BAR-MORDECAI v HILLSTON

The probate proceedings - were brought by the appellant claiming revocation of the letters of administration granted to the respondent based upon allegations of misconduct by the administrator. Bryson J dismissed these proceedings finding that no basis had been established for the allegations.

It was common ground that the appellant was the deceased's treating medical practitioner at all material times. In 1983 the deceased was 72 and the appellant was 36. From this time until the death of the deceased in 1994, the appellant and the deceased lived in the same residence, shared holidays and attended synagogue together. The deceased worked without pay in the appellant's surgery. A sexual relationship spanned the period of cohabitation.

During the period between 1983 and 1994 the deceased made various gifts to the appellant including: • Various gifts of sums between $20,000 and $40,000 for equipment or renovations at the surgery during. • Purchase and gifting of the medical surgery • Gift of a one-third interest in a residential property in Eastbourne Avenue, Clovelly.

HELD BY THE COURT (comprising Mason P, Tobias JA and Davies AJA):

Undue influence proceedings - appeal upheld in part

• Any substantial benefit received by a doctor from a patient (other than proper remuneration) is presumed to be the result of undue influence. The doctor bears the onus of rebutting the presumption: Breen v Williams (1996) 186 CLR 71 (referred). • The appellant's contentions that the de facto relationship trumped the doctor-patient relationship, or provided in itself a justification for the gifts, must be rejected. • The appellant needed to go further than establishing the deceased's understanding of the transactions and show that he took no advantage of the donor, but that the gifts were the independent and well understood act of a woman in a position to exercise a free judgement based on information as full as that of the donee: Johnson v Buttress (1936) 56 CLR 113 (referred).

Gift of the surgery - appeal dismissed • No error in the way Bryson J addressed the undue influence issues touching the surgery. • The appellant has not met his burden in removing the doubt and uncertainty that exists regarding the impact of his influence over the deceased on the gifting of the surgery.

Gift of interest in Eastbourne Avenue - appeal allowed • The appellant has rebutted the presumption of influence. • The evidence demonstrates that the gift was the independent and well-understood act of a person in a position to exercise a free judgement on information as full as that of the donee.

Appellant's challenge to finding that no de facto relationship existed is upheld. A de facto relationship did exist: • The definition of "eligible person" in s 6(1) of the Act is not to be dissected into discrete elements: Roy v Sturgeon (1986) 11 NSWLR 454; Simonis v Perpetual Trustee Co (1987) 21 NSWLR 677 (referred). • A relationship may change and develop over time. It follows that its legal character at one point of time may not represent its character at another. • Over 11 years the two people so melded their social, sexual and financial affairs as to constitute themselves as a de facto couple. • The relationship went on for too long and its mutually satisfying aspects were too significant to view it as a naked plan of exploitation. • The concept of a "bona fide domestic" relationship is not necessarily lost because of bouts of selfishness or infidelity. The thrust of "bona fide" is to exclude sham relationships. The unusual relationship of the present couple did not suffer from any such lack of bona fide.

The order refusing an extension of time should stand. Accordingly, appeal dismissed with costs.

Probate Proceedings - appeal dismissed with costs • The Court agrees entirely with Bryson J's reasons.

ORDERS: • Motion to admit further evidence dismissed with costs. • Appeal in the undue influence proceedings upheld in part. Orders in relation to the property at Eastbourne Avenue Clovelly are set aside. • Appeals in the family proceedings and probate proceedings are dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40225/03

MASON P TOBIAS JA DAVIES AJA

1 THE COURT: This appeal arises out of three proceedings heard concurrently over 47 days by Bryson J. 2 Eveline Hillston (the deceased) died on 25 June 1994 aged 83. The respondent, Mr Allan Hillston was appointed administrator of here estate with copy of the deceased's will of 31 August 1989 annexed (the 1989 will). 3 Proceedings 3240 of 1998 (the undue influence proceedings) were brought by the administrator against the appellant to set aside gifts made to him by the deceased in her lifetime on the basis that they were obtained by the exercise of undue influence by the appellant as the deceased's medical practitioner. 4 Proceedings 1707 of 1999 (the family provision proceedings) were brought by the appellant under the Family Provision Act 1982 based upon his claim to have been the deceased's de facto husband at the time of death. 5 Proceedings 3039 of 2002 (the probate proceedings) were brought by the appellant claiming revocation of the letters of administration granted to the respondent. They were based upon allegations of misconduct against the respondent as administrator. 6 The 1989 will appointed the appellant as executor and trustee. It divided the deceased's estate among several beneficiaries, including the appellant and the respondent. The latter is one of two sons of the brother of the deceased's late husband. 7 There were probate proceedings in 1998. The appellant sought the grant of letters of administration on intestacy as the de facto husband of the deceased. He claimed that the 1989 will had been destroyed by the deceased and thus revoked. Einstein J held that the will had not been revoked, but that it had been destroyed or suppressed by the appellant after the death of the deceased. Einstein J also held that the appellant had renounced probate, and he appointed the respondent administrator with the will annexed. An appeal to this Court was dismissed (Bar-Mordecai v Rotman & Ors [2000] NSWCA 123). Application to reopen the orders made in that appeal was recently refused (Bar-Mordecai v Rotman & Ors [2003] NSWCA 53). 8 We return to the proceedings before Bryson J that are the subject of this appeal. 9 Bryson J upheld the respondent's claims based upon undue influence (Hillston v Bar Mordecai [2003] NSWSC 89). He set aside various gifts and transactions and ordered consequential accounting. His Honour dismissed the family provision proceedings because the appellant was found not to be an "eligible person" and because the judge was not disposed to extend time for their late commencement. The probate proceedings were dismissed because no basis had been established for the multifarious allegations of misconduct against the respondent administrator. 10 The foundation of the claim of undue influence was the admitted fact that the appellant was the deceased's treating general practitioner at all material times. He had been a registered medical practitioner with a general practice until he was struck off by the Medical Tribunal on 6 September 2000, principally for events involving his relationship with the deceased. An appeal to this Court, limited to points of law, was dismissed (Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192). The appellant has always maintained that he and the deceased had a sexual relationship and that for this and other reasons they were de facto husband and wife as understood by the roughly similar definitions in the Wills, Probate and Administration Act 1898 and the Family Provision Act 1982. 11 Elision of the sexual and professional relationships lies at the heart of the issues litigated before Bryson J, although the parties put different factual and legal characterisations upon the events, even those that were common ground. 12 Doctor-patient is a classic presumptive relationship of influence. 13 The appellant's main answer was that the gifts in his favour were ordinary transactions between de facto wife and husband, and were not the product of exercised undue influence, or of the relationship of medical adviser and patient. The appellant also sought to demonstrate that the deceased exercised free and independent judgment in making the impugned gifts. 14 In the proceedings below (as previously before the Medical Tribunal and Einstein J), the appellant said in effect that the deceased was not primarily his patient, she was principally his de facto wife. He relied upon expenditure made by him in her interests (for household expenses, renovation costs and mortgage payments) as well as the couple's ongoing domestic and sexual relationships. The substantial gifts, admitted or proved, were said to be the natural outpouring of a legitimate relationship as de facto husband and wife. 15 This broad answer threw up legal and factual issues which Bryson J addressed and which are re-agitated in the appeal. At this stage, we simply note that Bryson J did not proceed as if the putative familial relationship was irrelevant or determinative. He said (at [49]): In my opinion the characterisation of the relationship between Mrs Eveline Hillston and Mr Bar-Mordecai as a de facto relationship is not itself determinative for the claim to set aside gifts; what are of significance are an examination, so far as evidence admits, of the precise circumstances of the parties and of each gift and consideration of how the intention of Mrs Eveline Hillston to make each gift was produced. Characterisation of her relationship with Mr Bar-Mordecai as a de facto relationship or as analogous to a marriage is not the central subject for consideration, and is not a ground of defence. The primary facts touching the relationship as found by Bryson J 16 The pleadings in the undue influence proceedings admit that in August 1983 the deceased was 72 and the defendant (the present appellant) was 36. It is also admitted that, from about that time until the death of the deceased in 1994, the appellant was the deceased's treating general medical practitioner; that the couple lived in the same residence, shared holidays, attended synagogue and religious celebrations together; and that the deceased worked with the appellant in his surgery. 17 Each side is well placed to insist that the pleadings be considered seriously, because they were formulated with considerable care and frequently amended. The appellant represented himself during the trial, but his pleadings were drawn with precision, evidencing considerable skill on his part and/or legal assistance behind the scenes. 18 The deceased was born in 1910. She married her husband, Jack Henry Hillston, in 1933. The couple emigrated to Australia in 1938 and lived together at Forestville and latterly at a home unit at Mount Street, Clovelly. In June 1982 Jack Hillston was disabled by a stroke which reduced him to a vegetative condition. The deceased visited him frequently in hospital. Jack Hillston died on 4 August 1983. The deceased had been very attached to her husband and she visited his graveside monthly until the middle of 1993 when her own health began to decline. 19 The appellant first had contact with the deceased when she requested him to see and treat her husband, which he did from between 1979 until Jack Hillston's death in 1983. He certified Jack Hillston's cause of death. 20 The appellant was also the deceased's general practitioner from at least 1981 onwards. Bryson J held (at [10]) that: Mr Bar-Mordecai's acquaintance with Mr Jack Hillston and Mrs Eveline Hillston came into existence in the context of his treating Mr Jack Hillston, and later Mrs Eveline Hillston, and he first entered their home and spent time in her company in the context of professional attendances. Before Mr Jack Hillston died the relationship of medical attendant and patient between Mr Bar-Mordecai and Mrs Hillston was well established. It was not correct in fact to contend that the relationship, allegedly a de facto relationship, arose as a result of an initial social relationship.

21 The appellant's marriage ended in an acrimonious divorce that was still proceeding through the Family Court in August 1985 when the deceased gave him $20,000 for his legal fees. This is one of the substantial gifts set aside by the orders under appeal. 22 When Jack Hillston died the appellant was practising medicine from rented premises at 215 Clovelly Road, Clovelly. He was living with his parents at the time. 23 From 1983 onwards the appellant was the deceased's only general practitioner. There were numerous attendances recorded in his medical file. That file records eight attendances up to 23 August 1983; 59 attendances from 3 August 1984 to 27 July 1987; 22 attendances from 7 August 1987 to 29 April 1988; 28 attendances from 19 September 1989 to 7 July 1992; 56 attendances from 9 March 1993 to 25 June 1994. The recorded attendances were frequent throughout the relationship and became more frequent as time progressed (Bryson J at [9]). 24 Throughout this period the deceased had what Bryson J described (at [12]) as … privileged access to prescription drugs without the degree of supervision which it was appropriate for her medical attendant to exercise. This signal advantage of the relationship to her is an aspect of the existence and exercise of undue influence by him over her. She had free access to drugs including drugs described by Mr Bar-Mordecai as hypnotics, some of which were capable of being dangerous, depending on how they were used; she used hypnotics sometimes to assist her with sleep. The evidence does not show that she suffered any addiction, or used any prescription drugs to excess, and does not show that her conduct in relation to any of the gifts was affected by her having ingested any drug. 25 The appellant's dominant position stemming from his medical role was reinforced in other aspects of the relationship. The deceased's usual mode of address to him in the presence of others, of reference to him in his absence, and even in private, was "Doctor" or "Doctore". The deceased also worked under his direction at the surgery in various roles (as receptionist, secretary, surgical assistant and adviser). It is conceivable that her constantly respectful attitude reflected her middle- European upbringing as well as her perception of kudos derived from this close yet constant professional relationship. We are not suggesting that this is the whole picture, but it is certainly part of it. 26 By all accounts, the deceased was an able and capable woman. She had qualified as a lawyer in her native Romania. Between 1960 and 1982 she operated the Eveline Hillston Beauty Salon. She sold the business in 1982. Bryson J described her as "a person of intelligence and extensive life experience, including business experience…. Her many years of business success attest to her capacity and understanding of affairs" ([72]). Bryson J held (at [74]):

By 1983 Mrs Eveline Hillston had accumulated significant property of her own, as well as property which she inherited from her husband. In the view of Mrs Connell, who had the opportunity to know her well, particularly from 1988 onwards, Mrs Eveline Hillston was quite an astute businesswoman, successful and intelligent and clear thinking. Mr Selinger who was her accountant for some years regarded her as an astute businesswoman and intelligent, with definite ideas. In the appraisal of Mr Freeman, a solicitor who acted for her in several matters, she was a very proper, regal and attractive woman, well groomed, cultured, of strong intellect and strong personality, and she appeared to understand her own financial position very well and to discuss Mr Freeman's advice in a way which suggested full comprehension. A number of other witnesses speak of her as an intelligent person. Mrs Hillston travelled overseas without Mr Bar-Mordecai, to Israel in or about 1984, and to Greece and perhaps elsewhere in 1989.

27 The deceased had lived with her husband in a unit at Mount Street, Clovelly for many years. 28 She inherited her late husband's estate. Upon his death, her assets included the home unit at Mount Street, a rent-producing property at Forestville, shares and bonds. According to the appellant she also had over $130,000 in cash in her home unit. 29 The deceased lacked regular contact with close family members. She had no children. Her closest relative was a sister (Mrs Rotman) who lived overseas. On her husband's side there were his brother's children, the respondent and his brother, Alex. These two nephews lived in Greece. 30 According to the appellant, he first had sexual intercourse with the deceased on 24 August 1983, less than 3 weeks after the death of her husband. 31 In late 1983 or early 1984 the appellant took up residence in the Mount Street unit. The exact date on which he moved into the deceased's flat is a matter of continuing controversy. Bryson J held that it occurred sometime after August 1983 (at [81]). The precise date is not of great significance. Thereafter, the deceased and the appellant shared accommodation and much of their lives together until the deceased died. He lived in her flat at Mount Street until 1 February 1991, when they moved to 30 Eastbourne Avenue, Clovelly which they had acquired jointly in 1988 and later renovated. 32 We interrupt the narrative of the domestic relationship to document various property transactions, including testamentary arrangements, which took place during the 11 years between the death of the deceased's husband on 4 August 1983 and the death of the deceased on 25 June 1994. These transactions constitute the incontrovertible backdrop to the emotional relationship as it developed. Some of them are the transactions set aside by the orders under appeal. 33 In this portion of the judgment we confine ourselves to describing the transactions. Consideration of the motives of donor and donee will be addressed in the context of the legal issues arising in the undue influence appeal.

The surgery 34 In late 1983 the deceased purchased 212 Clovelly Road, Randwick (the surgery). The price was $245,000, of which $150,000 was borrowed under a mortgage that the deceased discharged in late 1985 using money realised from the sale of shares inherited from her late husband's estate (see Bryson J at [82]). It is undisputed that the surgery was acquired by the deceased in her own right and with her own funds. 35 The gifting of the surgery, set aside by Bryson J, occurred in and after 1987. Nevertheless, circumstances connected with the acquisition of the surgery were relevant to the nature of that gift and the conclusion whether or not it was the product of undue influence. Five aspects of the acquisition and early establishment of the surgery cast light (or shadow) upon its later gifting. 36 The first is the obvious fact that the surgery was bought by the deceased after discussion with the appellant and for the purpose of being used as a surgery by the appellant. This is evidenced by the deceased having told the appellant's mother that she wanted the appellant to have space to practice medicine (Bryson J at [138]) and confirmed by the four further matters which we now address. The deceased adopted the appellant's suggestion that she use his former solicitor in the purchase transaction. 37 Secondly, there is clear evidence of the appellant's much earlier attraction to the particular property. He had worked there as a young doctor for a short period in 1976. When the deceased became a widow he was practising from leased premises at 215 Clovelly Road, apparently across the road from the surgery. 38 The appellant led no evidence as to his or the deceased's purposes in the acquisition of the surgery in 1983. His basic position was that it had been the deceased's decision and that he had not been privy to it. He was cross-examined and generally expressed a lack of recall that, according to the respondent, was deliberately coy and positively untruthful. Bryson J was particularly unimpressed by this aspect of the appellant's evidence (see at [19], [263]). 39 The appellant's father gave evidence. Unprompted, he volunteered that the appellant had been anxious to acquire the surgery for some years and that he became concerned as its sale price rose dramatically (Black 1983-4). 40 The third matter is that, on the day she contracted to purchase the surgery (9 September 1983), the deceased granted the appellant a 16 year lease with an option for a further 3 years. These and other matters bear out Bryson J's conclusion (at [83]) that the lease was very advantageous to the appellant. The rent was fixed at $282.69 per week for the duration of the lease and with no provision requiring the lessee to pay any increase in outgoings. The appellant practised there from 15 September 1983 until he was struck off. The rent fell into substantial arrears in 1983-84 (Bryson J at [83]), but it appears to have been paid, according to the deceased's tax returns. The lease was not in registrable form, nor was its existence disclosed or protected by a caveat. There is no evidence that the parties received legal advice or assistance in its preparation. 41 The appellant said in evidence that the lease was a "sham". Perhaps he was inferring that it had been created to present a false appearance to the Tax Commissioner. Rental payments were apparently claimed as deductions by the appellant, although it is possible that they were given back by the deceased by way of "round robins". 42 The fourth matter concerns gifts made by the deceased to the appellant for the purposes of establishing and developing the surgery. In 1983 she gave him $30,000 to purchase a computer; in August 1985 there was a further gift of $25,000 for another computer; in January 1986 there was a gift of $20,000 for more computer equipment. These were among the substantial monetary gifts set aside by Bryson J. In 1988 or 1989 there was a further gift of $40,000 as a contribution towards building a new waiting room at the surgery ([266]). The appellant submits that the gifts were natural and legitimate products of the deceased's love and affection for him, the domestic relationship that by then existed, and reflections of the deceased's own interest in having a pleasant and efficient work environment (she being a user of the computers) as well as a significant contributor to the family income through the added earnings of the medical practice. Assuming the correctness of these propositions, the progression of these substantial gifts predating the "sale" of the surgery to the appellant in 1987 provides support for the respondent's submission that the gift of the surgery takes colour from the circumstances of its acquisition. 43 The fifth matter is that the deceased and the appellant apparently contemplated from an early time that the surgery might be redeveloped through the addition of an upper storey with a residence. 44 The appellant's company, Michael Bar-Mordecai Pty Ltd, received the income of the practice, including Medicare benefits, and it paid the practice's outgoings. These outgoings did not include wages to the deceased, who worked without pay as a receptionist and assistant for most of the period between 1983 and 1994. 45 The surgery is referred to in the deceased's will of 17 February 1986 (Blue 1026). She devised it upon trust to give the appellant a right to occupy it for life so long as he used it as a surgery and subject to payment of rent and outgoings. The appellant was also given an option to purchase at market value. Subject to these dispositions, the property passed to relations of the deceased. 46 On 21 October 1987 the deceased contracted to sell the surgery to the appellant. There was a transfer with a mortgage back to the deceased (securing $250,000) and a promissory note (securing $110,000). No part of the purchase price was, however, paid by the appellant, who obtained a clear title to the surgery in September 1993. The deceased discharged the mortgage in July 1993 without having received any moneys secured under it (Statement of Claim, s19 (admitted)). The promissory note was extinguished when its enforcement became statute-barred in October 1993, and the deceased signed an acknowledgement stipulating that it would be released on her death. 47 The respondent pleaded that the transfer of the surgery from the deceased to the appellant was a gift in its totality, alternatively a gift as regards various key integers (see Statement of Claim, pars 15, 17, 19, 19A, 20, 21B, 21C). In the Defence, the appellant admitted many of the gifts, pleading that they were products of the de facto marriage relationship and that the deceased had acted knowingly and freely. 48 At the end of the day, there was no serious dispute about the gifting of the surgery. It was effected by stages each of which adds colour to the others and to the transaction as a whole. 49 Bryson J held (emphasis added):

18 Mr Allan Hillston alleges that a series of events dealing with a building at 212 Clovelly Road Clovelly, usually referred to as the surgery, constituted a gift of the surgery by Mrs Eveline Hillston to Mr Bar-Mordecai. These events took place over a number of years. They began with a contract for sale of the surgery from Mrs Eveline Hillston to Mr Bar-Mordecai dated 21 October 1987 for $360,000, completed on the same day by a transfer which was registered on 13 January 1988; no part of the purchase price was then paid, $250,000 was secured by a registered mortgage back to Mrs Eveline Hillston and $110,000 remained unpaid and unsecured, and dealt with by an undated acknowledgement of indebtedness. No evidence explained why the $250,000 and the $110,000 were dealt with in different ways. As the acknowledgement speaks in terms of a present debt, not of repayability subject to call, the balance of $110,000 was probably extinguished by operation of the Limitation Act 1969 in October 1993. There was no provision for interest to be payable on the $110,000. Another acknowledgement signed by Mrs Eveline Hillston provided for the $110,000 to be released on her death. The mortgage was discharged without payment by a discharge signed by Mrs Eveline Hillston on 8 July 1993 and registered on 13 September 1993. These dealings with the surgery occurred in the context of earlier events in which she acquired the surgery and leased it to him on favourable terms: I refer to these events later. As well as contending that these dealings, although extending over almost six years, and including, at least in form, several contracts, constituted overall a gift of the surgery, the plaintiff claimed alternatively that various elements in the events were also gifts. Mr Michael Bar-Mordecai did not in his final submissions dispute but conceded that the substance of the events was that there was a gift of the surgery, as in my view there plainly was. 19 Mr Michael Bar-Mordecai's evidence does not explain how these transactions originated and what preliminary discussions or negotiations there were, if there were any. The sale of the surgery to him was very unusual in the respect that it was completed by transfer on the same date as the contract; this is consistent with haste and the absence of deliberation or reflection, and has not been explained. There is no evidence that Mrs Eveline Hillston consulted any independent person or received any advice about whether to make a gift of the surgery, or about the strange arrangements about the purchase price; and it should be concluded that she had no advice from anyone other than Mr Michael Bar-Mordecai about whether to make the gift. Mr Bar-Mordecai explained the selection of $360,000 as the price in a strange way. He said that he had information from a local real estate agent that the property was worth about $320,000 to $330,000, and $360,000 was stated as the price to create a higher cost base so that on any future sale the incidence of capital gains tax payable by Mr Bar-Mordecai would be reduced. This explanation makes it doubtful that Mr Bar-Mordecai ever intended to pay all the $360,000. As events turned out, he paid very little of it. 20 The mortgage provided for interest at 10% per annum, and principal and interest were payable by monthly payments of $2,645 to begin on 21 October 1987, $31,740 per year, over 15 years. The market rate was 15% per annum for such a mortgage at the time. According to the terms of the mortgage repayment was to take 15 years with a final payment on 20 October 2002. Interest was to be calculated at six-monthly rests. Mr Bar-Mordecai did not conform with the requirement for monthly payments. If the scale of monthly payments had been complied with, interest during the first six months would have been $12,500 and payments would have been $15,870, producing a reduction in principal of $3,370. Evidence of Mr Selinger shows that Mrs Eveline Hillston's tax return to the 30th of June 1990, which he prepared on information supplied by her, showed as income $15,072 as interest received from Mr Bar-Mordecai on a mortgage. This would suggest that much of the interest for that year was left unpaid. The evidence does not enable the amount of principal repaid to be calculated. It is alleged in the pleadings that the defendant paid the instalments up to 30 June 1990 meaning, I take it, the instalments payable up to 30 June 1990; the defendant's oral evidence suggested that payment may have been made only for two years or thereabouts, to about October 1989, but I accept what the pleadings establish. 21 The plaintiff alleges and the defendant admits that Mr Michael Bar-Mordecai paid $31,740 in the year up to 30 June 1991, and that the same sum was received back by him on 1 July 1991; and that the same thing happened the following year; he paid $31,740 on or by 30 June 1992 and received back the same amount on 1 July 1992. The plaintiff then claims that the two sums of $31,740 were also gifts. I see Mrs Eveline Hillston's foregoing these sums not as further gifts but as part of the demonstration that there was in substance a gift of the surgery. The defendant explained the transactions as a round-robin between husband and wife to minimise tax. The minimisation effect appears to be his treating the interest component of the mortgage instalments as a deduction in the assessment of his professional income; the interest then formed part of her assessable income and would be liable for tax, presumably at a lower rate than the tax on his income (depending on what his income was); however he got back the amount he paid, and was not out of pocket. There would be a minimisation effect only if their interests were regarded as identical. The gap between the mortgage interest at 10% per annum and the then current market rate for such a mortgage of 15% per annum represented, on the initial principal of $250,000, an annual advantage of $12,500 to Mr Bar-Mordecai. If it were right to perceive the round robin arrangement as a tax minimisation measure, the concessional interest rate would represent a considerable neglected opportunity for tax minimisation. 50 The registration of the transfer to the appellant, in January 1988, legally discharged the "sham" lease through the doctrine of merger ([267]). 51 There were also findings at [93]-[95] as to the appellant's mortgage dealings in 1991-1995 with what had become his property. In July 1991 he mortgaged the surgery to the Commonwealth Bank to secure borrowings of Michael Bar-Mordecai Pty Ltd. This mortgage was subject to the priority of the appellant's mortgage to the deceased (until its discharge in July 1993). The Commonwealth Bank mortgage was in turn discharged in 1995 with moneys borrowed by the appellant from Citibank, subject to a mortgage over the Eastbourne Avenue home ([93]). 52 Bryson J held that if the 1993 discharge of the mortgage for $250,000 stood alone he would have set it aside as a gift produced by undue influence ([269]). However, he preferred to treat it as one of the circumstances showing that the transfer of the surgery was itself a gift that should be set aside, and he made declarations and orders accordingly. The gifts for computers were also set aside and a money judgment entered for their repayment with interest. The gift of money for renovations of the surgery was not set aside independently. It enhanced the value of the property itself, and that value reverted to the estate with the order for reconveyance ([266]).

30 Eastbourne Avenue, Clovelly 53 In 1988 the deceased and the appellant contracted to purchase this property (Eastbourne Avenue) for $665,000. It was a spacious residence that was renovated before the couple moved into occupation in February 1991. The appellant's evidence that the property was in very poor condition when acquired (Black 1197) is borne out by the extensive and expensive renovations that were done before the couple moved in (Ex 11). 54 Title was acquired as tenants in common as to two-thirds by the deceased and as to one-third by the appellant. 55 The contract for sale is dated 30 November 1988 and names the purchasers as: MICHAEL JACOB BAR-MORDECAI of 212 Clovelly Road, Clovelly, Medical Practitioner and EVELINE HILLSTON of the same address, Business woman. 56 The purchasers' solicitor is named in the contract as Blessington Judd & Co. Mr Freeman of that firm gave evidence as to (limited) recollection of his involvement in this and other transactions for the deceased. During the relevant period he delegated much of his conveyancing work to two junior solicitors. Neither of them gave evidence, although this was not subject to adverse comment by the respondent. The upshot is that the court was left to draw inferences from the conveyancing documents and the file notes produced in evidence (Blue 730-735, 761-763). 57 Settlement was effected on 5 December 1988, five days after exchange of contracts. The urgency originated from the vendors, but is part of the background of the transaction as between the deceased and the appellant. 58 The ten per cent deposit of $66,500 was paid to the vendors' solicitor. The $600,000 balance was advanced by the ANZ Bank on bridging finance secured by mortgages over the subject property and the deceased's Forestville property (Blue 1055). 59 The appellant's evidence at trial was that the deceased effectively paid for Eastbourne Avenue, because she discharged the ANZ bridging loan by selling bonds worth $400,000 and realising $200,000 from the sale of the Forestville property (Black 1199ff). This was consistent with the pleadings (see below) and was accepted by Bryson J who held that the deceased paid the whole of the purchase price, with the consequence that the conferral of the one-third interest on the appellant was a gift (at [22]). 60 This finding was inevitable in light of par 23 of the amended statement of claim which pleaded that the deceased paid the total consideration for the purchase of Eastbourne Avenue. That allegation was conditionally admitted in par 14 of the amended defence which pleaded, in part, that: The transfer by the deceased of one third interest as tenant-in-common in the whole of the Clovelly home to the defendant was made: (i) Freely and independently by the deceased uninfluenced by the defendant; (ii) With the fully informed consent of the deceased; (iii) After receiving independent advice in the absence of the defendant; (iv) Out of the deceased love and affection for the Defendant as a consequence of their de facto husband wife relationship that existed since 24.8.1983 and (v) In consideration for the defendant paying the mortgage instalments on the Clovelly home on behalf of the deceased and the Defendant jointly, in the context of the de facto husband wife relationship, he as the earning member of the nuclear family unit. 61 In this Court the appellant endeavoured to resile from this formal admission. He sought leave to amend par 14 to plead that he paid the purchase price, in effect because he paid the instalments on the mortgages taken out to assist in the acquisition of the property. He also pointed to evidence of expenditure he had incurred in extending and renovating the property in the 1989-91 period before the couple moved in. Some of this evidence had not been led at trial or had been rejected at trial. Its admission on appeal was disputed by the respondent. 62 The trial evidence showed that Eastbourne Avenue remained subject to successive bank mortgages, despite the deceased having realised $600,000 or thereabouts to pay for the balance of the purchase price in the year following acquisition. 63 The ANZ bridging loan - made to the appellant and the deceased jointly - remained in place until late 1989. It was originally intended to last two months. In October 1989 it was replaced by a Citibank mortgage securing $350,000 over Eastbourne Avenue. 64 The Citibank account remained in debit at around $300,000 throughout the deceased's lifetime. After her death, the joint account was closed with moneys advanced to the appellant by Citibank, on his own account, secured over the surgery (Blue 932, 1947, 1949). That loan was itself discharged out of the proceeds of sale of the surgery that was ordered by Bryson J. 65 Bryson J held (at [76]-[77] that the purchase of Eastbourne Avenue used up the capital resources which until then had been the deceased's main source of income. The limited exception was the Mount Street apartment. 66 Between 1988 and 1990 Eastbourne Avenue was extended (by building a third floor) and extensively renovated. There were tenants at various times before the couple took up occupation in February 1991. 67 The renovations and home improvements were extensive (Ex 11), apparently costing something in the vicinity of $170,000 (cf Blue 310, 622-9). Whether the source of payment for them was the ANZ mortgage and/or moneys advanced by the appellant through his company remains uncertain. Attempts by the appellant to prove his direct contributions were repeatedly rebuffed at trial, when affidavits, lists of payments and bundles of cheque butts were rejected on various grounds that are the subject of challenge in this Court. 68 The appellant also sought leave to tender fresh evidence showing that he contributed indirectly to the purchase of Eastbourne Avenue. This was evidence that his company made payments on his behalf towards the ANZ Mortgage which continued over the property until November 1989 (notwithstanding the original intent to have bridging finance for less than two months) and later towards the Citibank mortgage which succeeded the ANZ Mortgage in 1989 and financed its discharge ([88]-[90]). 69 This evidence was available at trial and it does not establish the proposition for which it is tendered. At most, it would show a substantial contribution made by the appellant to the joint expenses of the couple in the period after acquisition. This is relevant to the de facto relationship issue and it may cast indirect light upon the undue influence issues. But the mortgage payments are too late to throw doubt upon the characterisation of the initial gift that Bryson J accepted and that was common ground at trial. 70 The appellant was cross-examined on this topic. He agreed that the transaction was in effect a gift of a one third interest in the property "in terms of the husband/wife relationship certainly" (Black 1199). He also agreed that the funding for settlement came entirely from the deceased; coming from the sale of Forestville, from $400,000 bonds belonging to the deceased and from a cash account she had at the ANZ Bank (Black 1199-1202. See also Ex L (Blue 378) and Bryson J's analysis of the deceased's instruction to and conversations with her accountant, Mr Selinger (at [185]-[189])). It may also be relevant that the deceased worked without remuneration in the medical practice. 71 It would be unjust now to permit the appellant to resile from this position. Leave to amend the Defence and to tender this fresh evidence should be refused. The deceased put up the money to acquire the appellant's one-third interest in Eastbourne Avenue. This is not to deny that the gift was surrounded by arrangements as to who would pay for the extensive renovations that were planned from the outset. Nor is it to deny the possibility that the gift was a genuine outpouring of the deceased's affection for the appellant (but that is to move towards the ultimate issue on undue influence, a topic to which we shall return). 72 Mr Freeman's file notes are silent as to whether legal advice was sought by or given to the deceased as to this (gifting) aspect of the transaction. The impression gained is that the solicitor was instructed that the purchase would be effected as between the two purchasers in the way that it was, and that Mr Freeman did not look behind those instructions. He knew at some stage that the appellant and the deceased lived together and that the deceased worked in the surgery (Blue 728-9), but it is unclear whether he knew this in 1988. 73 The conveyancing file was opened on 24 November 1988 showing the deceased as the client (Blue 761). The cover sheet contains telephone numbers for the deceased and the appellant, the latter being presumably his surgery number. By 28 November 1988 Mr Freeman was writing letters indicating that he regarded the deceased and the appellant as the purchasers (Blue 762-768). This of course demonstrates no more than that he received instructions to that effect. As indicated, the contract exchanged on 30 November 1988 disclosed the two purchasers. It would seem that Mr Freeman had simply been instructed that the property was to be acquired by the purchasers as tenants in common, as to one-third share for the appellant and two-third share for the deceased (see Blue 762, 765). 74 The appellant said in evidence that the deceased had done all the arrangements with Mr Freeman. "I wasn't involved at all" (Black 1192). Mr Freeman's records, such as they are, do not corroborate this. Indeed they suggest the contrary in that the letter confirming instructions was sent to the appellant (Blue 765). 75 There is, however, direct evidence about the deceased's attitude to the acquisition of Eastbourne Avenue in a note she gave to her accountant, Mr Selinger, in October 1990. He was preparing her tax return and perhaps doing other work for her. The note (Ex L) gave the following explanation about the purchase of the property, its renovation and the receipt of rental in the 1989-1991 period: The property was purchased on 5th Dec 1988 by myself and Dr Michael Bar-Mordecai. Initially I paid $665,000.00 to the vendor, which was the total price of the building. Doctor undertook to complete the building and carry out all necessary repairs and improvements, which at the time were estimated to cost up to $250,000.00. The contract drawn by Mr Freeman, solicitor provided that I was to own 2/3 and doctor 1/3 of the building. Doctor obtained a personal loan from ANZ Bank for above amount, with a mortgage on the building. Later this loan was transferred to the Citibank, and has increased to $350,000.00. I, too, invested some more capital in the building, the total of my investment now amounting now to $734,000.00 (you will probably check these figures any way when doing my balance sheet). The building was almost completed by October 1989 and was rented on the 12/10/89 for $900.00 weekly. It remained rented to the 30/5/1990, when the tenants left. All the rent for this period (minus some minor deductions made by the tenants for repairs) was banked into my account, the Key Saving A/c of the Commonwealth Bank Clovelly, though 1/3 belonged to the doctor. After the tenants left some more repairs and improvements were carried out by doctor. It was rented again on the 5th August, 1990, for one year, at the same rent of $900.00 per week. This time the rent is being banked in full into doctor's account with the City Bank, though 2/3 belong to me. I wish to add that all expenses for building a third floor, repairs, improvements, swimming pool and spa etc have been paid for solely by doctor, so that I have no expenses to show or claim.

76 Mr Sellinger, whose evidence was apparently accepted by Bryson J, said that he first learnt that the appellant would be residing at Eastbourne Avenue with the deceased in about 1991 when she said to him words to the effect: Doctor and I are partners in that house we bought in Eastbourne Street, we are both going to live there. Doctor is going to make some improvements to pay for his share. He will live in one part of the house and I will live in the other. The deceased told Mr Sellinger that she would pay for the purchase and that the appellant was going to take out a loan for his one-third share. She did not explain the round-robin to the accountant ([185]-[186]). 77 In light of Exhibit L and other evidence, the learned trial judge concluded that there was no difficulty in accepting the deceased's characterisation of the money advanced by the ANZ Bank as a personal loan to the appellant (not to the exclusion of the deceased). Likewise with the Citibank refinancing. The deceased did not treat mortgage interest as an expense in her tax returns for the years 1990 and 1991, although she brought to account rental income on the Eastbourne Avenue property and would have been entitled to set-off mortgage interest on the property if she had paid any of it ([187]). 78 It seems highly likely that some at least of the renovation payments (Ex 11) were made out of the ANZ/Citibank mortgages over Eastbourne Avenue taken out jointly by the deceased and the appellant. Bryson J held (at [187]) that the Citibank advance was a personal loan to the appellant, although he and the deceased were jointly obliged to Citibank as between them and the bank. The judge was not prepared to find that the appellant paid for any of the work on Eastbourne Avenue (at [187]-[188]). He was not satisfied that there was any reliable evidence that any of the money advanced under the Citiank facility went to the deceased or for her benefit. This finding is challenged in the appeal and is the subject of an application to adduce fresh evidence.

Bryson J's findings on undue influence 79 The learned trial judge held that the substantial gifts were the product of the appellant's influence and unsupported by independent advice. We set out [24]-[28] of his reasons:

24 Influence and Independent Advice. Mrs Eveline Hillston conferred her confidence on Mr Michael Bar-Mordecai very fully, and dealt with her property in accordance with his interests, from very early in their relationship. This is shown in a full and clear way by her purchasing the surgery, committing her resources to it, equipping it for his use and granting him a long term lease in September 1983, by her taking his advice about giving away a large sum of money which she kept in the home unit, by her making gifts of significant sums to him in 1983, 1984 and 1985, by her providing him with housing and by the fact that by the middle of 1984 he was aware of everything she owned and its approximate value. On 16 August 1984 Mr Bar-Mordecai was given authority to operate Mrs Hillston's Commonwealth Savings Bank account at the Clovelly Branch - Exhibit 46. Authority dated 30 August 1983 to operate the account of Michael Bar-Mordecai Pty Ltd at the Commonwealth Trading Bank Clovelly - Exhibit 45 names Mr Bar-Mordecai as Director (as well as others) and names Mrs Hillston as Secretary. The copy in evidence is too indistinct to show whether two signatures were required or whether she was authorised to sign documents alone. His influence and dominance over her dealings with her property were established early, and from then on all significant dealings by her with her property were shaped around his interests, and every significant investment or disposition of property by her was favourable to his interests. There was no other person in whom she placed corresponding confidence, and no other person whom she made a practice of consulting for advice or on whom she conferred large benefits, although she could if she chose have consulted her nephews, who were men of business, and she could readily have found a source of independent advice from a solicitor, an accountant or in some other way. There are a few slight indications here and there of discontent on her part, but discontent was never expressed in any truly independent action. Her conduct of her affairs in matters relating to her property presents a picture of dominance by Mr Michael Bar-Mordecai from August 1983 onwards.

25 There was no evidence that Mrs Eveline Hillston at any point received independent advice from a solicitor, accountant or any other professional or non-professional person who might be thought to have been in a position to give her independent advice or to bring her mind to bear, independently of Mr Bar-Mordecai and his influence, on any decision to make any of the gifts. Evidence about the evolution of decisions to make the larger gifts is slight at the most and for some of the gifts of money there is no evidence about the circumstances in which Mrs Eveline Hillston decided to make them. 26 At different times Mrs Eveline Hillston had access to lawyers at a number of firms who conducted legal business for her. These included Mr Hulme of Hattersley & Hulme, who had earlier advised Mr Bar-Mordecai and acted for her on the purchase of the surgery, Messrs Peter Wise & Co. who acted for her in obtaining probate of her late husband's will, and Mr Freeman and his assistant at Blessington Judd Solicitors who acted for her in the preparation of several wills, in the purchase of the Eastbourne Avenue property, and in the sale of the surgery to Mr Bar-Mordecai. There is no evidence that any of these lawyers, or any other lawyer or professional person, gave her any independent advice in relation to any of the gifts, or received any information or had any dealings with her which could support the view that independent advice overcame any undue influence in any of the gifts. 27 Mr Freeman gave no evidence of having given independent advice to Mrs Hillston in relation to any transactions. There is no reason to think that he was consulted for independent advice, and there is no reason to think that he was given sufficient information about the transaction to bring the subject to his mind as one for possible consideration. He was not told that Mr Bar-Mordecai was Mrs Hillston's treating general medical practitioner, and there is no evidence that he was told sufficient circumstances of the transactions to enable him to see that they had the character of gifts. Mr Bar-Mordecai said that Mr Freeman directly asked whether there was a de facto relationship. This evidence is not borne out by Mr Freeman's evidence and I disbelieve it. In Mr Freeman's observation they were caring towards each other, and Mrs Hillston was concerned about Mr Bar-Mordecai's welfare. Mr Selinger the accountant was also not told that Mr Bar-Mordecai was her treating general medical practitioner, and was not told circumstances which made it appear that the transactions with real property were gifts. He advised her against selling the surgery, which advice she did not accept. This advice was not directed to whether or not she should make a gift of the surgery; it related to whether it was a good business proposition to sell it or to retain it. Mr Selinger's evidence showed that Mrs Hillston did not ever tell Mr Selinger to the effect that she and Mr Bar-Mordecai were living as husband and wife, or lovers; and Mr Bar-Mordecai did not ever say anything to that effect to Mr Selinger. This is particularly significant in relation to Mr Selinger, whom she knew over a number of years and with whom she exchanged correspondence on a personal level after her husband's death. There is no basis on which it could be found that Mr Freeman, Mr Selinger or any other person gave Mrs Hillston any relevant advice about whether she should make any gift. The fact that she did not look for or seek advice from them or so far as it appears from any other source is an indication of the extent of Mr Bar-Mordecai's influence over her and her decisions. She did not even have enough independence to raise the subject with professional advisors. 28 There was no lawyer or other possible adviser who was sufficiently informed of Mrs Eveline Hillston's circumstances, or of any facts and circumstances relating to any of the gifts, to be in a position to give her any advice which could qualify as independent advice so as to overcome a presumption of undue influence; no-one who could possibly be thought of as fully informed. In the course of closing submissions I said: I don't think it is appropriate to search the judgments for a complete prescriptive statement of what is and what is not sufficient, because the jurisdiction is a jurisdiction to deal with exceptions and/or mitigations and it deals with them by a judgment which evaluates the facts of the instant case and not by applying any highly prescriptive body of rules. It is for that reason that attempts to bring rigour to bear on what one finds in judgments about what advice must be given, run out in the sand. They can usually be confounded by an attempted comparison with other also apparently well reasoned and authoritative expositions. See also [19] and [21] of Bryson J's reasons (set out above). 80 Bryson J addressed at length the submission that the asserted marital (albeit de facto) relationship provided a justification or explanation for the gifts ([30]ff). It will be necessary to return to this legal issue. For the moment, it is appropriate to record five passages where he made further key findings as to undue influence:

31 A deep anomaly of Mr Bar-Mordecai's case is that if he and Mrs Eveline Hillston had truly seen that their interests were identical because each thought of them as husband and wife, it is difficult to see any reason why any property of hers would be transferred to him during her lifetime. It was obviously a possible future contingency that he might predecease her. …

46 … There are many circumstances which raise doubt or suspicion about the voluntary dispositions. These circumstances include, most prominently, the fact that Mr Bar-Mordecai was the medical attendant for Mrs Eveline Hillston and her late husband from 1979 onwards, and that his relationship with her arose out of treating her husband and later herself. The circumstances in which Mrs Eveline Hillston acquired the surgery soon after her husband's death and leased it to Mr Bar-Mordecai on terms disadvantageous to her, but very advantageous to him, create doubt and suspicion not only for that transaction but also for all later transactions with the surgery. Nothing ever happened to dispel the general air of suspicion and doubt, and suspicion and doubt are enhanced by there being a continuing series of transactions, from time to time over many years, disproportionate to any contributions or advantages flowing the other way. The arrangements made for payment of the purchase price of the surgery were obviously of far less value than simply paying the purchase price of $360,000 would have been; the acknowledgment and counter-acknowledgment relating to the $110,000 show that there was no real expectation that it would ever be paid, while the mortgage was at a favourable interest rate well below the market rate. Payments under the mortgage were not always made; for several years they were negatived by what Mr Bar-Mordecai calls the round-robin transactions. For the discharge of the mortgage there is the absence of any significant involvement of any lawyer or of any person other than Mr Bar-Mordecai evidence explaining the preparation and registration of the form of Discharge and Mrs Gudas, who had no overall understanding and acted only as a witness. The general air of suspicion and doubt was never dispelled, and there has never been shown to have been any person other than Mr Bar-Mordecai in whom Mrs Eveline Hillston placed overall confidence for advice or from whom she received any advice. Throughout the whole relationship her assets were severely depleted and her income was diminished in an extremely marked way, for reasons directly traceable to her dispropriation of herself in favour of Mr Bar-Mordecai; these things of themselves create suspicion and doubt. …

53. A great deal of time and attention was given during the hearing to issues relating to Mr Bar-Mordecai's credit. On many subjects he was shown by cross-examination, or even by comparison of evidence which he has given at different places, to be an unreliable witness. He has often given evidence which contradicts his evidence in other places or which introduces qualifications or supplementary explanations so far-reaching as to disavow evidence which he has given elsewhere. From time to time, when confronted with some adverse evidence, he produced new affidavits, with new explanations of conduct or events which he could well have produced earlier, if they were true. He did not produce the evidence of persons whom, in a complete and convincing presentation of his case, it would reasonably be expected that he would call. He left significant parts of the events with little or no explanation; his case was particularly unsatisfactory in not giving credible circumstantial explanations of the evolution of decisions of Mrs Eveline Hillston to make gifts, and his own participation in their evolution. …

124 Mr Michael Bar-Mordecai spoke to Mr Monty of his sexual relationships in great detail, and asked Mr Monty about his at almost every visit to the surgery. Mr Bar-Mordecai said to the effect "I have been having sex with a number of female patients of mine". He also took Mr Monty into his confidence in drafting a letter in response to a letter of complaint from Health Care Complaints Commission, and in discussing settlement of Mr Bar-Mordecai's motor car accident claim. Mr Bar-Mordecai spoke to Mr Monty about Mrs Eveline Hillston; he spoke in glowing terms, saying "I met this old lady years ago and she is exceptionally kind to me "and spoke about her generosity, his association with her, her assistance with computer software and the practice and said "Whatever I need she will give it to me." Notwithstanding that Mr Bar-Mordecai spoke very freely about his own sexual activities, he did not suggest to Mr Monty that his relationship with Mrs Eveline Hillston included any sexual activity. …

263 Claims based on Undue Influence. Mr Bar-Mordecai has not rebutted the presumption of undue influence in relation to any of the gifts of money or other transactions which Mr Allan Hillston seeks to set aside. Demonstration that the gifts were produced by undue influence goes far beyond a rebuttable but unrebutted presumption: undue influence is, on the findings I have made, the true and only explanation for the gifts. Mr Bar-Mordecai did not put in evidence any credible account or any real explanation of the acts or events which led up to the making of the gifts of money or the evolution of Mrs Hillston's intention to make them. All the gifts and transactions should be set aside and he should be treated as holding his interest in the surgery and the Eastbourne Avenue property as trustee for Mrs Eveline Hillston and for her estate. 81 The case was fought on the basis that the doctor-patient relationship gave rise to a presumption of influence. There was an alternative pleading whereby the respondent alleged actual undue influence, but this was not apparently pressed. The respondent does, however, rely upon particular events as evidencing the appellant's actual dominance in particular transactions. 82 It is convenient first to address the nature of the relationship between the deceased and the appellant. The appellant submits that he and the deceased were a de facto couple from 1983 until the deceased's death. His challenge to Bryson J's rejection of this submission lies at the heart of the appeal as he has presented it.

Was the appellant an "eligible person" at the time the deceased died? Were the couple in a de facto relationship prior to and up to the death of the deceased? 83 Bryson J dismissed the family provision proceedings for the two sets of reasons set out at [232]ff of his judgment. First, his Honour found that the appellant was not living with the deceased as her husband on a bona fide domestic basis at the time of her death. The appellant was therefore not an "eligible person" who could bring a claim under the Act. Secondly, the claim was barred by s16(1) of the Family Provision Act 1982 which fixed an 18 month time limit that his Honour declined to extend. 84 This portion of our judgment addresses the first reason and the appellant's challenges to it. We also address the related challenges to the trial judge's conclusion that he was not satisfied as to the existence of a de facto relationship at any earlier stage. 85 Section 6(1) of the Act, as it stood at the time of the deceased's death, defined "eligible person" to include: "a person who…where the deceased person was a woman, was a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis…"

86 The concept of a woman "living with [a person of the opposite sex] as her husband on a bona fide domestic basis" (and the corresponding situation for a man) has been recognised as the basis for pension and other legal entitlements for several years. In this State, the leading cases expounding the definition are Roy v Sturgeon (1986) 11 NSWLR 454 and Simonis v Perpetual Trustee Co (1987) 21 NSWLR 677. Among other things, these authorities establish that the definition is not to be dissected into discrete elements. It is, in the words of Kearney J in Simonis (at 685): A single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.

87 In Roy, Powell J stated (at 458) that: … each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following: 1. the duration of the relationship; 2. the nature and extent of the common residence; 3. whether or not a sexual relationship existed; 4. the degree of financial interdependence, and any arrangements for support, between or by the parties; 5. the ownership, use and acquisition of property; 6. the procreation of children; 7. the care and support of children; 8. the performance of household duties; 9. the degree of mutual commitment and mutual support; 10. reputation and "public" aspects of the relationship.

88 The appellant's submissions in this Court primarily assailed the rejection of his claim to have been an eligible person at the date of death (25 June 1994). 89 This challenge was directly related to the appeal in the family provision proceedings. The character of the relationship is also relevant, to some degree, to the undue influence proceedings. 90 A relationship may change or develop over time. It follows that its legal character at one point of time may not represent its character at another. The appellant tended to take a global approach that recognised no difference between the situation at the beginning and the end of the 10 year cohabitation. This comment also applies to the way Bryson J approached the question at various points, although his Honour was doubtless responding to the case presented. It is understandable, and to a degree correct, that events and attitudes at one point of time may reflect upon the character of a relationship as it was at an earlier time or as it developed later. But care will need to be taken lest elision leads to error. We are not suggesting that Bryson J fell into such error in his ultimate analysis. 91 We start by recording the primary facts as found by the primary judge. Some of these facts involve the transactions found to have been tainted by undue influence. 92 By the date of the deceased's death the couple had shared residences for over 10 years, initially in the deceased's Mount Street unit (from late 1983-early 1984) and latterly (from February 1991) at the Eastbourne Avenue home they had jointly purchased in 1988 and renovated extensively as a home. 93 Throughout the whole of this period the couple shared meals prepared by the deceased, shopped together, attended synagogue together and holidayed together. On the evidence, this pattern of shared daily living was interrupted only by the period of approximately one month in 1985 when the appellant moved to live with a female medical practitioner ([86]); and a period when the deceased went alone on an overseas holiday. The incidents of this shared residence included sleeping together in the master bedroom except when the deceased's overseas relatives came to visit. There was also the companionship of walking in the park holding hands and working together in the medical practice. 94 The sexual relationship spanned this period of cohabitation. Bryson J was not satisfied that it was as intense as the appellant deposed to, but he accepted its reality and recognised that it was quite intense at the time of the 1986 video (see at [84]). It was a matter that the deceased and the appellant discussed with some of their acquaintances, even though they kept if from members of the deceased's family and certain close friends. 95 Bryson J held that the intimate relationship was concealed from Allan Hillston (see at [104])), Alex Hillston (see at [112]-[113]), Mrs Jane Hillston (see at [102]) and Mrs Connell (see at [120]-[121]). On the other hand, several witnesses accepted by Bryson J attested to the affection openly displayed by the couple. 96 There was also the medical care provided by the appellant throughout the whole period, albeit that if forms the backdrop to the undue influence claims. It went well beyond the normal level of attention one would expect from a general practitioner. For example, the appellant accompanied the deceased when she consulted medical specialists. 97 When the appellant himself was injured in a motor vehicle accident in January 1992 the deceased visited him in hospital and was seen there by a number of friends and acquaintances. Photographs of the deceased were displayed in the appellant's surgery. 98 The gifts that the deceased showered upon the appellant further attest to her regard for him throughout the entire period, so long as one remembers to exercise caution as to the ultimate issue of undue influence. Likewise the provisions made for him in her wills of 1986 and 1989. In each testament the appellant is the named executor (in the 1986 will, together with Mr Selinger the deceased's accountant). No one suggests that the deceased ever lost control of her mental faculties: there is indeed much evidence as to her capacity and relative independence. 99 A full understanding of the detailed financial arrangements was clouded somewhat by the appellant's failure to get into evidence before Bryson J material that he seeks to tender in the appeal. Such as was established at trial is also consistent with a pattern of him gaining financially at her expense over the duration of the relationship. (Of course, this pattern can occur in the closest of legal marriages.) The point remains that, even accepting the sceptical conclusion of Bryson J (at [233]) as to the appellant's exploitative motivation throughout, there was considerable melding of financial dealings between the couple. The deceased's sources of income were her war widow's pension and rental income from the Forestville property that she owned in her own right from the death of her husband until it was sold to help fund the acquisition of Eastbourne Avenue. During the whole period of cohabitation the appellant worked hard at his medical practice, channelling the income from it through Michael Bar-Mordecai Pty Ltd in which he held all shares beneficially and in which the deceased was the company secretary. 100 The trial judge refused to accept the uncorroborated evidence of the appellant. Accordingly, he was not prepared to place weight upon the appellant's evidence describing the nature of the relationship. But his case stood on much more than his own testimony. 101 Bryson J discussed the evidence of the appellant's witnesses concerning the relationship at [135]ff. There are findings as to portions accepted and rejected as credible, although in some cases (eg when dealing with members of the appellant's family) it is unclear whether the evidence that is recounted in detail is accepted or not. 102 There are however several clear findings that cast significant light upon aspects of the relationship at different times. We arrange them in rough chronological sequence: • Ms Elsa Clut was a massage therapist who rented space in the surgery between October 1989 and summer 1997. She met the deceased at the surgery where she was helping the appellant with the computer. Sometimes she observed the couple talking together when no patients were present, putting arms around each other. The deceased told Ms Clut that she had bought the surgery for the appellant and later that she and the appellant had bought a big house at Clovelly. She told Ms Clut on many occasions words to the effect of "I love Dr Bar-Mordecai. He is very shy and conservative" . In about 1991 Ms Clut asked the deceased why they did not get married and was told "I am happy with the way it is" . The deceased also spoke confidentially about her hopes for the appellant after her own death, saying "After I die I want the doctor to get a nice lady and marry someone to look after him. I hope they will enjoy the house. I hope whoever it is will be able to look after him and understand him. He is not a person who likes to be alone. He is like me. He will need someone and needs a lady" . Ms Clut was told things and she observed things that indicated that the couple shared the double bed in the main bedroom (at [154]-[155]).

• Mrs Josephine Hren was employed as a cleaner at Mount Street for a little over a year and she visited the appellant at the Eastbourne Avenue house after the couple moved there. She often found the couple eating breakfast together. She observed the shared bedroom and the affectionate behaviour between the couple that included holding hands and affectionate kissing on the cheek.

• Mrs Veronica Marsh had been a friend of the deceased from about 1947. She visited the deceased at Mount Street and also at Eastbourne Avenue. There was a discussion in 1991 when the deceased said to her "Doctor and I live together in that big brown house" . Mrs Marsh said "That must be wonderful for you, but how do you look after it?" The deceased said "Doctor sees to it" . Mrs Marsh said "He is like a son to you" . The deceased replied "No darling - we are a couple" . Bryson J said that, in context, the statement was a delicate but clear indication that there was a sexual relationship (at [161]).

• Mrs Jitka Vilimovsky was a patient of the appellant who met the deceased in 1988 when she observed the couple walking hand in hand in Centennial Park. At one time she was shown some of the Eastbourne Avenue house by the deceased, including the bedroom with the double bed that contained a man and woman's night attire. At some stage during the life of the deceased the appellant told her that he was in a de facto relationship with the deceased.

• Mrs Kora Nowak was introduced by the appellant to the deceased at the surgery late in 1990 or early in 1991. She then travelled that day on a bus to the city with the deceased who told her that "Doctor and I live together in a large house down by the water at Clovelly beach" . Mrs Nowak said "Oh, it's really nice that you treat Dr Michael like a son" or "he must be like a son to you" . The deceased replied: "No dear, we live as husband and wife" or "Oh, no, no, he is actually my husband" . Mrs Nowak said "Oh, I didn't know he was married" to which the deceased replied "Well, we aren't really married but we live together in the same place" . Bryson J accepted the substance of this evidence (at [166]).

• Mr Makrim Mohamed met the appellant in 1986 when Mr Mohamed's de facto wife was his patient. Mr Mohamed's de facto wife was older than him. The two men shared details of their personal and sexual lives. In early 1992 when the appellant was in hospital following the motor vehicle accident Mr Mohamed came with his wife to visit. The deceased was present at the time, holding the appellant's hands to her breast while standing at his bedside. Mr Mohamed's de facto wife asked whether she was the appellant's mother and she replied "Not at all, doctor is my husband. We have lived together many years. I would have died had he not survived his accident" . Bryson J accepted the substance of this evidence at ([172]).

• Mr Kenneth John had made a statement and given evidence in the probate proceedings before Einstein J. He died before the hearing in the current proceedings. He visited the deceased frequently at Eastbourne Avenue. They were both octogenarians at the time. She told him much about her relationship with her nephews. Mr John observed that the deceased and the appellant were congenial company. The deceased did not talk about the appellant on a personal level, but his observation was that "She was living with him. He was part of the furniture of the place …. they were behaving as if they were a married couple, I suppose. They were on that kind of personal term with each other …." .

• Mrs Adriane Gudas was employed as a secretary by the appellant from July 1992 onwards. She lived on the lower floor of Eastbourne Avenue between April 1993 and August 1994, ie throughout the last year of the deceased's life. Bryson J accepted her evidence that the deceased often went to the surgery in the evenings to accompany the appellant on house calls ([147]). Mrs Gudas used to help the deceased with household chores such as washing up and bed making. On the occasions when she helped with making the bed she observed that it had been slept in by two people. Sometimes the appellant was at the house for morning coffee or for lunch and Mrs Gudas often heard the couple planning their days and their outings in terms which showed that their everyday activities were shared. She saw the couple in bed together ([148]). Mrs Gudas also observed the couple shopping or walking in public hand in hand. She considered that they were loving and affectionate towards each other. The appellant would sometimes hug the deceased or kiss her on the cheek ([149]).

• Mr Iosif Gudas also observed the couple sharing life, eating and conversing together, holding hands and returning together from shopping. He also saw evidence that they were sharing a bedroom during this period. 103 The primary facts as found by Bryson J include matters which his Honour was entitled to view as counter-indicative of a de facto marriage ([57]-[61], [179]-[231]). These are discussed below. 104 Bryson J's assessment of the matters leading him to reject the de facto marriage are found scattered through the judgment. The primary evaluation appears at [179]ff and the conclusions are stated at [233]-[235]. His Honour was focussing upon the relationship as it existed at the date of the deceased's death. 105 It does less than justice to the primary judge's reasoning to break it down into a series of propositions. There was ultimately the need to perform an evaluative judgment based upon a huge body of evidence which often pointed in opposite directions, even where it was accepted by the primary judge. His Honour's conclusions have to be examined by this Court through the prism of appellate restraint required by House v The King (1936) 55 CLR 499. Those principles have added force in a case where the trial spanned 47 days, where one party to the relationship was dead and where the other was observed closely by the trial judge. It is nevertheless essential that this Court understand the broad grounds upon which the appellant's claim was rejected, before it turns to assess the factual and legal challenges raised by him. 106 With these caveats, we think it possible to offer the following summary of the factors which led Bryson J to reject the claim that there was a de facto relationship at date of death. 107 The first matter was the evidence that the appellant had formed a sexual relationship with Ms Viola Yakovleva who had become his patient in June 1993 and was seen frequently thereafter. The appellant said in evidence that he had sexual intercourse with Ms Yakovleva at the house at Eastbourne Avenue on one occasion in December 1993 when the deceased was out of the house. The appellant spoke about this relationship with Mr Monty ([125], [179]-[181]). The relationship continued up to and beyond the death of the deceased. There were records of 17 medical attendances by Ms Yakovleva in 1994 before the deceased's death. The deceased died on 25 June 1994. Her funeral took place on 27 June and Ms Yakovleva moved into the Eastbourne Avenue house as the appellant's domestic companion the next day. The relationship was stormy and did not last more than a couple of months. Bryson J held that this completely belied the appellant's claims of strong emotional involvement with the deceased. He concluded that it was simply impossible that the appellant had any sincere attachment to the deceased ([182]). 108 The second matter addressed specifically by his Honour was the claim by the appellant to have shared the household expenses. Bryson J was not satisfied that this had occurred. The appellant had admitted on the pleadings that no such sharing occurred down to February 1991 (Defence, par 2(f)). As regards the later period, most attention seems to have been devoted to the appellant's ultimately unsuccessful attempts to prove that the ANZ/Citibank mortgages taken out jointly over Eastbourne Avenue funded renovations of that property and living expenses. Bryson J concluded that there was no reliable evidence supporting the appellant. His Honour therefore treated the mortgages as personal loans to the appellant, as between himself and the deceased ([187]-[189]). Bryson J does not appear to have made a finding on the appellant's claim to have paid or shared general household expenses from 1991 onwards, treating this as having "little significance" in light of the appellant's prior acquisition of most of the deceased's capital (at [184]). [There was evidence from the appellant that his company was the source of some expenditure. It is possible that Bryson J intended to reject it in his general rejection of the uncorroborated evidence of the appellant. On the other hand, it is curious that so little attention was ultimately paid to expenditure from this fund. We also have difficulty in seeing why there was "little significance" in the issue. The probabilities would suggest that the appellant made some contributions to daily living expenses, although it is significant that he did not do so before 1991. In this Court, senior counsel for the respondent accepted that the appellant had made some contribution towards household expenses (CA Tr p109).] 109 Thirdly, the appellant produced no records of the deceased's perception of the relationship in the deceased's own hand. There were no letters, cards or other indicia of affection, let alone a more substantial relationship. The exception is the curious videotape of the discussion between the deceased and the appellant in 1986. Bryson J held (at [57]) that: … there is no written record of any social, official or business communication by her to any person which bears out in any way the existence of a de facto relationship or other relationship analogous to marriage between her and Mr Bar-Mordecai, either in her perception or in reality. Whenever any written material from her deals with anything which could be regarded as approaching the subject, that material invariably tends against the existence of a de facto relationship.

(We infer that the last sentence refers to the references in the deceased's wills. They do not describe the appellant as a husband and they gift substantially less than the whole estate to him.)

110 Fourthly, his Honour examined the openness of the shared relationship as presented by the couple, jointly and severally. The evidence was ambivalent, if not Janus-faced. Among the matters to which Bryson J drew attention as negativing the claimed relationship were the absence of evidence that the deceased took the surname Bar-Mordecai and her use of "Doctor" to address the appellant ([204]). He also pointed to the secrecy about the intimate relationship as presented to family members and some close friends of the deceased, distinguishing these from "instances of tasteless sexual boasting by Mr Bar-Mordecai to patients and others who had no real discernible standing to hear such information" ([200]). He concluded that "the absence of public or open avowal of the relationship is significantly adverse to the conclusion which Mr Bar-Mordecai seeks" ([205]). 111 Fifthly, Bryson J referred to significant occasions when the deceased explained her circumstances in terms inconsistent with her being in, or her understanding herself to be in, a de facto relationship ([209]ff). These included a history she gave to a Repatriation Department doctor, her representations to accountants, solicitors and public authorities, the silence of her tax returns, letters, wills and other documents as to any public declaration of the relationship. The 1992 videotaped interview was analysed, with some emphasis being placed upon the deceased's acknowledgement of the intimate relationship coupled with her declining to describe it in marital terms and her avowal "I am not your wife or your mother" ([226]). Bryson J concluded ([227]): It is in my view significant that when called on to consider what her reaction would be if Mr Bar-Mordecai died Mrs Eveline Hillston attempted to define her emotional position and in doing so stated that she was not his wife or his mother, while at the same time acknowledging that his death would be very disturbing to her. While she had difficulty defining the relationship and her emotional position in it, it was clearly her view that she was not Mr Bar-Mordecai's wife. In saying this I rely not only on the words spoken but on her manner of response as recorded on the film. I do not accept contentions by Mr Bar-Mordecai that in giving this answer she was in some way dissembling or concealing her feelings. On the evidence as a whole it is clear, in my finding, that it was not Mrs Hillston's interpretation of her situation that she was living with Mr Bar-Mordecai as husband and wife. 112 Sixthly, and generally, Bryson J tended to characterise the advantages derived by the two people as essentially individualistic and not shared. He emphasised areas of lack of mutuality. Thus, he pointed to the age disparity, the appellant's grasping and acquisitive motivation and the deceased's enjoyment of the advantage of having a constant pleasurable companion and a doctor in the house. 113 The claim that the appellant was an "eligible person" was rejected in the following terms: 233 Mr Bar-Mordecai bears, in his Family Provision claim, the onus of proving that at the time of Mrs Eveline Hillston's death he was living with her as her husband on a bona fide domestic basis. Mr Bar-Mordecai's presentation of his case often seemed to equate a sexual relationship with compliance with the definition of eligible person: an invalid equation. The whole expression "as her husband on a bona fide domestic basis" must be taken together, is not readily susceptible of being broken down and is not readily susceptible of analysis of parts such as "bona fide" in isolation, or of exposition of a "domestic basis". The whole expression requires that there be a sustainable analogy with a marital relationship, including the observance of good faith in the relationship. On a whole view of the relationship and Mr Bar-Mordecai's behaviour my view of the facts is that the relationship is explained by and was a long-continued intrigue by Mr Bar-Mordecai to get control of Mrs Eveline Hillston's property or as much of it as he could. It was, in my finding, his intention from beginning to end of the relationship to carry out this purpose. I do not accept that he ever was sincerely involved in any emotional bond with Mrs Eveline Hillston. I am not here speaking about what she felt about the relationship. 234 The relationship was economically exploitative from beginning to end. At all times Mr Bar-Mordecai lived in housing provided by Mrs Eveline Hillston; he lived there as if he had a right to do so, without making any contribution in the nature of rent, or contributing in any real way to the capital cost of the dwellings. He obtained many other inappropriate economic benefits from the relationship. Early in their relationship Mrs Eveline Hillston bought the surgery, plainly at his instigation as she had no use for it other than relating to his need for it, and he had earlier wished to acquire it himself. She leased it to him on terms very favourable to him, and she committed capital resources to acquiring it. It is overwhelmingly likely that she did these things at his suggestion. Later she sold the surgery to him, by what was in form a sale but did not actually bring her any significant capital; he gave her a mortgage for less than all the price at less than an economic interest rate; he made an arrangement with her which meant that $110,000 of the price would not be paid, and it was not paid. He took a one-third interest in the Eastbourne Avenue house, although she paid all the purchase price. He made what he calls the round-robin arrangements for several years of mortgage instalments. He obtained a discharge of her mortgage over the surgery. He took a number of significant gifts of cash from her. The net effect was to take from her her most significant assets and by far the greater part of the means by which she gained income. Even if he had proved (and he has not) that she made all these gifts and conferred all these benefits with a full understanding of their impact on her economic position and welfare, the fact that he accepted all these benefits would show that the predominant characteristic of his relationship with her was his exploitation of her resources. It is not in my judgment possible that a husband participating in good faith in a domestic relationship would take so many gifts in such large amounts; the fact that the gifts took place demonstrates that the personal relationship was the means of carrying out his exploitative intentions. He did not when she died meet the definition of "eligible person" because at the time of her death he was not living with her as her husband on a bona fide domestic basis.

235 Findings I have earlier made establish that there was no open presentation to friends, relatives or to anyone with whom they had significant social interaction that there was a marital relationship or anything like one: in view of their ages it was very unlikely that the sexual element in their relationship would be perceived by intuition: his relatives did not perceive it over a number of years till the shocking knowledge was forced on them by seeing the sleeping arrangements, her relatives did not see the sleeping arrangements and did not have grounds for the intuition: there was no public or open avowal and there were a few indirect indications to people on the periphery of their lives that they shared a bedroom. My conclusion on the events which I have reviewed and findings I have made in these reasons is that there was no sustainable analogy to a marital relationship. It should not be found that Mr Bar-Mordecai is an eligible person, or that he is qualified to apply for further provision. 114 We would uphold the appellant's challenge to these evaluative findings. In our view, there was a de facto relationship from at least as early as about 1986 and it lasted until the deceased's death. The appellant was therefore an eligible person as defined in the Family Provision Act. 115 Over 11 years the two people so melded their social, sexual and financial affairs as to constitute themselves a de facto couple. They lived together, worked together, shopped together, holidayed together, slept together, worshipped together and largely pooled their assets and income. Each was a co-signatory of the other's bank accounts. 116 The deceased made provision for the appellant in her wills of 1986, 1987 and 1989. The appellant left the bulk of his estate to the deceased in his two wills of 1989, albeit describing her as his "very good friend and confidant". 117 The deceased performed many tasks that many wives perform, including cooking, shopping and housekeeping. She shared the appellant's bed and the daily intimacies of life. She made the beds and cleaned the house, with outside assistance. She also cleaned the appellant's shoes daily! She worked in his surgery without pay. Her pension and assets were devoted to the couple's common outgoings, supporting his practice (the main source of family income) and the acquisition of Eastbourne Avenue they chose together, developed together and purchased together. 118 There was genuine mutual affection and prolonged sexual intimacy. The deceased was proud of the relationship and spoke about it to many acquaintances. Her coyness to family members and some close intimates is understandable given the unusually large age-difference between the couple. No doubt there were additional reasons why the couple jointly and severally held back from a public acknowledgement of the relationship or formal marriage. (There was, for example, evidence that the deceased was concerned not to compromise her war widow's pension.) These factors complicate resolution of the issue but on balance are not determinative. 119 It is useful to test the question by positing that the boot might have been on the other foot. Could the deceased have claimed as a de facto wife against the appellant's estate if he had died first? The evidence shows that the deceased was much more than the appellant's housekeeper or confidante. 120 The appellant was not entirely faithful to the deceased from a sexual point of view. Some marriages have a similar characteristic. It is, however relevant that the deceased "took him back" after the short interlude in 1985. The secret dalliance with Ms Yakovleva that commenced a few months before the death of the deceased is not irrelevant to the "eligible person" issue, but again it cannot be determinative. Whether or not the deceased's declining health had some bearing, the fact remains that the appellant continued to care for the deceased until her death. They continue to live and sleep together. He continued as her companion, doctor, carer and confidant. 121 Bryson J found that, in the last two years of the deceased's life, her mobility was significantly impeded. This provided an explanation for the observations of several witnesses that the appellant used to hold the deceased's hand when walking in public places (at [199]). This may be so, but we would observe that it is conduct going far beyond the care that a doctor would normally bestow upon an elderly patient. 122 Bryson J found in effect that much of the appellant's conduct was selfish, motivated by a long-term goal of personal enrichment at the deceased's expense. We have not ignored these findings, with which we are in general agreement. But they do not rise to the level of establishing that the appellant was motivated solely by a dastardly plan to relieve an elderly lady of her property and then dump her. The relationship went on for too long and its mutually satisfying aspects were too significant to view it as a naked plan of exploitation. The learned trial judge did not suggest that things went that far. 123 Whatever good intent may be present at the inception of a "normal" marriage, experience reveals that it more often than not turns out to be disadvantageous financially for one spouse rather than the other. Human nature is too complex to conclude from this that marriages are not genuine on this account. The financially "exploited" partner may be content that it is happening or at least may see it as an acceptable part of the give and take of an ongoing commitment "for better or worse". 124 Almost by definition, there will be one or more aspects of a de facto relationship that differ from the paradigmatic legal marriage. Even though a couple may have the legal capacity to wed, their choice to refrain from such a public and legal commitment is not in itself enough to preclude entry into a de facto relationship. 125 The concept of living "as…husband on a bona fide domestic basis" is not to be broken down into individual components (Simonis). The concept of "bona fide domestic" relationship is not necessarily lost because there are bouts of selfishness or infidelity by one or both of the partners. The thrust of the descriptor "bona fide" is to exclude sham relationships structured knowingly to present an outward appearance of marriage where its core elements are lacking. The unusual relationship between this couple did not suffer from any such lack of bona fides.

Were the family provision proceedings brought out of time? 126 Bryson J also found that the family provision claim was prohibited by s16(2), because the application was not made within the "prescribed period" and because sufficient explanation had not been shown to justify an extension. The prescribed period was 18 months from date of death (s16(1)) and it expired on 25 December 1995. The appellant's summons was filed on 17 March 1999 by a solicitor who apparently acted without the appellant's authority, but whose actions were subsequently ratified (Bryson J at [236]). 127 Section 16(2) and (3) of the Act provide:

(2) An order under s.7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subs.(3), by order, allow.

(3) The Court shall not make an order under subs.(2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application's not having been made within that period. 128 Bryson J applied the reasoning of Hodgson J in Lewis v Lewis [2001] NSWSC 321 at [82]-[83] as to the approach to the exercise of the discretion to extend time. Hodgson J said:

82. In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s16 include the existence and strength of a case for relief under the Act , the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s16 of the Act , which, in the absence of consent, precludes an extension being granted unless "sufficient cause is shown for the application not having been made within" the prescribed period.

83. The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like sufficient in all the circumstances to justify the granting of an extension of time. 129 Bryson J noted that the appellant did not offer any evidence of a cause for the application not having been made by 25 December 1995. During the prescribed period he actively pursued a claim to be appointed administrator of the estate on the ground that the deceased had died intestate and that he was her de facto spouse entitled to the entire estate on intestacy having regard to s61B(1)(ii) (read with s32G) of the Wills Probate and Administration Act. If that claim had been successful there would have been no need for any application under the Family Provision Act. 130 There was, Bryson J held (at [243]), no reason why the appellant could not have maintained a concurrent claim under the Family Provision Act. Instead, he pressed on with the probate proceedings that were ultimately dismissed by Einstein J on the basis of failure to establish that the deceased's will had been revoked (because it had in truth been destroyed or suppressed by the appellant after the deceased died). Because the appellant's standing as a de facto husband was also in dispute before Einstein J, many witnesses were called and much hearing time devoted to the de facto relationship issue in the probate proceedings. Since there was no intestacy, Einstein J's rejection of the claim that the appellant was the de facto spouse within s32G was not determinative of the probate proceedings. This appears to be the reason why it was not invoked before Bryson J as res judicata or issue estoppel. 131 Bryson J correctly held that, if the appellant had brought a claim under the Family Provision Act within the prescribed period, both the probate and family provision proceedings would have been heard together. The estate and the other persons interested in the estate would not have been put to the trouble and expense of litigating the de facto relationship issue in two separate hearings. 132 The appellant consulted solicitors about the deceased's estate in July 1994. There are clear indications that he received advice as to his right to make an application under the Family Provision Act (see Bryson J at [245]-[246]). The appellant did not instruct his then solicitor to bring such proceedings. Nor did he lead evidence before Bryson J from the solicitor who acted for him early in the probate proceedings who was obviously in a position to give evidence touching the details of the discussions about the making of proceedings under the Family Proceedings Act. 133 Instead, the position adopted was to apply for letters of administration as on an intestacy. He swore an affidavit asserting his belief that the deceased had not left a will and stating that he and his solicitor had made searches without locating any will. As Bryson J pointed out at [250], this affidavit was entirely lacking in frankness. The appellant knew that the deceased had made the will of 31 August 1989 as he had participated in its preparation. He also knew that she had uplifted the will from her solicitors in 1990 and that she kept it at home. None of these matters were disclosed in his affidavit seeking administration in common form. Nor was there any mention in the application of the event in which he was present when the deceased revoked the will by tearing it up. This was first disclosed much later and was rejected as a fabrication. 134 These and other matters had spelt doom for the probate proceedings that culminated in the judgment of Einstein J on 16 June 1998. An appeal against those orders was dismissed on 16 May 2000 ([Bar-Mordecai v Rotman & Ors [2000] NSWCA 123). 135 Bryson J traced the twists and turns of the appellant's dishonest suppression of the will. These matters had been considered in detail by Einstein J, but they were also addressed in the current proceedings. The appellant adhered to his account of the will having been destroyed in his presence by the deceased. His attempt to reopen this issue only got him into deeper water. Even affidavits sworn in the current proceedings were later disavowed. With considerable understatement, Bryson J observed at [255] that: … the exercise did nothing to improve his case on sufficient cause and allowance of an extended period for Family Provision proceedings. 136 His Honour recounted other inconsistencies and untruths (at [256]-[258]). 137 The conclusions on the s16(3) issue were expressed in the following terms: 259 It is altogether clear that the availability of the opportunity to make an application under the Family Provision Act if the will was not revoked but took effect was brought to Mr Bar-Mordecai's attention by lawyers in July 1994. Throughout the probate proceedings he maintained, without success, the claim that the will had been revoked; although what he put forward in support of this was not consistent throughout. His case that the will had been revoked was rejected by Einstein J whose decision conclusively establishes that the will was not revoked in any manner, and in particular establishes that it was not revoked by being torn up by Mrs Eveline Hillston in Mr Bar-Mordecai's presence, as his case came to be. As this has been established it is clear that Mr Bar-Mordecai did not act reasonably in maintaining that the will had been revoked in his presence, and in continuing to do so, falsely, for several years. It should be inferred that the reason for his not bringing proceedings under the Family Provision Act in 1994 or 1995 was or included that he preferred to maintain a different but false claim which if it had succeeded would have brought him the whole of the estate on a clearer basis. He had full opportunity to bring forward a claim under the Family Provision Act within the prescribed period as an alternative claim. What he did caused great prejudice to the estate and persons interested in it by involving the estate in protracted litigation in probate, and this prejudice has been greatly compounded by his attempt to raise much the same matter in his claim under the Family Provision Act . It should be found that there was not sufficient cause for his not making his claim by 25 December 1995. 260 If Mr Bar-Mordecai's claims were to be considered under s7 there is in my view no real prospect that the court would decide that it should order provision to be made for him or that the court should be of the opinion that provision ought to be made for his maintenance or advancement in life having regard to the circumstances of the present time. In Mr Bar-Mordecai's circumstances at the time of Mrs Eveline Hillston's death, he was a medical practitioner with a long-established busy and successful medical general practice, and (although his position on this subject has not been consistent) I infer that he had high earnings, in all respects sufficient for his own maintenance and advancement in life. No-one was dependent on him. He had liabilities to the estate in respect of his ownership of a one-third interest in the Clovelly house, the surgery and gifts of money which, as determined elsewhere in this judgment, the estate was entitled to have set aside. His evidence does not establish what other resources he then had, or that he had no other resources, and in view of his capacity for earnings over the years it is not at all likely that he had no other resources. The provision made for him in Mrs Eveline Hillston's will was, in his circumstances, generous and included provision for his housing for his lifetime in the home unit, and an entitlement to the furniture and contents of the home unit. He was also given a five percent interest in the residue of her estate, and a right to purchase assets at market value. He had not behaved well towards Mrs Eveline Hillston in her lifetime, as by the exercise of undue influence he had gained the apparent ownership of much of her property, subject to her entitlement in equity to have the gifts set aside, and his doing so had greatly reduced her income. He had significant obligations to Citibank, and although he has maintained that those obligations were incurred, wholly or partly, for repairs and renovations to the Clovelly property he has not proved that this was so and I have found that the true view of the obligation to Citibank is the explanation Mrs Eveline Hillston gave for it, that is that it was a personal loan to him. He had quite sufficient resources for any discernible needs and he was an undeserving claimant. 261 His affairs are now in a very poor state but that arises out of his having maintained unsuccessful litigation against the estate on a false basis and having incurred large obligations for costs, and also out of his name's having been removed from the medical register on the ground of his own professional misconduct. In these circumstances there are in my view no real prospects that, if an extension of time were granted, he would obtain any significant further provision. In my judgment I should not, having regard to all the circumstances of the case, by order allow a further period for his application in accordance with subs16(2). In any event I am required by subs16(3) not to make an order as sufficient cause has not been shown for the application's not having been made by 25 December 1995. For these reasons proceedings 1707 of 1999 will be dismissed.

138 The appellant's challenge to these conclusions was developed in his written submissions as to Grounds 30-32. He conceded that Clayton Utz gave written advice in mid 1994 that he should (in addition to probate proceedings) make a family provision application based upon the long standing de facto relationship (Blue 1294). The appellant submitted that the delay caused no prejudice to the estate. He further submitted that he was not mindful of this advice due to a memory loss suffered as a result of a motor vehicle accident on 3 July 1992. (The evidence cited - at Blue 199 - offers no support for this sequela to an accident over three years earlier. See also CA Tr p143.) The submission then descended into a litany of unsubstantiated complaint and abuse about false evidence from the Hillston witnesses and misconduct by the trial judge. There is an attempt to reopen the earlier probate proceedings despite their dismissal in the earlier appeal and even though two of the three respondents to that appeal were not parties to the present appeals. 139 The submissions that Bryson J demonstrated bias, erred or breached his "duty of care" in failing to define the issues for litigation and in various adverse rulings made in the trial have been noted. They have no substance. Nor is error demonstrated in the rulings on various evidentiary objections that are challenged in Ground 62 or the judicial admonitions complained about in Ground 72. 140 The one submission of any merit relates to the rejection of the appellant's eligibility as a family provision claimant (Ground 32). Since this was a relevant factor, adverted to by the primary judge in his s16 analysis (see at [260]-[261]), our disagreement with the primary judge on this issue requires us to consider the whole matter afresh. 141 Under the deceased's will the appellant is given a life estate over the unit at 1/6 Mount Street Randwick and 5% of the residue. The Mount Street unit was sold (under judicial order) to fund the costs of the litigation. It is far from clear whether there will be a residue in the estate, although we note that the surgery was sold in December 2001 for $2.885 million. If it turns out that the appellant will ultimately receive money from the estate, so be it. If he does not, due to the horrendous costs of litigation he has launched, it will not affect our decision on the family provision application which we now address. 142 Bryson J refused to grant an extension (under s16(2)) because sufficient cause was not shown for a timely application not having been made (cf s16(3)). We agree entirely with his Honour's analysis in par [259] as to the deliberate, costly and prejudicial decision not to launch timely family provision proceedings, despite adequate legal advice. The appellant barely challenged these findings in the appeal. 143 Nevertheless, on our reading of pars [260]-[261], his Honour also considered the appellant's prospects of success as a factor in his ultimate determination. The passage in Hodgson CJ in Eq's judgment in Lewis, quoted above, bears out the correctness of this broader approach. 144 Our respectful disagreement with Bryson J on the issues of de facto relationship and undue influence (as regards Eastbourne Avenue: see below) must be taken into account in a fresh analysis by this Court as to the s16 issue. The adjustments cut both ways. The appellant's position is strengthened somewhat by recognising his status as an eligible person. But his financial position consequent upon the death of the deceased is also materially better than as ordered by Bryson J. That is because (as we later hold) he retains the interest in Eastbourne Avenue, he does not have to account for use and occupation preceding its sale and because there should be some adjustment of the adverse costs order in the undue influence proceedings. 145 Taking account of these further matters we conclude that the order refusing an extension of time should stand. We have already indicated our entire agreement with the findings and conclusions of Bryson J relevant to the absence of sufficient cause for delay and its costly impact on the estate. We do not think that the appellant has demonstrated the likelihood of an order in his favour in substantive family provision proceedings. He will be restored to his entitlement to his share of the proceeds of Eastbourne Avenue. Of course, his earning capacity has been severely affected by his striking off as a medical practitioner, but the reasons for that disciplinary measure scarcely assist him in a claim against the estate of this particular deceased. Bryson J's conclusions at pars [260]-[261] of his reasons (already set out) are unaffected by placing a different legal character on the couple's relationship. We agree with them. 146 Accordingly, the appeal in the family provision proceedings must be dismissed with costs.

Was undue influence rebutted? General principles 147 Bryson J correctly observed (at [10]) that the presumption of undue influence arises where the recipient of a gift is the donor's medical attendant, no matter how the recipient came to be the medical attendant. He also observed that the appellant acted in breach of the well-known ethics of the medical profession when he embarked on a sexual relationship with his patient and took benefits of substantial economic value from her. These propositions are undoubtedly correct. 148 The doctor-patient relationship is such that any substantial benefit received by the doctor from the patient (other than proper remuneration) is presumed to be the result of undue influence, with the doctor bearing the onus of rebutting the presumption (Breen v Williams (1996) 186 CLR 71 at 92, and authorities there cited). 149 Bryson J held that evidence, even proof, of a de facto relationship would not enable the court to ignore the doctor-patient relationship or require it to treat the presumed influence as rebutted. We respectfully agree. The appellant's principal contentions that the de facto relationship trumped the doctor-patient relationship or provided in itself a justification for the gifts must be rejected. 150 His Honour was also clearly correct in acknowledging that the relationship was relevant to assessment of the circumstances of the gifts. This is an aspect of equity's role in taking a "comprehensive view, [looking] to every connected circumstance that ought to influence its determination upon the real justice of the case" (Jenyns v Public Curator (Queensland) (1953) 90 CLR 113 at 119, citing The Juliana (1822) 2 Dods 504 at 522, 165 ER 1560 at 1567. See also Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, 201 ALR 359 at [23].) 151 Bryson J held (at [11]) that it was always central to the relationship that the appellant was a medical practitioner and the deceased's usual medical attendant and general practitioner. The deceased's usual mode of address to him in the presence of others, and of reference to him in his absence, was "Doctor", an expression she used with every show of respect. She had ready and convenient access to him for his advice and treatment through their shared dwellings and her association with him as a receptionist and assistant at the surgery on a daily basis. She had ready access to medications including medications in the drug cupboard at the surgery, not effectively controlled by him and in disregard of legal requirements.

Appellant's challenge to findings that gift of surgery was the product of undue influence 152 The appellant challenged the undue influence findings relating to the surgery on two broad grounds. First, he submitted that the gifts were explained as the natural product of the de facto relationship that existed at the time. Secondly, he submitted that the deceased acted as an informed, legally advised and uncoerced donor. The two propositions overlap to a degree. 153 We accept so much of the appellant's submission as contends that there was a de facto relationship at all material times after the couple had settled into a pattern of shared living, initially at Mount Street and later at Eastbourne Avenue. It is unnecessary to decide exactly when the relationship commenced, but it was certainly extant by the time that the formal gifting of the surgery commenced in October 1987. Our reasons appear generally in the analysis (above) of the issue of de facto relationship in 1994 when the deceased died. Most of the considerations to which we adverted were in place by 1987. These include shared residence, daily companionship, sexual intercourse and the melding of financial affairs. One aspect of the appellant's behaviour that concerned Bryson J (the infidelity involving Ms Yakovleva) was well in the future. 154 The deceased's attachment to the appellant and her willingness to shower him with gifts had already been demonstrated by the circumstances in which the surgery was acquired, formally by the deceased but in consultation with and for the benefit of the appellant. 155 The companionship, kudos, security and sexual fulfilment that the appellant provided to the deceased were very much part of the context in which the gift of the surgery and the earlier gifts of the equipment used in it had taken place. 156 But this is not the one way street that the appellant embraces in his primary submission challenging the findings on undue influence. The affection, sense of generosity and attraction that the deceased felt for the appellant had grown out of the doctor/patient relationship. This was historical fact. The medical role also continued to form a significant part of the dyadic relationship. This meant that the appellant continued to bear the onus of justification which the principles of equity threw upon him. The fact that the couple had moved into a pattern of living that bore many hallmarks of a husband-wife relationship did not remove the need for close investigation of the circumstances surrounding the very substantial gifts involved. It certainly did not require Equity to treat the couple in the same way it treats a married couple. 157 One can easily point to examples where an ongoing sexual relationship would be seen as a badge of influence and not its rebuttal. If for example a priest commenced an ongoing sexual relationship with someone under his or her pastoral oversight, then that relationship would in all probability be seen as an aspect of the influence heightening the need for scrutiny, not as an explanation justifying substantial gifts in the priest's favour. 158 We therefore turn to examine the second limb of the appellant's challenge, namely, his submission that gifts of and associated with the surgery were the product of an informed free will. 159 The appellant's written submissions seek to answer Bryson J's adverse findings in a number of ways. First, the appellant submits that he was not privy to the structuring of the "sale" of the surgery, with its mortgage back for $250,000 and the promissory note for $110,000. Secondly, the appellant submits that the sale was in fact contrary to his advice to the deceased. It follows, so the submission goes, that the matter was worked out between the deceased and the solicitor (Mr Freeman or members of his staff) but free of the appellant's influence. 160 There are a number of difficulties with these submissions. They depend upon the acceptance of the appellant's testimony, which Bryson J rejected. They are not supported by Mr Freeman's file records or his recollection (which was generally and understandably slender as to details). The submissions also ignore the circumstances in which the surgery was acquired by the deceased. The five matters to which we have earlier drawn attention support Bryson J's conclusion that the "sale" of the surgery by the deceased to the appellant was the culmination of its acquisition by the deceased "for the appellant". The appellant's submissions also fail to grapple with the light (or shadow) thrown by the later transactions in which the mortgage was discharged and the promissory note extinguished by operation of law and/or express release. 161 The solicitor's diary notes show that Mr Freeman or his employed solicitors discussed the acquisition transaction in some detail with the deceased and the appellant (Blue 4/730-735). One can infer that the deceased knew and understood the structure of the arrangement at its outset, at least as regards the early transactions apart from the lease. But Mr Freeman never knew of the true relationship between the appellant and the deceased. In particular, he did not know that the appellant was the deceased's treating doctor (Black 6/1804). According to the appellant, Mr Freeman asked the deceased in 1987 whether she was in a de facto relationship, but the appellant told him she was not. Bryson J did not accept this uncorroborated evidence. In any event, its timing and the answer given by the deceased (according to the appellant) meant that the information did not inform any advice that Mr Freeman or his employed solicitors may have given at the time the surgery was acquired or when the initial steps in its gifting to the appellant took place. Mr Freeman may have been put on notice of facts from which he could have inferred the relationship, but he drew no such inference. More to the point, his failure to do so meant that the deceased did not receive from him informed advice as to the gift of the surgery. 162 This leaves the appellant with arguments based upon the strong findings (in his favour) as to the deceased's mental capacity, business acumen and knowledge of affairs. To this we would add the fact that the appellant was a natural object of the deceased's generosity having regard to their relationship and the absence of any strong competing claims. The deceased had no children and her adult Hillston nephews lived in Greece and visited her infrequently. 163 The way that Bryson J resolved these issues has already been set out. 164 We detect no error in the way the primary judge addressed the undue influence issues touching the surgery. Indeed, we respectfully agree with him, especially at pars [24]-[28] of his reasons that have been set out above. His Honour was entitled to remain unpersuaded that the donee had rebutted the presumption of influence that descended upon the whole transaction stemming from his role as the deceased's medical practitioner. 165 The progression of the relationship into one that, in our view, became a de facto relationship by about 1986 at the latest does not alter our conclusions as regards the surgery. The appellant had well and truly got his foot within the door of the surgery at the time of its acquisition and leasing. The cloud of concern stemming from the doctor-patient relationship was by no means dispelled by the evidence as to the obvious affection that the deceased had for the appellant in the early days of their cohabitation. 166 The suspicious taint arising from the five circumstances of the surgery acquisition to which we have drawn attention and the lack of involvement of lawyers at key stages in the surgery disposition in the appellant's favour leave the whole transaction clouded with uncertainty and doubt as regards the impact of the appellant's influence over the deceased. It was for the appellant to remove that doubt and he has failed. 167 It is pertinent to remind ourselves that the question at issue is not simply one of establishing the deceased's understanding of the transactions. The appellant must go further and demonstrate that he took no advantage of the donor, but that the gifts were "the independent and well-understood act of a [woman] in a position to exercise a free judgment based on information as full as that of the donee" (Johnson v Buttress (1936) 56 CLR 113 at 134 per Dixon J). 168 In Bridgewater v Leahy (1998) 194 CLR 457 Gaudron, Gummow and Kirby JJ said at 491 [118], footnotes omitted: Even with respect to the doctrine of undue influence, as distinct from that dealing with unconscionable conduct, equitable principles may be invoked to set aside a gift where a donor is perfectly competent to understand and intend what he or she did. In Huguenin v Baseley , Lord Eldon LC said, in a well-known passage: "Take it, that she intended to give it to him: it is by no means out of the reach of the principle. The question is, not, whether she knew what she was doing, had done, or proposed to do, but how the intention was produced." Thus, as Turner LJ put it in the disponor in Rhodes v Bate , the case was not determined by deciding that she had been "perfectly competent to understand what she did" and had not been "of weak mind". Further, as Lindley LJ observed in Allcard v Skinner , enthusiasm itself may be the result of the exercise of undue influence.

169 We would therefore dismiss the appeal as regards the surgery. 170 This includes the appeal as regards the other gifts associated with the surgery and the gift of $20,000 for the appellant's legal fees relating to his divorce proceedings. We reject the ground of appeal that contends that these were too small to attract the equitable principles.

Payment of household expenses, mortgage payments and renovation costs during the Eastbourne Avenue period

Rejection of bundle of cheque butts and their tender as evidence in the appeal 171 The appellant raised issues in the appeal as to the rejection of his evidence about paying household expenses. These issues should be addressed before returning to their impact on the undue influence claim touching Eastbourne Avenue. 172 The appellant alleged in his defence (par 2(f)) that the deceased paid all the household expenses of the home unit at Mount Street until February 1991 and that since that date the appellant paid all home maintenance expenses, gardener expenses, rates and other outgoings, except for the housekeeper costs that he paid on some occasions only. The appellant endeavoured to prove at trial that he had contributed to living expenses prior to 1991, notwithstanding his pleading, and that, after that date, he made the contributions pleaded. Some of the fresh evidence sought to be tendered in the appeal went to this issue also. Bryson J was not satisfied that the appellant had "proved in any clear way that he in fact shared household expenses, or paid living and medical expenses during the times he speaks of" (at [183]). This finding, challenged on appeal, was based upon the judge's assessment of the appellant's credibility and upon the absence of the deceased's personal papers that had been in the appellant's possession for many years but were destroyed by him in 2001 ([183]-[184]). Bryson J added (at [184]) that it would be in no way a credit to him or a remarkable event that the appellant should have shared household expenses from 1983 - 1990 when he was living, without paying any rent, in the deceased's Mount Street apartment. 173 Bryson J next addressed the appellant's claim that he paid the Citibank mortgage repayments. This was the mortgage entered into in 1989 that was substituted for the bridging finance obtained from the ANZ Bank in connection with the purchase of Eastbourne Avenue. Bryson J concluded that the appellant had not proved in any acceptable way, with corroborative material, that the moneys borrowed were spent on renovations to Eastbourne Avenue (as the appellant alleged). He had regard, among other things, to Exhibit L, the note prepared by the deceased for her accountant in October 1990 that has already been set out. That note referred to "Doctor's" undertaking to complete the building and carry out all necessary repairs and improvements, but was silent as to whether that undertaking was met. 174 Bryson J treated the Citibank mortgage as a personal loan to the appellant. His Honour was not prepared to find that the appellant had paid for any of the work on Eastbourne Avenue. Nor was he satisfied that there was any reliable evidence that any of the money advanced under the Citibank facility went to the deceased or for her benefit. These conclusions are challenged by the appellant. 175 With some hesitation, we are not prepared to permit the appellant to tender in the appeal the evidence that he failed to have admitted at trial, despite several attempts to do so. It appears that Bryson J was not prepared to accept into evidence a bundle of cheque butts (on the appellant's company account) that appear on their face to relate to several issues in the trial, including the alleged de facto relationship and the arrangements surrounding the acquisition of Eastbourne Avenue. 176 Bryson J rejected this material because it was tendered too late in the trial (Black 9/2633-40). There had been several directions given earlier for this information to be collated and produced in a fair and acceptable manner. The appellant had made several attempts to do so. Indeed, the cheque butts obviously relate to affidavit material previously filed (some of it had actually been read) and/or to the bundle of invoices for renovation of Eastbourne Avenue (Ex 11). 177 The appellant submits that the primary judge was too harsh in his refusal to accommodate a litigant in person struggling under the weight of very substantial litigation. The respondent submits on the other hand that the trial judge exercised procedural and evidentiary discretions fairly and appropriately given the repeated attempts to tender this material, earlier judicial warnings and the need for the trial judge to have regard to the interests of both parties in a fair trial. The respondent points out that the cheque butts were also being relied upon in support of a cross claim against the respondent. 178 Having regard to our conclusions on de facto relationship and Eastbourne Avenue we find it unnecessary to resolve these issues. There was, in our view, sufficient material already in evidence to provide a clear enough picture of the financial arrangements between the couple during the latter part of their cohabitation. This is addressed in the next portion of our reasons.

Was undue influence rebutted in relation to eastbourne avenue? 179 In our view, the appellant has rebutted the presumption of influence attracted to this transaction by reason of the doctor-patient relationship that was continuing in 1988 when the property was acquired. 180 As indicated, we refuse the appellant leave to resile from his pleaded admission that the deceased caused a one-third interest to be transferred to him. But the pleading (set out above) always maintained that the deceased acted out of her love and affection for the appellant, as a consequence of their pre-existing de facto relationship, and in consideration for the appellant paying the mortgage instalments. 181 In our view, the evidence showed that very considerable sums were paid by the appellant either out of his own moneys or out of moneys that were treated as his, as between him and the deceased, by virtue of transactions freely entered into and properly justified. With a caveat against circularity of reasoning, we record that the trial judge's findings, the documentary evidence and/or our conclusions on the de facto relationship issue support the following:

• the deceased and the appellant jointly decided to acquire Eastbourne Avenue, to renovate it and to live in it;

• they did this in the context of a domestic relationship that had settled into one characterised as a de facto relationship before 1988;

• unlike the surgery acquisition, the transaction involving Eastbourne Avenue conferred only a partial interest upon the appellant; the deceased retained a two-thirds interest to dispose of as she thought fit;

• the deceased knew and understood what she was doing when she instructed her solicitor Mr Freeman that the title was to be acquired as tenants in common with the shares being two-thirds to herself and one-third to the appellant. Mr Freeman's assessment of her capacities included the view that "she appeared to understand her own financial position very well. She was able to discuss my advice with me in a way which suggested to me full comprehension" ;

• the property required the addition of a third level and extensive renovation before it could serve, as intended by the couple, as their joint home;

• the deceased's assets and income in 1988 would not have supported a substantial mortgage in which she was the sole borrower. The successive banks would not have provided financial accommodation to the level required had it not been for the presence of the appellant (a doctor with a successful medical practice) as a joint mortgagor;

• accepting for the sake of argument, Bryson J's characterisation of the Citibank advance as a personal loan to the appellant, it was a loan that the appellant (together with the deceased) treated as the source of discharging the ANZ loan;

• Ex 11 is a bundle of receipts in relation to very substantial renovation work at Eastbourne Avenue. The sums involved exceed $150,000. With one exception, each receipt is in favour of the appellant or his company. The exception, interestingly enough, is in favour of "Mrs and Dr Bar-Mordecai" (Maroubra Retravision, for a (dish?) washer). The appellant said that he paid for the renovations (Black 4/1207-8). The receipts corroborate this. So too does the deceased's statement to her accountant (Ex L) which included: I wish to add that all expenses for building a third floor, repairs, improvements, swimming pool and spa, etc. have been paid for solely by doctor, so that I have no expenses to show or claim. 182 This expenditure was anticipated when the couple acquired the fairly run-down property. Given the deceased's lack of substantial funds by 1988 it would also have been anticipated from the outset that most if not all of the home improvements would be funded by the bank borrowings. This provides a context and an explanation for the deceased's willingness to gift a one-third share in the property. It also shows why treating the bank mortgages as personal liabilities of the appellant is only part of the picture. 183 When added to the evidence as to the deceased's mental capacities, her genuine affection for her domestic partner, the involvement of a lawyer (in contrast with key elements in the surgery transaction) and the absence of evidence of fraud or concealment there was, in our view, adequate material to answer to concerns raised by the presumption of undue influence. To put the matter in conclusory terms, the evidence demonstrated that the gift was the independent and well-understood act of a person in a position to exercise a free judgment based on information as full as that of the donee (cf Johnson v Buttress at 134). 184 We have not overlooked Bryson J's characterisation of the Citibank Mortgage as (among other things) a loan to the appellant obtained on the security of Eastbourne Avenue. Nor have we found it necessary to determine whether the probabilities support the conclusion that the appellant paid the mortgage instalments (as he contended in oral evidence (Black 5/1227)) and as he sought to prove by the evidence tendered at trial and in this Court. The evidence may be ultimately amphibolous and the principles of appellate restraint too firm to allow any displacement of Bryson J's lack of satisfaction on this matter, even though it is difficult to know where the money came from if not from the appellant's earnings as a medical practitioner. Be that as it may, the appellant's failure to satisfy the trial judge in relation to the mortgage instalments still leaves a body of fairly compelling evidence that persuades us to uphold his appeal in relation to Eastbourne Avenue.

Other grounds of appeal 185 The appellant's detailed grounds of appeal and supporting written submission span 459 pages. There are a further 148 pages of submissions on the credibility of the respondent's witnesses. There is much overlap and hyperbole. We have concentrated upon the grounds that were developed in the oral submission that themselves spanned four days. 186 The remaining grounds have not been overlooked, but they lack any merit. Many return again and again to attacks upon the credibility of the respondents and their witnesses and allegations of conspiracy and abuse of process. There are also complaints about the trial judge's well-justified refusal to accept the appellant as a witness of credit. There were several strongly-expressed findings as to the appellant's credit (see especially at [53]-[61], [69]-[71]). The appellant's submissions fell very far short of persuading us that the primary judge erred in these assessments. 187 Interspersed with grounds alleging judicial misconduct, denial of natural justice, bias or apprehension of bias are challenges to procedural directions made during what must have been a particularly difficult trial. These included directions to limit repetitious cross-examination or oral submissions. No error has been demonstrated in these grounds of appeal. 188 The submissions that the primary judge misconducted himself because he did not accept the appellant's case are contemptuous in both the lay and technical senses of the word. The same can be said about the submission that Bryson J was bound to recuse once the appellant commenced separate proceedings against his Honour claiming damages. The Grepe order made on 31 May 2002 was entirely justified for the reasons given by Bryson J (Red 110-122). 189 Another group of grounds allege misconduct in the administration of the deceased's estate by Allan Hillston, the administrator. These mainly present as attacks on his credibility, but are also pertinent to the appeal in the probate proceedings litigated before Bryson J in which the appellant sought revocation of the letters of administration. The respondent was well entitled to defend the family provision claims and to dispute the claim as to a de facto relationship. Bryson J dismissed those proceedings for reasons stated at [262] of his judgment. We entirely agree with the judge's reasons and would therefore dismiss with costs the appeal against the orders made in proceedings 3039 of 1992. 190 The respondent seeks costs on the indemnity basis, pointing to the order to that effect made at the trial and the well-founded reasons for it. With hesitation we decline to make a special order. This part of the appeal took up very little time and attracted few written submissions. It would complicate assessment of costs to differentiate the costs touching this issue in the circumstances. 191 The crippling costs of the two sets of litigation were sufficient reasons in themselves to justify the administrator's sale of Eastbourne Avenue (in 2001) and of the Mount Street unit (in 2002). The appellant appears to accept this (Grounds 40-41). His complaint that too much money was spent in resisting his claims does not rise anywhere near to being the basis for a finding of misconduct against the administrator. As indicated, much time, effort and cost were wasted due to the unnecessary duplication of issues as between the probate proceedings litigated before Einstein J and the current sets of proceedings litigated before Bryson J. The current proceedings were hard-fought, with no stone being left unturned. The appellant bears much of the responsibility for this. 192 In the circumstances, the proper context for addressing any claim that estate moneys were "squandered" by the current administrator is the making of costs orders in the several proceedings. The probate proceedings litigated before Einstein J are ancient history. We shall address the costs of these proceedings later in these reasons.

Application to admit additional evidence 193 A motion was filed seeking leave to lead additional evidence. None of it is fresh evidence in the sense of evidence not available at trial. Some of it is evidence tendered at trial and rejected. Some of it is already in evidence! Some of it is unrelated to any ground of appeal. We have already addressed the submissions relating to the cheque butts whose tender was rejected at trial. 194 The additional material was available to the appellant at trial and, in any event, is not compelling in its impact. 195 The various motions are dismissed with costs.

Disposition 196 The appellant's motions to admit further evidence are dismissed with costs. 197 The appeal in the undue influence proceedings (ED 3240 of 1998) is upheld in part. The declarations, orders and judgment relating to 30 Eastbourne Avenue, Clovelly and the rent received therefrom are set aside. Any questions of costs in relation to these proceedings and the appeal therefrom will be determined on the papers. Our provisional view is that the respondent should receive 60% of the trial costs and pay 75% of the appeal costs, bearing in mind the limited impact of the latter order (see Cachia v Hanes (1994) 179 CLR 403). The respondent should have a certificate under the Suitors Fund Act 1951 if qualified. Direct the respondent to file and serve within 21 days a memorandum setting out any ancillary orders sought in relation to these proceedings and the respondent's submissions as to costs in light of the reasons of the Court. Direct the appellant to file and serve any submissions in reply within a further 21 days. Liberty to apply to Mason P upon 3 days notice. 198 The appeals in the family provision proceedings (ED 1707 of 1999) and the probate proceedings (ED 3039 of 2002) are dismissed with costs. **********

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