(and referred to authority). Dixon J at 283 gave references and citations from authorities which show that proof of a defined mental disorder or of insanity is at the most a probative consideration. In Bull v Fulton (1942) 66 CLR 295, decided about a year later, see Latham CJ at 299, and Williams J at 339:
"It must be remembered, however, that some statements in the older judgments are based on current medical knowledge and that more is known about mental diseases now than then. A modern medical definition appears in Halsbury's Laws of England, 2nd ed., vol.21, p 273: "A belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings." In Derrett v Hall (3) where eminent Sydney mental specialists gave evidence, it was defined as a fixed and incorrigible false belief which the victim could not be reasoned out of ."
23 I have emphasised the valuable definition of an insane delusion taken from Derrett v Hall (Unreported. High Court, 4th February 1942). See too Williams J at 341-343.
24 In Romano v Romano & Anor [2003] NSWSC 436 at 11, I said, with references to authority "It is not essential that there be insanity or any disorder of the mind, or that there be delusions, for it to be found that a person did not have testamentary capacity. For a person to have testamentary capacity he must be able to call to mind and consider the property that he has available to dispose of, and the persons who have natural claims for consideration as objects of his bounty; and he must be able to do that without his consideration being affected by hostility which is not rationally based." I also said at 12: "A person who is of sound mind, memory and understanding can make any testamentary dispositions he wishes, no matter how inofficious or eccentric; but if dispositions are eccentric or do not recognize obvious claims, those facts may be relevant to capacity. Where a document is expressed and executed in circumstances of regularity the person propounding is usually taken to have discharged the onus of proof of capacity; but all relevant facts in evidence must be taken together." There was no adverse observation on these views in the judgments in the Court of Appeal which affirmed this decision: Romano v Romano [2004] NSWCA 37. My view on there being no need, in principle, to show insanity or mental illness in an attack on capacity was also expressed in Shaw v Crichton and approved on appeal in the judgment of Cole JA in that case at pp8-12: Shaw & Anor v Crichton (CA Unreported 23 August 1995).
25 Many reported cases contain judicial expositions of competency, and references in them to insanity, mental illness and delusions reflect the understanding of judges and in turn medical opinion which change from age to age. It is not, in my understanding, central to the inquiry to establish whether or not delusions, if the testator is shown to have suffered from delusions, had their origin in one particular mental disorder or in another; what is under consideration is whether delusions existed, not whether delusions had an origin in some definable mental disorder. Whether there were delusions, mental disease, infirmity, want of intelligence, defective organisation, decay of advancing age or some similar concept, described in the language of medical science of the present time or in archaic language, is not the ultimate object of proof but means of proving whether the testator had testamentary capacity.
26 On their face the dispositions made in the document of 15 March 2004 do not seem inappropriate; the testator made provision for his widow's housing and gave generous gifts of property to her which would carry with it ownership of another house and large investment funds; and also made significant dispositions for his adult children. When these gifts are considered in the context of the circumstances of the testator's life over some decades, and of his relationships with his wife and his children, both his personal relationships and his business relationships and the course of Mr Robert Leech's life, and of commitments which he had made to Mr Robert Leech, the dispositions of March 2004 are markedly inofficious, in a way which cannot be said of the 2000 will. In this context "inofficious" refers to the dispositions' not conforming with what the testator might be expected to provide in his will so as to meet the personal and moral claims which in the circumstances he owed to his son. The evidentiary onus or forensic burden placed on the defendant by the apparent regularity of the terms of the will and the circumstances of its execution was displaced by a large body of evidence which clearly brought testamentary capacity into issue.
27 No medical practitioner who has been identified made a diagnosis in the testator's lifetime that he suffered from dementia or any other medical condition which would adversely affect his testamentary capacity. Early in the extended stay at the Motor Inn which began in October 2003 the testator told Mr Robert Leech "The doctors have told me that I have the early stages of dementia". Extensive enquiries have been made, but no indication has been found that any doctor in fact had told him this; the evidence of Dr Edward McCarthy makes it very unlikely that he had been told this. On other occasions he made a strange observations to the effect that he thought he was being poisoned. There are references in hospital notes made in the last weeks of his life to dementia and to confusion; but these are not fully or clearly expressed medical opinions and they relate to a time when the testator, at an advanced age, was hospitalised and had undergone surgery, and it is not remarkable that there were episodes of confusion. Each side called the evidence of a highly qualified medical specialist who, on the basis of quite full briefs of relevant facts, expressed opinions on the testator's condition at the time he made the disputed will, and also opinions on the ultimate question of his testamentary capacity. While I value the evidence of these medical practitioners, they speak with the disadvantage (shared by me) of never having seen or examined the testator. It is not enough for me simply to adopt one or the other of the medical opinions, but I must come to my own conclusion on the issue of fact which I am to decide.
28 Mr Robert Leech has claimed that he is entitled to 4793 of the 9586 ordinary shares of which the testator and Mrs Emily Leech are co-owners according to the share register, and that they should be transferred to him under a family trust. Whether he is so entitled is not before me for decision now. If he is, it follows that Mrs Joan Leader is entitled to the other 4793 ordinary shares. If the 9586 co-owned shares are not trust assets, ownership seems to depend on whether the co-owners were owners in common or joint owners. Mr Robert Leech put forward this claim during a period of estrangement between his parents, who were the trustees, in 1986; correspondence from lawyers on behalf of Mrs Emily Leech did not accept that the shares were a trust asset. During the testator's separation from Mrs Emily Leech, for about 12 months in and around 1986, their relationship was sufficiently adverse for them both to be represented by solicitors who conducted correspondence about a prospective property settlement. Some family court proceedings were commenced: those proceedings may not ever have been actually decided, and the separation ended after about a year.
29 The testator was at some times of the view that Mrs Joan Leader had behaved inappropriately in not transferring to him a 25 percent shareholding in the company which he had given to her. She has never appeared on the share register as the owner of a 25 percent shareholding, and the reference can only be to her entitlement under the family trust. The testator's views about this are referred to in several forms of statutory declaration prepared for him to complete on occasions when he made wills. There is evidence that he signed one in 1995 and that he did not sign one prepared in 2004. No complete statutory declaration, signed by him, is in evidence; several drafts are. I am not concerned to resolve entitlement to the 9586 co-owned shares in this judgment.
30 Mrs Joan Leader worked in the Motor Inn from about 1975 until about 1979. Her husband Mr Peter Leader worked there full-time from 1968 until about 1979. In 1979 they moved to Gunnedah and conducted their own business, and they have now retired. For a significant period the testator took a very adverse view of Mrs Joan Leader. During their severe estrangement the testator and Mrs Joan Leader did not speak to each other for some years. This estrangement ended in 1997. Her evidence shows that there was not a basis of fact for suggestions he made to the effect that he had paid her for shares in the company but had not got the shares. Mrs Joan Leader's evidence, which is the only evidence on the subject which I regard as useful, shows that he had no basis for that grievance; there was no arrangement about transferring shares, there was no payment of money for transferring shares, and the only share to which she had a completely clear entitlement was the one management share for which her name stood on the share register. I cannot see what can have been the basis of a feeling that she had somehow failed to deal with shares in some expected way. The testator made a will on 23 January 1996 which did not give any benefits to Mrs Leader; the will he made on 26 June 2000 gave her significant benefits, and so did the document of 15 March 2005.
31 The facts and the circumstances call for careful consideration of the credibility of the evidence of Mr Robert Leech. In effect, he is claiming a large entitlement, worth several million dollars, against the deceased estate, and on important matters he gives the only significant evidence. Cross-examination showed some respects in which his evidence was inaccurate and his recollections of relevant events at different times were not entirely consistent. To my observation his manner in the witness box showed he had a considerable sense of the importance of the controversy to him personally. Indications of some strength of feeling are commonplace in the appearance of witnesses in disputes about relationships within families, in which feelings can run high, and to my observation Mr Robert Leech's demeanour showed some influence of feelings like these, although not to an unusual or marked degree. I have seen no sound reason why his sincerity as a witness should be mistrusted, but I have taken a careful approach to his evidence, particularly when he attributes strange or unusual behaviour to the testator or to Mrs Emily Leech. Having done so, I regard his evidence as reliable. Mrs Joan Leader's manner also, to my mind, showed some influence of a sense of involvement and interest, again not to a degree unusual in litigation about family property. It is also appropriate to take a cautious approach to her evidence.
32 Mr Robert Leech's evidence gave a picture of the personal and business relationship between him and his late father which was very good and very strong, not disturbed by any serious conflict over many years. Until about 2002 he always had a very good relationship with his father, and disagreements on business affairs were rare. He says "After that, there was a shift in my father's personality and there were occasions when we disagreed, particularly about expenditure on the company's business. Notwithstanding that, any disagreements which we had seemed to resolve themselves quite quickly up until the events of 24 December 2003" (which refers to the dismissal of Ms Price). In the last year of the testator's life, serious complaints, grievances and discontentment appeared in the testator which were not there before, accompanied by the testator taking positions which were very adverse to Mr Robert Leech and which were, in varying degrees, strange or bizarre.
33 Mrs Emily Leech and Mr Robert Leech have a very longstanding estrangement, going back to an event in or about 1984 or 1985 when she claimed and reported to the Police that he had assaulted her. The estrangement originated before the separation between Mrs Emily Leech and the testator. Mr Robert Leech entered the office at the Motor Inn and found Mrs Emily Leech enraged and shouting, abusing Mr Terry Munsie an employee. Mr Robert Leech saw Mrs Emily Leech pick up a sharp steel paper spike and raise it above her head as if she was about to stab Mr Munsie. He took the spike from her and evicted her from the office. There was a scuffle between him and Mrs Emily Leech, and she claimed that her arm had been broken and complained to the Police, who charged Mr Robert Leech with assault. The testator did not support Mrs Emily Leech or her position; he did not rebuke Mr Robert Leech and he did not dismiss Mr Munsie. At this time, indeed at all times, Mrs Emily Leech had no management authority, and she had no standing to rebuke an employee in the office.
34 After their separation ended, the testator and Mrs Emily Leech lived together for the rest of his life; about 17 years. The total of the periods during which they lived together approaches 60 years.
35 Mrs Emily Leech's behaviour was at times wildly erratic and strange, even dangerous. It has been known of her that she pointed a loaded gun at the testator's head; that she damaged his car with an axe; that she damaged two boats which he owned with an axe. Her behaviour towards Mr Munsie appeared to Mr Robert Leech to be threatening. In more recent years her eccentric behaviour usually took the form of making false accusations about the testator's association with other women; remarkably bizarre behaviour, such as accusing him of keeping prostitutes in the house, or berating motel guests about their imaginary association with the testator. The testator's toleration of her behaviour, over many years, is remarkable. There were incidents of strange and troublesome behaviour on her part during the visit which began in October 2003, beginning about four weeks after arrival. She spoke strangely or aggressively to motel guests and to staff.
36 Mr Judd Leech, who worked at the motel since starting about 1995 as a general hand and became the accounts manager, gave evidence that he was present just before Christmas Eve 2003 in the motel office; Mrs Emily Leech came in and said to Ms Joanne Price who was working in the office "You've double booked one of the rooms." Ms Price replied that she had not and explained the booking system using the computer. Mrs Emily Leech became angry and started shouting abuse at Ms Price, using offensive language and accusing her of having a sexual relationship with the testator. She then said that Ms Price's employment was terminated. Later that day the testator obtained Ms Price's telephone number from Mr Judd Leech. Mr Judd Leech spoke to the testator and said to the effect that he could not sack people without any reason, that he had to give warnings and state the reasons for termination in a letter, and said "Joanne Price is an excellent employee." The testator became angry and shouted at Mr Judd Leech.
37 Miss Amber Leech was present and heard the testator say to Ms Price, on the telephone, "Don't come in for your shift. If you come to the motel there will be a murder." At a later time, in early January 2004 she heard an exchange between Mr Robert Leech and the testator in which Mr Robert Leech said "You can't go around threatening to murder people"; the testator denied having done so but also said "You better watch what you say or you'll get a bullet next." Later, on 8 January, the testator told Miss Amber Leech that she was to lose her job.
38 It is established clearly that the testator said to Ms Price to the effect that "There will be a murder if you come back to that motel". However I do not regard this as an intended threat to her life; it was not treated that way at the time: if it was understood as a serious threat to life the response would have been to report it to the Police. In my interpretation it was a vernacular statement that there would be very bad situation; along the lines of vernacular references to "blue murder".
39 On 9 January 2004 Miss Amber Leech came into the motel office and found her grandparents in Mr Robert Leech's office. She saw that the power cord to the computer had been severed and that the cord to the modem had been severed. Mrs Emily Leech said to her "I know you have had us under surveillance. We will put an end to that." And the testator said "You have been watching us through the computer and you've bugged our flat". He spoke angrily to Miss Amber Leech saying "You lying little bitch". On 9 January he said to her "strange things are going on around here and you know it. You'll end up in court". Miss Holly Leech gave evidence which confirmed the evidence of Miss Amber Leech about a conversation in which the testator accused her of lying.
40 Mr Judd Leech found his grandparents in Mr Robert Leech's office at the motel. The power cord to the motel computer system and the cords to the modem had both been severed. Mrs Emily Leech said "We know you have been using the computer as a surveillance device to watch us." The testator said "I know that that is a spy device. You have been using it to watch us and intercept our phone calls - but we fixed it." Mr Judd Leech gives 15 January 2004 as the date of this event: but there is no doubt that it is the same event as that described by Miss Amber Leech.
41 Mr Judd Leech overheard an argument between the testator and Mr Robert Leech, shortly before 10 January in which the testator said "You and your family will be out on the street with nothing".
42 The testator published this notice in the Classifieds section of the Courier Newspaper, circulating in Narrabri, on 13 and on 15 January 2004.
NOTICE is hereby given that Robert Clive Leech no longer has permission to write cheques drawn on Edgar Leech Holdings P/L Account or Nandewar Motor-Inn account. Signed Edgar Robert Leech, Governing Director of both companies.
43 The testator gave Mr Judd Leech, Mr Robert Leech's son, authority to sign the company's cheques at about this time.
44 The testator published this notice in the classifieds section of the North West Magazine on 26 April 2004
Nandewar Motel
Notice to architects, building contractors, brick-layers and carpenters. No work is to be undertaken by these people without the expressadd permission from Edgar Leech, the Governing Director of the company.
45 The good relationship which existed for many years between the testator and Mr Robert Leech does not mean that the testator did not have concerns about the manner in which Mr Robert Leech conducted the business of the company and its Motor Inn. The management of the Motor Inn day by day and hour by hour has entirely been the responsibility of Mr Robert Leech since 1986. He has done a great part of the administrative work and also the physical work of conducting the motel and its restaurant and maintaining and renovating the motel units. Mr Robert Leech's evidence shows that throughout his life he has borne a heavy burden of work, including much physical work, in enterprises associated with the testator, including building work, the conduct of the Motor Inn, several projects of extending the Motel and renovating the motel units and other business enterprises, with assurances of ultimate benefits from the testator. A large body of evidence supports him and shows that he has borne a very heavy burden in this way, and in particular that since 1986 he has incurred the burden of all practical work associated with the management of the motel.
46 At some time in or around 2000 the testator felt and expressed concern about the decision of Mr Robert Leech to purchase a recreational vessel. The price which Mr Robert Leech agreed to pay for the boat was $420,000. At earlier times the testator owned expensive vessels. Mr Robert Leech's evidence shows that he suggested to the testator in 1999 that he should buy a larger boat than the boat of the testator then had, move it to Yamba and use it for fishing and said "I'll buy it in lieu of my superannuation from the company". The testator agreed. After consulting the company's accountant Mr Robert Leech negotiated for and agreed to buy a large ocean-going boat for $420,000; and paid a deposit by a cheque on the company's account. A few days after he told the testator of this the testator telephoned him and expressed concern about Mr Robert Leech's safety if he took the boat to sea. Mr Robert Leech then decided to end negotiations for the purchase, and obtained a refund of the deposit.
47 Mr Mather, a chartered accountant now retired who acted as the company's accountant between June 1997 and June 2002, gave evidence that he came to know the testator reasonably well as a result of business contacts, several times each year, and that there was an occasion when the testator was critical of the purchase by Robert Leech of an oceangoing vessel. Mr Mather's evidence is that he can recall only one occasion when the testator was critical of any decision taken by Mr Robert Leech in relation to the company's affairs; and this is significant because Mr Mather's contact with the testator for purposes relating to the company's business extended over about five years. In Mr Mather's evidence, the testator indicated to Mr Mather that he strongly disagreed with Mr Robert Leech's action in paying a deposit of $25,000 to secure the purchase of an oceangoing vessel. Mr Mather gives the date of this event as "about 2002" but it is probable, indeed fairly certain, that it is the same proposed purchase of which Mr Robert Leech speaks. Mr Mather's oral evidence shows that in his interpretation the testator was upset about the cost of the boat; and not as the evidence of Mr Robert Leech shows, about Mr Robert Leech's safety. There are other references in evidence to the testator's having spoken of the purchase of the boat in terms of dissatisfaction.
48 While there may have been some grumbling, there was not in my finding any ground for serious continuing dissatisfaction nor was there any actual serious continuing dissatisfaction with Mr Robert Leech's conduct and his use of company money to pay the deposit. The testator had approved the purchase of a boat. The testator's later disapproval prevailed and the deposit was recovered. There was no reason for this to be a source of serious concern after the deposit had been recovered, and in my finding events relating to the purchase of the boat did not have continuing significance. It is significant however that Mr Mather's evidence shows that while he was at the accountant, until June 2002, there was no other serious concern expressed by the testator about Mr Robert Leech's dealings with the company's affairs or property. If there were any serious concerns or difficulties, Mr Mather would have known of them. If there was anyone to tell it was the company's accountant.
49 There is evidence of serious expressions of concern which should be attributed to periods later than June 2002. Mrs Joan Leader, the testator's daughter, gave evidence that until about 2000 the testator and Mr Robert Leech seemed to have a good relationship, that she observed them work together closely prior to that time and they seemed to her to get on well. In her observation the relationship seemed to deteriorate from about 2000. She gave evidence of the testator complaining to her, a number of times from about 2000, that Mr Robert Leech was spending too much of the company's money, was wasting company money, and was not giving him information in relation to the Motor Inn in answer to requests. She said that in about 2001 the testator complained to her that Mr Robert Leech had built a gazebo at the motel, that it cost "a bloody fortune" and that he was spending too much of the company's money. She also said that in about late 2002 or early 2003 he spoke to her complaining in forceful language about Mr Robert Leech's purchase of the boat and paying the $25,000 deposit using the company's money; he told Mrs Leader that he had required Mr Robert Leech to get the deposit back.
50 I do not attribute significance to complaints to Mrs Leader about Mr Robert Leech not giving information in relation to the motel. The testator was the Governing Director and was very fully empowered. He had contact with the company's accountant Mr Mather. He was in a position to get information about company affairs from the accountant, but he was also in a position to take much more effective action in support of any serious concern than to grumble to Mrs Leader about it. It is not surprisingly that an elderly director who lived at a distance and had far less to do with affairs than he formerly had should grumble to his daughter, but plainly if he had any serious concerns about information not being available to him there was far more effective action he could have taken, and would have taken; he had all the necessary power.
51 Events relating to the boat purchase illustrate this. The testator expressed his dissatisfaction, his wishes prevailed, the boat was not purchased and the deposit was recovered. It is unlikely that the conversation which Mrs Leader speaks of took place as late as late 2002 or early 2003, and it is unlikely that the testator saw himself as having any real cause for continuing dissatisfaction.
52 Mr Robert Leech's evidence shows that the gazebo was built about 2001 at a cost of about $15,000. It is illustrated by photographs in evidence. It is an unremarkable small amenity for guests to take their ease outside their motel rooms, and its cost cannot have disturbed the economics of the Motor Inn. It would not be reasonable to feel serious or continuing dissatisfaction over the construction of the gazebo, and in my finding it had no more than minor significance.
53 There was a significant difference of view about the Service Station and Truck Stop after the expiry of the lease to Mobil. The company owns land, also on the Newell Highway in Narrabri, on which the Service Station and Truck Stop were constructed in 1985. When completed the premises were leased to tenants, first as a Shell Service Station; and later to Mobil Oil Australia Pty Ltd by a lease for five years from 1 December 1996. Mobil continued in occupation after the lease expired. Mobil had repair obligations under the lease which obliged it to keep the property in repair, and to surrender it at expiration in repair having regard to the condition of the premises at the commencement of the lease and with a number of exceptions including reasonable wear and tear. When Mobil gave up possession Mr Burgess advised the testator that the company should engage professional consultants to examine and report on the work required under the repair covenant, specifically for the bitumen pavement of the forecourt which had not been maintained or made good. The testator said that it may be worth taking the matter further with Mobil and that an expert report could be obtained and shown to Mobil. Later in mid-2003 the testator told Mr Burgess that Mr Robert Leech had ignored the recommendation: "He has arranged for the company to do the necessary work to restore the premises. This means that I will not pursue Mobil to make good the premises."
54 Mr Robert Leech's evidence gives the date of vacation as early 2002. Elsewhere it is said to have been about May 2003. His evidence shows that the premises were in need of repair; the pavement had become worn and pitted with potholes from heavy vehicles and the building needed refurbishment. It was his evidence that he discussed with the testator the need for a substantial amount of repair work which he expected would cost in a range of half a million dollars. The testator seemed uninterested in discussing the subject and said "Just put another tenant in there," and after some more discussion about the need to do improvements if there was to be another tenant said "I will leave it up to you. It will soon be your company anyway." In a later affidavit Mr Robert Leech said that he was unaware of Mr Burgess's advice, and spoke of a further conversation which took place before restoration work began on the truck stop in which the testator expressed the view that the company should sue Mobil for the costs of repairing the truck stop, and Mr Robert Leech said "It would not be worth our while" and gave reasons - that the bitumen pavement had simply been worn out and needed to be replaced. There was some further discussion and Mr Robert Leech said that it was not worth their while to get into a lawsuit with Mobil over a small amount of money. The testator agreed with going ahead with the repair work.
55 Evidence about this discussion shows that the amount of money involved was in the order of half a million dollars. Senior Counsel for Mr Burgess made observations about whether this could be spoken about as a small amount of money. Whether or not the sum of money under consideration was a small amount should be addressed in the context of the prospects and risks of suing Mobil alleging breach of the repair covenant, the value of the Service Station and Truck Stop property overall, and the need to have the repairs carried out if there were to be continuing successful operations and another good letting.
56 Mr Burgess in fact wrote to Mobil on behalf of the company asserting that Mobil had liability for repair. Mr Robert Leech's evidence (t.100) shows that he saw Mobil's response, that Mobil made a very forceful response and he was not prepared to consider bringing proceedings against Mobil for damages. The testator held on to the idea of claiming damages from Mobil longer than Mr Robert Leech did, but did not take the matter to litigation, as he was in a position to do as Governing Director. It was the testator who instructed Mr Burgess that he would not pursue Mobil. (I interpose that counsel and also myself questioned Mr Robert Leech on the assumption that his evidence did not show that he had told the testator that a cost in the order of $400,000 to $500,000 was involved. Counsel and I were incorrect in this (t.102). I overlooked the passage "I expect it will cost in the range of half a million dollars" in Mr Robert Leech's affidavit of 27 June 2005 paragraph 98. This led the cross-examination of Mr Robert Leech on this subject off course.)
57 I observe that going ahead with repairs to the truck stop did nothing to injure the claim that Mobil had incurred liability under the repair covenant. Once Mobil gave up possession Mobil was no longer in a position to carry out repairs itself, and the only practical course, short of leaving the forecourt and buildings unrepaired, was to repair and consider whether damages should be claimed.
58 There is in my judgment no basis for thinking that it was not good business sense to repair the truck stop and let it out, and to spend $500,000 on doing so. Mr Burgess's evidence shows that in February 2004 the testator still entertained some continuing sense of grievance over the affair of Mobil's lease and the repairs to the truck stop. This was not a reasonable or rational position to hold. It was not rational to resent Mr Robert Leech having had the truck stop repaired, and if there was a wish to bring some lawsuit against Mobil, the testator could have required the company to do that. Such a lawsuit would probably be a very difficult one, as in the nature of things a service station forecourt undergoes damage as reasonable wear and tear when used by heavy trucks over five years. To my mind the significance of these events is that the testator was unreasonably aggrieved when he spoke to Mr Burgess about this in February 2004.
59 Another body of evidence related to a proposal to construct a convention centre at the motel. The testator and Mr Robert Leech investigated the prospects of doing this in 1993; it was given active consideration, and an architectural design plan was obtained. There was communication with Narrabri Shire Council the owner of a sewer line which would have to be built over. The design work was not completed, some but not all necessary approvals from Narrabri Shire Council were obtained and the work did not proceed. In 1994 the company made a different investment and purchased Bank premises in Moree, which were leased back to the Bank.
60 Mrs Leader gave evidence that the testator said to her "during about 2003" that Mr Robert Leech wanted to build a conference room, and that he had told him not to do it.
61 In the period from about August 2003 to the end of 2003 the testator had at least two telephone conversations with Mr Burgess and on one or two occasions expressed a concern about Mr Robert Leech's conduct in managing the motel. Mr Burgess's evidence is that the testator said (Burgess Aff: 24/4/06, para 28) "I've got to do something about Bob. The manner in which he is managing the motel is causing me grief. I can't trust him. Bob spends money as if it doesn't matter and won't tell me what is doing. For instance, he has been buying a lot of merchandise and building materials which I think are surplus to requirements and wasteful". Other grievances were expressed. The testator expressed these concerns again to Mr Burgess at interviews in February and March 2004.
62 The testator and Mrs Leech visited the motel and stayed about two or three days about March 2004. They may have been present there again about May 2004. Mr Robert Leech says "I noticed that he was very abrasive and very aggressive whenever he spoke to me". He gave evidence of an event when the testator came into the office while Mr Robert Leech was talking to a building contractor on the telephone about the proposal to construct a conference facility at the motel. When asked what he was doing he told the testator that he was talking to a builder about pricing the construction of the conference facility. The testator asked "What conference facility? What are you talking about?" and Mr Robert Leech referred to the development consent obtained from the Council. He referred to engaging an architect to draw plans and said "You were the one who instigated the development of this application with the Council"; the testator denied this and left. This conversation was probably later than 15 March 2004.
63 This conversation probably has a large part in the testator's decision to place an advertisement in a local newspaper in April 2004. The testator himself initiated the proposal for a conference facility. In and by 1993 it was taken a certain distance and he did not go on with it. In 2004, and perhaps in 2003 Mr Robert Leech was entertaining the idea of again taking up the conference centre project, and sought a quote from a builder for it. This was not reasonably a matter on which the testator could hold a grievance against him; in all practicality, the project could not proceed unless the testator approved of it. When he heard of it he received the information with hostility and denied ever having had a part in the project. While other means could have been used, the means taken by the testator gave effect to the control over company affairs to which he was entitled, so that it was not practical for the project of building a conference centre to be undertaken against his opposition.
64 Mr Robert Leech's wife Mrs Gai Leech and their three children Judd Leech, Holly Leech and Amber Leech worked at the Motor Inn. From about October 2003 the testator began to express discontentment at the employment of Mrs Gai Leech and of Mr Robert Leech's sons and daughters. Evidence of Miss Amber Leech shows that the testator told Mr Judd Leech that Mrs Gai Leech was not allowed on the motel premises and he would be sacked if he let her on the premises again. He also told Miss Amber Leech that she and her brother Judd Leech would not be allowed to work at the motel. However they continued to do so and he did not make further objections.
65 The testator also expressed dissatisfaction with Mrs Gai Leech working in the motel business. Her evidence shows that at about the time of their marriage in 1973 the testator gave her some work to do in the motel office. Throughout her marriage she has had significant family responsibilities but she worked intermittently in the motel office and in the motel laundry and was paid wages for her work. From 2002 on she regularly worked part-time in the motel office; and this continued until the time she gave evidence. Her evidence shows that on 8 January 2004 she was at the motel office at about 5 p.m.; the testator was there, he was very agitated and he shouted at her in a threatening voice, saying "I told you you are not to work her. I am going to get the Police. You are not having anything to do with the Motel. You are all liars and mongrels. Make the best of that old girl. It won't last. You're not entitled to work here and you don't get paid a wage. That lying lunatic husband of yours has no rights - as he will find out next week." On 14 January 2004 when she was working at the motel office the testator walked into the office looking very agitated and said to this effect "You've got no right to be here. Get out of the office. You're not employed by the Company. If you come here again I'm going to get the Police". She told him that she was there to work, was being paid a wage and had a right to be there. The testator continued to speak in threatening terms and said: "Bob is a lying bastard. You won't be living here any more. I'll have you all out on the street. You haven't heard the last of it girl. You haven't heard the last of it" and then left the motel office. The testator and his wife left the motel the following day, without speaking to Mrs Gai Leech again.
66 Mr Burgess's affidavit shows that at their meeting on 4 February 2004 the testator said to him to the effect that Mr and Mrs Robert Leech were mismanaging the motel, that Mr Robert Leech was being manipulated by his wife, that she should not be working in the business, that he had told her a number of times that she must not work in the motel and "Bob keeps overriding my instructions for Gai not to work in the business". When Mr Burgess pointed out that it was necessary to employ someone to do the bookkeeping if Mrs Gai Leech did not the testator said "There are plenty of people they could get to do the books." In fact Mrs Gai Leech was not the bookkeeper: Mr Judd Leech was the bookkeeper and had been for some years.
67 At no point in the evidence is any sound reason suggested why Mrs Gai Leech should not have been employed to work in the motel; as she had been at times over about 30 years. The closest approach to a reason is the assertion by the testator to Mr Burgess that she was manipulating Mr Robert Leech: there is no evidence which could support this. Nor does any evidence suggest that before his denunciation on 8 January 2004 the testator had ever told her that she was not to work in the motel. Mrs Gai Leech's employment has not been in management positions. She has not been in a position to make financial decisions or to take part in management of the business. Her evidence that she has not had disagreements with staff members or been a disruptive influence was not challenged.
68 Mrs Gai Leech's employment is not an instance in which Mr Robert Leech failed in any way. Quite otherwise, the testator's wish that Mrs Gai Leech would not work in the motel was part of an array of indications of great hostility towards Mr Robert Leech and those associated with him, which began before 8 January 2004 with the events relating to Ms Price.
69 The testator decided to reduce and reduced the company's annual contribution to Mr Robert Leech's superannuation fund in the 2003 financial year to $5,000; in earlier years it had been $50,000. He did this without consultation or discussion. On 15 March 2004 he explained this decision to Mr Burgess by saying that as a result of his loss of trust in Mr Robert Leech he had fixed him up and reduced the usual contribution to the superannuation fund. This is an overwhelmingly clear illustration of the completeness of the testator's control over the company affairs when he decided to exercise his power. In the absence of any reasonable basis for loss of trust in Mr Robert Leech, it is also an illustration of irrational hostility towards him.
70 Mr Charles J. McCarthy is an accountant who practiced in Tamworth as the principal of McCarthy Management Consultant Pty Ltd, providing accounting services and financial advice. He has professional qualifications, he carried on the practice from 1983 until 30 June 2005 and he has very wide experience advising clients in rural industries and in property. Before and while conducting this practice he had wide experience in business management; and also local government. He has been Mrs Emily Leech's personal accountant for about 20 years but until 12 January 2004 he did not act for the testator, the company or any business associated with the testator. When he first became Mrs Emily Leech's accountant she was separated from the testator. In correspondence during their separation and conflict Mr McCarthy took some firm positions on behalf of Mrs Emily Leech. The testator at times expressed dissatisfaction with Mr McCarthy and his part in Mrs Emily Leech's affairs. On 12 January 2004 Mrs Emily Leech telephoned Mr McCarthy and asked him to speak to the testator. The testator asked him to come (from his office in Tamworth) to the motel at Narrabri and speak to Mrs Leech and himself about an industrial problem in which an employee was claiming unfair dismissal, and about an issue with his son and his wife misusing company funds. An appointment was made and on 13 January 2004 Mr McCarthy went to Narrabri and had a discussion with the testator in a room at the motel for about two hours. Mrs Emily Leech was present but took little part in the meeting.
71 The testator and Mr McCarthy discussed the unfair dismissal claim for about 30 minutes and then spoke for about 1-1/2 hours about Mr Leech's concerns about Mr Robert Leech and Mrs Gai Leech's mismanagement of the company's affairs. Mr McCarthy advised in favour of negotiating financial settlement of the unfair dismissal claim. The testator told Mr McCarthy that Mr Robert Leech had been misusing the company's bank account, that he was using money for his own personal use and "is always buying things that are of no use to the business". The testator did not say specifically what things Mr Robert Leech was buying that were of no use to the business. When the testator spoke about what he said was misuse of company's funds he became very upset, stood up and walked around in an agitated way. He said that he had placed an advertisement in the local Narrabri Newspaper to warn people that Mr Robert Leech did not have the authority to sign company's cheques. Mr McCarthy advised to him to see the bank manager and change the signatories on the bank accounts. The testator said that he had done that. He told Mr McCarthy that Mrs Gai Leech was a disruptive influence on the staff, that he had told Mr Robert Leech and Mrs Gai Leech that Mrs Gai Leech was not to work in the office, but they refused to follow his directions. Mr McCarthy advised that placing the advertisement and changing the bank signatories was all that the testator could reasonably do to stop Mr Robert Leech from misusing the company's bank account. This advice was the only substantial outcome of the discussion. Mr McCarthy made a careful note but did not give written advice. Mr McCarthy's advice responded specifically to concerns expressed by the testator; he did not make a general review of the courses open to the testator.
72 On 16 February 2004 Mrs Emily Leech sent Mr McCarthy by fax a copy of a notice of appointment made by the Industrial Registrar for a teleconference hearing before Commissioner Macdonald on 23 February 2004. On 19 February 2004 Mr McCarthy had a telephone discussion with the testator about the coming teleconference and again recommended that he consider settling the matter. The testator said "I will think about it".
73 Mr McCarthy had considerable experience dealing with clients who were elderly and might not have mental capacity. He saw no issue of mental incapacity in his discussions with the testator, who appeared to him to have no difficulty in following the conversation or in remembering relevant facts or events, discussing his perceived difficulties or dealing with financial affairs.
74 The testator had a very full opportunity, during an interview of two hours with Mr McCarthy to express in specific terms his concerns about expenditure of money, purchase of unnecessary items and the unsuitability of Mrs Gai Leech to work in the office; but what he told Mr McCarthy was not specific about these matters. The practical steps which Mr McCarthy suggested to control company expenditure were steps which the testator had already taken. Consulting Mr McCarthy, a new adviser, and seeking outside advice illustrate the testator's control over company affairs and understanding of his position. Some time passed and there was considerable trouble before the testator took Mr McCarthy's advice to settle Ms Price's claim; he did this in May 2004, and certainly made no move towards doing so at the teleconference on 23 February 2004, notwithstanding Mr McCarthy's repeated advice.
75 In the teleconference Mr Robert Leech took the position that Ms Price should be reinstated. Senior Counsel for the plaintiff contended that it was inappropriate, and surprising to the testator, that Mr Robert Leech participated in the teleconference. Mr Robert Leech's evidence is that he told the testator, in advance of the conference, that he would take part in the telephone conference and state the facts as they were; that the testator was in the wrong. The testator said that he expected Mr Robert Leech to make a statement backing him up and Mr Robert Leech refused. As Mr Robert Leech was the Managing Director of the employer company his participation cannot have been surprising, nor should it have been surprising that he showed openness to Ms Price's position; conciliation is an object and method of the Industrial Relations Commission. Statements made by the testator during the teleconference show confusion or complete misunderstanding about the time and the manner in which Ms Price had been dismissed. The controversy was not resolved at the teleconference and went further, a hearing in the Commission was appointed to take place in Narrabri in May and the testator after first instructing Mr Burgess instructed another solicitor to conduct the proceedings; and reached a monetary settlement at a late stage.
76 Toleration of Mrs Emily Leech's strange behaviour is one thing; taking any notice of her grievances, and supporting her in a conflict with Ms Price, an employee, to the extent of endorsing a decision which Mrs Emily Leech was in no position to make that Ms Price should be dismissed is quite another thing, and shows that there was a change in the testator's outlook and evaluation of Mrs Emily Leech's thinking and conduct for which it is very unlikely that there was a rational basis; none can be seen. Endorsing the dismissal of Ms Price, maintaining this position against Mr Robert Leech's judgement, and resisting Ms Price's claim for unfair dismissal, both as to re-engaging her and as to paying her any damages, show in my finding that the testator's business judgement had failed, and had failed in a respect which brought him into conflict with Mr Robert Leech. Mr Robert Leech had the practical responsibility for running the company and the motel as managing director, his judgement was against dismissal of Ms Price and against resisting her unfair dismissal claim, but this had no influence on the testator, who expressed hostility about Mr Robert Leech's position. Mr Robert Leech did not want Ms Price to be handled conflictually; he did not want to resist her claim, and he told the testator this and showed this by his participation in the teleconference. Written statements about the event made by Mr Robert Leech's son and daughter left little room for successfully opposing Ms Price's claim of wrongful dismissal; these appear to have had no effect on the testator. Mr McCarthy also advised settlement of the claim, on the first occasion when he had an opportunity to give advice; the advice of Mr McCarthy, with wide experience in business consultancy and knowledge of many businesses, should have carried a great deal of weight; and if the testator had had any business judgement at all he would have seen that this was a conflict to be avoided, or to be ended in whatever way would limit the expense; in the circumstances, a happy outcome for the company could not be hoped for.
77 Dr Edward McCarthy is a general practitioner who qualified in 1988 and was consulted by the testator from time to time at the Yamba Medical Centre from about February 2000 until about June 2004. He saw the testator many times, treated him for many significant conditions and prescribed and supervised his medication. Significant conditions included atrial fibrillation, injuries in his motor accident in 2000, angina, asthma, hypertension and several other adverse conditions. Dr McCarthy saw the testator on 14 October 2003 and noted "no change in chronic illness symptomatology, weight constant, appetite normal, bowel habits satisfactory, no new serious symptoms". He saw the testator again on 16 January 2004, on 13 February 2004 for cardiac failure review, on 26 February 2004 for immunisation, medication review and health assessment and again in March, April and in May (six times) and June (three times). It was his practice to make a note of any concern about a patient's cognitive ability and mental health, but he did not make any note or comment relating to any such matter.
78 A report by Clarence Valley Imaging (Dr Fran Newman) (Ex A p155) reports on a CT brain scan conducted on 27 September 2000. The findings are unremarkable and the report bears a note that the patient was to be informed that the result was normal. The findings are recorded thus: "There was no intra-cerebral nor intra-cranial abnormality identified and in particular no chronic subdural was seen. Moderate cerebral atrophy is present, sucal markings are prominent and there is increased density in the inter hemispheric fissure. Ventricals are minimally enlarged. Orbits, sinuses and skull soft tissues appear normal. No skull structure nor bone injury was detected." Evidence shows that, for a person of the testator's then age, the presence of moderate cerebral atrophy was normal and there is no reason to associate it with any disorder.
79 A report by Dr Craig Dyer of North Coast Radiology dated 9 August 2004 (Ex A/303) relates to a CT Head scan of the testator conducted on that day at St Vincent's Hospital Maclean. There is a heading "early dementia.? Treatable pathology." The report also says: