Bracher v Jones

15 September 2021 hearing

1. The Court made relevant case management orders to enable Stephen's application to be heard, and the hearing took place on 15 September 2021.
2. At the hearing, Diane's counsel read affidavits made by Diane on 10 May 2016, 22 October 2019 and an updating affidavit of 14 July 2021. She also read an affidavit of Diane's solicitor sworn on 3 September 2021, an affidavit of the proposed administrator sworn on 9 September 2020, and tendered a bundle of documents into evidence.
3. An order was made permitting Stephen to rely on as his evidence a draft unsworn affidavit that he had apparently prepared himself.
4. Stephen was cross-examined by Diane's counsel and both counsel and Stephen made submissions to the Court.
5. As the Court had not yet made final orders to give effect to the first judgment, at the end of the hearing I made orders that included the following: The Court 1A makes an order for the revocation of the grant of probate made by this Court on 21 July 2016 to the defendant of the will of the deceased, Leila Jean Jones, made on 19 June 2013. 1 Makes orders in terms of the Order signed by Robb J and dated today's date. 2 Reserves judgment. 3 Vacates the hearing listed on 16 September 2021. Orders 1. That letters of administration with the will dated 28 June 2010 annexed be granted to an independent administrator [name of independent administrator]. 2. That, subject to orders 3 and 4 below, the proceedings be referred to the Probate Registrar to complete the grant. … 8. That the defendant vacate the property located at [No 165] ("the property") within 6 weeks after today and give possession to the administrator. 9. That the defendant, within 6 weeks after today restore to the property all goods and chattels belonging to the deceased. 10. That, in the event that the defendant fails to vacate the property identified in Order 8 above, in accordance with order 8, a writ of possession be issued forthwith in favour of the administrator. 11. That the defendant provide to the appointed administrator all documents which evidence the debts of the estate including evidence of any monies due for payments of the rates, insurance and land tax of the properties.
6. Order 8 was required because Stephen had exercised his authority under the grant of probate of the final will to take and keep possession of both No 163 and No 165. The administrator requires possession of No 165 so that it can be transmitted to Diane in execution of the 28 June 2010 will, if the circumstances of the estate permit that to occur.
7. Although it will be a matter for the administrator to determine how Mrs Jones' estate should be administered, it is probable that she will have to sell No 163 to enable Stephen to meet his liabilities to the estate. I will return to that issue below. However, if No 165 is transmitted to Diane and No 163 is sold, that will have the immediate effect that Stephen will be homeless and will require alternative accommodation.
8. At the hearing, in her proposed short minutes of order, Diane also sought the following orders: 12. The defendant personally pay the plaintiff's costs on the indemnity basis. 13. That there be no order for the defendant's costs with the intent that he pay his own costs.
9. I will return to the issue of the proper costs orders below.

Land tax, council rates and water rates debts incurred by the estate

1. One further issue emerged at the hearing on 15 September 2021, although the issue had been the subject of discussion at directions hearings. For a considerable period, Stephen lived in No 165 and retained possession of No 163, without generating income from it by letting it to tenants. Stephen has apparently allowed land tax, council rates and water rates to accumulate, without being able to pay those debts of the estate from income earned from letting No 163. Diane claims that it was a breach of Stephen's duty as executor under the initial grant of probate to allow the estate's debts to accumulate without applying the estate's assets to earn income to pay the debts. Consequently, Diane asserts that Stephen should be ordered to pay the outstanding debts personally. As the only available source of funds to enable Stephen to compensate the estate for the debts that have accumulated is Stephen's interest in No 163, Diane submits that the Court should make an order quantifying the amount of the compensation payable by Stephen to the estate, and then an order authorising the administrator to retain the amount necessary to meet Stephen's obligation to the estate out of the proceeds of sale of No 163.
2. I acknowledge that it would be convenient for the purposes of the administration of the estate for the Court to determine the amount of any liability of Stephen to compensate the estate, so that it will not be necessary for the administrator to commence new proceedings against Stephen, which is a course that would necessarily increase the legal costs of the estate, as well as the possibility that both No 163 and No 165 would have to be sold, which would largely defeat Mrs Jones' purpose in making her 28 June 2010 will.
3. However, Diane has not as a matter of proper procedure made a formal claim that Stephen is liable to compensate the estate for breach of his duties as executor under the original grant of probate. Although there is evidence of the estate's liability for land tax, council rates and water rates, there is no evidence that formally proves the extent to which those liabilities could have been paid out of rent received for No 163. Furthermore, as I will explain in more detail below, not only was Stephen self-represented, but he was obviously labouring under difficulties that made it hard for him to present his case effectively. In those circumstances, it would be unfair to Stephen to decide his liability to compensate the estate for breach of his duties as executor in an entirely summary manner.
4. The course that I propose to take is to make an order directing the administrator to prepare a report to the Court, following her examination of the affairs of the estate, that should include the details of any debts to which the estate has become subject during the course of its administration by Stephen as executor, as well as for the subsequent period during which the administrator has not had time to take the steps necessary to reduce the amount of the debts and to stop them accumulating further. The administrator should also report on the steps that she believes were available to Stephen, as executor, to earn income from the estate to pay the debts that have accumulated. That aspect of the report should focus in detail on the extent to which available income-earning capacity was capable of paying the debts that accrued to the estate.
5. This investigation is comparable to the task that the administrator would have to perform in any event in the ordinary course of her duties in deciding whether any debts were payable to the estate that she should pursue.
6. I will give leave to the parties to relist these proceedings by arrangement with my Associate when the report has been prepared. I will then hear the parties as to appropriate case management orders that will permit the Court to decide the extent to which Stephen should be ordered to compensate the estate in a summary but fair manner within these proceedings. It is likely that the orders will require Stephen to specify the parts of the administrator's report that he wishes to contest. It is unlikely that I will require or permit the parties to serve any substantial amount of evidence, unless they first demonstrate that there is a reasonable basis for contesting particular conclusions made by the administrator in her report.
7. I will address the detail of what case management orders are appropriate based on submissions made by the parties after the report becomes available.

Stephen's family provision application

1. A substantial part of the first judgment is material to the determination of Stephen's application for additional family provision. I will assume that the reader is aware of the content of that judgment. In particular, Diane's explanation of her relationship with Mrs Jones at [24]-[69]; Diane's daughters' explanation of their relationships with Mrs Jones at [70]-[91]; the relationship between Mrs Jones and her daughter and granddaughters at [346]-[353]; the parties' costs and preliminary observations made at [490]-[507]; the properties owned by the parties at [518]; and Stephen's financial position at [523]-[532]. Furthermore, the findings in the first judgment concerning how Stephen caused Mrs Jones to make her final will are relevant to the determination of his application for additional family provision. It will be sufficient for present purposes to set out my conclusions on the issue of whether Mrs Jones had executed her final will as a result of undue influence in the probate sense exercised upon her by Stephen: 473 Yet less than one month later, Stephen had procured the services of Mr Cooke, and a will was made that fundamentally altered Mrs Jones' fixed testamentary intentions that had endured for decades, and did so without any explicable reason that could be attributed to genuine free choice on Mrs Jones' part. In my view, the only rational explanation for these events is that Stephen reacted to his disappointment, in not achieving his goal at the conference with Ms Hagedoorn on 24 May 2013, by redoubling his efforts, which ultimately succeeded in the making of the 19 June 2013 will. I do not consider that there is any other explanation for what Mrs Jones is recorded as believing was fair on 24 May 2013 being turned on its head by 19 June 2013. Stephen did not provide any evidence of any new event or circumstance, other than his continuing importuning of his mother, which could explain the change. If there was any such event or circumstance, Stephen was the only person capable of giving that evidence. 474 I am influenced in making this finding by my observations of the manner in which Stephen gave his evidence in the witness box. A consideration of the extracts from the cross-examination of Stephen set out above will give some sense of the level of Stephen's obsession with the idea that he had been wronged by his father and that Diane's family had stolen from him and his mother. I am satisfied that Stephen would have harried Mrs Jones, following his failure to secure the will in the terms that he wanted at the conference with Ms Hagedoorn. 475 In my view, constant importuning of an old and weakened person, with compromised testamentary capacity, is capable of overbearing the will of that testator, as much as more blatant forms of coercion. Here, I do not refer to the mere taking advantage of some relationship of influence under which the other party is susceptible. I refer to the situation where the testator effectively gives up and abandons free agency in order to stop being subject to incessant demands. A finding of undue influence for probate purposes may not be available where there is a basis for concluding that the testator has ultimately been persuaded to accept the demands of the particular beneficiary, even though the reasons given in support of the demands are wrong and unsupportable. The question is whether, in reality, the testator has made a "free" decision. However, where no reason can be found in the evidence that can explain the abandonment by a weakened and susceptible testator of the testator's long-term cardinal testamentary intention, in the face of demands that are both incessant and obsessive, a conclusion of practical coercion may be available. That is the finding that I make in this case.
2. I made the following findings concerning Mr and Mrs Jones' intentions concerning the ultimate ownership of No 163 and No 165: 301 Number 165 was purchased as Mr and Mrs Jones' matrimonial home, and was always used as their home for the remainder of their lives. 302 Number 163 was specifically purchased so that Mr and Mrs Jones would own two adjoining beachfront homes, so that one could eventually be given to Diane and the other given to Stephen. Mr and Mrs Jones jointly, and then Mrs Jones, from the death of Mr Jones in September 2004 until 19 June 2013 and beyond, maintained their ownership of both properties, even though No 163 was not rented out, and was often unoccupied, unless one or other member of the family lived in it for short periods. For all of this time, including when they were pensioners, Mr and Mrs Jones maintained the ownership of No 163, even though they had to pay land tax and rates out of their income, which they did not recoup from any use of No 163. 303 After her husband's death, Mrs Jones maintained this arrangement, even though she sought advice from Ms Sinclair as to whether there was any way that she could lessen the burden of the land tax and rates on No 163. 304 By mid-2013, Mrs Jones had maintained this arrangement, notwithstanding its cost, for almost 30 years, or one third of her lifetime. That demonstrates an enduring commitment that would not ordinarily change without very good reason acceptable to Mrs Jones.
3. Stephen's application for further family provision is, in my experience, quite exceptional. It is entirely devoid of merit. Mrs Jones appears to have had a loving and relatively close relationship with both of her children. Mrs Jones and her husband made long-term plans for the future financial welfare of their children. They actually bought neighbouring ocean-front properties that were reasonably close in value, with the intent that one of the properties would be left to each of the children. They both prepared a number of wills over the years that put this mutual testamentary plan into effect. Mrs Jones adhered to the mutual plan in her 28 June 2010 will. It was only as a result of Stephen's selfish and obsessive desire to secure the whole of Mrs Jones' estate for himself that he was successful in badgering Mrs Jones into making her 19 June 2013 will.
4. By and large, Diane's and Stephen's financial and medical circumstances are comparable, and have been so at all times throughout the duration of the proceedings. There has never been any likelihood that a judge of this Court would make a family provision order in favour of Stephen that gave him a substantial preference over Diane and disturbed the long-term testamentary intentions of Mrs Jones and her husband.
5. That observation must be understood in the light of the fact that, as at 27 August 2021, the unencumbered value of No 163 was $2,225,000 and the unencumbered value of No 165 was $2,575,000. The bequest of these properties to Stephen and Diane respectively should have been sufficient, so far as Mrs Jones' financial circumstances permitted, to set both of her children up for the balance of their lives.
6. Although the evidence is clear that Stephen became obsessed by his perception that he was going to be left the property with the lesser value, the difference in value is not large in relative terms, and it would not be a proper exercise of the Court's power to make family provision orders to make an order simply for the purpose of evening up the value of the bequests made to each of the parties.
7. The only circumstance that would create a substantial imbalance between the assets received by the parties from Mrs Jones' estate would be Stephen's liability for the costs of the proceedings. I am satisfied that Stephen should be held personally responsible for the diminution in his share of the estate that will result from his liability for costs, as his defence of the probate claims made by Diane and his prosecution of his own family provision claim were an extension of his single-minded obsession that was directed to securing the whole of Mrs Jones' estate by means of the making of her 19 June 2013 will.
8. I have considered Diane's current circumstances as set out in her 12 July 2021 affidavit, as well as Stephen's undated affidavit (Exhibit D9). It is not necessary to set out the evidence at length. Diane (and her husband) as well as Stephen are aged pensioners. Diane and her husband own their home which has been appraised as having a value of $450,000 to $500,000. Stephen is the owner of a property at Kangaroo Valley, which has been appraised as having a value of $400,000. Stephen says that he is only entitled to half of the property. On Stephen's own evidence, he was entitled to a 50% share of a home unit at Monterey that was in joint names with his ex-wife. Stephen says that his ex-wife sold the property in December 2018 and kept all of the proceeds of sale. Stephen has apparently done nothing to resolve his matrimonial property dispute, whether by receiving a share of the proceeds of sale of the Monterey property or by securing complete ownership of the Kangaroo Valley property. Both Diane and Stephen suffer from medical ailments that will require long-term treatment into the future.
9. Given that it is no part of the Court's jurisdiction to make family provision orders to disturb the well-considered and balanced provisions of the will of a capable testator, who has decided to treat her two children with approximate equality in a case where their personal and financial circumstances are substantially equivalent, there is no justification at all for the Court to make any order for additional family provision in favour of Stephen.
10. I will therefore dismiss the claim in Stephen's amended cross claim for an order for further family provision under s 59 of the Succession Act. As leave should not be given to an applicant to commence family provision proceedings out of time unless the applicant has reasonable prospects of success, I will also formally dismiss Stephen's application under s 58(2) of the Succession Act.

Costs orders

1. Until an administrator of Mrs Jones' estate was appointed on 15 September 2021, Stephen prosecuted his own application for family provision relief at a time when he was the executor of Mrs Jones' estate under the 19 June 2013 will. Diane was the contradictor for the purposes of Stephen's claim. In a real way, Stephen's claim was prosecuted as if the parties were Stephen and Diane acting in their own personal interests.
2. As Stephen's application for further family provision has been dismissed, Stephen should bear his own costs of the family provision claim and should be ordered to pay to Diane her costs of the application on the ordinary basis as this is a case where the costs should follow the event: see Uniform Civil Procedure Rules 2005 (NSW) r 42.1.
3. I am satisfied that the same position should apply to the outcome of the probate proceedings that have been prosecuted by Diane. There were only two beneficiaries under Mrs Jones' 28 June 2010 will, and the dispute as to the validity of the 19 June 2013 will was also conducted in the personal interests of Diane and Stephen. This is not a case in which Stephen, as the appointed executor under the 19 June 2013 will, could be said to have defended any interests other than his own in upholding the validity of that will. Any costs incurred by Stephen were for his benefit and not for the benefit of Mrs Jones' estate generally.
4. Although the issue in the probate proceedings was the validity of Mrs Jones' 19 June 2013 will, it could not be said that in any real way doubts as to the validity of the will had been created by Mrs Jones' own conduct. I found in the first judgment that Mrs Jones made her 19 June 2013 will as a consequence of the undue influence in the probate sense exerted upon her by Stephen. Stephen's conduct was the real cause of Mrs Jones making the will, and this is not a proper occasion for applying the special rule that is sometimes applied to the costs of probate proceedings, as stated in Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709.
5. Stephen should therefore be ordered to pay Diane's costs of her probate claim and should be required to bear his own costs of that claim.
6. It remains necessary for the Court to determine the basis upon which Stephen should be required to pay Diane's costs. As noted above, Diane seeks an order that Stephen pay her costs personally on the indemnity basis.
7. That application was supported by a detailed affidavit of Ruth Amanda Ferguson, Diane's solicitor, sworn on 3 September 2021. It is evident from Ms Ferguson's affidavit that, from a time before the commencement of the proceedings by Diane, she has consistently pursued, by means of regular proposals made to Stephen, an attempt to achieve a real compromise of the dispute between the parties on reasonable terms.
8. After the first court-annexed mediation failed on 24 August 2016, a second mediation was held on 10 October 2017 but that also failed. Diane continued to negotiate through her counsel with Stephen's legal representatives.
9. On 15 February 2018, Diane made a Calderbank offer by letter from her solicitor to the solicitor for Stephen. Materially, the letter said: We refer to the above matter and have instructions to settle the proceedings on the following basis; 1 The estate is to sell [No 163] by public auction with a reserve price to be set by the agent, 2 The estate is to provide a list of three suitable agents and the plaintiff will select an agent from the three provided, 3 The net proceeds of sale (being the sales price less agents commission and conveyancing costs) is to be paid to the plaintiff, 4 The plaintiff will pay the defendant the sum of $375,000 plus half of the CGT burden for [No 163] plus half of the outstanding rates owing on [No 163], 5 The defendant will supply the plaintiff with the enclosed list of chattels from the estate.
10. The letter does not mention the parties' legal costs, but I would construe it as meaning that the parties would bear their own costs.
11. On 23 March 2018, new solicitors retained by Stephen replied to this letter, saying: We refer to the above mentioned proceedings and your "without prejudice save as to costs" letter forwarded to Hunter lawyers on or about 15 February 2018 (see copy letter enclosed). We confirm my client instructs that he agrees to settle/compromise all proceedings on the terms set out in your settlement letter dated 15 February 2018.
12. After some correspondence between the parties' solicitors concerning the appropriate terms of short minutes of order to give effect to the settlement, it appears that consent orders were signed by the parties in respect of Diane's family provision application, and, on about 7 May 2018, the Family Provision List Judge noted the agreement of the parties that the matter had settled in principle. Stephen's solicitor provided a signed consent order in respect of the probate proceedings to Diane's solicitor on 23 May 2018. On 25 May 2018, Hallen J advised the parties that he wanted the orders in the family provision proceedings to be amended.
13. On 25 May 2018, counsel who appeared for Diane at the hearing before Hallen J advised Diane's solicitor, in a letter reporting what had happened at the hearing, that Stephen had advised that he might challenge the consent orders in due course.
14. On 8 June 2018, a new solicitor who was then apparently retained by Stephen sent an email to the Associate to Hallen J, which included the following information: … Mr Jones seems to have some form of speech impediment and said he tried hard to tell his counsel, Mr Luke Hammond, that he did not agree with the Minutes of Consent Orders put before His Honour, Justice Hallen on 25 May 2018 and respectfully requests the Honourable Justice not to sign the orders until some amendments are made. … Mr Jones says that on 25 May 2018 he attended before you with Luke Hammond of Counsel at the Supreme Court and tried to advise Mr Hammond that he did not agree with the orders…
15. In the end, the offer of compromise made by Diane in the Calderbank offer was not accepted by Stephen in a binding manner. Diane, upon legal advice, decided that her prospects of establishing that a binding compromise had been reached were not sufficient to justify the expense and risk of trying to hold Stephen to the compromise. Although Diane persisted with her efforts to settle the proceedings, she was unsuccessful in that endeavour.
16. As a result of the orders made to give effect to the first judgment and the orders that will be made as a result of this judgment, Diane has achieved a result that is substantially more favourable to her than the offer made to Stephen in the 15 February 2018 Calderbank offer. In that offer, Diane agreed to accept the sale price of No 163, which has at all times been less valuable than No 165. As a result of the proceedings, Diane has become entitled to No 165. Diane also offered to pay Stephen $375,000 plus half of the CGT burden and outstanding rates. Consequently, it is clear that the Calderbank offer involved a substantial compromise on Diane's part.
17. At the time Diane made her Calderbank offer, her legal fees were somewhere between $60,000 and $80,000. As noted at [491] of the first judgment, as at 22 October 2019 Diane's legal costs, estimated to the end of the five-day hearing, were then expected to be $147,349.64. As at 2 September 2021, Diane had incurred solicitor's costs of approximately $105,000 and her counsel's fees were about $140,000. It was expected that Diane would incur further costs in total of between $25,000 and $30,000 to the completion of the hearing.
18. By the date of the Calderbank offer, 15 February 2018, Diane had served all of her affidavits in chief. Stephen had served all of his own affidavits, as well as affidavits of a number of other witnesses.
19. The negotiations between the parties that led up to Diane making the Calderbank offer were protracted and were conducted between the parties' respective counsel. I would infer that Stephen's counsel did not participate in the negotiations except on the basis of precise instructions after appropriate advice was given to Stephen.
20. As stated by Basten JA in Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344, there are two questions relevant to whether a party who does not accept a Calderbank offer should be ordered to pay the other party's costs on the indemnity basis, if that party does not obtain a judgment more favourable than what was offered. Those questions are (a) whether there was a genuine offer of compromise, and (b) whether it was unreasonable for the offeree not to accept it.
21. Indemnity costs are only awarded where there are exceptional circumstances: Leichardt Municipal Council v Green [2004] NSWCA 341. It is generally accepted that indemnity costs may be awarded in the circumstances as described by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234, as follows: It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: … 4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (supra) at 141 said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require". Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (supra) at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at p 6) similar views in Ragata (supra). 5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo ); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata ) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
22. I think that the present case satisfies the test of an imprudent refusal of an offer of compromise in circumstances that are sufficient to justify Stephen being ordered to pay Diane's costs on the indemnity basis. As the Calderbank offer did not contain a date before which the offer was required to be accepted, I think that the appropriate date is 8 June 2018, when Hallen J's Associate was informed that Stephen would not proceed with the proposed settlement.
23. In considering whether Stephen's refusal to accept the Calderbank offer was unreasonable, I have borne in mind that there were indications in the correspondence that Stephen may have been suffering under behavioural disadvantages when he decided to proceed with the litigation. Stephen's counsel said in his 25 May 2018 report: "It appears that [Stephen] may suffer from either MS, Parkinson's or the like". Stephen's solicitor's 8 June 2018 email to Hallen J's Associate included: "Apart from a speech impediment, Mr Jones was diagnosed with PTSD and suffers from extreme anxiety, and in the opinion of his former solicitor, Darren Hayes does not have the capacity to be an executor".
24. I made the following observations in the first judgment concerning the manner in which Stephen gave evidence in cross-examination: 94 Stephen displayed very unusual characteristics during his cross-examination. I do not want to cause unnecessary offence, but it appeared that he laboured under physical and mental impediments as a result of some process that has not been explained. 95 Stephen consistently displayed unusual physical mannerisms that were unmistakable, but subtly out of the ordinary and difficult to describe with clarity. He was not composed and did not sit steadily. He constantly made unusual facial gestures and hand movements. 96 In listening to and responding to questions from counsel in cross-examination, Stephen appeared consistently unable to focus, or to wait until the question was finished before he commenced his answers. Counsel was obliged to continue with her questions notwithstanding the constant interruptions made by Stephen. Many of his answers were unresponsive in a manner that seemed to be quite arbitrary and difficult to follow. I will provide some examples below.
25. At the hearing on 15 September 2021, when Stephen represented himself, his speech was relatively disjointed, and he was consistently unable to follow a thread in his argument. Notwithstanding the conscientious efforts of the transcription monitor and typist, the transcript contains an exceptional number of "(not transcribable)" entries.
26. It is clear that Stephen labours under some disability. As I recorded at [100] of the first judgment, there was some medical evidence that Stephen had a "history of excessive checking behaviours" and "a 5 year history of benzodiazepine dependence". Stephen claimed that he suffered from PTSD.
27. However, notwithstanding these self-evident disabilities, a long series of solicitors and a number of barristers who have acted for Stephen in the proceedings must have been satisfied that he was competent to give instructions and to make satisfactory decisions concerning the conduct of the proceedings. Stephen was represented by a solicitor and counsel at the first hearing, and there was no suggestion that he was not capable of giving instructions in accordance with his own interests.
28. In these circumstances, there is no adequate reason for the Court to treat Stephen's refusal to confirm the compromise of the proceedings after the Calderbank offer had been accepted, I infer on his instructions, as being anything other than unreasonable.

Orders

1. It will be necessary for the Court to make final orders dismissing Diane's family provision proceedings, being Proceedings No 2016/139606.
2. As the family provision proceedings have not been determined on their merits, and as Diane secured the relief that she sought by reason of the occurrence of an event outside the family provision proceedings, the proper order for costs of those proceedings is that no order for costs be made, with the intent that each party bear their own costs: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624; [1997] HCA 6, as expounded by White J (as His Honour then was) in Coast Property Realty Pty Ltd v Falconer [2016] NSWSC 214 at [13].
3. The Court's further orders in Proceedings No 2016/306898 are: 1. Grant leave to the administrator (Administrator) appointed by order 1 in the Order signed by Robb J on 15 September 2021 (Order) to provide to the Court and to the parties a report (Report) in accordance with [27] of these reasons for judgment identifying all debts and other claims that she considers may be payable to the estate by any beneficiary of the estate. 2. Grant leave to the parties to relist the proceedings by arrangement with the Associate to Robb J after the completion of the Report by the Administrator to seek directions concerning the determination of the liability of any beneficiary of the estate to pay to the Administrator any debts or other claims. 3. Note that the leave granted by order 2 may be exercised in accordance with order 7 in the Order. 4. Order the first defendant to pay personally to the plaintiff the plaintiff's costs of the proceedings on the ordinary basis up to 8 June 2018 and on the indemnity basis thereafter.
4. The Court's further orders in Proceedings No 2016/139606 are: 1. the proceedings are dismissed. 2. there be no order as to costs, with the intent that each party shall pay their own costs.

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