept Ms Bale's evidence that it was not until the NCAT hearing that Ms Bale relevantly became aware of the transaction (since I am not satisfied that Ms Bale took particular note of the March 2011 email from Mr Zounis and it did not make any reference to the grossly improvident terms of the transaction). In any case it was not until that time that Ms Bale was granted power of attorney in respect of the deceased in order to pursue these claims). It follows that I am not satisfied on the balance of probabilities that Ms Bale became aware of the terms on which the transfer of the Forest Lodge Property occurred in 2011 (as the defendants contend), at most becoming aware or assuming that it had been sold.
In those circumstances, it would be unconscionable for the defendants to rely upon a right to enforce a statutory limitation by analogy, and particularly so where there is no counterpart limitation period for a cause of action arising in equity. Thus, the defence of laches is not made out.
I consider below the relief to be granted, as this is relevant to the claims made against Mr Theo Trigas and Super Start.

[92]

Claims for breach of constructive trust and accessorial liability

Next, I address the claims made against Kimberley Developments, Mr Theo Trigas and Super Start for breach by Kimberley Developments of the (constructive) trust on which Ms Bale contends that Kimberley Developments held the Forest Lodge Property; and for disbursement of trust funds in breach of trust (see [69]-[71]) and breach of trust in the transfer of the funds to Super Start, in which it is alleged that Mr Theo Trigas was knowingly concerned (see [72]-[74]). Ms Bale seeks damages against Kimberley Developments and Mr Theo Trigas and the return of the moneys that formed part of the constructive trust (see [75]).
As pleaded, the allegations are as follows. At [69] that Kimberley Developments held the deceased's interest in the Forest Lodge Property on constructive trust (by reason of the failure by Kimberley Developments to pay the consideration in the 21 February Agreement or any consideration at all). At [69A] it is alleged that the following was each a matter of "corporate knowledge of Kimberley Developments": the terms and conditions of the 21 February Agreement; the amount of consideration that Kimberley Developments and Mr Darwiche agreed to pay for the property; that Kimberley Developments and Mr Darwiche had not paid that consideration; and that Kimberley Developments held the deceased's interest on constructive trust by virtue of the fact that Kimberley Developments and Mr Darwiche had not paid the agreed amount of consideration.
At [69A] (where second appearing), it is alleged that, as sole director of Kimberley Developments, Mr Theo Trigas had knowledge of the fact that Kimberley Developments held Ms Bale's interest in the Forest Lodge Property on constructive trust (specifically, knowledge that: Kimberley Developments did not pay the agreed amount of consideration for the property; the terms and conditions of the 21 February 2011 contract; and that the deceased lacked the capacity to enter into the contract to sell the property) (although the last of those facts is presumably no longer pressed given the abandonment of the lack of capacity claim).
At [70] it is alleged that in breach of trust Kimberley Developments and Mr Theo Trigas encumbered the trust property with the $700,000 mortgage facility; at [71] that in breach of trust they then disbursed those funds and did not use the funds to develop the property.
At [72] it is alleged that an amount of $699,000 of the trust funds were transferred to Super Start; and at [73] that Super Start was aware that those funds were held on constructive trust for Ms Bale and that their transfer to Super Start was in breach of that trust (this being particularised by reference to the position of Mr Theo Trigas as sole director of both Kimberley Developments and Super Start).
At [74] it is alleged that Mr Theo Trigas was knowingly concerned in the breach of trust by Kimberley Developments (by reason of the matters pleaded at [69]).
At [75], as noted above, the relief claimed is in effect for the return of the funds borrowed against the property.

[93]

Plaintiffs' submissions

Ms Bale maintains that, if it is accepted (as I have found) that the Forest Lodge Property was acquired pursuant to an equitable fraud, and that the transfer is liable to be set aside, then Kimberley Developments holds the Forest Lodge Property on trust for the deceased's estate. On that basis it is contended that Mr Theo Trigas and Super Start received trust property from Kimberley Developments in breach of the trust and for their own personal benefit. The evidence is that the moneys were used by Super Start to maintain or increase its stock levels.
Ms Bale says that the question that here arises is whether the defendants' conduct (here referring, as I understand it, to the conduct only of Kimberley Developments) constitutes an equitable wrong, which turns on what the defendants knew, or ought to have known, or were on notice of, in relation to the breach of trust (reference being made to Lee v Sankey (1873) LR 15 Eq 204 at 211 and Consul Development Pty Ltd v DPC Estate Pty Ltd (1975) 132 CLR 373; [1975] HCA 8 (Consul)). It is noted that equitable notice includes constructive notice (within at least the first four categories of knowledge articulated in Baden Delvaux & Lecuit v Société Générale Pour Favoriser le Developpement du Commerce et de L'Industrie en France SA [1993] 1 WLR 509 (Baden) at 576 [250] per Gibson J; cited with approval by the High Court in Farah at [174]-[178]).
It is contended that if Mr Theo Trigas (and therefore Super Start) knew that Kimberley Developments' only asset had been obtained by the unconscionable conduct of Mr Darwiche, then the estate's case for breach of trust (by encumbering the property and disbursing the funds to Super Start) is made good. It is noted that a person who takes a transfer of trust property knowing that the transfer is in breach of trust, holds the property subject to the trust (reference being made to P Butt, Land Law (6th ed, 2010, Thomson Reuters) at [20-105]).
Ms Bale argues that Mr Theo Trigas and Super Start had the requisite knowledge. It is said that, if it be accepted that the defendants have lied as to the payment of large amounts of money to the deceased, that will corroborate the alternative view that the transfer was procured by a sham agreement devised by the second defendant to take advantage of the deceased. It is submitted that if the cash payment account is not accepted, then it is inconceivable that Mr Theo Trigas (and therefore Super Start) was not aware of how Mr Darwiche acquired the property from the deceased. (It is submitted that it is that very knowledge which has compelled them to manufacture an alternative version of events.)
Ms Bale contends that Mr Darwiche and Mr Theo Trigas have colluded with Mr Arthur Trigas in the "concocted cash payment story". It is said that although these individuals have been very careful to attempt to "insulate" Mr Theo Trigas from direct involvement in the handing over of the "cash" it is "somewhat of a fantastic notion" to suggest that he had no knowledge of the actual transaction. Further, reliance is placed on the fact that Mr Darwiche, despite his claims to the contrary, was still involved in the management of the Forest Lodge Property years later. (In this regard, I note that Mr Moore, the current tenant of the Forest Lodge Property as at 13 February 2019, deposed at [7] of his affidavit that Mr Darwiche continued to attend the property and make demands for outstanding rent moneys.)
Ms Bale thus submits that it is plain that Mr Theo Trigas and Super Start have knowingly received property in breach of trust and are liable to make the trust whole by removing the encumbrance on the property.
It is noted that, in the case of a constructive trust, the enquiry is not as to the actual or presumed intentions of the parties, but as to whether, according to the principles of equity, it would be a fraud for the party in question to deny the trust (Ms Bale here citing Cardozo CJ in Beatty v Guggenheim Exploration Co (1919) 122 NE 378 at 380; that "when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the benefit interest, equity coverts him into a trustee" cited with approval Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; [1984] HCA 64 at 108). It is further noted that, where conduct of the defendant is held to have been unconscionable and liable to be set aside, if legal title to the property passed to the defendant pursuant to that transaction, it will usually be held that the defendant holds it on constructive trust for the plaintiff (see Amadio).
Ms Bale says that the involvement of Mr Theo Trigas as the apparent true purchaser is a fabrication designed to try and put distance between Mr Darwiche and the transaction complained of.
As to the claims against Mr Theo Trigas and Super Start, it is noted that Kimberley Developments registered a change in directors in February 2012, the new sole director being Mr Theo Trigas; and that, as noted above, Kimberley Developments took out a mortgage over the Forest Lodge Property in the amount of $700,000 and transferred those funds to Super Start. The claim as against these defendants is that Mr Theo Trigas knew that either the deceased lacked the capacity to enter into the transaction for the sale of the property (though this capacity issue is no longer pressed as I understand it) or knew that Kimberley Developments and Mr Darwiche had proposed a sham transaction in order take advantage of the deceased's cognitive decline.
It is said that because Mr Theo Trigas had that knowledge, Mr Theo Trigas knew that Kimberley Developments held the Forest Lodge Property on constructive trust for the deceased when he became director and sole shareholder.
Ms Bale contends that mortgaging the Forest Lodge Property and giving the funds to Super Start was a breach of the trust; and that Super Start was aware of that breach because Mr Theo Trigas was also the controlling mind of Super Start. Ms Bale now seeks the repayment of the funds, that the encumbrance be removed, and that the trust property be made whole again.
The defendants concede that the claims for breach of constructive trust and accessorial liability are not statute-barred (T 359.44-360.18).

[94]

Determination

It should be noted at the outset that what is not pleaded (or at least not clearly pleaded) is that Mr Theo Trigas (or Super Start through his directorship) was knowingly concerned in the unconscionable conduct alleged on the part of Mr Darwiche and Kimberley Developments, as such (although, as noted earlier, there is an allegation that Mr Theo Trigas was "knowingly concerned in the breach of trust of [Kimberley Developments]" by virtue of the matters pleaded at [69] (which, unhelpfully, is a reference to the allegation that Kimberley Developments held the deceased's interest in the property on constructive trust; but then goes on to allege that Kimberley Developments did not pay the consideration contained in the (alleged) contract for the property "or any consideration at all").
What is alleged, consequent upon the allegation that Kimberley Developments held the deceased's interest in the Forest Lodge Property on constructive trust (which, given the defendants' denial of the 21 February 2011 Agreement, must mean his interest as registered proprietor of that property prior to its transfer to Kimberley Developments) is that it was a breach of that trust to encumber the property (with the NAB mortgage) and to obtain funds (the trust funds) which were not used for the purposes of the development; thus it is said that in the hands of Mr Theo Trigas or Super Start the moneys raised by the mortgage over the Forest Lodge Property are themselves trust property and must be restored to the trustee (Kimberley Developments). As noted earlier, the allegations against Mr Theo Trigas appear to amount to allegation of knowing assistance (expressed as "knowing concern") in the alleged breach of trust; whereas the allegations against Super Start can only sensibly be understood as allegations of knowing receipt of trust property. In those circumstances it appears clear that Ms Bale is relying (against different defendants) on both limbs of Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy).
Insofar as Ms Bale claims damages, it would appear that this is referable to the position if the title is revested in the deceased's estate but subject to a mortgage in favour of the NAB. If, on the other hand, the property were to be transferred back to the deceased estate on an unencumbered basis then it is difficult to see what damages would have been suffered by the deceased estate.
As already noted, the claims against Mr Theo Trigas and Super Start are predicated on a constructive trust having arisen or being now recognised as being imposed in respect of the deceased's interest in the Forest Lodge Property (which trust Kimberley Developments is then said to have breached in the manner for which Ms Bale contends).
Insofar as the claim is one of knowing receipt of trust property within the first limb of Barnes v Addy the requisite knowledge for such a claim (see Baden), would include knowledge of circumstances which would indicate the facts to an honest and reasonable person (i.e., a general understanding that fraud, breach of trust or breach of fiduciary duty had occurred). Baden category four knowledge does not include facts not actually known to the defendant (other than those known to an agent, for example, where such actual knowledge is imputed to them).
Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (Bell) at first instance (see at [932]), in analysing the Baden categories, said: 932. … Items (2) and (3) are often referred to as species of actual knowledge. The latter two categories are forms of constructive knowledge. Item (2) is commonly called 'Nelsonian blindness'. Proof of the kinds of knowledge in (4) and (5) may be sufficient to allow a court to infer, in the absence of proof to the contrary, that a person had one of the subjective states of mind referred to in (1), (2) or (3) …
As to any claim of knowing assistance, I note that in Bell (at [4740]) his Honour observed that the knowledge required under the second limb (i.e., for knowing assistance) had been authoritatively settled by the High Court in Farah, and Owen J quoted (at [4741]) the judgment of the High Court in Farah, specifically: 177. The result is that Consul supports the proposition that circumstances falling within any of the first four categories of Baden are sufficient to answer the requirement of knowledge in the second limb of Barnes v Addy, but does not travel fully into the field of constructive notice by accepting the fifth category. In this way, there is accommodated, through acceptance of the fourth category, the proposition that the morally obtuse cannot escape by failure to recognise an impropriety that would have been apparent to an ordinary person applying the standards of such persons.
As to the allegation that there was "corporate knowledge" that the property was held on constructive trust, what seems here to be contended is that the relevant defendants were on notice of the matters said to give rise to the imposition of a constructive trust. As I have had cause to observe elsewhere, it seems inherently unlikely that non-lawyers, such as Mr Theo Trigas (or Mr Darwiche for that matter) would have had an understanding as to the notion of a constructive trust (impugned as a "vague dust-heap" by Professor Edward Sykes in his 1941 article - see E Sykes, "The Doctrine of Constructive Trusts" (1941) 15 Australian Law Journal 171, 175; as noted in P Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [6.670]). However, they were clearly on notice of matters from which a conclusion of constructive trust is here being said to arise.
In Farah, the High Court said (at [179]; [186]) that the relevant passages in Consul establish, at Australian law, that dishonest and fraudulent designs can include not only breaches of trust but also breaches of fiduciary duty, but that any breach of trust or breach of fiduciary duty relied on must be dishonest and fraudulent (and that "dereliction of duty is insufficient to merit the description 'dishonest and fraudulent'").
As to knowing receipt, it has been said that "knowledge" means a third party's knowledge that the relevant property was trust property being misapplied or transferred pursuant to a breach of fiduciary duty or trust. The requisite degree of knowledge, on the part of the third-party recipient, in claims of this class was considered by the Full Court of the Federal Court in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6. Relevantly, the Court (Finn, Stone and Perram JJ), in an unanimous judgment, said (at [268]): 268. The High Court in Farah Constructions did not settle the knowledge/notice requirement in relation to recipient liability. Nonetheless, from at least the 1990s and in the wake of the Baden classification, judges had begun in recipient liability cases to generalise from what had been said both by Gibbs J (at 398) and by Stephen J (at 412) with whom Barwick CJ agreed, about the insufficiency of traditional, or category (v), constructive notice - though not of category (iv) notice - as a basis for personal liability. To allow that, as Stephen J commented, would be "to disregard equity's concern for the state of conscience of the defendant": at 412; see eg Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 103G; Koorootang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd at 105; Hancock Family Memorial Foundation at 209; Tara Shire Council v Garner [2003] 1 Qd R 556 at [66]-[72]; Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 54 ATR 241 at [54]-[60]; see also United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157 at 252-254. In Kalls Enterprise Pty Ltd (in liq) v Baloglow (2007) 63 ACSR 557 - a decision which post-dates Farah Constructions - the New South Wales Court of Appeal applied Baden's categories (i)-(iv), but not category (v) to a knowing receipt claim. Kalls Enterprise in turn has been applied subsequently: see eg Horsman v MG Kailis Pty Ltd [2009] WASC 166; Fodare Pty Ltd v Shearn (2011) 29 ACLC 11-036.
Accordingly, for the purposes of knowing receipt, knowledge in any of the four Baden categories identified above is sufficient. As the Full Court went on to say (at [269]-[270]): 269. There is, in other words, an established line of judicial decision and opinion both at first instance and in intermediate courts of appeal spanning at least 20 years adhering to the view taken in the above cited cases. We do not consider that that view is plainly wrong and should be rejected. On the contrary! Finally, for the sake of completeness, we should note we do not consider that what was said by Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd (2001) 38 ACSR 404 at [469]-[478] is inconsistent with that view. Commendably, his Honour emphasised the fault based character of recipient liability: "[u]nconscionability cannot be fictionalised, and the grounds on which constructive trust liability is imposed should be real and substantial": at [471]. 270. Accordingly, we do not consider the primary judge erred in law in finding that knowledge falling within category (iv) of Baden was sufficient for the imposition of liability for knowing receipt…
In Kalls Enterprises Pty Ltd (in liq) v Baloglow (2007) 63 ACSR 557; [2007] NSWCA 191, the Court of Appeal (Giles JA, with whom Ipp JA and Basten JA agreed) held that it is sufficient, in a claim for knowing receipt, that the third party recipient had constructive knowledge of the kind captured in the fourth category (but not the fifth) in the classification deployed in Baden (see at [199]).

[95]

Relief

The primary relief claimed by Ms Bale is for the transaction to be set aside.
There are a number of factors that might be said to override such an election (see Grimaldi at [256], [503]-[511], [667], [672]-[681]; see also Paul Finn 'Equitable Doctrine and Discretion in Remedies' in William Cornish, Richard C Nolan, Janet O'Sullivan and G J Virgo, eds, Restitution: Past, Present and Future (1998, Hart Publishing) at p 273). In this regard, it is perhaps trite to note the "cardinal principle of equity that the remedy must be fashioned to fit the nature of the case and the particular facts" (Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 (Warman) at 559).
The relevant question is whether the imposition of a remedial constructive trust over the property would be a disproportionate response having regard to the extent of the benefit which was attributable to defendants' wrongdoing, being the failure to give adequate consideration for the transfer of the property (whether in the form of a 60% shareholding in Kimberley Developments as per the proposed 21 February Agreement or in the form of a cash component in respect of the purchase price).
One relevant matter is that the email dated 18 January 2011 from Suncorp clearly shows that the deceased was under significant pressure at the time to sell the Forest Lodge Property in order to discharge the mortgage. Thus, the defendants argue that to revest title to the property would place the deceased in a better position than he would have been in prior to the unconscionable conduct of the defendants, as the deceased's estate would then receive the benefit of the increased value of the property. Against this, Ms Bale contends that not to revest the title would permits the defendants to take advantage of their own wrongdoing.
If it could be said that equitable compensation in effect to enforce the consideration under the 21 February Agreement would adequately compensate the deceased's estate, that might be an argument against setting aside the transfer. However, that would require the issue of shares in Kimberley Developments and the parties to be bound to a development arrangement that neither side seems prepared to undertake. For the reasons given. I consider that those orders are not capable of doing full justice, and that there is force to the argument that a remedial constructive trust should be imposed and the transfer set aside (see Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 at [42]; John Alexander's Clubs Pty Ltd v White City Tennis Club Pty Ltd (2010) 241 CLR 1; [2010] HCA 19 at [128]-[129]).
In this regard, the distinction between institutional and remedial constructive trusts should be noted. There has been much debate in academic and judicial circles as to the merits or legitimacy of the so-called remedial constructive trust, as opposed to the institutional constructive trust (see J McGhee, Snell's Equity (32nd ed, 2010, Sweet & Maxwell), [26-015]; and, for comment by the English appellate courts upon the difference between the institutional constructive trust and the remedial constructive trust, see, in the context of mistaken payments, Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (Westdeutsche) at 714-715; and, in the context of profit derived from fraud, Halifax Building Society v Thomas [1996] Ch 217 at 228-229). The significance of the distinction lies in the time at which the trust is said to come into existence and whether it exists independently of any court order.
In Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 (Giumelli) at [4] per Gleeson CJ, McHugh, Gummow and Callinan JJ, it was said that: The term "constructive trust" is used in various senses when identifying a remedy provided by a court of equity. The trust institution usually involves both the holding of property by the trustee and a personal liability to account in a suit for breach of trust for the discharge of the trustee's duties. However, some constructive trusts create or recognise no proprietary interest. Rather there is the imposition of a personal liability to account in the same manner as that of an express trustee. An example of a constructive trust in this sense is the imposition of personal liability upon one "who dishonestly procures or assists in a breach of trust or fiduciary obligation" by a trustee or other fiduciary. [citations omitted]
The distinction was considered at length by Gleeson JA, with whom Meagher and Barrett JJA agreed, in Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [149]-[152]). The scope of the remedial trust was outlined by Deane J in Muschinski v Dodds at 614, where his Honour observed that "the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle". An institutional constructive trust, broadly speaking, arises by operation of law as from the date of the circumstances which give rise to the trust, whereas a remedial constructive trust is an enforceable equitable obligation that is retrospective in nature (see, for example, Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59). In Westdeutsche at 714 Lord Browne-Wilkinson (with whom Lords Glynn and Lloyd agreed) said the following of the distinction between institutional and constructive trusts: … Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it: the function of the court is merely to declare that such trust has arisen in the past. The consequences that flow from such trust having arisen (including the possibly unfair consequences to third parties who in the interim have received the trust property) are also determined by rules of law, not under a discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court. …
However, the distinction may not be apposite or useful in certain contexts, for example in cases concerning proprietary estoppel (see McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 (McNab v Graham) at [107]-[112]; [115]-[124] per Tate JA, with whom Santamaria JA and Keough AJA agreed). In McNab v Graham (at [102]; [107]; [108]) albeit in the context of an estoppel case, it was said by Tate JA that, generally speaking and subject to consideration of all the relevant circumstances (as to which, see the discussion in Giumelli and Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84)): … where detrimental reliance upon a promise gives rise to a constructive trust, in the context of an estoppel, the constructive trust comes into the existence before a court makes any order. It comes into existence at the time of the conduct which gives rise to the trust. … … The relevant time is the time at which there is reliance on a promise giving rise to the estoppel, that is, the time of the reliance which would render departure from the fulfilment of the promise unconscionable. … This approach also resolves the apparent paradox that it is a matter for the court whether to make an order declaring a constructive trust or grant a lesser form of relief where there are relevant third parties who may be prejudiced by such an order, for example, by giving rise to an unfair priority to the beneficiaries of a constructive trust against general creditors. This may give a sense that the court is 'creating' the trust and that it has no existence independently of the order … But the apparent paradox is no more than that associated with the maxim nunc pro tunc, that is, that equity regards as done that which ought to be done. While it is for a court to determine whether to declare a constructive trust, the date the trust comes into existence is the date from which the equitable interest, the interest in land, arises. That date is, as mentioned, when the conduct occurs that gives rise to the trust; the date when the detrimental reliance renders it unconscionable to depart from the promise. [my emphasis; citations omitted]
Finally, I note that in Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43, Gageler J, having considered what a defendant must demonstrate in order to establish that it is inequitable to order an account of the value of the whole of the identified benefit or gain (see at [92]) went on to caution (at [94]) that, "[t]he judgment to be made [i.e., as to relief] must accommodate the stringency of the equitable obligation to be vindicated to the need to ensure that the remedy is not 'transformed into a vehicle for the unjust enrichment of the plaintiff'" (quoting Warman at 561).
I have concluded that, in the circumstances, the unconscionable dealings were such that in equity a constructive trust should be imposed from the time of the relevant transaction. I also consider that Mr Theo Trigas (as was, through him, Super Start) was on notice of the facts that would have indicated to an honest and reasonable man that Kimberley Developments held the Forest Lodge Property for the benefit of (i.e., on trust for) the deceased, in circumstances where Kimberley Developments had acquired the property without payment of any cash consideration (and without any intention to adhere to the arrangements put forward to the deceased under the 21 February Agreement). That Mr Darwiche and Mr Theo Trigas had no intention to adhere to the arrangements outlined in that document was made abundantly clear by their evidence in cross-examination.
In those circumstances the claim for damages for breach of trust does not arise. I note that Ms Bale concedes that Mr Theo Trigas discharged the Suncorp mortgage on the Forest Lodge Property and would be entitled to receive the return of the mortgage sum if the transfer of the property were to be set aside.
I consider that Mr Theo Trigas, having knowingly assisted in the unconscionable conduct and breach of the constructive trust in the encumbering of the property with the NAB mortgage, and Super Start, having received the funds from the NAB mortgage with the knowledge (through Mr Theo Trigas) of the circumstances in which the sale transaction had occurred and of the encumbering of the Forest Lodge Property, should make good to Kimberley Developments the amounts transferred to Super Start in breach of trust (i.e., the sum of around $700,000) and should reimburse Kimberley Developments for the interest paid by it under the NAB mortgage (that was obtained in breach of trust). That would have the effect that Kimberley Developments will then be in the position to discharge the mortgage to NAB and comply with the order to transfer the Forest Lodge Property can be transferred unencumbered to the deceased's estate).

[97]

Determination

In Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209, Leeming JA (with whom Bathurst CJ agreed at [1]) stated (at [115]-[116]) that: 115. As between principal and agent, the agent is a fiduciary, and speaking generally is required not to place himself or herself in a position of conflict, nor to obtain a profit or benefit from the position, without first obtaining fully informed consent: see most recently Howard v Commissioner of Taxation [2014] HCA 21 at [33] and [56]. Those fiduciary obligations inform the decisions on which reliance has been placed in the decisions dealing with s 163B, particularly the way in which instruments conferring authority have been construed. However, the obligations imposed by equity are ordinarily subject to the terms of the contractual arrangement between principal and agent; each of those fiduciary obligations "must then accommodate itself to the relationship between the parties created by their contractual arrangements": Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 99. 116. Questions of... fiduciary obligation focus upon the internal relations between principal and agent...
It is noted that in Howard v Federal Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21, the High Court restated some of the essential obligations and liabilities of a fiduciary: a fiduciary relationship imposes upon a fiduciary obligations to the principal not to obtain any unauthorised benefit from the fiduciary relationship and not to be in a position of conflict; these fiduciary duties are proscriptive obligations; fiduciaries must exercise their powers honestly for the purposes for which they are given; the content of the fiduciary duty is moulded by the particular instrument under which that duty is created; and a fiduciary, in equity, has a liability to account for a breach of these fiduciary duties.
Powers of attorney are a form of agency that is subject to a fiduciary overlay as well as statutory obligations (see Ward v Ward (No 2) [2011] NSWSC 1292 at [3] per Brereton J, as his Honour then was). The attorney has an obligation to act in the best interests of the principal, which binds the attorney on the prescribed form and as part of the attorney's fiduciary obligations in equity and at common law (see cl 7, Sch 2 of the Powers of Attorney Regulation 2016 (NSW); GE Dal Pont, Law of Agency (2020, 4th ed, LexisNexis) at [10.10]; Elder Law New South Wales (2015, LexisNexis) at [2-10450]). I note that in the present case, there is no argument (or evidence) that the power of attorney meets the statutory requirements of irrevocability (i.e., that it is expressed to be irrevocable and given for valuable consideration), and as such there is no reason to doubt that the usual fiduciary obligations of an agent fasten upon the donee, Ms Chyna Schein.
I find that Ms Chyna Schein acted in breach of her fiduciary duties as the deceased's attorney, by facilitating the deceased's entry into a grossly improvident or improper transaction and by failing to obtain independent legal advice (in circumstances where knew that Mr Churchill was acting for Kimberley Developments in the transaction - and was associated with Mr Darwiche, and she did not seek advice from the deceased's own lawyer, Mr Hancock) or to take any steps to understand the legal effect of the transaction. (I note, for example, that in the NCAT proceeding, Ms Chyna Schein is recorded to have said she was "not an accountant" and got Mr Churchill to "take care of everything" - see Ex C at p 40. Even reading this for the fact that it was evidence of what was said - and hence of her understanding or professed understanding - and not the truth of it, it is consistent with there being no involvement by any other lawyer for the deceased acting in the transaction.) While Ms Chyna Schein purportedly signed the transfer instrument in the capacity of a witness, it appears that the parties contemplated that Ms Chyna Schein's signature on the 21 February Agreement should be taken to be in her capacity as donee of the deceased's enduring power of attorney (see cl 31 of the agreement, as noted above) and there is no reason to think that her involvement in the execution of the transfer was other than as part of her exercise of functions as the deceased's power of attorney.
I consider that on the balance of probabilities Ms Chyna Schein was acting as the deceased's representative in the course of the transaction (since I consider it unlikely that the deceased independently understood the nature or effect of the transaction and it is most likely that, by February 2011, he was dependent upon Ms Chyna Schein to manage his financial affairs at the time of the transaction).
The obligation of a defaulting fiduciary is essentially one of effecting restitution (see Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276 at [35] per Rein J), in my opinion the appropriate remedy is for Ms Chyna Schein to compensate the deceased's estate for any loss occasioned by her failure to honour her obligation to act in the deceased's best interests. What that compensation sounds in will depend on whether the defendants comply with the orders that I propose to make against them. If the Forest Lodge Property is transferred, unencumbered, to the deceased's estate, then the only loss that will have been suffered would relate to any irrecoverable costs of the proceeding. Therefore, I consider that it is appropriate simply to order that Ms Chyna Schein indemnify the deceased's estate for any loss suffered as a consequence of entry into the sale transaction (such loss to be quantified in due course) and to grant Ms Bale liberty to apply in that regard if and when that necessity arises.

[100]

Conclusion

For the reasons set out above, I have concluded that the claim made against Kimberley Developments and Mr Darwiche that the underlying transaction effected by the 21 February Agreement (which I do not consider to be binding) was unconscionable has been made good and that, from the time of the sale transaction in respect of the Forest Lodge Property, that property was held on constructive trust for the deceased (and since his death, the deceased's estate). I have concluded that Kimberley Developments breached that trust by encumbering the property and then transferring the funds so borrowed to Super Start (not for any purpose associated with the trust property). I find that Mr Theo Trigas had constructive notice of the matters giving rise to the trust and breach of trust; and hence that he, and Super Start, are liable for knowing receipt of property transferred in breach of trust. In light of the relief granted, it is not necessary to consider the claims of unconscionable conduct insofar as they arise from the Australian Consumer Law (noting also that these claims are statute-barred subject to a finding of a relevant disability pursuant to s 52 of the Limitation Act).
I have dismissed the alternative claims for breach of contract and those claims arising out of the Contracts Review Act, on the basis that I do not consider the 21 February 2011 Agreement to be a binding contract (and in any case I accept the defendants' submissions that these claims are statute-barred subject to the application of s 52 of the Limitation Act). I further decline to make the declaration sought that the deceased was under a disability at the time of entering into the transaction (i.e., in 2011) on the basis that it was conceded the evidence does not go so far as to establish incapacity and no expert evidence was tendered on this issue. However, I note that had the issue arisen I would have found that the deceased was under a relevant disability from January 2016 onwards for the purposes of the Limitation Act which would have had the effect of bringing the contract and statutory unconscionable conduct claims within the limitations period.
Ms Bale's claim for breach of fiduciary duty against Ms Chyna Schein has also been upheld.
In light of my conclusions, it is not necessary to make the declaration sought as to the validity of the caveat (although I consider that the caveat was validly lodged); and the claim for an order that Kimberley Developments be wound up pursuant to s 461 of the Corporations Act does not arise.
I have concluded that the defendants' defences of laches and acquiescence fail. There was no unreasonable delay or acquiescence by the deceased in all the circumstances; and it would be unconscionable to bar the equitable remedy for unconscionable conduct in circumstances where Ms Bale only discovered the purported terms of the sale transaction when she again became the deceased's attorney during NCAT proceedings in 2016.

[102]

Orders

For the above reasons I make the following orders: 1. Set aside the transfer dated 21 February 2011 in relation to the property referred to in these reasons as the Forest Lodge Property. 2. Direct the first defendant (Kimberley Developments) within 28 days to transfer the title to the Forest Lodge Property, unencumbered, to the plaintiff (Ms Françoise Bale) as executor of the estate of the late Michel Schein. 3. Subject to order (11), order the plaintiff, as executor of the estate of the late Michel Schein, following transfer of the title to the Forest Lodge Property, to pay the sum of $288,242.63 to the sixth defendant (Super Start Batteries Pty Ltd) or at the direction of its director, the fifth defendant (Mr Theofanis Trigas), being the sum paid to discharge the Suncorp mortgage, plus interest calculated at the rate specified in the Suncorp mortgage. 4. Order that the sum payable pursuant to order (3) be charged on the Forest Lodge Property after its transfer to the plaintiff as executor of the estate of the deceased. 5. Declare that the first defendant as from 21 February 2011 held, and holds, the Forest Lodge Property on constructive trust for the deceased (and since his death, for the benefit of the deceased's estate). 6. Declare that the first defendant breached the trust on which the Forest Lodge Property was held by encumbering the property with the mortgage to NAB in 2012 and transferring the funds so borrowed to the sixth defendant (Super Start Batteries Pty Ltd) (and/or at the direction of the fifth defendant, Mr Theofanis Trigas) and not used for the purposes or benefit of the trust. 7. Declare that the fifth and sixth defendants had constructive notice of the matters giving rise to the constructive trust and of the breach of that trust and are liable for being knowingly concerned in the breach of that trust or in knowing receipt of trust property in breach of trust. 8. Order the fifth and sixth defendants to repay to Kimberley Developments, as constructive trustee of the deceased's estate's interest in the Forest Lodge Property, the funds received by the sixth defendant out of the facility secured by the NAB mortgage over the Forest Lodge Property and any interest thereon that is required in order to discharge the NAB mortgage (such amounts to be paid within 21 days in order to make good the trust funds transferred in breach of trust). 9. Order the plaintiff, as executor of the estate of the late Michel Schein, to pay to the first defendant such amounts as are determined by the Court appointed referee (to be appointed pursuant to order (12) below) to be properly referable to expenses reasonably incurred in the maintenance of the Forest Lodge Property since 2011. 10. Order the first defendant to account to the plaintiff, as executor of the estate of the late Michel Schein, for all amounts received by way of rent or other income in respect of the Forest Lodge Property since 21 February 2011 to date, and interest thereon pursuant to s 100 of the Civil Procedure Act 2005 (NSW). 11. Order that the sums payable in orders (3), (9) and (10) be offset against each other with the sum remaining to be paid to the relevant party within 21 days of determination by the Court appointed referee of that amount. 12. Order that the matter be referred to a Court appointed referee (at the cost of the parties to be borne proportionately) for determination of the amounts to be paid, and the offset amount, pursuant to the above orders. 13. Declare that the fourth defendant (Ms Chyna Schein, nee Richardson) is liable to the deceased's estate for breach of fiduciary duty in relation to entry into the sale transaction in respect of the Forest Lodge Property. 14. Order the fourth defendant to indemnify the deceased's estate for any loss sustained as a result of entry into the sale transaction in respect of the Forest Lodge Property. 15. Give liberty to the plaintiff to apply on reasonable notice for orders in relation to the implementation of the above orders. 16. Reserve the question of costs and direct the parties to file brief written submissions on costs within 21 days, with a view to determining the issue of costs on the papers. 17. Direct the parties within 7 days to forward to Ward P's associate the name of an agreed and suitably qualified person to be appointed as referee or, failing agreement, to submit three proposed names, with a view to the Court determining the identity of the person to be appointed as Court appointed referee in the absence of any such agreement.

Parties

Applicant/Plaintiff:

Bale

Respondent/Defendant:

Kimberley Developments Pty Ltd

Legislation Cited (12)

Whether Limitation Act 1969(NSW)

Powers of Attorney Regulation 2016(NSW)

Corporations Act 2010(Cth)

Civil Procedure Act 2005(NSW)

Contracts Review Act 1980(NSW)

Competition and Consumer Act 2010(Cth)

Conveyancing Act 1919(NSW)

Corporations Act 2001(Cth)

Evidence Act 1995(NSW)

Limitation Act 1969(NSW)

Powers of Attorney Act 2003(NSW)

Real Property Act 1900(NSW)

Cases Cited (136)

nts to be paid, and the offset amount, pursuant to the above orders. 13. Declare that the fourth defendant (Ms Chyna Schein, nee Richardson) is liable to the deceased's estate for breach of fiduciary duty in relation to entry into the sale transaction in respect of the Forest Lodge Property. 14. Order the fourth defendant to indemnify the deceased's estate for any loss sustained as a result of entry into the sale transaction in respect of the Forest Lodge Property. 15. Give liberty to the plaintiff to apply on reasonable notice for orders in relation to the implementation of the above orders. 16. Reserve the question of costs and direct the parties to file brief written submissions on costs within 21 days, with a view to determining the issue of costs on the papers. 17. Direct the parties within 7 days to forward to Ward P's associate the name of an agreed and suitably qualified person to be appointed as referee or, failing agreement, to submit three proposed names, with a view to the Court determining the identity of the person to be appointed as Court appointed referee in the absence of any such agreement. Catchwords: CONTRACTS - Formation - Intention to create legal relations - Whether agreement signed by the plaintiff constituted a binding contract - Whether unjust contract under the Contracts Review Act 1980 (NSW) EQUITY - Unconscionable conduct - Special disability or disadvantage - Independent advice - Inequality of bargaining power - Whether unconscientious advantage taken - Whether defences of laches and acquiescence applied - Whether Limitation Act 1969 (NSW) applied by analogy - Whether transaction ought to be set aside EQUITY - Trusts and trustees - Constructive trusts - Remedial - Breaches of trust - Whether a constructive trust arises - Whether knowing receipt of trust property - Whether encumbrance of trust property constitutes a breach of trust EQUITY - Fiduciary duties - Breach - Agent and principal - Whether donee of power of attorney acted in best interests of the plaintiff Legislation Cited: Australian Consumer Law, ss 20, 21, 22, 236 and 237 Competition and Consumer Act 2010 (Cth), ss 20, 21, 22 of Sch 2 Contracts Review Act 1980 (NSW), ss 7, 9 Conveyancing Act 1919 (NSW), s 54A Corporations Act 2001 (Cth), s 461 Evidence Act 1995 (NSW), ss 59, 69, 76-79, 80, 81, 82, 91, 135, 136 Limitation Act 1969 (NSW), ss 14, 16, 23, 36, 52 Powers of Attorney Act 2003 (NSW) Powers of Attorney Regulation 2016 (NSW), cl 7, Sch 2 Real Property Act 1900 (NSW), s 36 Cases Cited: 400 George Street (Qld) Pty Ltd v BG International Ltd [2010] 2 Qd R 302; [2010] QCA 245 ACCC v Samton Holdings Pty Ltd (2002) 117 FCR 301; [2002] FCA 62 Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Albrighton v Royal Prince Alfred Hospital & Ors (1980) 2 NSWLR 542 Amit Laundry v Jain [2017] NSWSC 1495 Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 Antov v Bokan [2018] NSWSC 1474 Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Baden Delvaux & Lecuit v Société Générale Pour Favoriser le Developpement du Commerce et de L'Industrie en France SA [1993] 1 WLR 509 Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Akindele [2001] Ch 437 Barnes v Addy (1874) LR 9 Ch App 244 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Beatty v Guggenheim Exploration Co (1919) 122 NE 378 Blatch v Archer (1774) 1 Cowp 63 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Brogden and Ors v The Directors of the Metropolitan Railway Company (1877) 2 App Cas 66 Burnside v Mulgrew; Re the Estate of Grabrovaz [2007] NSWSC 550 Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Chase v Chase [2020] NSWSC 1689 Chen v Gu; Chen v Nguyen [2011] NSWSC 1622 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Consul Development Pty Ltd v DPC Estate Pty Ltd (1975) 132 CLR 373; [1975] HCA 8 Cubillo v Commonwealth (2000) 103 FCR 1; [2000] FCA 1084 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2011) 200 FCR 253; [2011] FCA 645 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29 Elkofairi v Permanent Trustee Company Limited (2002) 11 BPR 20,841; [2002] NSWCA 413 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fodare Pty Ltd v Shearn [2010] NSWSC 737 Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321 Francis v Francis [1952] VLR 231 Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 Geyer v Redeland Pty Limited [2013] NSWCA 338 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Gray v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 209 Gregg v Tasmanian Trustees Ltd (1997) 143 ALR 328; [1997] FCA 128 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Halifax Building Society v Thomas [1996] Ch 217 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; [1984] HCA 64 Howard v Federal Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 In Re Sirrah Pty Ltd (In Provisional Liquidation) [2021] NSWSC 413 John Alexander's Clubs Pty Ltd v White City Tennis Club Pty Ltd (2010) 241 CLR 1; [2010] HCA 19 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2012] HCA 25 Kalls Enterprises Pty Ltd (in liq) v Baloglow (2007) 63 ACSR 557; [2007] NSWCA 191 Kaye v Strandbags Group [2006] NSWSC 1015 KQ International Trading Pty Ltd v Yang [2016] VSC 146 Lancaster v The Queen (2014) 44 VR 820; [2014] VSCA 333 Lee v Sankey (1873) LR 15 Eq 204 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Lopwell Pty Ltd v Clarke [2009] NSWCA 165 Lorretta Kistmah Craig and Ors v Kia Silverbrook and Ors [2013] NSWSC 1687 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Mackowik v Kansas City St J & C B R Co 94 SW 256 (1906) Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Manly Council v Byrne [2004] NSWCA 123 Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 Mclaughlin v Burrows [2021] NSWCA 170 McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 Neilson v Letch (No 2) [2006] NSWCA 254 Organ v Sandwell [1921] VLR 622 (FC) Owen v Homan (1853) 4 HL Cas 997 at 1035; 10 ER 752 Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 Pavlis v Pavlis [2021] NSWSC 1117 Payne v Parker [1976] 1 NSWLR 191 Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276 Perpetual Trustee Limited v Khoshaba [2006] NSWCA 41 Phung v Phung [2019] NSWSC 117 Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39 Quach v MLC Limited (No 6) [2021] FCA 271 Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 R v Heyde (1990) 20 NSWLR 234 Re Cummings Engineering Holdings Pty Ltd [2014] NSWSC 250 Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSWSC 379 Rochefoucauld v Boustead [1897] 1 Ch 196 Rodriguez and Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 13) [2018] NSWSC 565 RPS v R (2000) 199 CLR 620; [2000] HCA 3 Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297 Shafston Avenue Construction Pty Ltd, in the matter of CRCG-Rimfire Pty Ltd (subject to a deed of company arrangement) v McCann (No 3) [2021] FCA 938 Spence v Crawford [1939] SC (HL) 52 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 63 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2022] NSWSC 144 Stubbings v Jams 2 Pty Ltd (2022) 399 ALR 409; [2022] HCA 6 Sybil Dawne Hintze v Ratna Tsering & Anor [2018] NSWSC 1190 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Talevski v Talevski & Anor [2007] NSWSC 945 The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 Trigas v Owners of Strata Plan [2019] NSWDC 473 Turner v O'Bryan-Turner (2022) 398 ALR 711; [2022] NSWCA 23 Turner v Windever [2003] NSWSC 1147 Turner v Windever [2005] NSWCA 73 Twigg v Twigg [2022] NSWCA 68 Urjraso v NRMA Insurance Ltd (unreported, Court of Appeal, NSW, CA 40353 of 1990, Mahoney CJ, Priestley and Handley JJA, 14 December 1992) Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14 Ward v Ward (No 2) [2011] NSWSC 1292 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) E Sykes, "The Doctrine of Constructive Trusts" (1941) 15 Australian Law Journal 171 Elder Law New South Wales (2015, LexisNexis) GE Dal Pont, Law of Agency (2020, 4th ed, LexisNexis) J McGhee, Snell's Equity (32nd edition, 2010, Sweet & Maxwell) J W Carter, Greg Tolhurst and Keith Mason, Mason & Carter's Restitution Law in Australia (2021, 4th ed, LexisNexis) JD Heydon, Cross on Evidence (2021, 13th ed, LexisNexis) Jeannie Marie Paterson, Corones' Australian Consumer Law (2019, 4th ed, Thomson Reuters) Michael Liu, 'Application of Limitation by Analogy: Equity Exceptions' (2016) 25 Australian Property Law Journal 150 P Butt, Land Law (6th ed, 2010, Thomson Reuters) P Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Paul Finn, 'Equitable Doctrine and Discretion in Remedies' in William Cornish, Richard C Nolan, Janet O'Sullivan and G J Virgo, eds, Restitution: Past, Present and Future (1998, Hart Publishing) RP Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (2002, 4th ed, LexisNexis) Category: Principal judgment Parties: Françoise Bale (Plaintiff) Kimberley Developments Pty Ltd (First Defendant) Albert Darwiche (Second Defendant) Martin Churchill (Third Defendant) Chyna Schein (Fourth Defendant) Theofanis Trigas (Fifth Defendant) Super Start Batteries Pty Ltd (Sixth Defendant) Representation: Counsel: DP O'Connor with J McEnaney (Plaintiff) R Perla (1st, 2nd, 5th, 6th Defendants)

Cited By (11)

Bale v Kimberley Developments Pty Ltd

Bale v Kimberley Developments Pty Ltd & Ors

Brose v Slade

Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli

Kimberley Developments Pty Ltd v Bale