Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos - [2017] NSWSC 666 - NSWSC 2016 case summary — Zoe

NSWNSWSC

Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos

[2017] NSWSC 666

Supreme Court of NSW|2016-06-01|Before: Slattery J

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Source facts

Court

Supreme Court of NSW

Decision date

2016-06-01

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

Amaca Pty Ltd v Novek (2009) 9 DDCR 199 Ball v Newey (1988) 13 NSWLR 489 Bashit v Versace Australia's Best Tyres, Automotive Services and Repairs [2010] FWA 8790 Bell v Crewes [2011] NSWSC 1159 Bechara v Bechara [2016] NSWSC 513 Benney v Jones (1991) 23 NSWLR 559 Black v S Freedman & Co (1910) 12 CLR 105 Bouts v Ellis (1853) 51 ER 978 Briginshaw v Briginshaw (1938) 60 CLR 336 Christine Anne Lumsden v Ian Ross Sumner as Executor of the Estate of the Late Dorothy Jean Lawliss [2012] NSWSC 1140 Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 Coghlan v SH Lock (Australia) Ltd (1985) 4 NSWLR 158 Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 Dridi v Fillmore [2001] NSWSC 319 Drury v Smith [2012] NSWSC 1067 Estate of Johnston [2010] NSWSC 382 Estate of Masters (1994) 33 NSWLR 446 Evans v Levy [2011] NSWCA 125 George v Howard (1819) 146 ER 1089 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 Harkness v Harkness [2011] NSWSC 1421 Hatsatouris v Hatsatouris [2001] NSWCA 408 Hayes v Marquis [2008] NSWCA 10 Heperu Pty Limited v Belle (2009) 76 NSWLR 230 Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111 In re Hodgson (1885) 31 ChD 177 In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 Jonah v White (2011) 258 FLR 236 Jones v Dunkel (1959) 101 CLR 298 Jurd v Public Trustee [2001] NSWSC 632 Kingsland v McIndoe [1989] VR 273 Marando v Rizzo [2012] NSWSC 739 Markulin v Drew (1993) DFC 95-140 National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Noonan v Martin (1987) 10 NSWLR 402 NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894 Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520 Petrohilos v Hunter (1991) 25 NSWLR 343 Pink v Pink [1912] 2 Ch. 528 Plunkett v Bull (1915) 19 CLR 544 Re Trethewey (2002) 4 VR 406; [2002] VSC 83 Robb Evans v European Bank Ltd (2004) 61 NSWLR 75 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Schmierer vTaouk [2004] NSWSC 345 Scott v Pauly (1917) 24 CLR 274 Sharpless v McKibbin [2007] NSWSC 1498 Singer v Berghouse (No.2) (1994) 181 CLR 201 Stone & Drabsch v Pinniger [2011] NSWSC 795 Sze Tu v Lowe [2014] NSWCA 462 Telfer v Telfer (2014) 87 NSWLR 176 The Estate of Keith Joseph Cook [2011] NSWSC 881 Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 Varma v Varma [2010] NSWSC 786 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Vigolo v Bostin (2005) 221 CLR 191 Vincent Zang v Deborah Middleton [2011] NSWSC 881 Voce v Deloraine [2012] NSWSC 1187 Weeks v Hrubala [2008] NSWSC 162 Whitehouse v BHP Steel Ltd [2004] NSWCA 428 Yesilhat v Calokerinos [2015] NSWSC 1028 Category: Principal judgment Parties: 2013/358168 Plaintiff: Cleopatra Sclavos Calokerinos, as executor of the estate of the late George Sclavos First Defendant: Okan Yesilhat Second Defendant: Gokan Yesilhat Third Defendant: Australia's Best Tyres & Auto Pty Ltd ACN 151 629 131

[4]

Judgment The Parties' Contentions in the Administration/Family Provision proceedings Credibility of the Parties and their Siblings Conversations with the Deceased, the Deceased's Relationships and the Onus of Proof Evidence Act 1995, s 140(2)(c) The Narrative of Findings - George Sclavos, his two nieces and Mr Yesilhat The Deceased and the Sclavos family - until the early 1990s Mr Yesilhat's story - as he tells it The Credibility of Some Other Witnesses The Deceased's Strathfield Home The Deceased's Relationship with his Nieces George's Relationship with Ms Anne Sklavos - early 1980s to early 1990s Did Mr Yesilhat meet George in 1999 or later? Mr Yesilhat's marriage to Susan Katri - 2004 to 2009 George's Relationship with Liz Curtis - 2005 to 2008 Mr Yesilhat's Second Wife, Ms Gursoy - 2009 to 2013 Did George live at the Pharmacy? Intimacy at the Pharmacy in the later years? - 2010 to 2013 Mr Yesilhat's Close Knowledge of George - Pharmacy and Strathfield Cash? George Supports the Purchase of Australia's Best Tyres - Early 2011 to 1 July 2011 Loans or Gifts? - the Deceased's Loan Card System The Bank Accounts of Mr Yesilhat and the Deceased Cheque Transfers Between March 2011 and July 2011 Linkage of the Deceased's and Mr Yesilhat's Bank Accounts - July/August 2011 Financial Transactions after Account Linkage - August 2011 to August 2013 George and his Nieces Discuss his Advances to the Yesilhat Brothers - April 2011 Anna Sclavos-Lahana and her Husband Visit Australia's Best Tyres - 27 April 2013 George and his Nieces Discuss Loans Further - April 2011 to July 2013 Mr Yesilhat's Loan Repayments up until George's Death on 13 August 2013 George's Death - Early to Mid-Afternoon, 13 August 2013 Were the Yesilhat Brothers at the Pharmacy Mid-Afternoon on 13 August 2013? Financial Transactions on the Afternoon of George's Death - 13 August 2013 The Yesilhat Brothers Go to the Pharmacy - 13 August 2013 At Strathfield, Wills, More Transfers & Mr Middlebrook goes - 14 to 20 August 2013 The Deceased's Funeral - 21 August 2013 Mr Efstathiou Discovers the Informal Will - 13 August to 31 August 2013 Mr Yesilhat's Dealings After George's Funeral - 23 August to 13 September 2013 The Probate and Debt/Trust Proceedings - 13 September to December 2013 The Administration/Family Provision Proceedings - January to July 2014 Some Pre-Trial Contests - May 2014 to February 2016 The First Pre-Trial Contest - The Deceased's Diary The Second Pre-Trial Contest - The Greek Properties The Third Pre-Trial Contest - Gathering Evidence from Pharmacy Employees The Fourth Pre-Trial contest - The missing wages book The Fifth Pre-Trial Contest - The Alleged Missing Pharmacy Computer The Sixth Pre-Trial Contest - The Night Shift Employees The Administration Proceedings: the Challenge to the Informal Will Validity of the Informal Will - Analysis of Mr Yesilhat's Case Validity of the Informal Will - the Expert Evidence Validity of the Informal Will - Provenance of the Document Conclusions on the Administration Claim Should Probate of the Informal Will Be Confirmed? The Family Provision Proceedings Applicable Legal Principles De facto relationship - Succession Act, s 57(1)(b) Dependant - Succession Act, s 57(1)(e) Close Personal Relationship - Succession Act, s 57(1)(f) Factors Warranting Provision from the deceased's estate - Succession Act, s 59(1)(b) Adequate Provision The Debt/Trust Proceedings Monies Paid Before the Day of the Deceased's Death Monies Paid On and After 13 August 2013 Mr Yesilhat's Authority Defence Estoppels Based on George's Alleged Representations Conclusion and Orders

George Sclavos died suddenly on 13 August 2013 at the age of 65, leaving an estate of approximately $6 million. He had never married. He had no children and no surviving siblings or parents.
On 5 December 2013 this Court granted probate of an informal will signed by the deceased and dated 16 October 2012. That informal will gave the whole of the deceased's property to his closest surviving relatives, his two nieces, Cleopatra Sclavos Calokerinos and Anna Sclavos-Lahana, the daughters of the deceased's late and only brother. The deceased appointed Ms Calokerinos as his executrix.
The plaintiff, Mr Okan Yesilhat brings these proceedings against Ms Calokerinos, claiming that he maintained an intimate same-sex relationship with the deceased for a period of approximately 14 years before the deceased's death, a relationship that he says is sufficient to qualify him as the deceased's de facto partner. Mr Yesilhat further contends: that Ms Calokerinos, or someone associated with her, destroyed a will the deceased made in his favour; that she then fabricated the October 2012 informal will; that probate of the October 2012 informal will should now be revoked; and, that as the deceased's long-standing de facto partner, he is now entitled to a grant of administration of, and to the benefit of the whole of, the deceased's intestate estate. Ms Calokerinos contests all of these claims.
In the alternative, if probate of the informal will were not revoked, Mr Yesilhat seeks orders for family provision out of the deceased's estate under Succession Act 2006. Whether or not the October 2012 informal will is valid, Mr Yesilhat says that he is an "eligible person" under Succession Act, s 57, and entitled to claim against the deceased's estate: either as a de facto spouse, or as a dependent who lived with the deceased for a period, or as someone in a close personal relationship living with the deceased.
There are three sets of proceedings before the Court. In November 2013 the executrix, Ms Calokerinos, commenced proceedings 2013/358168 (referred to throughout these reasons as "the debt/trust proceedings") seeking the return of monies totalling some $380,000 that were transferred from the deceased's bank accounts to Mr Yesilhat before the deceased's death on 13 August 2013, on the day of his death, and in the month after his death, on the basis that they are held on constructive trust for his estate, or in the alternative, are owed in debt to the estate. Ms Calokerinos alleges all the withdrawals made just before the deceased's death were not authorised by the deceased. Mr Yesilhat says they were general gifts to him, or specific gifts to assist him in setting up a motor vehicle tyre sales and service business known as 'Australia's Best Tyres', with his brother Gokan. Ms Calokerinos alleges that the withdrawals after the deceased's death were all fraudulent misappropriations of funds from the deceased's estate. Mr Yesilhat says these withdrawals were authorised.
The debt/trust proceedings were heard together with the second set of proceedings (2014/212466) commenced in May 2014, in which Mr Yesilhat mounts a challenge to the informal will, seeks a grant of administration of the deceased's estate and brings his claim for family provision (referred to throughout these reasons as "the administration/family provision proceedings").

[5]

The Parties' Contentions in the Administration/Family Provision proceedings

Mr Yesilhat alleges he had a 14-year same-sex intimate sexual relationship with the deceased from about 1999. Mr Yesilhat says that this relationship was conducted entirely in secret and exclusively in private part of the deceased's usual place of work, the deceased's pharmacy in Leppington in western Sydney ("the Leppington pharmacy"). He says his relationship with the deceased was close and loving and that the deceased had always been his principal mentor in life.
The executrix, Ms Calokerinos contests that there was any such relationship. Moreover, she contends: that there was no same-sex relationship between the deceased and Mr Yesilhat at any stage of the deceased's life; that the deceased never displayed any interest in sexual activity with other males, was not bisexual and had a number of long term sexual relationships with women during his lifetime.
Ms Calokerinos' case is that the relationship between the deceased and Mr Yesilhat was, at the highest, one of mere casual acquaintance or friendship and that even that level of relationship only commenced in about September 2007, not back in 1999 as Mr Yesilhat claims. At the time of the hearing Mr Yesilhat was married and had been married once before. Ms Calokerinos says Mr Yesilhat met the deceased in 2007 through Mr Yesilhat's first wife, who was the daughter of two regular customers at the Leppington pharmacy. Ms Calokerinos further says that, Mr Yesilhat himself became a customer of the deceased by about March 2008.
Mr Yesilhat further alleges that the deceased financially supported him by advancing him substantial amounts of money over many years; and, points to the substantial advances to Mr Yesilhat that appear in the deceased's bank statements from March 2011 until his death.
Ms Calokerinos does not contest the existence of transfers from the deceased's bank accounts to Mr Yesilhat's bank accounts from about March 2011. But she says the proper explanation for these funds transfers is that Mr Yesilhat borrowed money from the deceased in the context of their friendship and that was the full extent of the relationship.
In the contest on these issues the parties drew upon very private aspects of their family and personal histories. They revealed material that in most cases would remain well hidden from public view. But the Court has been required to analyse this personal family history because the issues the parties contested demand that level of analysis.

[6]

Credibility of the Parties and their Siblings

Next, some preliminary observations about the credibility of the parties and their siblings are useful. Observations about the credibility other witnesses are made later in the narrative of events.
Okan Yesilhat. Mr Okan Yesilhat was a complicated witness. But ultimately the Court reached the view that he was an individual upon whom no reliance could be placed, unless his evidence was corroborated by independent evidence, coincided with uncontested facts or was supported by other objectively reliable materials. These reasons abound with examples of the Court's assessment of the poor quality of Mr Yesilhat's evidence. It is not required to do more at this point than explain some of the difficulties in assessing him as a witness, and why the Court first began to doubt him.
Mr Yesilhat is a highly calculating individual. He has an acutely well-developed sense of other peoples' weaknesses, gullibility and of how events can be exploited to his advantage. In my view everything is strategic for him: telling the truth is but one of his available options but not necessarily his first option. If he assesses that a false invention will serve him better, then that will be his choice over the truth.
Mr Yesilhat reads other people extremely well. In my view he is highly manipulative. He survives and thrives purveying misinformation and inventing stories. There are many examples of this in these proceedings. The two most prominent are described in detail later in this judgment. First, he invented a conversation between himself and Ms Sclavos-Lahana and her husband Mark at a meeting at Australia's Best Tyres in April 2013. His second invented story arises out of a conversation with Mr Torrisi, as to why he, Mr Yesilhat, did not go to the deceased's funeral. His accounts of both these events are not entirely invented. They are based in small part upon actual meetings and conversations with the persons concerned. This judgment examines the detail of both those meetings to illustrate Mr Yesilhat's immense capacity for dishonest invention.
It is with this in mind that the Court looks at all his evidence: including whether he was same-sex attracted to George and was in a same-sex relationship with George. In the end the Court does not accept anything Mr Yesilhat says about having a same-sex attraction to George. It is as much likely to be an invention as are the other invented parts of his evidence. The Court is not prepared to infer: that any of his conduct is to be explained as trying to keep his same-sex relationship with George secret from his and George's family; or anything he says about engaging in private consensual sexual activity with George. The Court simply cannot trust a man with Mr Yesilhat's dishonest inventive capacity.
Mr Okan Yesilhat professed a profound and intimate affection for the deceased; and said that the deceased returned his affection in equal measure. But Mr Yesilhat's case lacked the usual supporting accoutrements of such a close personal relationship: he advanced no physical evidence of affectionate communication with the deceased in the form of emails, text messages, cards, or gifts; and he had a limited number of photographs of himself and the deceased together. The photographs and a short video (taken from about 2010 onwards) evidence himself and the deceased together but the deceased is asleep, slumped on a table, doing pharmacy work, or just standing near Mr Yesilhat. In one Mr Yesilhat is posing with his arm over George's shoulder. But even that photograph does not unequivocally show the affection of one intimate partner for another.
Mr Yesilhat was cold, very cold. The Court was struck by the contrast between the personal warmth for the deceased expressed within Mr Yesilhat's affidavit and the figure who gave stilted and colourless oral evidence. It was difficult to reconcile the man the Court saw, who seemed to calculate everything he did in relation to the deceased, with the picture of the affectionate individual he portrays in his affidavits.
The Court soon began to doubt Mr Yesilhat. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with George. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms Susan Katri, into believing he was not with George at night. His story of lying to his first wife is barely worthy of credit. But the fact that Mr Yesilhat was prepared to parade such studied trickery carries its own significance. Why would one who shamelessly avowed deceit of a spouse, not practise deceit on this Court?
Mr Yesilhat's case had to reconcile how he could spend as much time with the deceased as he claims, without his first wife becoming suspicious. His answer was simple: he lied to his wife. He said he created documents to mislead her as to where he was at night. He says he created a false documentary alibi so he could account to her for where he was. He says that he used to visit a poker club at night and obtain an entry slip to evidence his whereabouts from a particular time. Then, without actually participating in the club's poker games, he says he left and went over to the Leppington pharmacy to see the deceased. Were his first wife ever to ask him to explain his nocturnal interests away from her, the poker club entry slips were his false alibi. He volunteered that the slips were a device to mislead her to believe he was at the poker club, not seeing George. Advancing this was thoroughly discreditable and began the Court's loss of confidence in Mr Yesilhat.
He propounded a case that he was oppressed by cultural and family expectations to conceal his same-sex relationship with George. Such pressures can be understood in general terms. But the Court here is not prepared to accept his primary evidence that he had any same-sex interest in George.
Gokan Yesilhat. The plaintiff's younger brother, Mr Gokan Yesilhat ("Gokan"), gave evidence in his case. The Court approached Gokan's evidence with caution. Parts of his evidence were quite credible. Other parts were not. Gokan looked up to his older brother. He regarded his older brother as his senior not only in years but also in authority. Throughout Gokan's evidence his attitude to his older brother was entirely uncritical. Gokan felt unable to question his brother about many things. He was diffident about asking his older brother any questions, especially for example about his brother's sexuality, though this may have been out of respect for his privacy.
Several factors prevented Mr Gokan Yesilhat from being an objective witness about his older brother. Gokan owed his current good fortune as a joint owner of the Australia's Best Tyres business to Mr Yesilhat's brotherly generosity towards him. Mr Yesilhat received funds from the deceased, so both Mr Yesilhat and Mr Gokan Yesilhat could purchase this business jointly in July 2011. Since the purchase, the brothers have worked closely together managing the business on a daily basis: with Gokan Yesilhat working front-of-house, managing the counter and dealing with the customers; and with Mr Yesilhat managing the finances, stock and logistics. They both worked in the business all day, every day. Gokan confessed that working side by side in this way had brought him much closer to his brother.
Cleopatra Sclavos Calokerinos. Ms Calokerinos was passionately committed to the defence of her uncle's true character and to defeating what she saw as a fraudulent attempt by Mr Yesilhat to take his estate and to distort the truth about the man that she knew. Her passion in this cause was undoubted. She wept openly in Court during Mr Yesilhat's account of his alleged same-sex physical activity with the deceased. She was grievously distressed when Mr Yesilhat's case was pressed to suggest that the deceased had only walked her down the aisle at her wedding out of a reluctant sense of duty and had to overcome his distaste for the role. She became indignant when cross-examined to suggest that she was greedy in her wish for her and her sister to retain the deceased's estate.
Under cross-examination Ms Calokerinos was accused of serious and deliberate malfeasance: the destruction of the deceased's true will, the fabrication of a false will, the concealment of the deceased's properties in Greece and the deliberate misuse of the Court's processes to thwart Mr Yesilhat's claims. But perhaps it is no surprise that such allegations were made in this high stakes contest: after all, her own case contended that Mr Yesilhat had falsely manufactured a de facto relationship with the deceased.
Ms Calokerinos was both an honest and reliable witness. Her passion for her uncle's cause did not cause her to exaggerate. A consistent feature of her evidence was that even when the most trying allegations were being put to her, she maintained her objectivity and made admissions against interest when the circumstances required. There is no substance whatsoever in any of the allegations of fraud or dishonesty against her. The Court finds she did not destroy a will of the deceased. Nor did she manufacture the informal will of October 2012. Nor did she do any of the other dishonest things alleged against her.
The subtext of Ms Calokerinos' evidence was as important as its substance. Mr Yesilhat claimed the deceased despised his nieces and preferred to have little to do with them. Ms Calokerinos repelled that inference with the sheer detail of her description of the deceased's contact with and appreciation of his wider family and her insightful observations about his quirky character. Her observations about George created images with deep colours that were wholly consistent with the mostly reliable observations of his many employees and acquaintances. She showed a generous capacity to accept her uncle's weaknesses and foibles, as part of the man she so well described. To her they were just one part of the complicated character that she had always tried to understand and dearly loved after the death of her own father.
Except in some very minor aspects of detail, identified from time to time in these reasons, I wholly accept the evidence of Ms Calokerinos. The truth was important to her. She remained faithful to it throughout her evidence.
The contrast between the principal protagonists to these proceedings could not have been starker. When pressed, Mr Yesilhat commonly cloaked his answers in ambiguity. In contrast, Ms Calokerinos was prepared to add ever-consistent detail that would flesh out what she was saying.
Additional insight can sometimes be gained into the character of accusers from their failed allegations. Mr Yesilhat alleged that Ms Calokerinos was hunting for the deceased's will on the night of his death. But the Court wholly accepts her explanation that on that night: she was just grieving for her uncle; was not thinking at the time of his death about any will he might have made; and certainly, was neither looking for it on the night of his death. As will be seen she made some general inquiries about a will in the days that followed but nothing like the relentless search that he imagines. But in his evidence and submissions, Mr Yesilhat persisted in this unfounded contention.
Why? In part because he assessed both nieces as people in the thrall of limitless greed. He seemed incapable of understanding that there could be any other explanation for their conduct after George's death. In pressing this contention he inferred from, and thus revealed, his own interior thoughts: that this is how all humanity behaves. His oral evidence constantly demonstrated a failure to comprehend that there are high-minded people in the world, who act not out of greed but from affection for relatives and fidelity to the truth about them.
Anna Sclavos-Lahana. Ms Calokerinos' sister Anna Sclavos-Lahana was an intelligent and helpful witness, who was careful to present a truthful account of relevant events to the Court. She thought about her answers and was only prepared to comment on matters of which she had actual knowledge. She had no hesitation in giving a simple 'yes' or 'no' answer when appropriate. She was genuinely startled at the propositions put to her that she or her sister were involved in will destruction and will fabrication. She was enthusiastic, articulate and insightful about her uncle. She threw valuable light upon Sclavos family dynamics and relationships, and upon the deceased's lifestyle and personality. And she could give a thorough account of many events after the deceased's death. She explained that she stepped in to the breach after the deceased's death to try and relieve her then-pregnant sister of as much estate administration as possible.
Ms Sclavos-Lahana gave a satisfactory explanation of everything she was asked. She was often spontaneously able to draw upon her own mental picture of events and add copious amounts of consistent detail to enrich her account. She was able to do this particularly effectively when her version of interacting with Mr Yesilhat at Australia's Best Tyres in about Easter 2013 was challenged.
This characteristic of Ms Sclavos-Lahana's evidence was often on display. It was evident when she explained that the deceased socialised at their mother's house and did not entertain at home at Strathfield. She well described his hoarding mentality. She gave a clear and consistent account of visits to deceased's Strathfield house after his death and of the exact way the informal will came to light. She gave a convincing account of going through the deceased's belongings on Saturday 24 August 2013 and Saturday 31 August 2013 and being present when the informal will was found. She was the family member who communicated with their Greek attorney Ms Christina Antonopoulos in the second half of 2013, concerning certain Greek properties owned by the deceased.
It is to be observed before leaving this separate examination of their credibility, that Ms Calokerinos and Ms Sclavos-Lahana showed no element of homophobia in their testimony. The sense of their evidence was not that George having same-sex interests would itself be damaging to his reputation. Rather, their conviction was that Mr Yesilhat's account of the deceased was not the uncle George they knew so well.

[7]

Conversations with the Deceased, the Deceased's Relationships and the Onus of Proof

Finally before the narrative of findings commences, it should be observed that the evidence adduced by Mr Yesilhat, Ms Calokerinos and other witnesses recounts many conversations with the deceased. The Court exercises caution in assessing evidence about alleged conversations with deceased persons. This principle has been stated in many authorities. For example, in Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 ("Clune"), at 253, Wilcox J said: "[I]t is trite to say that evidence of conversations between a living witness and a dead person should be scrutinised with particular care, especially where there was no occasion for the dead person to record his version of them before his death. Of course, that is not to say that such evidence cannot be true; it obviously may. But it does mean that any matter adversely affecting the credit of the witness has special importance; the witness cannot be refuted in any way"
Moreover, in Varma v Varma [2010] NSWSC 786; 6 ASTLR 152; at [418] - [419] ("Varma") Ward J (as her Honour then was) stated that "careful scrutiny is required" by the Court in cases where a claim is based on an assurance made by a deceased person: Plunkett v Bull (1915) 19 CLR 544; Clune at 253). Citing Weeks v Hrubala [2008] NSWSC 162 at [20], in Varma her Honour explained that the Court generally looks for corroboration of those claims: In re Hodgson (1885) 31 ChD 177; Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41.
Next, the evidence in this case raised the specific issue of whether the deceased was involved in a same-sex relationship with Mr Yesilhat. It was put against that conclusion that he was exclusively heterosexual in his sexual orientation. The Court well accepts there can be many other human relationships and that purely binary reasoning in this area is not necessarily valid. But whilst taking other possibilities into account, in order to address the precise issues raised by these parties, the Court dealt with the contest as it was presented.
The Court acknowledges that a great diversity of personal relationships exist between couples. In Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Hallen J, when considering the meaning of the term "de facto relationship", stated (at [212]), "In reaching the conclusion about the existence of the relationship, the court must also be aware of the concept of the diversity of relationships that exist between couples within our society and must not be lulled into social stereotyping".

[10]

The Deceased and the Sclavos family - until the early 1990s

Angelo Sclavos, George's father, first migrated from Kythera to Australia in the late 1930s. George was born in Stanmore in 1948. He went to school at Newington College, graduating with the leaving certificate in 1964. Between 1960 and 1983 he lived in Auburn above the milk bar that the family operated, "The Auburn Milk Bar", initially with parents and his brother and later after his brother married, with his sister-in-law, Chrisanthy, and then his two nieces.
George matriculated in 1965 and in 1966 commenced studying for a degree in pharmacy at the University of Sydney. At university, George had a girlfriend, Pola, although the relationship did not last. George graduated in pharmacy in March 1973 having finished his studies in 1972.
George's brother married Chrisanthy in Kythera in September 1973. The newly married couple returned to Australia to live over the Auburn Milk Bar.
George dated another girl during the 1970s, Leia, and in the course of their relationship, he spent some time living with her family in Vaucluse.
In 1972 the Sclavos family purchased a property in Newton Road, Strathfield. Quite independently George was interested in purchasing real property himself from shortly after he left university. He first purchased properties in 1974 and 1975.
Anna Sclavos-Lahana was born in August 1974 and her sister Cleopatra in December 1976. When George's nieces were young he operated savings bank accounts on their behalf. He was involved in their family in many informal ways: including assisting teaching his sister-in-law Chrisanthy to drive to complement her formal driving lessons.
George's older brother suddenly passed away in March 1980, leaving Chrisanthy, then aged 26, with two daughters aged five and three. In late 1983 George and his father moved from Auburn to live in the property his father had purchased in Newton Road Strathfield, the same house George owned until his death.
George opened the Leppington pharmacy business in the late 1980s. He engaged Mr Allen Middlebrook as an accountant for the business at about the same time. The business was well established by the early 1990s.
George's mother died in in 1979. His father, Angelo, died in September 1992.
George kept a detailed diary of his life. Some parts of his history that are reflected in his diary are referred to later in these reasons. But it is evident from the diary that George was involved in his nieces' lives in various ways including: celebrating his birthdays with them, attending their 21st birthday parties, teaching them to drive a manual car, and inspecting their new vehicles, and visiting family members with them. Disputes about George's other involvement with them is referred to later in these reasons.
Following the death of their father, Ms Calokerinos and her sister remained close to the deceased and their grandfather, his father. They continued to live above the Auburn Milk Bar until the business was sold in or around late 1983 or early 1984.
Although the deceased was not a "fatherly type", the two nieces nevertheless looked up to him as a father figure. Ms Calokerinos recalled the deceased was a heavy smoker. Indeed he smoked right up to his death. I accept that even with this habit he could entertain his nieces: he would do tricks with the smoke he exhaled, whilst both nieces watched.
After the family moved out from living above the Auburn Milk Bar they would still see the deceased once or twice a week at either their house or at the deceased's home in Strathfield. Ms Calokerinos claimed, and I accept as correct, that in spite of their physical separation into two households that she, her sister, and their mother, Chrisanthy, retained close family ties with George.

[11]

Mr Yesilhat's story - as he tells it

The plaintiff Mr Yesilhat propounds a case that largely depends upon a narrative of events he relates that took place between himself and the deceased. It is important first to set out the substance of that narrative as a unified and connected story, even though much of the narrative is disputed and the Court does not accept Mr Yesilhat as a witness of truth. Later these reasons examine the detail of the principal parts of Mr Yesilhat's narrative in the face of conflicting evidence. This is therefore only a summary of what he says.
Mr Yesilhat is now a qualified motor mechanic. He is one of the shareholders in the company Australia's Best Tyres and Auto Pty Limited, trading as "Australia's Best Tyres". Both the company and the business it operates are referred to throughout these reasons as "Australia's Best Tyres". It operates the business of a motor mechanics' workshop and tyre fitting service in Canterbury Road, Roselands. He manages that business with his brother Gokan. His involvement as an owner of Australia's Best Tyres only dates from mid-2011. He claims that he has known the deceased since mid-1999.
Mr Yesilhat was born in 1982 and is of Turkish descent. He lived until his early 20s in Marrickville with his family until about the time of his first marriage to Ms Susan Katri. He says that he realised at an early age, and was able to discuss with George after he met him, that his sexual orientation was towards men. But he says that his same-sex attractions were repressed by his family and cultural background. He says that George opened up to him that he had the same experience during his own life.
Mr Yesilhat says that his ex-wife, Ms Katri, and his mother-in-law were good friends of the deceased and were also customers at his pharmacy at Leppington. Mr Yesilhat says that through that association he became close to the deceased.
From as early as 1999 and 2000 in the first two years after meeting the deceased, Mr Yesilhat says that he and the deceased saw much of one another. He says he spent about three or four days a week after work, for anywhere between three to five hours each time with the deceased and that they came to know each other well. He said he was living at his parents' home in Marrickville at that stage.
Mr Yesilhat says that by 2001 he and the deceased had became very close and they commenced a personal intimate same-sex relationship, including a sexual relationship. Mr Yesilhat says that whilst he was with the deceased, George would talk to him about his own life and how he had built up his business, and his sexual orientation toward men and the reasons why he never married. Mr Yesilhat says that George said to him that even though he had two nieces they knew that he (George) was alone, and he would say to Mr Yesilhat, "I hardly ever see them".
Mr Yesilhat says that the deceased would normally have dinner with him and that either the deceased or he would cook, or indeed they would cook together. Occasionally too Mr Yesilhat says that he would bring food into the pharmacy from outside and they would sit and have dinner together. Mr Yesilhat says that he would help the deceased to do the pharmacy books, stock shelves in the pharmacy and generally talk about life and how difficult it was.
Mr Yesilhat says that his physical intimacy with George was very close and that George let Mr Yesilhat attend: to shaving George; to applying ointments and creams to George's skin and to aspects of George's personal grooming.
Mr Yesilhat says that the deceased would always encourage him and give him advice about how to get ahead. He said the deceased gave him money and when early in their relationship Mr Yesilhat tried to protest at this, saying "You don't have to give me any money", George said back to him, "Okan I feel like I am your father. I know I am older but you must understand I have very strong feelings for you". Mr Yesilhat says that he expressed his appreciation back to the deceased and that he recalls George said to him in this conversation, "Well I have got no-one else to leave it to and you are the only person who takes any interest in me and I want to look after you and help set you up for life".
The clear implication of this early alleged conversation between George and Mr Yesilhat is that George did not have strong family affiliations with his nieces and that his principal affections and his ultimate testamentary intentions were already directed towards Mr Yesilhat. Mr Yesilhat says that over the years of their relationship that he and George "built up a very strong bond and a personal relationship with each other". This bond is said to have grown in part out of a shared understanding that their mutual same-sex attraction had to be kept a complete secret because it was culturally disapproved by people in each of their backgrounds.
Mr Yesilhat recalls, according to his narrative, that in about 2001 when he was about 19 and about to enter his first marriage, to Ms Susan Katri, that he spoke to George about where he would live after he married. He says that he confessed to the deceased that he would like to buy real estate but did not have any money and that his family did not have much money either. To this he says George said, "Don't worry. If you need help, I will help you. And I'm there for you. You are the only person who cares about me and is prepared to spend time with me". Mr Yesilhat's recollection was that in response to this he said, "George I don't want you to think of any obligation to me, I am very close to you and I consider you like my father, even though I have one".
At this Mr Yesilhat recalls the deceased took out a pen and paper and started doing some back-of-the-envelope calculations to advise Mr Yesilhat on how to acquire real property. George's explanation for spending this time on him, according to Mr Yesilhat, was "Okan I don't have any children and my family hardly ever come to see me at all. I want to help you. You are the closest thing I have to a son".
Mr Yesilhat recalls that a few months later he became aware that a residential property in Prestons was for sale. He met George at his pharmacy and showed him a brochure about the property. He says that he and George drove out to and looked at the property together and walked around it and within a week George said to him, "I want you to purchase this property…go to the bank and apply for a loan, if there is any issue let me know. I will go as a guarantor for you and buy this property if you need it. This will be a good investment".
Mr Yesilhat says he was resistant to George's offers. He claims that he said to George "My father could never help me like you do". To this he says that George said, "Okan I love you and you are also like a son, you can see I am alone and I look forward to seeing you when I do".
It turned out that Mr Yesilhat did not need George as a guarantor to help finanice his acquisition of the Prestons property, his first matrimonial home. But he says that George did help him arrange the finance for the purchase. And Mr Yesilhat says that in due course George taught him how to budget effectively.
Mr Yesilhat says that about three months after purchasing the Prestons property he was retrenched and his mortgage repayments fell into arrears. After a discussion with George about his problems he says that the deceased gave him about $4,000 in cash which Mr Yesilhat applied to his mortgage repayments. He says that once he obtained a job again he saved up the amount that he had been given by the deceased and offered to give it back.
To this he claims that George said, "No I don't want it. I was happy to help you. The money was a gift and I don't want it back". This was said to be the first large gift of money that George gave to Mr Yesilhat, who says, "It was at this stage that I understood that George really did love me, both as a person and as a son".
According to Mr Yesilhat the cash gifts continued. In about 2002 he says George gave him the sum of $10,000 cash as a wedding gift to buy furniture for his home. He says that the sexual relationship between himself and George continued after Mr Yesilhat's marriage to his first wife, Ms Katri. Mr Yesilhat's comment in his affidavit about George's attitude to Mr Yesilhat's first marriage is that "George felt he was competing with my then wife for attention".
Mr Yesilhat says that as he was then married he could only visit George on average two or three times a week. But Mr Yesilhat says he could nevertheless be with him for up to five hours and into the early hours of the morning. He says that at the Leppington pharmacy they talked and were together and watched television shows such as, "Top Gear", and listened to Elvis Presley's music.
But Mr Yesilhat says that notwithstanding the lesser frequency of their visits to one another, "we would also call or message each other every week". Mr Yesilhat says that George would, "spend most of his time at work" and again that George "would sometimes go home to Stanmore (sic) and sleep for a few hours and then drive back to work but he really lived his life at the pharmacy". The evidence on this subject and other contested issues is discussed in more detail later in these reasons.
According to Mr Yesilhat, George's comments to him about him being "a good son" continued but often now that their relationship was more mature, they included the statement, "I will always look after you, remember this".
According to Mr Yesilhat, a regular and important theme in his conversations with the deceased was the deceased's poor relationship with his nieces. The deceased's statements to him were apparently peppered with statements like "I have no family, I see my nieces about once a year at Greek Easter and some years not at all". And again, the deceased is said to have commented "I am so disappointed with my nieces and their attitude towards me that if they weren't my nieces I wouldn't talk to them". And yet again Mr Yesilhat says that after Geoge spoke to his nieces George would say to him, "They are like vultures waiting for me to die. I can't stand them". The Court assesses this and similar evidence critically later in these reasons. For the present the conversations are simply recorded as part of Mr Yesilhat's narrative.
Mr Yesilhat says that the deceased taught him how to do MYOB bookkeeping and shared with him much about the operations of the deceased's own business, including how to enter prescriptions. The deceased owned a number of properties in Sydney. Mr Yesilhat says that the deceased also discussed with him "the large number of properties that he [the deceased] owned in Greece". The deceased explained to Mr Yesilhat, according to the latter, that the deceased had inherited most of these properties. Mr Yesilhat recalls driving with the deceased on many occasions to visit properties the deceased owned, including at Palm Beach, Vaucluse, Prestons and, as Mr Yesilhat described it, "the Stanmore property (sic) which was the one he lived in".
Mr Yesilhat says that when he was at the pharmacy each evening he would settle the EFTPOS accounts with George and that George would entrust Mr Yesilhat to settle the accounts and gave him the pin number for his EFTPOS machine. This also gave Mr Yesilhat some knowledge of the takings of George's business.
Mr Yesilhat says that in the second half of 2007 his marriage to his first wife was failing and at the same time he was thinking of becoming a police officer. George commended that career course and gave him advice about his marriage break-up. Mr Yesilhat says he was concerned about how he would survive financially during this period and that George said to him "Don't worry about that. If that is what you want to do [go to the Police Academy], I will support you as much as you need".
In December 2007 Mr Yesilhat did enrol at the Police Academy in Goulburn. He says that the deceased assisted him with his assignments for the Police Academy and that on a regular basis, George paid expenses which Mr Yesilhat had incurred at Goulburn, including accommodation during the week and his petrol and Academy course expenses. Mr Yesilhat says that when he graduated from the Police Academy he asked George to come to the graduation. George was unable to do so because of his commitments in the pharmacy business. But Mr Yesilhat says that he and George had a celebration over dinner instead.
Mr Yesilhat says that George kept large amounts of cash in the pharmacy and claims he would see "as much as $30,000 in cash, if not more, in the back room" and that George "would leave me with the money whilst he attended to customers". Mr Yesilhat claims that George would often in his presence put cash into disused medicine jars and place them on the shelf or in filing cabinets, in his drawers and in medical packets. Mr Yesilhat says that while George was handling this money in front of him, he would give Mr Yesilhat some of it and say that he did not want Mr Yesilhat to struggle, adding "I don't want you to ever be afraid to ask me for money". Mr Yesilhat claims that George also said to him that "I have a bit over $200,000 in cash sitting at home", presumably meaning the Strathfield property.
Mr Yesilhat says that the deceased would always give him cash on a regular basis, in amounts between $200 to $1,000, and place it in his hand or in his pocket to take away. Mr Yesilhat says that he only ever asked the deceased for money when his financial position "got out of hand" with unexpected bills.
On one occasion, which must have been about 2010 according to the chronology of Mr Yesilhat's evidence, he says that George put $2,000 into his pocket and in response to this gesture Mr Yesilhat declared "George, I don't come here for money. I come here because I love you". And he says that he further declared to George, "I look up to you like my father". In a lengthy response, that Mr Yesilhat attributes to George, he has George saying to him, "If I didn't think you were honest and loved me like a father, I would never have let you into my life". George is then said to go on and say, "Had my nieces given me even one tenth of the time, affection and care that you have given me then they might be deserving of getting something. But they are greedy and don't care about me at all". George is then said to conclude "I want you to know that I will always look after you even when I am gone. I promise". Mr Yesilhat says that he was overwhelmed and became emotional at this and embraced the deceased and from then on realised how emotionally attached to the deceased that he was.
Mr Yesilhat says that while he was working full time as a police officer he found secondary employment as a manager at Australia's Best Tyres, when it was in previous ownership. But towards the middle of 2011 he said he became aware that the Australia's Best Tyres business was available for sale by the owner, a Mr Versace. Mr Yesilhat says that he and George then spent many days over the next two or three months discussing the business and that over a period of eight to 12 weeks, they put together the profile of the business, including working capital and cash flow requirements and the other logistical requirements of the business to decide whether it was worth purchasing at what price. When the time came for Mr Yesilhat to buy the business he declared to the deceased that "there is no way that I would be able to afford it". To this Mr Yesilhat says that the deceased said, "You let me worry about that".
A short while later Mr Yesilhat said that he reported back to George that the vendor wanted $750,000 in total for the Australia's Best Tyres business, including an upfront deposit. Mr Yesilhat said that George then said to him, "I want you to buy it. I will give you the money. You will do well there. You will make money". Mr Yesilhat says that he was somewhat incredulous that George would give him the money but George said, "I am happy to do this for you" and again Mr Yesilhat says that when he expressed concern that the business might fail George said to him, "I don't want you to worry about that. I just want to see you do well. I am not asking for it back. It's from me to you. Just work hard and you will be fine. What is mine is yours. That's what fathers are for".
Mr Yesilhat said that he did not even have funds to buy stock or the money to engage a solicitor to do the paperwork to acquire the business but that George said to him, "Do what you need to do and start making money. I will take care of the rest". Mr Yesilhat says that George expressed confidence in him and advised him to go and see Galluzzo Lawyers to get them to act on the business purchase contract. Mr Yesilhat says that he spoke to Mr Vince Galluzzo at that firm at George's suggestion.
Mr Yesilhat says that he discussed the contract for the purchase of the business with George and the commitment that he was contemplating, over a number of days over dinner. These discussions were said to include what his obligations were under the contract.
The time came to sign the contract. Mr Yesilhat says that George gave him two cheques, one from the Commonwealth Bank of Australia ("CBA") and one from Westpac Banking Corporation ("Westpac") totaling $130,000 for the deposit monies. Contracts were exchanged through Mr Vince Galluzzo. Mr Yesilhat recalls that the outgoing owner confirmed that vendor finance could be provided to complete the purchase. Mr Yesilhat's understanding of the deal that had been made was that he had to continue to meet payments to the vendor after taking possession of the business.
Mr Yesilhat recalls that "just after taking possession of the business" George came to the business and they had a conversation in which Mr Yesilhat asked George, "where am I going to get money to buy the stock?"
In answer to that Mr Yesilhat says, in what became an important conversation in Mr Yesilhat's narrative, he and George had the following exchange: "George Don't worry about that. I told you that I would make sure that you had enough money to run the business and you have money to build up the business. What I am going to do, is that I am going to give you access to some of my accounts so that when you need to pay for stock, you will be able to pay for that stock with money I have in my account and they can be linked to your account. Okan How am I going to do that? George I will go to the Bank and sort out the authorities and put you down to have authority to draw money from my accounts as and when you need it. These are the passwords and Client numbers".
As a result of this conversation Mr Yesilhat says that George handwrote passwords and account numbers and the login details on a blank sheet of paper and gave them to him. Such a note is attached to his first affidavit of 24 April 2014.
In a second related transaction, Mr Yesilhat says that George visited him at the shop every few weeks and one day George handed him some forms that were to be provided to the CBA. The form concerned was signed by George and dated 1 August 2011. It gave Mr Yesilhat full signing authority over two of George's accounts, namely accounts with the final four digits 2401 and 2428. When giving this signed document to Mr Yesilhat, George said according to Mr Yesilhat, "Sign this and hand it back to the bank if you want. It's just another way for you to pull out money". Such a signed form also exists.
Mr Yesilhat says that a few days later after giving him the passwords to both the CBA and Westpac accounts, that George confirmed that Mr Yesilhat had authority to access his accounts and indeed that this could be done in both directions.
Mr Yesilhat says that as a result of that discussion he believes he had full authority to access those accounts when necessary and that when he did access those accounts he would usually either tell George in person or ring him to explain that he had transferred some money into or out of George's accounts. Amongst this activity George, who owned a number of motor vehicles, would bring them to be serviced at Australia's Best Tyres.
Mr Yesilhat specifically characterises the money that he was allowed to take from George's accounts as other than loans. He says that "there was never any agreement that any of the monies I would draw were a loan or that there was any obligation for me to pay it back". He said he used the accounts to purchase stock. Then he says that "As money built up I would put the money back in and use the accounts like a running account". In his own mind George's bank accounts were just an extension of his.
Mr Yesilhat says that the deceased would regularly discuss the business with him and give him assistance and advice and would even refer customers from his pharmacy to Mr Yesilhat's business.
Mr Yesilhat says that in November 2011 the deceased began to talk to him in quite definite terms about including him the deceased's will. Mr Yesilhat claims that George said to him words to the effect, "You have been there for me whenever I have needed you, and you have to understand that I will always be there for you, even after I die. I will make sure that I will put you in my will".
Allegedly on one occasion about this time, after praising Mr Yesilhat for his knowledge of the deceased's properties, George said to him about the subject of inheritance from him, "I can't take any of it with me and my nieces don't need it".
A few weeks later, at a time that must have been close to Christmas 2011 Mr Yesilhat says an important conversation took place himself and the deceased, which was apparently designed to orchestrate a meeting between Mr Yesilhat and George's two nieces. The essence of the conversation was as follows: "George My nieces are probably coming over for Christmas. I am going to tell them that they have to introduce themselves to you. So if anything happens to me, they will know who to give the money to. Okan What do you mean? George I have made provisions for you in my Will so that you are looked after if something happens to me. I don't want anybody to take away what you have got."
Mr Yesilhat says that after this conversation George confirmed to him every so often, "Okan I have put you into my will, so don't worry about being looked after if something happens to me".
In July 2012 after Mr Yesilhat had been in the Australia's Best Tyres business for almost a year, he says that the deceased suggested to him that he, Mr Yesilhat, could import tyres rather than buy them locally, to earn maximum profit on sales, and that George in the course of a number of conversations over two or three weeks discussed with him the concept of bringing containers full of tyres into Australia. Mr Yesilhat explains that the arrangement between him and George to facilitate the purchases of the containers was that Mr Yesilhat could "just order it and take whatever we need out of the account". Mr Yesilhat says that he paid approximately $65,000 for a container of stock which arrived and the tyres were onsold. He says he then saved for the next container in George's account, using it as an informal savings account. Mr Yesilhat claims that he undertook tyre container acquisition transactions about six or seven times, especially during holidays when the demand for tyres was high.
In early 2013 Mr Yesilhat says that he and George discussed the possibility of acquiring for about $3,000,000 the freehold of the business premises over which Australia's Best Tyres held a lease to operate its business. Mr Yesilhat says that George gave advice about how much to offer the owner of the freehold and offered to fund Mr Yesilhat to put up the deposit for the purchase. The logic of the proposed purchase was apparently to reduce the rent the business was paying. But this transaction did not go forward before George died.
Then a most important conversation occurs in Mr Yesilhat's narrative. He says in April 2013 whilst having coffee with George, that George opened up again with him the subject of a possible meeting with George's nieces. In his narrative, Mr Yesilhat has George saying to him, "I want them to meet you". To this Mr Yesilhat says he replies to George, "But you have never spoken highly of your nieces". In response George is alleged to say, "Yes I know but I don't want them to interfere with what I have given you".
That conversation is said to precede a meeting between Ms Sclavos-Lahana and her husband on the one side and Mr Yesilhat on the other. Such a meeting actually took place. The conversation that occurred is heavily disputed but is sufficiently set out later in these reasons and need not be repeated here.
Mr Yesilhat says that in early August 2013 he had a further conversation with George about bringing in two containers from the United States. This conversation is also heavily disputed and is set out later in these reasons, when that subject is addressed.
Finally, Mr Yesilhat says that he continued to use George's CBA accounts with George's consent, "like a running account" in which he would deposit money and take it out and that George never raised any issue about the use of those funds and George never discussed that the funds "were to be repaid" or "were a loan" or that he "had any obligation to repay the monies at any time".
Various other incidents between Mr Yesilhat and other parties that are referred to in his affidavits occurring at and after the time of the deceased's death are referred to later in these reasons, which now return to the competing evidence in the overall chronology.

[12]

The Credibility of Some Other Witnesses

The focus of this narrative of findings now moves beyond family history to a more detailed examination of the evidence that supports or contradicts Mr Yesilhat's case that he had a same-sex domestic relationship with the deceased at the pharmacy for 14 years and that the deceased despised his nieces. On these questions the credibility of other witnesses, persons who did business with Mr Yesilhat and George, persons related to the pharmacy in different ways, and persons who were friends of the deceased, becomes of greater relevance. Before entering upon analysis of further facts, this section examines the credibility of some of those other witnesses.
Gino Elasi. Mr Gino Elasi with his brother, John Elasi, ran a takeaway store and a newspaper store near the pharmacy in the ten years before George's death until about 2011. He was also the landlord of the deceased's pharmacy, along with his brother. Mr Gino Elasi interacted almost daily with the deceased. With others he found the deceased on the day of his death. He was a direct and somewhat blunt witness. He knew exactly what he recalled about his friend George. He gave concise "yes" and "no" answers whenever he could. He was a witness of truth and was generally an accurate observer of events.
Mr Gino Elasi saw nothing in George's behaviour to indicate that George was sexually interested in men at all. Quite the contrary, he observed, and I accept, that George had an overt and strong sexual interest in women. Mr Gino Elasi confirmed that George talked to him about Ms Anne Sklavos (sometimes referred to as "Anna") as his "girlfriend" and that he would make comments about women, not men, as objects of George's sexual interest. Mr Yesilhat says that George never let his true sexual attraction to men slip to others. But Mr Gino Elasi was insightful and knew George extremely well and never saw the slightest hint of a same-sex interest from George. Nevertheless, his and similar evidence should be analysed cautiously as George's comments about women and his behaviour towards them are not determinative of his sexuality.
John Elasi. Mr John Elasi is the brother of Mr Gino Elasi. John and Gino's parents were the original landlords of the shopping strip of which the Leppington pharmacy is just one shop. Like his brother Gino, John had had close contact as a fellow shopkeeper with George in their little strip of Leppington shops.
Like his brother, Mr John Elasi was a good and reliable observer of events. Again, like his brother his observations did not always coincide with those of other witnesses. But in my view his evidence can mostly be accepted.
Charles Versace. Mr Charles Versace was the vendor of the Australia's Best Tyres business to the Yesilhat brothers. In the course of the sale he dealt with George and Mr Yesilhat. He was a witness of substantial truth. He was proud of his skill as a specialist European car mechanic.
Mr Versace was somewhat angry about the way that Mr Yesilhat and his brother had treated him in the course of the transaction. But in my view his anger did not affect the reliability of his evidence; rather it made him a more willing witness to the truth. He only committed himself to what he saw, and he readily acknowledged that some of his evidence was based only on what he heard, rather than what he had seen directly. He gave clear and compelling evidence that he believed George was heterosexual and that Mr Yesilhat had admitted to him (Mr Versace) that the deceased had loaned (and not gifted) to Mr Yesilhat the money to buy the business.
It was suggested to Mr Versace that he had fabricated his evidence in order to get revenge on Mr Yesilhat for what he thought was Mr Yesilhat's ill treatment of him at the time of the sale of the business. Mr Versace strongly countered, and I accept as accurate, that although he admitted he had his differences with Mr Yesilhat he did not fabricate any of his evidence. He was a wholly honest and impressive witness.
Salman "Sam" Cameron. Mr Sam Cameron was meticulous, not only as a pharmacist working part-time at the deceased's pharmacy. He also tried to be as precise as he could as a witness. Although he only worked on Fridays, Mr Cameron worked in the pharmacy for about two years before the deceased's death. His regular work at the pharmacy meant he was in an excellent position to observe the deceased's business practices, way of life and friends. His evidence was reliable and I mostly accept it.
Boguslava Wosik. Ms Boguslava Wosik emerged as a witness of outstanding importance in these proceedings. She had worked for the deceased for 18 years before his death. He had first taken her on as a pharmacist's sales assistant. She had seen him in later years struggling with doing the pharmacy account books. So she offered to help him out as a bookkeeper. He accepted. She then performed both jobs successfully, until she was injured in a motorcycle accident, after which she could no longer satisfactorily perform retail duties.
But it is clear that she continued to work with the deceased, primarily because she liked him as an employer. Her empathy and affection for the deceased came through her testimony with startling clarity. I accept her evidence that he confided in her about some aspects of his private life. I accept there were few barriers to discussion between her and the deceased. She was perceptive, intuitive and inquisitive: a person from whom the deceased probably could not hide things. She was not the deceased's age but she was older than the other pharmacy assistants and had children of her own. She had a mature understanding of life and was neither prudish nor resistant to receiving information the deceased chose to impart to her about his sex life, whether accidentally or otherwise.
The Court found her to be a highly credible witness. She did not have any obvious interest in supporting one or other side of the case. She knew of the deceased's nieces, Ms Calokerinos and her sister Ms Sclavos-Lahana, because of the way the deceased spoke about them positively. She had the occasional interaction with Ms Sclavos-Lahana. No credible reason was posited as to why she would dislike Mr Yesilhat.
Her evidence was given without hesitation and included colourful testimony: that the deceased's sexual attentions were overt and were all directed at women, not men. Indeed she said, and I accept, that the deceased noticed Ms Wosik herself. And she noticed that he did.
Ms Wosik's evidence also contained a key that explains a great deal about the deceased's character. Her evidence hints at what in my view was the nature of the deceased's personal and financial relationship with Mr Yesilhat. She said that the deceased was an extraordinarily generous man who found it difficult to say "no" to people who asked him for money. She explained that the deceased's kindness was spread widely. The deceased gave some "down and out" people, who lived in a nearby caravan park, extended credit in the pharmacy. But when they came and asked him for loans he would still give them money. George enjoyed the company of his customers and of these people from the neighbourhood.
Ms Wosik's evidence confirms the evidence of Mr Cameron who said that George would frequently give medications to a nearby "gypsy" community. According to Ms Wosik the deceased would socialise with these customers and locals at the pharmacy after hours enjoying their company, whilst no doubt suspecting some of them were taking advantage of him financially. The deceased could tolerate and maintain friendships with people, who he, and indeed others, would judge to be exploiting him.
Leanne Vassallo. Ms Leanne Vassallo owned a hairdressing salon in the same strip of neighbourhood shops as George's pharmacy. She was the one who raised the alarm that George may be unwell on the day he died. She was a very direct witness who tried to answer questions as precisely and concisely as she could. She said no more than was necessary and had a matter-of-fact approach to her observations.
Ms Vassallo said she never saw anything in George's behavior that indicated to her that George was, as she said, "gay", or led a bisexual lifestyle. She was a witness of truth and was a mostly reliable narrator of events.
Mr Jason Loader. Jason Loader was the butcher in the same strip of shops. He was a good and truthful witness whose evidence I mostly accept. He was a man of clear opinions and he gave his evidence without exaggeration. He had a good appreciation of George as a fellow businessman in the neighbourhood shops.
Mr Loader never saw anything in the deceased's conduct that gave him any indication that the deceased's occasional earthy comments about women were being feigned to deceive others from concluding that George's interests were really same-sex. Mr Loader knew what he saw. He was strongly of the view that George's interests were heterosexual. He was quite prepared firmly to disagree with questions put to him to suggest to the contrary.
Danijela Dacic. Ms Danijela Dacic was a young retail assistant and manager with ambitions to go further in the retail industry. She had an excellent and precise recollection of her work colleagues, work hours and work conditions at the pharmacy. Her father was a close friend of the deceased, so she called the deceased "Uncle George". She was fond of the deceased with all his foibles and she felt safe with him. She was quite ready to deny versions of events with which she disagreed. She would not commit herself beyond what she was sure of. She gave compelling evidence of George's interest in women, particularly young women such as herself. She too could see not the slightest evidence that George was, as she said, "gay".
Ms Dacic vigorously repelled the suggestion that she had invented her evidence. She composed the first draft of her affidavit and took ownership of its narrative herself. There was no impropriety in the production of her evidence, or that would undermine her credibility.
Mr Ivor Wall. Mr Ivor Wall repaired one of George's Porsche motor vehicles; he had several. Mr Ivor Wall was a careful witness who gave a very clear picture of the deceased's personality and life habits. He interacted with George less than many other witnesses did but he was a good observer during that contact. His recollections were firm, and given without exaggeration. I mostly accept them. His testimony was understated in a way that engendered confidence in him.
I accept that many of these witnesses, John and Gino Elasi, Ms Palmer, Mr Torrisi, Mr Efstathiou, Mr Cameron and Ms Wosik had their evidence preparation co-ordinated through Ms Calokerinos. She was the point of contact for them. But in no case in my view is there any basis to conclude that she took control of the content of their evidence or altered any of their evidence. Rather, their evidence emerged in quite a different way. The evidence presented in their affidavits was expanded consistently and in more detail in their oral evidence in a way that showed that what they had deposed in writing was faithful to their true recollections.
The credibility of other individual witnesses is dealt with below, where they appear in the course of the narrative of findings.

[13]

The Deceased's Strathfield Home

For about thirty years before the deceased's death and for the whole of the period of Mr Yesilhat's alleged relationship with him, the deceased lived in the same house in Newton Road, Strathfield ("the Strathfield property").
Mr Yesilhat did not allege a domestic relationship at the Strathfield property. Rather, he contends the relationship was conducted entirely at the pharmacy. An incidental matter in issue was why the relationship was conducted in this manner. Mr Yesilhat's explanation was that the deceased did not live at his Strathfield property but at the pharmacy.
Ms Calokerinos contested this. She says the deceased always lived at the Strathfield property, which was the only household that he maintained, from 1983 until his death. Ms Calokerinos contends that the deceased in no sense ever lived at the Leppington pharmacy, which was only his workplace.
In contrast, Mr Yesilhat contends that during his relationship with the deceased that the deceased treated the Strathfield property merely as a convenient place to shower and that the deceased mostly ate, socialised and slept at the pharmacy, which he treated in effect as his home. Both these assessments cannot be correct. Choosing between them involved examining documentary evidence and the evidence of a number witnesses.
Much evidence supports the proposition that the deceased resided at the Strathfield property. Documents (annexed to Ms Calokerinos' 20 March 2015 affidavit) including correspondence from insurance companies, banks, service providers and the Roads and Traffic Authority from 1983 to 2013 are addressed to the deceased at the Strathfield property. As the deceased was a hoarder, Ms Calokerinos was in a position to collect an unusually lengthy history of this kind of correspondence. One up-to-date example shows the deceased purchased a "Platinum pay-TV package" subscription for the Strathfield property, which was current up to near the time of his death.
Even Mr Yesilhat's case contails some material suggesting that George lived at the Strathfield property. Mr Yesilhat (in his affidavit of 20 September 2014) says the deceased told him that he had allowed a woman (probably Ms Liz Curtis, a figure in George's life dealt with later in these reasons) to reside at the Strathfield property but later said that he changed his mind because he wanted his privacy back.
Mr Yesilhat's case was that during his alleged relationship with George the Strathfield property was only "used as a storage or filing facility" and not as the deceased's home. He points to a lack of evidence of Ms Calokerinos and her sister or family members "socialising at the Strathfield property, particularly after the death of the deceased's father in 1992".
I accept Ms Calokerinos evidence in answer to this. She says that the deceased did not like to entertain at the Strathfield property and preferred to socialise with the family at her family's home. She says, and I accept, that she or other family members would collect the deceased from the Strathfield property and take them to their home for family functions. But George's relationship with the Strathfield property did change near the very end of his life.
In 2013 George did begin to stay overnight at the pharmacy more. Ms Calokerinos accepted (in her affidavit of 10 June 2014) that in the last few months of his life, the deceased "began sleeping at the pharmacy on a semi-regular basis". The deceased's explanation to her for this was that he was "too tired to drive". I accept this evidence, and that the deceased was becoming more and more weary and doing exactly what he told his niece. He was beginning to tire more easily. But this conduct only accounts for a few months towards the end of George's life.
And George's belongings found at the Strathfield property after his death are consistent with him living there, not at the pharmacy. He had a bed there. He kept items of a sentimental or personal nature there close to his bed, including his Bible in which the October 2012 informal will was found. He was a compulsive hoarder but he mainly hoarded at Strathfield.

[14]

The Deceased's Relationship with his Nieces

The closeness and quality of the deceased's relationship with his two nieces was in strong contest during the proceedings. The issue bore upon many other questions: whether the deceased was likely to have made a will such as the 2012 informal will in their favour; whether they knew enough about the deceased to contradict Mr Yesilhat's case of an intimate relationship; and whether Mr Yesilhat was the natural and prime object of George's inter vivos and testamentary bounty.
Mr Yesilhat's case was that the deceased was not close to either niece. Mr Yesilhat claimed that the deceased "never spoke anything nice about them". He stated that the deceased said words in his presence to the effect, "they're vultures. I don't like them. I hate them… I only have to do what I have to do" and they are "bitches… waiting for me to die, I can't stand them". He also claimed that the deceased rarely saw his nieces, and that he had told Mr Yesilhat "I see my nieces about once a year, at Greek Easter and some years not at all".
Mr Yesilhat said the deceased was distant from all his family, and allegedly said to Mr Yesilhat on one occasion, "I have no family". Mr Yesilhat's account was that the deceased regarded him as his son, and said to him on one occasion "I see you as a good son... You have been very kind to me. I will always look after you, remember this". The plaintiff's brother, Mr Gokan Yesilhat similarly stated that the deceased had said to him about the plaintiff, Mr Yesilhat, "He has been good to me. I love him like a son."
I do not accept any of Mr Yesilhat's evidence that George made negative statements about his nieces. Nor do I accept that George said he saw Mr Yesilhat as "like a son". But on his side, Mr Yesilhat did at times see the relationship as filial. This is confirmed by Ms Sclavos-Lahana's husband, Mr Mark Lahana, who accepts that on the one occasion in April 2013 he met Mr Yesilhat before George died, that Mr Yesilhat said that George "was like a father to me". Mr Yesilhat indeed held that perception. But George did not.
Apart from Mr Yesilhat's overall lack of credibility, his contention that George saw him as like his child leads to even more questions. On Mr Yesilhat's case did George see him as a lover, or as a son? George would hardly have seen him as both. Yet quite improbably, to try and displace George's nieces in George's life, Mr Yesilhat posits both relationships with George and therefore paints an inherently unlikely picture.
Mr Yesilhat claims that the deceased had told him that he had no intention of leaving anything in his will to his nieces, telling him they were "undeserving", "greedy" and did not care about him at all. Mr Yesilhat also claimed the deceased said that he already "gave the shop in Auburn to my nieces, it's worth a lot of money".
I do not accept George said any of this. Nothing in Ms Calokerinos nor Ms Sclavos-Lahana's evidence in my view shows them to be of a greedy nature. They were quite unlikely to have exhibited greed to George such that he might begin to form and express such opinions about them. Moreover, the precise occasion leading George to judge his nieces as "greedy" never clearly emerges from Mr Yesilhat's case.
Mr Yesilhat says he believed: that he became the closest person in the deceased's life during the deceased's last years, far closer than the deceased's two nieces; and that he understood from the deceased that everything the deceased owned was to go to him following the deceased's death. Mr Yesilhat says that he recalled a conversation with the deceased, when the deceased was offering him money, where he and the deceased spoke about the deceased's testamentary intentions in the following way: "Mr Yesilhat: George you don't have to give me any money, you know that. I don't come here for that. George: Okan, I feel like I'm your father. I know I am older but you must understand I have very strong feelings for you. Mr Yesilhat: I really appreciate what you are doing. George: Well I have got no one else to leave it to and you are the only person who takes any interest in me and I want to look after you and help set you up for life."
I do not accept this evidence. But it nevertheless provides an important standard against which Mr Yesilhat's conduct after George's death should be measured, as will be seen later in these reasons. Someone who genuinely felt that he was in a relationship with the deceased describable in such terms and was also entitled to the whole of George's estate would have behaved with a far greater sense of entitlement than Mr Yesilhat did on the day of George's death and in the days thereafter.
Mr Yesilhat's case on George's alleged contempt for his nieces had backing beyond his own evidence. Mr Middlebrook, the deceased's accountant, who was called in Mr Yesilhat's case stated that his "late client" didn't have much to say about his two nieces - he "never said a good word about them", and that the deceased had only attended their weddings "because he had to". Mr Middlebrook stated that the deceased had told him that one of his nieces, Cleopatra, was a barrister. Mr Middlebrook gave an account, apparently derived from the deceased, that some years earlier the deceased had had a legal problem, and went to Ms Calokerinos to ask for her help, but she had been unable to assist him.
Mr Middlebrook also claimed that although the deceased confided in him about his financial affairs, the deceased never said to him that he intended to bequeath his estate to his nieces. But for reasons explained later in this judgment, I do not regard Mr Middlebrook as a reliable witness. I do not accept any of his evidence on this issue.
Ms Calokerinos and Ms Sclavos-Lahana both claimed, and I accept, that they had long enjoyed a strong and loving relationship with the deceased. Ms Sclavos-Lahana said, and I accept, that following her father's death "My uncle [George]…was the thing we had there instead of Dad… Uncle George…he was the one we grew up with… taught us things". I accept all the evidence of Ms Calokerinos and Ms Sclavos-Lahana about their relationship with their uncle George, some of which is recorded in the following paragraphs.
As Ms Calokerinos grew up, the deceased had stood in place of her father on the important occasions in her life. These included walking both her and her sister down the aisle on their respective wedding days in 2006 and 2010. Neither Ms Calokerinos nor her sister were mistaken that this is exactly what George wanted to do for them. They are both sufficiently intuitive to be able to give an account his true feelings for them on these occasions. Ms Calokerinos also claimed, and I accept, that the deceased was present at their engagement parties and at the christenings of their children, and would attend Greek Easter and Christmas functions at the home of Ms Calokerinos' mother, Chrisanthy (his sister-in-law).
Ms Calokerinos also stated that as they became a little older, quite startlingly, the deceased would openly speak with her and her sister about his intimate relationships. She also recalled as a young person meeting the deceased's then-current love interest, Ms Anne Sklavos. She recalls that he would make sexual remarks or jokes, including somewhat oversharing his romantic experiences with his female partners. On one occasion speaking in metaphors to Ms Calokerinos, he referred to a woman "friend I'm helping out. She dusts my wand".
Ms Sclavos-Lahana gave similar evidence. Ms Sclavos-Lahana stated, and I accept, that she and her sister had lived with the deceased for the first 11 years of her life. She stated, and I accept, that the deceased had been "like [their] father". And although "he wasn't fatherly by any means", she said that he had been all they had and they had loved him. She stated, and I accept, that the deceased was a man of few words, but would tell risqué jokes in her and her sister's presence and would freely speak of his sexual exploits with women. Ms Sclavos-Lahana confirmed Ms Calokerinos' evidence that the deceased was inclined at times to overshare information on intimate matters with them.
Ms Sclavos-Lahana also stated, and I accept, that as an adult she would regularly initiate contact with George and talk to him over the phone, even late at night. Ms Sclavos-Lahana also said, and I accept, that due to her training as an orthoptist and optometrist, the deceased would contact her on occasion when a friend of his needed advice regarding an eye complaint.
Many other credible witnesses attested to the deceased's affection for his nieces. Their evidence was compelling and I accept it. Mr Torrisi, a long standing friend of the deceased, stated that during their 30-year relationship the deceased had never once in his presence denigrated his nieces. The Court wholly accepts Mr Torrisi as a witness of truth. Ms Wosik, the deceased's bookkeeper at the pharmacy, stated, and I accept, that the deceased would regularly praise his nieces and express how proud he was of their achievements and that he was very excited when Ms Calokerinos had told him confidentially about her pregnancy.
Ms Calokerinos and Ms Sclavos-Lahana rarely visited the deceased at the pharmacy. They did not claim otherwise. I accept the evidence of one of the deceased's former staff members, Ms Dacic, who acknowledged that she had never met Ms Calokerinos or her sister, Ms Sclavos-Lahana, before the commencement of these proceedings.
But this is not very surprising. After all, on the nieces' own case they saw the pharmacy merely as the deceased's place of work, not his home. They had a family relationship with him that did not require them to attend his workplace during his lifetime. They say, and I accept, that they did visit his Strathfield home from time to time but really only to collect him to take him back to family functions at their place.
Some of the deceased's work colleagues gave evidence that it was their belief that the deceased and his nieces had a good relationship, and that it was evident that he was spending time with them away from work. Ms Dacic's evidence (in her affidavit sworn 17 October 2014) was compelling in its detail about the small daily ways that the deceased remembered his nieces in his life. I accept Ms Dacic's evidence that: "I am aware from George that George's brother "passed away a very long time ago when Cleopatra and Anna were very young" and the closest family he had was Cleopatra, Anna and their mother. I do know he loved his nieces; George had told me "they spent most of their upbringing with me". I noticed that his passwords were always Cleopatra's name and he also informed me at some point that he "walked my nieces down the aisle because their father is not alive to do it". I could just tell the way he spoke [about] his nieces that he loved them."
Ms Dacic said, and I accept, that the deceased would commonly eat home-cooked Greek food at the pharmacy for lunch, including rice pudding with cinnamon, and that the deceased informed her the food had been prepared and packaged by his nieces.
Mr John Elasi, the deceased's landlord in the Leppington Shopping Centre and his friend stated, and I accept, that it was his belief that the deceased would regularly dine with his nieces at his sister-in-law's home, which would sometimes cause him to arrive late for work at the pharmacy, particularly on Sundays. George spoke to Mr John Elasi about his nieces and gave Mr John Elasi the impression of enjoying his regular contact with them.
Ms Wosik noted, and I accept, that the deceased, directly after visiting his sister-in-law and his nieces, would come to the pharmacy bearing Greek food. I accept her recounting that on occasions he would call to let her know that he was still with his nieces' family and he would be running late for work because "I haven't left yet".
Mr Torrisi in evidence I accept, stated that Ms Calokerinos and Ms Sclavos-Lahana would regularly telephone the pharmacy to speak with the deceased. Mr Torrisi recalls a conversation with the deceased in which they exchanged confidences about the contents of their wills. I accept Mr Torrisi's evidence that the deceased told him, "when I die, my stuff goes to my nieces".
George never spoke ill of his nieces to Mr Torrisi. He often spoke to Mr Torrisi of visits to his sister-in-law and nieces to enjoy social gatherings. When it was put to him in cross-examination, he was genuinely amazed at the suggestion in Mr Yesilhat's case that George could ever have spoken ill of his two nieces.
Mr Cameron also described the deceased as referring to his nieces from time to time in their conversations. Mr Cameron was, for example, able to give accurate information about the careers of both nieces, which information is likely only to have come from the deceased himself. Mr Cameron did not recall the deceased ever saying anything adverse about his nieces and he had the impression that George had a warm family relationship with them.
Mr Yesilhat contended that the deceased's nieces could not have been close to him, as they had not been involved in his 50th birthday party that was organised and celebrated at the pharmacy. I accept they were not involved in organising this birthday event for George.
But I accept Mr Torrisi's explanation as to how the deceased's 50th birthday party had been arranged. A young staff member at the Leppington pharmacy, Maria, organised the party herself in the carport at the back of the pharmacy. Mr Torrisi explained that the only two other persons invited were the deceased's landlords. This was just a spontaneously organised workplace event, not a family event. There was no clear evidence that the deceased had vetted the guest list, and none that the deceased had deliberately not invited his nieces to the function. Their non-attendance at the event is no basis to doubt their case that their relationship with him was close.

[15]

George's Relationship with Ms Anne Sklavos - early 1980s to early 1990s

Ms Anne Sklavos (or "Anna") gave oral evidence in Ms Calokerinos' case that she had been in an intimate relationship with the deceased for about ten years, commencing sometime in the early 1980s and ceasing sometime following the death of the deceased's father in 1992. Ms Sklavos was a witness of substantial truth. At no stage did she attempt to overstate her relationship with George. I accept her account of it.
Her relationship did not overlap in any way with Mr Yesilhat's claimed intimate relationship with the deceased, which even on his version, only commenced in 1999. Her evidence is relevant to the debate in the proceedings about the deceased's sexual preferences.
Ms Calokerinos' case was that the deceased was heterosexual. From that she contends it may be inferred that he did not have a same-sex relationship with Mr Yesilhat. The Court does not reason in this judgment that were Ms Calokerinos to establish the deceased had heterosexual relationships, that conclusion alone would be a basis to infer he did not also have had a same-sex relationship with Mr Yesilhat. On a question as beguiling as that of human sexuality the Court accepts that such a priori reasoning would be far too simplistic. Leaving aside labels such as bisexuality, the Court reasons here on the assumption that some people in heterosexual relationships may also have same-sex partners.
But Ms Calokerinos' case can be analysed by more than simplistic generalised a priori reasoning. Her case still reasons in the particular: that looking as widely and deeply as the evidence here permits, there is no credible evidence about George's life, or about Mr Yesilhat's life, to infer that George himself is likely to have had any same-sex interest in Mr Yesilhat. She says that the lack of any such credible evidence is a basis to disbelieve Mr Yesilhat.
In my view, the Court can cautiously use evidence about George's expressions of sexual preference or interest in the way Ms Calokerinos contends. But such evidence must be scrutinised to ensure it is testing the probability of Mr Yesilhat's case about the deceased, not falling back on simplistic a priori reasoning. This is where Anne Sklavos comes in.
In the early years, Anne Sklavos and George clearly enjoyed one another's company. Exhibit 32 is a photograph of the deceased and Ms Sklavos reaxed and seated together which illustrates this. She accepted that she would have been in her 20's at the time it was taken. Although there were some slight discrepancies as to exact dates, it was clear that after about 2002 there was no continuing personal relationship between the deceased and Ms Sklavos.
Ms Sklavos and the deceased had been friends since they were very young. Their families, all Kytherian people, had known each other before they were born. It was not until the 1980s that the deceased developed a romantic interest in Ms Sklavos. After dating for a few years, they commenced an intimate sexual relationship.
At the beginning of the relationship, according to Ms Sklavos, the deceased was living in Auburn but later moved in to stay with his father in Strathfield. Ms Sklavos stated that she would frequently stay overnight with the deceased at the Strathfield property. She claimed and I accept that they had an active sex life.
Ms Sklavos stated that there was only one break during the period of their relationship. This followed the unexpected death of the deceased's brother, the father of Ms Calokerinos and Ms Sclavos-Lahana. It is probable that the burden of the deceased's responsibilities towards his late brother's family would have intensified at this time, naturally taking him away from Ms Sklavos for a period. But due to an ongoing mutual romantic interest, they resumed their relationship.
Ms Sklavos told the Court that she had loved the deceased. Her at times wistful evidence made clear that she still had sensitive feelings for him, even at the time of the hearing. But the full depth of Ms Sklavos' affection for George, he had not shared. The deceased had struggled with the idea of commitment to her. He mostly did not openly refer to her as his girlfriend. Except to a few select friends he introduced her as "Anna" or "a friend". On 4 October 1991, when Ms Sklavos was 26 years old, the deceased wrote a letter to someone who I infer from the form of address ("Dear Rev" short for "Reverend"), the letter's contents, and George's known interest in religion, was probably a Greek Orthodox priest or other religious figure. Both sides in the proceedings accept that the deceased wrote this letter and that it refers to Ms Sklavos. It read as follows: "Dear Rev, For 10 years I've had the same girlfriend. She loves me & wants me to marry her. I like her, but I don't love her to the extent where I want to marry her. We both have the same sir name (sic) but we arn't (sic) related. I feel very depressed about this point, in that if we were married, other people would think that it was incest, in fact I fear people having these thoughts now. I have tried to make her understand how I think, but she doesn't understand. Dear Ref (sic) what can I do?"
This letter is as important for what it does not say as much as what it says. In it the deceased confides his reluctance to marry Anne Sklavos. The reason he gives is his common surname with Ms Sklavos: his surname (Sclavos) and hers (Sklavos) indicate, they have family origins on the Greek island of Kythera where such a surname is common. He confesses feeling "depressed" that his relationship with her might be incestuous. Curiously he does not mention, what Mr Yesilhat's says was the true reason, that he was not attracted to women. He can clearly speak about highly confidential things to this priest. But he does not mention any struggle with his sexuality in circumstances where the communication relates to fundamental life decisions and is made to a person, who George plainly expected to keep his confidences.
Around the time of this letter Ms Sklavos asked the deceased to commit to her. But she recalls he refused, repeating to her in substance what he wrote in the 4 October letter: he liked her but did not love her enough to make a commitment. Ms Sklavos was unsure as to whether her romantic relationship with the deceased ended at this point, however, she stated, and I accept, that they maintained a friendship. But their relationship did end within another year or so, which is the course of events to be expected from the sentiments he expressed in the letter.
But they continued a friendship and a financial relationship. In 2000, the deceased and Ms Sklavos had merged their finances to a limited degree. They operated a joint Streamline bank account at the Commonwealth Bank of Australia (numbered 8299). On 8 August 2000 they also jointly applied for and were approved for a CBA home loan. They later used the funds from this home loan account (numbered 9409) to purchase an investment property at Casula. On the CBA mortgage application form they each indicated that their then "Marital Status" was "Single". The mortgage repayments on this property were being paid out of their Streamline 8299 account, into their 9409 account on a regular basis, at a rate of $1,520 a month. It was a substantial continuing mutual financial commitment and an emblem of their continuing friendship.
In 2002 the deceased escorted Ms Sklavos to her brother's wedding. But by this time they had long ceased to be romantically involved with one another. They were convenient companions on this occasion.
In spite of the deceased's inability formally to commit to Ms Sklavos, the evidence of Mr Torrisi, Mr Efstathiou, Mr Gino Elasi, Mr John Elasi, Ms Calokerinos and Ms Sclavos-Lahana, shows that they believed Ms Sklavos was the deceased's girlfriend. Mr John Elasi stated for example that around the late 1980s to early 1990s the deceased had introduced him to Ms Sklavos, stating that she was his girlfriend. But in a backhanded aside George also told him "she's just after my money". Mr Torrisi confirmed that the deceased had seen Anne Sklavos as a girlfriend. On this, as on other topics, as a careful witness that he was, he only spoke of matters on which he thought he could give reliable evidence.
Mr Yesilhat's case accepted that the deceased had been in an intimate relationship with Ms Sklavos. But Mr Yesilhat contended that the deceased's letter of 4 October 1991 is an example (in what is an underlying theme in his case): that the deceased could date a woman he did not love for about ten years in part to conceal his true sexuality. Mr Yesilhat's case was that after the deceased's father passed away in 1992, having already lost his mother and his brother, there was no longer any reason for him to keep pretending to be attracted to women, and so the relationship with Ms Sclavos fell away and Mr Yesilhat came into his life in 1999.
However, Ms Sklavos strongly denied Mr Yesilhat's assertion that the deceased could have been sexually attracted to him. She said, to use her very words, "No, no way he was gay. He's always had girlfriends… even after me. After I finished with him he had girlfriends after that". She refuted the contention put to her that the deceased feigned attraction to women in order to appease his family, and that her continued affection for him blinded her to the possibility that his true sexual orientation was not towards women.
I accept all her evidence on this subject. Ms Sklavos came across as a reasonably insightful person. Of course, it is not unknown for people to be mistaken or deceived as to the sexuality of a long-term sexual partner. But to the extent that judgments are possible in such things, Ms Sklavos did not strike the Court as someone who could either be mistaken or deceived on such a matter.
One possible explanation for Ms Sklavos' evidence might be that the deceased only discovered, or was reconciled to, his true sexuality after the end of his relationship with Ms Sklavos. But this is hardly consistent with Mr Yesilhat's case of the deceased's declarations of always knowing his true sexuality and only pretending to be heterosexual. Moreover, it does not appear to be consistent with the deceased's subsequent known sexual relationships of choice other than the alleged relationship with Mr Yesilhat: these being with women, rather than men.

[17]

Mr Yesilhat's marriage to Susan Katri - 2004 to 2009

On 21 August 2004, Mr Yesilhat married his first wife, Ms Susan Katri. Their relationship raised several issues in the proceedings: how and when Mr Yesilhat met Ms Katri; and, how consistent was his entering marriage with her in 2004 with his claim of a same-sex relationship with George.
Ms Katri and her mother had been customers of the deceased at the pharmacy. Mr Yesilhat claimed that the deceased and the Katris had been good friends, and stated that it was through them that he was first introduced to the deceased in 1999.
Mr Yesilhat told the Court that the deceased gave his approval to Mr Yesilhat's marriage to Ms Katri, and gifted Mr Yesilhat $10,000 in cash as a wedding gift to purchase furniture for their home. Mr Yesilhat claimed that his sexual relationship with the deceased continued following his first marriage. He claimed that he and the deceased would see each other around two to three times a week, meeting late in the evening for about five hours, with Mr Yesilhat leaving in the early hours of the morning to go back home. He also claimed that he and the deceased would telephone and send text messages to each other every other week. None of the content of these text messages was in evidence.
Mr Yesilhat says that shortly after he married Ms Katri, she questioned the time he was spending with the deceased. She said to him "why are you always going to George. Stay home for one night." He claimed that he was starting to feel pressure, and that Ms Katri, and his parents, were beginning to become suspicious about his movements. So Mr Yesilhat says he devised his false alibi to continue to see the deceased in secret. He explained his contrivance of this false evidentiary trail: "[I] became a member of a club to play poker where I had to be there at least twice a week. I would use the excuse that I was going to the club. In fact I would go to see George but I would go first to the club and get a sign in slip before going to see George at the pharmacy. The sign in slip proved to my ex‑wife that I was at the club and nowhere else."
This evidence is improbable. I do not accept it. As this judgment has earlier explained Mr Yesilhat's testimony on this issue started the Court's loss of confidence in him. But curiously his account of deceiving his first wife is unlikely to be true, for several reasons.
First, it is difficult to accept that Mr Yesilhat could have kept up this pretence for years, when he claims his visits to the deceased were regular. Secondly, his claimed alibi was unstable. Other people frequented the same club and would have been able to see that Mr Yeslihat had left to go elsewhere. Thirdly, such an alibi was likely to create quite separate domestic concerns: that he was gambling away the family's money. He sought to answer that threat by explaining that this poker club was not one where gambling for money occurred. But that does not meet the problem that to a person being shown sign-in slips at a gambling club it may not have looked that way. Finally, Mr Yesilhat's case of arranging regular assignations with the deceased behind his first wife's back infers that the deceased was complicit in this deception. How else could the deceased believe that a married Mr Yesilhat could spend so much time with him?
But that is not consistent with the deceased's character. All the evidence about the deceased points to a man who had an open and friendly nature, had deep moral feelings and religious scruples especially about his sex life, maintained warm relationships with family and friends and had never been involved in fraudulent activity. But Mr Yesilhat seemed comfortable to accept that the deceased was as dishonest as he was in conducting this relationship.
Mr Yesilhat claimed that his marriage to Ms Katri began to fail in around 2007. He says its failure was due to him spending too much time with the deceased. On 18 February 2009, Mr Yesilhat and Ms Katri separated. They formally divorced on 7 May 2010. They had no children. Mr Yesilhat claimed that he "did not want to have children at that point in [his] life" and that he "did not have feelings for her and [his] feelings for George were very strong".

[18]

George's Relationship with Liz Curtis - 2005 to 2008

From 2005 to 2008 the deceased lived at the Strathfield property with a woman named Elizabeth Curtis. Ms Calokerinos asserted that the deceased and Ms Curtis were in a de facto relationship for a three year period. Ms Calokerinos never met Ms Curtis in person. But she claims, and I accept, that she once spoke with her over the phone. Ms Curtis died in 2010.
Mr Yesilhat's contention was that Ms Curtis was just a customer at the pharmacy and was merely living with the deceased temporarily because she was having problems with her husband.
Ms Curtis was a sex worker with a drug addiction. She was married with five children. Ms Calokerinos contended that the deceased first met Ms Curtis on Canterbury Road and later "kept her". Prior to this, Ms Calokerinos stated that Ms Curtis had lived in Greenacre. Ms Curtis moved into the deceased's home in 2005 and from around this time Ms Calokerinos alleged Ms Curtis commenced an intimate sexual relationship with him. Ms Calokerinos inferred this relationship from paperwork and handwritten notes she found amongst the deceased's belongings mentioning the name of Ms Curtis and showing Strathfield as her home address. Ms Calokerinos could not herself directly judge the nature of the deceased's relationship with Ms Curtis. She never saw the deceased with Ms Curtis. The deceased was somewhat secretive about Ms Curtis. If he had a relationship with her, he did not bring her to family functions, as he had Ms Sklavos. Perhaps he did not want his family to discover her other life.
Ms Sklavos gave some apparent support to Mr Yesilhat's case about Ms Curtis. Her belief was that Ms Curtis was just a boarder in the deceased's home for a couple of weeks. She believed that Ms Curtis was going through some trouble at home, and that the deceased had wanted to help her out. This may have been partly true. But this is one the few places that I find Ms Sklavos' evidence to be doubtful: her assessment of this other woman in the deceased's life, some years after her relationship with him ended, is based on little direct evidence and in my view contains a large measure of surmise.
But other reliable witnesses with regular contact with the deceased supported Ms Calokerinos' contentions. Mr Gino Elasi for example said, and I accept, that he was aware that a female prostitute had been living with the deceased.
The nature of Ms Curtis' relationship with the deceased is important in resolving some of the issues in these proceedings. The period of the alleged Curtis-Sclavos relationship, the years 2005 to 2008, coincides with the middle period of Mr Yesilhat's alleged relationship with the deceased. If George's relationship with Ms Curtis was more than that of homeowner and boarder, then it was another relationship the deceased freely chose at a time that he was said to be in an apparently contented domestic same-sex relationship with Mr Yesilhat. And if it is established, it shows the deceased ready to take on a heterosexual relationship, not a same-sex relationship, that came with its own risks of financial and personal problems.
Why should the Court concern itself with the deceased's sexuality at all? He may have been bisexual, with clear sexual interests in both men and women. The answer is that it is not consistent with Mr Yesilhat's case that the deceased may have been bisexual. Mr Yesilhat's case is that the deceased was not sexually interested in women at all and that any sexual comments he made about women were part of a highly wrought cover for his true sexuality, which only Mr Yesilhat understood.
But what happened away from George's workplace and family, where he had no reason to conceal, as Mr Yesilhat says he had to, his alleged same sex interest? This is why the alleged relationship with Liz Curtis could be important. Few people from work or family ever met her. He spoke of her only sparingly to work colleagues and barely to family. Evidence about the relationship is elusive. But there is enough reliable evidence to infer from the deceased's own words to friends that he probably did choose to conduct an intimate relationship with Liz Curtis for a number of years and that she lived at the Strathfield property with him for a few years.
Although Ms Calokerinos' evidence about Liz Curtis is limited, it is compelling. I accept her evidence that she spoke to Ms Curtis on the telephone at George's house and that George spoke to Ms Calokerinos about Liz Curtis in metaphorical sexual terms, and moreover that George referred to Ms Curtis, in conversation with Ms Calokerinos, in the context of "finding…a woman…on Canterbury Road and keeping her". I accept Ms Calokerinos' evidence that her knowledge of the deceased's relationship with Ms Curtis extended over the years between 2005 and 2008. The suggestion made in cross-examination to Ms Calokerinos that she had deliberately fabricated a story about Ms Curtis to assist her case is unfounded.

[19]

Mr Yesilhat's Second Wife, Ms Gursoy - 2009 to 2013

On 25 September 2009, prior to finalising his divorce from Ms Katri, Mr Yesilhat met his second wife, Ms Hatice Gursoy, who was visiting Australia from Germany. Mr Yesilhat and Ms Gursoy became friends. But she returned to Germany in October 2009. Mr Yesilhat says, and I accept, that though geographically apart they maintained contact though email and Facebook.
In April 2010, Mr Yesilhat travelled to Turkey. He says he decided to surprise Ms Gursoy by visiting her in Germany in May 2010. It was during this time that he says that their friendship developed further, and that they commenced an intimate relationship. Mr Yesilhat stated that he returned to Sydney in June 2010, but remained in contact with Ms Gursoy and returned to visit her in Germany on two occasions, in March and May 2011.
He says that he sought George's approval for his marriage, as he had for his first marriage. But I do not accept that this happened.
Mr Yesilhat married Ms Gursoy on 12 September 2011. Following the nuptials, Mr Yesilhat travelled back and forth between Australia and Germany in January and August 2012 to see his new wife. Ms Gursoy gave birth to their first child, a daughter, in August 2012 and to their son in June 2014. He seemed quite unabashed in saying that during the whole of his marriage to Ms Gursoy he continued to see the deceased in secret until the deceased's death. If this were true, it constituted a long term deception of her of a similar character to that practised on Ms Katri. Mr Yesilhat and Ms Gursoy were indeed still married at the time of the hearing.
Yet once again without apparent shame Mr Yesilhat elaborated upon his relationship with George throughout his second marriage. Mr Yesilhat's untroubled claims of marital infidelity with George, this time during his second marriage, are scarcely to be believed. But his readiness even to advance such a story burnishes his credentials for deceit.
The Court has no confidence even in this story. At one level it might seem to gain a boost of veracity because it resembles an admission against interest. But the story is wholly inconsistent with the documents Mr Yesilhat provided to the Australian Department of Immigration and Citizenship in early 2013 to further his sponsorship of Ms Gursoy's migration to Australia.
In January 2013 Mr Yesilhat made a statutory declaration to Australian migration authorities that he was happily married to Ms Gursoy, "Our relationship is genuine and continuing" he says on a 40SP "Sponsorship for a partner to migrate to Australia" application form to the Department of Immigration dated 4 January 2013. In documents he signed that month he stated that when Ms Gursoy went back to Germany in March 2011 "I knew that I was totally in love with her and missed her so much therefore I also went to Germany in May 2011". This journey indeed took place. He then further declared "at this time onwards we had made a serious commitment to begin a longer term relationship (towards marriage)". He explains the detail of his and his wife's movements, their setting up a household after they all returned to Australia in November 2012, and his wife's career. He concludes "Now that we are married we are lodging this application so we can live together in Australia. We are a happily married couple. Our relationship is genuine and continuing".
The Court has minimal confidence in Mr Yesilhat's statements to the Immigration Department. What he said to the Immigration Department on 4 January 2013, is not inherently more worthy of credit than what he said to the Court. His statement to the Immigration Department about the rich quality of his second marriage and his statement in this case that he continued to conduct a same-sex de facto domestic relationship with the deceased are unlikely both to be true. But I accept Mr Yesilhat's submission, based on Hayes v Marquis [2008] NSWCA 10, at [99] that such statements to government authorities are not determinative of the issue.
But in my view, his statements to the Department are more likely to be correct. His whole account of his alleged de facto relationship with the deceased is false.

[20]

Did George live at the Pharmacy?

Mr Yesilhat contends that his domestic relationship with the deceased at the pharmacy consisted in sharing evenings up until the early hours of the morning on average two to three times a week. Upon these evenings Mr Yesilhat says that he and the deceased would occupy the dispensary area of the pharmacy, an area partly shielded from the rest of the shop and the front door. He claimed they would talk, would enjoy one another's company, would watch television and movies and listen to music and would take part in sexual activity with one another. Mr Yesilhat describes this as the pattern of his and George's time together for the whole of their 14-year relationship.
Mr Yesilhat acknowledges that there were times when he was overseas, when he was courting his second wife, that he was not able to visit the deceased in the usual way at the pharmacy, or as often.
The central feature of Mr Yesilhat's case is that the deceased really lived at the pharmacy. This is his counterpoint to Ms Calokerinos' case that George lived at the Strathfield property. Mr Yesilhat says that whether or not Mr Yesilhat was at the pharmacy, the deceased would often sleep there. The impression one gains from Mr Yesilhat's affidavit evidence is that the deceased treated the Strathfield property more as a convenient place to refresh himself, rather than a home. Mr Yesilhat says in his first affidavit: "He [the deceased] would sometimes go home to Stanmore [sic] and sleep for a few hours and then drive back to work but he really lived his life at the pharmacy and on many occasions he would sleep at work".
It was common ground that the deceased's home was in Newtown Road, Strathfield, not in Stanmore. But here Mr Yesilhat's first affidavit somewhat strangely describes the deceased's home as being in "Stanmore": and that the deceased would "sometimes go home to Stanmore". Mr Yesilhat's later affidavit, dated 19 November 2015, describes this discrepancy as a "typographical error". Whether it was or not became a ground of controversy. I do not accept the explanation that the earlier reference to Stanmore was just a typographical error; it does not look like a typographical error. The two suburbs are clearly distinct. Mr Yesilhat's answers in cross-examination on how a typographical error had been made and not noticed were unconvincing. His case of a typographical error became even less persuasive once he failed adequately to explain how he had made the same error twice in the one affidavit.
If anything Mr Yesilhat's mistake confirmed what Mr Yesilhat conceded in cross-examination, that he had never been inside the deceased's residence at the Strathfield property, and that the deceased did treat it as his "home", not the pharmacy. Although Mr Yesilhat said he visited the Strathfield property on one occasion, his own evidence indicates that even on that occasion he did not enter the house. His account of what the house looked like was vague in the extreme and he unconvincingly hedged his bets in describing it. His description painted a picture from which it would be difficult to conjure up an actual image of the deceased's house at Newton Road, Strathfield, as depicted in photographs.
Mr Yesilhat's own affidavit refers to the Strathfield property as the "one he [George] lived in". And he was never able to satisfactorily explain why he used those words, if he believed that George lived at the pharmacy. I do not accept his evidence on this subject.
Mr Yesilhat's case needed to explain why the deceased's failed to invite him back to the Strathfield property. He gives several reasons for this. Mr Yesilhat says "George was not comfortable with people going over to his home". Mr Yesilhat says George explained to him that the Strathfield property was "untidy, dusty and newspapers were scattered everywhere". Consequently Mr Yesilhat says that he would "laugh with [George] when we talked about him staying at the pharmacy". Here Mr Yesilhat's case finds just a little common ground with that of Ms Calokerinos and her sister. They vividly describe the jumble of what they thought was trash at the Strathfield property that they found after George's death.
But Mr Yesilhat's explanation invites the question: why did he not for example offer to help the deceased clean up the house. Mr Yesilhat could not explain why, in a loving relationship grounded in mutual support, he had not proposed such an obvious solution to neutralise the deceased's reluctance to invite him back to the Strathfield property.
For a place that Mr Yesilhat said he lived with George, he had remarkably little recollection of the mundane personal details of domestic life there. He had trouble identifying for George: how he changed clothes and obtained fresh ones; how his laundry was done; where he kept his shaving gear; his brand of toothpaste of choice; and anything about deodorants. This mirrored Mr Yesilhat's lack of knowledge in another area of the registration plates of any of George's collection of favourite cars. Mr Yesilhat did not present a persuasive picture of living at the pharmacy in domestic circumstances with George.
But it is improbable that the deceased always slept at the pharmacy. The deceased had a bed at the Strathfield property. Anne Sklavos and various family members attest to this and I accept their evidence. There was no bed, or even fold-away bed, or lounge that could be turned into a bed in the dispensary area, where Mr Yesilhat said George slept when he was at the pharmacy. There was barely space of a metre and a half between the dispensary desks for anyone to lie down. It is difficult to accept that a man through his 50s and then into his mid-60s would prefer to sleep on the hard but carpeted floor of a back room of a pharmacy with a towel under his head (or sitting, with his head on the pharmacy bench) rather than in a more comfortable bed at a domestic property he had lived in for 30 years.
That being said, the deceased led a very unhealthy lifestyle and died in his mid-60s. He smoked all his life. He ate a lot of fried food. He did not exercise. But he may have slept badly in an uncomfortable place because going home to his own bed was just too much of a chore. And indeed I do accept some of Mr Yesilhat's evidence that George did sleep overnight in the pharmacy. But in my view this was only occasionally and really only became common from the second half of 2012 and into 2013. That evidence is confirmed through the deceased's diary and by a number of workplace based witnesses.
The deceased meticulously recorded many banal aspects of his life in his diary. In the abbreviated language of George's diaries this appears as "SLP O/N [Sleep overnight]". The time he commenced to sleep or the period he stayed in the pharmacy overnight sometimes also appears as part of these entries, preceded by the Greek letters "ΛΕΜ",which in his diary often indicate the beginning or end of a given time period.
But these were mostly one-off occasions. On the basis of the evidence of Mr Torrisi, Mr Gino Elasi, Mr John Elasi, Ms Wosik and Ms Vassallo, whose evidence the Court accepts on this issue, it is unlikely that the deceased slept regularly at the pharmacy overnight until about the last 12 months of his life, or that he ever treated it as a de facto residence, rather than a convenient place to stop for the night because he was too tired to drive home.
Mr Torrisi said the deceased would sleep at his desk during the day with his head on his hands. But this did not mean that he slept there overnight. No clear evidence emerged, for example, of George and Mr Yesilhat sharing a bed together at the pharmacy.
Mr Gino Elasi confirmed, and I accept, that George would entertain in the pharmacy at night, but he says with regular customers, not with Mr Yesilhat. He never saw Mr Yesilhat there, nor did he see him buying takeaway meals for George to eat at night. Mr John Elasi also confirmed he also did not recall this. I am prepared to accept that Mr Gino Elasi and Mr John Elasi did not have complete visibility of George after hours entertaining and that Mr Yesilhat did visit and socialise from time to time; but not that much and not enough for Mr Gino Elasi or Mr John Elasi to notice him.
Mr Yesilhat says that he and the deceased cooked together at the pharmacy. It can be accepted that this may have happened from time to time if Mr Yesilhat was visiting after hours. There was a grill at the pharmacy. But I accept Mr Cameron's account as the more probable, that the deceased, when working late, would pick up take away food from Mr Loader's nearby shop in the same strip. Typically his meal, as Mr Cameron stated, was "chips and two fried eggs". This conduct is more consistent with the deceased's work really being shift work, than his treating the pharmacy as place he lived.
Mr John Elasi's evidence, which I accept on this subject, probably explains the somewhat contradictory evidence about whether George ever cooked at the pharmacy. John Elasi says that George did purchase an electric cooker or stove and cooked outside the back of the pharmacy. But he says, "that didn't last long". It appears that if he did not cook, George's default position was to purchase food from the Elasi takeaway food store, and that this is what he mostly ended up doing. The witnesses, who recall George cooking, probably are recalling the period when he was trying out this in-pharmacy grill. And those who do not, probably recall the period when George reverted to buying the Elasi's takeaway food. Their takeaway store changed hands in 2011 but it still operated.
Ms Wosik stayed back after hours at night often enough to see the deceased socialising with some people from the local caravan park, who George commonly invited into the pharmacy after closing time. But she says, and I accept, that she never saw Mr Yesilhat in the pharmacy after hours. She did not even recognise Mr Yesilhat in Court. It is very difficult to reconcile Mr Yesilhat's case of joining the deceased in a regular domestic relationship in the dispensary area at the back of the pharmacy with the credible testimony on this issue of a close and regular employee such as Ms Wosik.
Mr Cameron also points a picture that I accept, of the deceased entertaining local people at the pharmacy after hours. These were "customers who [George] considered his friends". It is probable that from time to time Mr Yesilhat joined these gatherings. But except for the last 12 months of his life in my view when these gatherings broke up George would drive back to the Strathfield property to sleep.
And finally I accept Ms Vassallo's evidence that George said to her about his place of residence: that he "lived at Strathfield". In my view the pharmacy was not a home to the deceased; the Strathfield property was.

[21]

Intimacy at the Pharmacy in the later years? - 2010 to 2013

These reasons have already made findings about the deceased's relationships with Ms Anne Sklavos and Ms Liz Curtis. But the evidence does not support the conclusion that either of these relationships continued in the last few years of the deceased's life. His relationship with Ms Sklavos was over by the mid-1990s and Ms Curtis died in 2010.
Mr Yesilhat says he had an active sexual relationship with the deceased at the pharmacy - as part of their de facto relationship - right up until the end of his life. This assertion is to be tested by looking more closely at evidence from people associated with the pharmacy, particularly the evidence bearing on the last four years of the deceased's life, when there is no suggestion of George having other competing relationships with women. But the analysis will extend into earlier periods.
A sexual relationship is not essential to establishing that Mr Yesilhat was in a de facto relationship with George. But Mr Yesilhat's case was that such a relationship existed and that it took place at the pharmacy. Were a physical relationship found to exist it would weigh significantly in the balance in his favour on the issue of de facto relationship or not in the two plus years leading up the George's death, so as to found his claim to the estate as George's de facto partner, and in the various alternative grounds of eligibility to claim under Succession Act, Part 3.2 on which Mr Yesilhat relies.
Mr Yesilhat's success or failure on this issue bears not only on his prospects of establishing his claim as a de facto to the estate, or his claim of other alternative relationships grounding his Succession Act, Part 3.2 eligibility. It also has potential impact on his credibility. Mr Yesilhat's case readily accepts that the proof of a sexual relationship depends on his evidence being accepted. His entire testimony is directed to support his alleged intimate same-sex relationship with the deceased. But, if Mr Yesilhat's account of a physical relationship at the pharmacy is rejected, after the elaborate narrative that he has offered of such a relationship, and rejected not just as unreliable but as fabricated, then Mr Yesilhat's overall credit will be further damaged.
The evidence, which the Court accepts, supports the conclusion that George actively pursued and maintained a number of heterosexual and physical heterosexual relationships during his life and within the years that Mr Yesilhat alleges he was in a relationship with the deceased. The question here is whether he and Mr Yesilhat also engaged in a physical same-sex relationship. On that issue the Court has approached the task without making any a priori assumptions that the deceased was probably heterosexual. The Court has reached the conclusion that Mr Yesilhat has fabricated his case of a same-sex relationship with the deceased. His evidence on the subject was fabricated rather than either mistaken or unreliable; detailed evidence such as his on such a subject is unlikely to be the product of subconscious error.
Mr Yesilhat and the deceased had no other proven same-sex associations. Mr Yesilhat had two wives during his alleged same-sex relationship with the deceased. He did not claim to have had any other identified same-sex partners or interests before, during or after his alleged relationship with George. And George was not said to have ever had any other identified same-sex partners or same-sex interests before or during his alleged relationship with Mr Yesilhat. Their relationship was said to be wholly secret to accommodate George's cultural sensibilities.
Mr Versace's evidence is also relevant to the issue of Mr Okan Yesilhat's sexual preferences. I accept his evidence on this issue. After the sale of the Australia's Best Tyres business Mr Gokan Yesilhat alerted Mr Versace, who was by then their employee, to the fact that Mr Okan Yesilhat was seeing a woman of middle-eastern appearance and said to him, "I have a problem, my brother [Sam] is seeing another woman and I think he is fucking her". Mr Versace remembers this woman coming into the business and Mr Okan Yesilhat and the woman and he going for a test drive together and then spending time with her in a private part of Australia's Best Tyres' office, in a room with blinds closed.
I accept that these events occurred. None of this proves that Mr Yesilhat did not necessarily have same-sex interests in someone such as George. But it does show that frequently his choice of sexual partners outside his two marriages were female. This behaviour was confirmed by Mr Versace after Mr Okan Yesilhat came back from overseas after his marriage to Ms Gursoy, where he was observed to be with other women. Mr Versace confirms that Mr Yesilhat's comments in the workshop also indicated heterosexual interests.
But the evidence of others is compelling. The alleged relationship between the deceased and George was apparently so secret that at no single time in 14 years did anyone ever catch them even by chance in an intimate moment together as an unambiguously close or intimate couple. Given the relationship was said to be conducted in the pharmacy dispensary this is remarkable over such a long period.
Mr Torrisi worked twice a week for the deceased. He thought that Mr Yesilhat did come over one of those days and often stayed quite late. But according to Mr Torrisi there was no privacy available for the deceased and Mr Yesilhat at the pharmacy, so they could conduct an intimate relationship.
Witnessed words of endearment from the deceased for Mr Yesilhat are also lacking in his case. Mr Torrisi, who was as close to the deceased as anyone other than family, says, and I accept, that he never saw the deceased speak sentimentally about anyone, not even by describing Mr Yesilhat as being "like a son". Accepting for the sake of argument Mr Yesilhat's case of a relationship, there is no reason why George could not have spoken fondly in ambiguous or semi-parental terms about Mr Yesilhat. But he did not.
Mr Middlebrook speaks of the spontaneous affection that he says he saw between Mr Yesilhat and the deceased at the Leppington pharmacy. He gives quite strong evidence to that effect. Mr Gokan Yesilhat does to a lesser extent. But I do not accept either of them as reliable witnesses on this issue.
And equally the sending of private cards or letters is a commonplace in relationships of intimacy. In this respect George was no different from many other people. Ms Sklavos' evidence presents many cards from the deceased, addressed fondly to her or in remembrance of important events in her life, during their relationship, which was intimate. But Mr Yesilhat has no comparable cards addressed to him. I infer that that is because he and George did not have an intimate sexual relationship.
Mr Yesilhat's case was prone to over simplifying issues of George's sexuality. He argued in final submissions that because George did not have regular live-in girlfriends in the last 10 to 15 years of his life and did not take women that he called "girlfriends" to family events, that that was evidence of his same-sex interests.
Such logic ignores that some people just prefer their own company, independence and privacy and are cautious about long-term intimate relationships of any kind with other people. That George's life could have had similar characteristics to this, rather than only being explicable on some spectrum of sexual orientation was a level of discourse largely ignored in Mr Yesilhat's case, and to a lesser extent in Ms Calokerinos' case. But it is not difficult to discern in the evidence many such characteristics in George, and that they may quite plausibly account for much of his observed conduct, without any deep analysis of his sexuality at all.
In my view once Mr Yesilhat is disbelieved, as he is in these reasons, it is not necessary to go further than this.

[22]

Mr Yesilhat's Close Knowledge of George - Pharmacy and Strathfield Cash?

One strongly contested issue throughout the trial was whether the deceased kept large amounts of cash on the premises at the pharmacy, in the form of bundles of notes worth tens of thousands of dollars. This was relevant not only to Mr Yesilhat's credibility. He advanced the evidence to show that he was familiar with the deceased's secrets. If this evidence were accepted and Mr Yesilhat knew the places the deceased hid valuable things at the pharmacy, such evidence would assist his contention of a domestic relationship at the pharmacy.
But the deceased keeping large sums in cash on the premises, had little support from other witnesses. The inference from the testimony of other credible witnesses, that I accept, Mr Cameron, Mr Torrisi, Mr John Elasi, Ms Vassallo and Mr Loader, is that the deceased only held modest sums in cash at the pharmacy. Mr Middleton's evidence supports a finding that George kept cash in amounts of $7,000 to $10,000 in a tin at the pharmacy. But I do not accept his evidence on this issue.
After George's death Mr Cameron, the relieving pharmacist, showed Ms Calokerinos all the places that George kept his cash. There were three such places that Mr Cameron could recall. None of them contained large amounts of money and nothing like the tens of thousands of dollars that Mr Yesilhat said were kept on the premises. At best, Mr Cameron recalls seeing only coins and a few notes. He does not recall notes being held in bundles being there.
Nor did Mr Torrisi support Mr Yesilhat's case about cash on the pharmacy premises. The most cash Mr Torrisi could ever recall being on the premises on a single occasion was $3,000. Otherwise he recalls that the cash amounts he saw were considerably smaller. His impression was that any cash on the premises was kept there only to provide a cash float overnight to help start trading the next day. Mr Torrisi could only remember spare coins in a specific number of white jars in the dispensary. But according to him, these jars only contained coins, not notes.
Mr John Elasi only saw cash to the extent of the days' takings in the pharmacy. He did not see any jars of cash that George was keeping out the back of the pharmacy. But he conceded he did not go to the back of the pharmacy and conduct a search himself.
Ms Vassallo too never saw large amounts of money at the pharmacy, although she only needed to change small amounts of money with the deceased.
Mr Loader confirmed that the deceased was the informal daily "float" provider to many of the shops in this neighbourhood shopping strip at Leppington. When other shopkeepers needed money for their tills to start the day, the deceased was the one who could dip into his resources and find it for them. But despite that, fellow shopkeeper Mr Loader never saw the deceased with substantial amounts of money; he says, only just enough for a "float".
Cash at the Strathfield property was also an issue. Mr Yesilhat's other theory for Ms Calokerinos' travel to Strathfield at midnight on 13 August and then again at 7am on 13 August is his contention that she was well aware that George kept "large sums of cash" there as well as the pharmacy and she was mindful of securing the property.
Mr Yesilhat contends that the keeping of large sums of cash at the Strathfield property and in the pharmacy helps explain three matters in George's life: (a) how he could acquire an extensive property portfolio with an income of less than $75,000 per year on average; (b) how he could permit Mr Yesilhat to withdraw over $350,000 between 2011 and 2013 for personal and business purposes; and (c) how he did not need to access his three CBA fixed term deposits during 2011 to 2013.
But no audit has been done of the deceased's financial affairs. It is not at all clear that he could only have made ends meet with additional cash. The evidence is not that precise.
Mr Middlebrook is said to support the case that large amounts of cash at the pharmacy. But I mostly reject Mr Middlebrook's evidence and certainly reject this part. Moreover, the estimates of the amount of money there seem entirely unrealistic. Other witnesses saw cash there, Ms Wosik, Mr Torrisi and Ms Dacic. But the amounts of money they witnessed are much smaller than Mr Middlebrook's claims.
Finally, this theory does not make sense at another level. It is not entirely clear how Ms Calokerinos herself became aware of the large amounts of cash at the pharmacy which were apparently kept secret from employees, especially when she and her sister never visited the pharmacy.

[23]

George Supports the Purchase of Australia's Best Tyres - Early 2011 to 1 July 2011

Mr Yesilhat says that in early 2011 he became involved in the negotiations for purchase of the Australia's Best Tyre's business. Settlement of the purchase of Australia's Best Tyres took place on 1 July 2011.
George helped Mr Yesilhat and his brother acquire Australia's Best Tyres. He then supported it financially thereafter. Most of the advances from George to Mr Yesilhat during George's lifetime one way or another went into Australia's Best Tyres. Mr Yesilhat says all the money from George destined for the business was a gift that is explained by George's affection for him as a de facto partner.
Mr Okan and Gokan Yesilhat incorporated a special purpose company, Australia's Best Tyre and Auto Pty Ltd to acquire the business of Australia's Best Tyres from a company controlled by Mr Versace, Versace Australia's Best Tyre and Automotive Services Pty Ltd. Mr Versace instructed a Mr Cerin solicitor of Ashfield to act for him on the sale of the business. The Yesilhat brothers instructed Galluzzo lawyers to act as solicitors for them for the purchasing company. There was discussion between these lawyers as to the precise form that the contract for sale of business would take. But it was ultimately signed in the form of the Law Society's 2004 edition of the Contract for Sale of business. The (slightly incomplete) copy in evidence is signed on behalf of both parties and dated 1 July 2011.
Most of the sale contract's terms are unremarkable. But a few of them gained attention in the dispute between these parties.
The purchase price of the business was $500,000 with a deposit of $130,000 to be paid with the balance of purchase price being $370,000. The contract apportioned the purchase price between goodwill and fixed assets (being equipment), being $350,000 as to the former, and the latter $150,000. But against the boxed entry on the first page of the contract, "trading stock maximum sum" a figure of $80,000 which is typed is crossed out, and in handwriting is written the words "$100,000 discounted to $70,000 (special condition 12)". Special condition 12 need not be set out in full. In it the purchaser agrees it will accept a minimum stock value of $100,000 on completion but that the vendor would grant the purchaser a discount of $30,000 on the value of the stock and on completion the purchaser would make a part payment to the vendor of an amount of $5,000 on account of the stock with the balance payable by the purchaser "on a consignment basis with the vendor being the consignor and the purchaser the consignee". The clause then goes on to deal with how the consignment sales will take place.
Special condition 8 required the business name to be transferred by the vendor to the purchaser. Clause 9 provided that the purchaser would immediately on the day of completion employ the vendor, Mr Versace, as an employee of the business for a minimum term of 2 years and a maximum term of 4 years on a remuneration package of $1,500 net per week, with various details of the employment being set out. Mr Versace commenced this employment.
Finally, special condition 10 specified that a deposit of $130,000 would be paid in cash on completion of the contract. The balance of $370,000, and a security deposit of $65,000 required under the lease of the premises, would be provided by way of loan from the vendor to the purchaser on certain terms and conditions, secured by a security interest under the Personal Property Securities Act 2009 (Cth). The full text of the security arrangement unfortunately is not available in the copy of the document tendered to the Court (Exhibit 13).
Negotiations for the purchase of Australia's Best Tyres had commenced by no later than 23 February 2011. A conditional letter of offer of that date contemplates that the Yesilhat brothers were thinking of purchasing the shares in Mr Versace's company rather than buying the business, which they ultimately did. But even by that early stage the purchase price was agreed at $500,000.
The purchase structure, with a deposit of $130,000 and a vendor finance of the $370,000 balance was agreed by 9 March 2011. An interim deposit of $5,000 had been paid in mid-March and by 15 March, Mr Cerin flagged a desire to change the sale to the sale of the business and not the shares to the Yesilhat interest. The contract exchange and settlement appear to have been set on 1 March to assist Mr Versace with some capital gains tax issues.
The timing of the money transfers from George to Mr Yesilhat shows that on exchange of contracts, monies from George funded the $130,000 deposit. The overall pattern of advances in the contract negotiation period February to June 2011 is consistent with the advances being made in the context of this business acquisition. But the advances commencing at this time have other implications for Mr Yesilhat's case. There is no objective proof of substantial advances to Mr Yesilhat in the first 11 years of his alleged relationship with the deceased. I do not accept his uncorroborated evidence that there were any substantial cash advances during this period. All the substantial cash advances related to the period of the acquisition of the business, are consistent with one friend offering to help out another to acquire a business by making a series of loans, rather than a long term and growing intertwining of financial relations between an intimate couple.
Indeed the total amount that George advanced by cheque up to the 1 July 2011 of $140,000 is very close to the amount of the contract deposit of $130,000.
Ms Culkoff strongly cross-examined Mr Versace in an attempt to impeach his credit. The attack failed. The matters put to him were collateral to the issues in the proceedings. First it was suggested that he had misrepresented to the purchaser that he had paid the $65,000 bond to the landlord and that he in effect had double dipped under the contract. Mr Versace firmly denied this and I accept his denial. He contended the figure had been properly included as part of vendor finance and asked the very pertinent question of cross examining counsel about the incoming business owners, the Yesilhat brothers "were they evicted?"
Next, Mr Versace said that when the contracts were exchanged and he received the copy of the contract that the stock price on the front page had been amended without his authorisation from $100,000 to $70,000, without asking him or amending the special conditions. He denied, and I accepted, that his account of this was a complete fabrication. It was put to him that the contract itself recorded, as is mentioned above, a typed amount of $80,000 followed by hand written reference to condition 12, which does refer to the stock figure in the handwritten amendments, which would tend to indicate that the handwritten alteration was authorised by somebody. On a collateral issue like this, the Court did not have the opportunity of testing exactly what the various solicitors' instructions were and is not a matter on which Mr Versace's credit should be diminished.
Finally, Mr Yesilhat suggested that Mr Versace had fabricated evidence in prior proceedings, referring to certain findings by Vice President Lawler in Bashit v Versace Australia's Best Tyres, Automotive Services and Repairs [2010] FWA 8790 at [23]. But this submission offends the principle that a judgment in other proceedings containing a finding of fact cannot prove the existence of any fact in issue in that proceeding, Evidence Act, s 91.
A more direct attack was made against Mr Versace that he was biased. Mr Yesilhat began making allegations in early 2012 that Mr Versace was becoming an unreliable employee, was calling in sick and in October 2012 stopped going to work of his own volition. Eventually Mr Yesilhat terminated his services, and now contends Mr Versace is resentful.
Mr Versace's answer was convincing. He said he had a work injury which was not repairing. He was criticised for the numbers of workers compensation claims he made against his new employer, Australia's Best Tyres. But every one of his answers to questions about his claims was full, detailed and did not diminish his credit in any way, notwithstanding that he had generally been injury free before the sale to the Yesilhat brothers. I do not accept he made any false workers compensation allegations.
But the precise allegation of bias against him was that he was retaliating against the Yesilhat brothers not just for their termination of his employment but because Mr Yesilhat decided not to pay him the $65,000 bond under the contract on the basis that it had allegedly not been paid and Mr Versace received $5,000 rather than the $65,000 under the contract. To these allegations his answers were instructive and I fully accept them: "I'm a European mechanic. I fix Ferraris, Maseratis, Jaguar, et cetera, et cetera. There's no one in here that's my equal in my field. Let me finish. You're insisting that I'm scamming your client. That's far from the truth. Your client wanted me out of there not to pay the 2,000 a week. In a sense they've succeeded, but I don't forget these things."
When Mr Versace said "I don't forget these things" he was not saying that he was angry and wished to get revenge upon Mr Yesilhat. The tone of his answer clearly meant was that he remembers the events very well. And I accept that he does.
Mr Yesilhat's attacks on Mr Versace were well directed. Mr Versace was a very damaging witness to his case: he is the external witness most closely associated with Mr Yesilhat's purchase of the business and can give insight as to how it was being funded. His evidence, which I accept, contradicts the Mr Yesilhat's case.
Mr Versace took Mr Gokan Yesilhat on as an employee in early 2011 and shortly afterwards, both Mr Gokan and Mr Okan Yesilhat approached him to buy the business, in about April 2011. Mr Versace says that to explain their capacity as young men to purchase the business, Mr Gokan Yesilhat said to him "We don't have the money. But we can get it. A friend of ours called George [Sclavos] will lend us the money". Mr Versace is sure that he never had any contact with George Sclavos in relation to the sale of the business. Given the documentary trail this first conversation with Mr Gokan Yesilhat probably took place as early as February.
Mr Okan Yesilhat also came to work for Mr Versace. Mr Versace recalls, and I accept, that the Yesilhat brothers presented him with a number of cheques to make up the deposit of $130,000. He recalls that one of them bounced and he confronted Mr Okan Yesilhat who explained, "I will be seeing George [Sclavos] again and we will get the money". Mr Versace says, and I accept, that he sought to confirm Mr Okan Yesilhat's financial backing by asking him, "I said are you sure George will loan you the money?" To which Mr Okan Yesilhat said, "He is a great friend and he will definitely loan me the money".
Finally, Mr Versace said, and I accept, that he had a conversation with Mr Gokan Yesilhat about Mr Okan Yesilhat purchasing a new home. Mr Versace asked Mr Gokan Yesilhat where Mr Okan Yesilhat was "getting all this money from?" To which Mr Gokan Yesilhat answered, "George [Sclavos] of course, George is always lending him money".
I accept that Mr Versace ultimately left the business because Mr Okan and Mr Gokan Yesilhat treated him very badly as an employee. But despite that, in my view any disquiet at the Yesilhat brothers' treatment of him did not taint his evidence.
Ms Calokerinos says George loaned Mr Yesilhat money to purchase and the Australia's Best Tyres business. I accept her evidence that George told her the advances were loans. As will be seen below Ms Sclavos-Lahana and her husband support the loan analysis, with their evidence that the Court accepts. But apart from them, a number of credible independent witnesses also say that the advances were a loan, not a gift, specifically Mr Torrisi, Mr Loader and Mr Wall. I accept their evidence on this subject.
Mr Torrisi assessed the deceased as a generous man. He explained that George was generally not vigilant in seeking back any money that he had loaned to others. This evidence is consistent with the accounts of a number of witnesses, such as Ms Wosik. It tends to blunt any inference of gifts in Mr Yesilhat's favour from the lack of any written demands from George for the return of money advanced to Mr Yesilhat. And it explains why George left loans to Mr Yesilhat uncollected for so long until his nieces persuaded him to call them in.
Mr Loader confirmed that George said he had loaned money to the owners of a tyre business but that he (George) was unhappy and "stressed" because "the business owner was not repaying him". This is consistent with George's statements to his nieces to the same effect.
Mr Wall was quite sure, despite challenge in cross-examination, that George said that he had "loaned", and had not given, money to the person who gave certain Porsche tyres to George. That person was Mr Yesilhat.

[24]

Loans or Gifts? - the Deceased's Loan Card System

George did make loans that he recorded in a set of loan cards kept at the pharmacy. These were generally loans of small amounts made to friends and customers. Mr Torrisi insightfully explains, and I accept as accurate, the deceased's poorly-controlled propensity to lend to friends, "George was a generous man. If somebody gave him a good enough sob story, he would literally loan them money. But it was always a loan and he used to write it…[on] these hard cardboard sheets that you put the scripts on".
Several other witnesses confirmed the existence of a book or loan card system: Ms Palmer, Ms Wosik, Mr Cameron, Mr John Elasi and Ms Dacic. They each gave varying, but generally consistent, evidence of a system where the cards were stored in boxes in the pharmacy, which George used to go through from time to time and that he would cross off the monies that had been paid to him. Because Mr Middlebrook's evidence is corroborated by these other witnesses on this issue, I do accept this part of his evidence: that George kept a loan record system. Some of the loans were for quite substantial sums; as much as $40,000 was owed by one individual, a Mr Trevor Clark. Mr Torrisi recalls the deceased complaining about Mr Clark not paying him back and instead paying him in kind, with what the deceased regarded as a worthless motor vehicle.
But even Ms Calokerinos agreed that from what she found in the pharmacy after his death that George recorded some monies owing to him on cards. But her assessment, which I accept, was that the loan cards identifying these loans were generally for smaller amounts of less than $6,000. Ms Sclavos-Lahana also accepted that there was such a loan system. It is not in contest that the larger loan made to Trevor Clark was the subject of a formal loan agreement prepared by a solicitor on behalf of the borrower.
Mr Yesilhat argues that the absence of either a loan card system, or a formal loan agreement between the deceased and Mr Yesilhat, indicates that the advances made here were not a loan.
I do not accept this contention. It overlooks several matters. George already had a complete record of the George-Yesilhat transactions. He did not need to write up loan cards: his CBA electronic banking records and statements were a far better record. The amounts of money being exchanged between the deceased and Mr Yesilhat were far larger than anything recorded in George's loan card system. So, the absence of a reference to the Yesilhat brothers or Australia's Best Tyres in the loan cards does not indicate a departure from any system. Moreover, the evidence about how George kept the system is not sufficiently direct or reliable for it to be inferred that every loan was always recorded in the system anyway.
But the last word on this should go to Mr Torrisi, with his perceptive observations about George's attitudes, He speaks not just about loans recorded in George's loan system, but to his making loans generally. His evidence goes a long way to explaining George's approach to leaving loans outstanding. He says he spoke to George a number of times about whether George would chase up his loan book debtors. He records the following conversation with the deceased that I accept took place: "Mr Torrisi: If [these debtors are OK] well then why are you complaining? George: Because its their duty to pay it back. I am not going to chase them. They have a duty to come back and pay me. Mr Torrisi: George they won't come back and pay you if you don't chase them up. George: Well Silvio, its only money. If I die and they owe me the money maybe God will put that in my credit to cover my sins".
In my view George was prepared to lend money to people and accept that he may die with them still owing him the money. The intuitive and manipulative individual that Mr Yesilhat was, well understood and was close enough to take advantage of this aspect of the deceased's personality. In my view, the absence of loans recorded to Mr Yesilhat, his brother, or to the Australia's Best Tyres business in George's loan card system does not detract from Ms Calokerinos' case that Mr Yesilhat's accounts were loans.

[25]

The Bank Accounts of Mr Yesilhat and the Deceased

A brief digression into Mr Yesilhat's and the deceased's respective bank accounts is required at this point. An understanding of the purpose and operation of these accounts is necessary to follow the financial arrangements that lie behind some of the events in this narrative of findings from this point on. This section first deals with Mr Yesilhat's bank accounts and then those of the deceased. To avoid the risk of identity theft through the publication of these reasons only the last four digits of any bank account are used in these reasons.
Mr Yesilhat's Accounts. Mr Yesilhat holds three personal bank accounts with the CBA. The first of Mr Yesilhat's personal bank accounts, a CBA Streamline E-Access Account, numbered 4085 was opened on 1 August 2007; the second, numbered 3095 was opened on 19 October 2009; and the third, numbered 7409 was opened on 11 February 2010. Mr Yesilhat used the 4085 account for the majority of his daily transactions.
Mr Yesilhat's two later opened CBA accounts, the 3095 and the 7409 accounts were special purpose accounts. The 3095 account, a savings account, provided Mr Yesilhat with a higher rate of interest on deposited funds than his 4085 E-Access Account. The 7409 account is a CBA Variable Rate Personal Loan account. Mr Yesilhat used the funds from this account to finance particular personal expenditure: for example he used a loan on this account to help finance a holiday to Turkey on one occasion.
Mr Yesilhat also operates two CBA accounts connected to Australia's Best Tyres. The first is a Transactions Account numbered 7383, opened 1 July 2011; and the second a Business Online Saver Account, numbered 9928, opened 19 August 2011.
The Deceased's Bank Accounts. The deceased had 14 bank accounts. He had 13 CBA accounts, both in his name and in the name of his business, the Leppington pharmacy. These were by type: (1) personal accounts; (2) a credit card; (3) business overdrafts, (4) fixed deposits, and (5) joint accounts. He also had a single overdraft cheque bank account in his name with Westpac, Account 1160. These were all listed in Exhibit K.
First, the deceased had three personal accounts in his name with the CBA. Account 7244 a Cash Management Account, was a savings account the deceased used to transfer funds in and out of one of the Leppington pharmacy's overdraft accounts (numbered 8183) and described further below with George's business accounts. Account 5559, a Streamline Access Account, was a savings account that received regular periodic funds transfers from the Leppington pharmacy accounts. Account 9317, a Direct Investment Account, was used to receive share dividends from share investments that George held.
Secondly, the deceased had a CBA credit card facility. He used his credit card account, numbered 7485, for day-to-day discretionary purchases, for example to buy cigarettes and petrol.
Thirdly, the deceased also held four CBA business overdraft accounts. Why he had four when one would do is not clear. They were all entitled in the name of the business "George Sclavos - Trading as Leppington Pharmacy". The first, numbered 2401 was a cheque account with a credit limit of $50,000; the second, numbered 2428 was a business line of credit with a credit limit of $75,000; the third, numbered 2775 was a cheque account with a credit limit of $25,000; and the fourth, numbered 8183 was a cheque account with a credit limit of $27,000. The 8183 account was the main overdraft account, the deceased used to pay pharmacy expenses, and which Ms Calokerinos used after his death when she managed the pharmacy business for the estate.
The deceased also held three CBA fixed term deposits. These were numbered respectively 8108, 6990 and 8080. The fixed term deposits 8180 and 6990 were held in his name from 28 May 2013 and 10 August respectively. Fixed deposit 8080 was held by the deceased trading as the Leppington pharmacy from 11 August 2013. He held these deposits up until the date of his death. The creation of these accounts is at least consistent with greater financial conservatism developing in the last four months of his life.
Finally, the deceased held two joint bank accounts with his former partner, Ms Anne Sklavos. Their mutual financial arrangements on these accounts have been described earlier. The first of these joint accounts was a mortgage account numbered 9409, and the second was a Streamline Access Account numbered 8299 which held funds for the mortgage repayments and the rental income received from their co-owned property.

[28]

Linkage of the Deceased's and Mr Yesilhat's Bank Accounts - July/August 2011

Both Mr Yesilhat and the deceased were CBA customers. They both used the CBA's internet banking facility "NetBank", which allows the bank's customers to elect to link their accounts to permit one customer to operate the CBA NetBank accounts of another customer.
On 18 July 2011, the three personal accounts in the name of George Sclavos numbered 7244, 5559 and 9317 were linked to a NetBank facility numbered 9878 in the name of Okan Yesilhat. This request was made at 11:55pm via NetBank ID [ID number not published] in the name of George Sclavos. An email notification acknowledging receipt of this request was sent to the deceased's inbox and appears to have been opened and read five days later at 11:45pm on 22 July 2011.
Mr Yesilhat points to the linkage of these three CBA accounts to the deceased's accounts as important proof of his very close personal relationship with George. He contends that a finding of consensual account linkage not only repels allegations against him of any fraud upon George before George's death but also corroborates his personal relationship with George, because of the unfettered access he had to George's accounts. He says: 1. that the access indicates more than a borrower/lender relationship because the account access George gave Mr Yesilhat far greater than a lender would give to a borrower; 2. that the use of the access was not exclusively for business purposes but shows a pattern of withdrawals and deposits for personal purposes on an "as needed" basis over a two year period; 3. that the administration of the linkage was mixed, with Mr Yesilhat (and sometimes George) transferring funds between George's accounts, and between George's accounts and Mr Yesilhat's accounts, and then Mr Yesilhat would transfer money put into his personal account, into his business accounts.
Mr Gregory Borg, a senior CBA officer gave step-by-step evidence about the operation of the CBA's account linkage systems in July/August 2011. He explained how the deceased's and Mr Yesilhat's NetBank accounts came to be linked that night. I accept his evidence on this subject. The linkage was requested for the deceased's personal accounts 7244, 5559 and 9317 at 11.55pm on 18 July 2011. Upon receiving an electronic linkage request, CBA's NetBank systems were programmed for security reasons to send an automatic electronic message back to a NetBank account holder such as the deceased, to acknowledge and confirm that the CBA had received the linkage requests from him for each of these three accounts through NetBank. The NetBank system shows whether or not the bank's automatic confirmation message had been opened by the recipient. The NetBank system records that the deceased (or someone using his computer) had opened the CBA's automatic confirmation message, at 4.11.35pm on 22 July 2011, some four days after the confirmation message had been sent. In my view that indeed was probably George. It is too improbable to infer that somehow Mr Yesilhat managed to open and perhaps delete this email without George knowing.
Ms Calokerinos' case is that without the deceased's knowledge Mr Yesilhat sent the initial linkage request on 18 July and then Mr Yesilhat, again without the deceased's knowledge opened the automatic confirmation message a few days later on 22 July. Mr Yesilhat denies this. He contends the deceased was fully aware of and approved the linkage request. On this issue Mr Yesilhat's case is the more probable, especially given the number of transactions on the deceased's accounts in Mr Yesilhat's favour the linkage. But I do not accept all of his evidence about what happened between himself and the decease over the linkage.
Mr Yesilhat says he was with the deceased on the evening of 18 July 2011 the night the linkage was initiated. The deceased's diary supports this. The diary does not confirm that Mr Yesilhat was also with the deceased on 22 July. But Mr Yesilhat says he was not present at the exact time on 18 July the deceased created the account linkages. He cannot recall the deceased making the linkage.
After the linkage occurred Mr Yesilhat gained unrestricted access to the deceased's three linked accounts. The linkage allowed Mr Yesilhat to make payments to and from the linked accounts, view the transaction history of the deceased's linked accounts and read the deceased's account balances through Mr Yesilhat's own NetBank facility from 19 July 2011 at 2.28.46pm.
In addition to these account linkages and the confirmation from the CBA, approximately a week later on 1 August 2011 the deceased signed a CBA form, an Authority for Business Accounts, authorising Mr Yesilhat to operate the deceased's CBA accounts numbered 2401 and 2428. These were two of the Leppington pharmacy overdraft accounts. More detail about this form is covered later in these reasons in the discussion in relation to the debt/trust proceedings. Mr Yesilhat says that at this time the deceased also provided Mr Yesilhat with the deceased's account log in and password details, so Mr Yesilhat could access all of the deceased's accounts.
I accept the bare minimum that is to be implied from George and Mr Yesilhat both signing the 1 August 2011 Authority for Business Accounts: namely that George was prepared to allow Mr Yesilhat to operate on accounts 2401 and 2428 in accordance with the terms of this form. But I do not accept anything Mr Yesilhat says about the circumstances in which he says George gave him the form. I do not accept that George gave him the 1 August 2011 form and said "sign this and hand it to the bank if you want. It's just another way for you to pull out money". Nor do I accept Mr Yesilhat's evidence that any similar things were said by the deceased. But this minimal inference the Court is only prepared to draw is consistent with this account being used in a business context although between friends.
I accept that George himself routinely deposited funds into his linked accounts to facilitate Mr Yesilhat's transfers of funds to himself. Analysis of Exhibits 1, 1A, 15 and 15A confirms the linkage was used often. The principal transactions are identified in the next section. In my view, that frequency of use is incompatible with Ms Calokerinos' primary case that the linkage occurred without George's consent. In my view he must have been aware of it unless he did not read his own bank statements, which is quite improbable.
Moreover, the 1 August 2011 authority was signed by both George and Mr Yesilhat. It was designed to be given to the CBA and a copy kept by George. In my view it too is evidence of George's consent to some kind of account linkage arrangements with Mr Yesilhat. I do not accept that Mr Yesilhat tricked George into signing the August 2011 authority on the basis it was some other document. There is no evidence to support such a contention. The Court's general disbelief of Mr Yesilhat's case does not permit such a speculative case to be constructed. But on the other hand I do not accept any of Mr Yesilhat's evidence of handling this document.
Mr Yesilhat said in his affidavit evidence he took the CBA Authority for Business Accounts form and presented it to the CBA to authorise him to use the accounts ending in 2401 and 2428. He also gave evidence that when he went to the CBA to present the form, he was informed by a bank officer "Mr Sclavos has already authorised you to use the account". It was Mr Yesilhat's evidence that the deceased gave him the "authority…which enabled me to access the two accounts listed on that form". But he conceded that they were not linked to his login: "when I needed to access these accounts, I still had to use George's login details that he previously provided to me". It is not in dispute that Mr Yesilhat retained the original of this form.
Mr Borg's affidavit of 30 December 2015 says the only authorities established in respect of the deceased's accounts to allow Mr Yesilhat to operate on the accounts were in relation to accounts ending in the numbers 9317, 5559 and 7244. I infer from this that the CBA did not process the Authority for Business Accounts form signed by the deceased and Mr Yesilhat, because it was not provided to the CBA by either the deceased or Mr Yesilhat. In my view Mr Yesilhat was aware that it had not been processed because he still had the original of the form. In my view it is possible that Mr Yesilhat thought before George's death he may have had authority to use these accounts at least because he had George's log in details even though it was not processed.
I accept Mr Yesilhat's case to a limited extent: to the minimum extent necessary to facilitate account linkage I accept that George gave him his bank passwords and login numbers for the CBA and Westpac. These appear in George's handwriting on a document in Mr Yesilhat's possession. But I do not accept this came with any other verbal permission to use the accounts. Nor do I accept Mr Middlebrook's evidence on the subject of Mr Yesilhat being authorised to use George's accounts.

[30]

The total amount of money drawn from the deceased's accounts either by cheque ($140,000) or by electronic transfer ($246,100) and paid to Mr Yesilhat before the deceased's death is $386,100.
Phone Records and the Financial Interaction Chronology. Telstra telephone records show communications between telephone numbers linked to the deceased and to Mr Yesilhat. These records showed George's outgoing and incoming mobile phone calls (Exhibit 35); George's Leppington pharmacy incoming and outgoing phone calls (Exhibit 36); and the outgoing calls from the Strathfield property (Exhibit 37). The first two of these were subpoenaed by the Calokerinos interests and the last by the Yesilhat interests. The Court placed a two year limit on the amount of material that could be subpoenaed from Telstra, the last two years of George's life, so that the production of evidence used would be manageable. The records from the sources demonstrated contact between the two of about 250 telephone calls and SMS's over that two year period.
None of the content of the SMS messages between George and Mr Yesilhat is available and no reliable inferences in their absence can be drawn about their content.
The import of these records was debated. Mr Yesilhat contended: that, like George's diaries, the telephone communications between the two men did not indicate the entirety of the time that the deceased and Mr Yesilhat spent together; and that they also demonstrated regular contact consistent with an intimate relationship and not a debtor/creditor relationship.
The parties helpfully put together a "Financial and Interaction Chronology" which interleaved telephone calls with financial transactions between George and Mr Yesilhat, which the Court has found useful. This record does show that there are frequently telephone calls and text messages between George and Mr Yesilhat at about the time that monies are transferred between them. But calls and financial transactions are also separate.
But the pattern of phone calls does not show daily contact or contact every second day or for periods of time even contact at least once a week. In my view the overall pattern of telephone communication is more consistent with a friendship between the deceased and Mr Yesilhat and in which the deceased had lent Mr Yesilhat a substantial amount of money to help launch Mr Yesilhat's business and was taking a long-term interest in how the business was going and whether the deceased would ultimately get his money back.
Mr Yesilhat's explanation for the lack of daily contact with the deceased was that "George wasn't a phone person. George was always, you know, if you rang him, you know, you could only talk to him for 10 seconds or 20 seconds over the phone". I can mostly accept this evidence: yet there are examples of George engaging in long phone calls in the materials. But on Mr Yesilhat's case one would still expect more calls than there are.
There is some consistency between the Telstra phone records and George's diaries and their financial transactions. But beyond meeting for financial purposes and for the general friendship that they had, in my view little can be inferred in Mr Yesilhat's favour from the phone records. George and Mr Yesilhat met before and after he went overseas. There is some evidence that in the last two years of the deceased's life that Mr Yesilhat made at least four trips overseas, almost all of which were associated with seeing his wife, Ms Gursoy, who was living in Germany until November 2012. He was overseas in May 2011, October/December 2011, January/February 2012 and August 2012. Mr Yesilhat has not been able to reconcile the defendant's claimed departure and return dates for his trips overseas but in my view the defendant's analysis of this as accurate as can be gleaned and is not really denied by the plaintiff.
The May 2011 trip provides the first useful example. Mr Yesilhat was overseas from 5 May 2011 to 29 May 2011. He is mentioned in the deceased's diaries on 3 May 2011, just before he departs. He may well have visited the deceased at the pharmacy on that day. He was given a cheque by George for $45,000 on 4 May 2011. This immediately precedes the finalisation of his purchase of Australia's Best Tyres business and is a time when it could be expected George would be making regular contact to arrange the advances to him that he was providing. And again Mr Yesilhat returns from overseas on 29 May and George's diary has an entry for the same day possibly indicating that Mr Yesilhat came to visit him that day at the pharmacy. But there are not many telephone calls between the two evidenced in the records at this time, but it can be accepted that they met to do business rather than telephone.
On the second overseas trip commencing on 20 October 2011 to attend his marriage to Ms Gursoy, quite a number of telephone calls made from the deceased's home telephone number to Mr Yesilhat (whose mobile telephone number ends in the digits "3335") on 16 October just before he leaves, but none of the calls is any more than 30 seconds. Upon Mr Yesilhat's return from overseas on 21 December 2011 some telephone contact first appears on 1 January 2012. But even that contact is explicable as leading up to a financial transaction. On 5 January 2012 the sum of $60,000 was transferred into Mr Yesilhat's account from George's 4244 linked account. The telephone contact on that day, for example, is just as much explicable by a financial discussion as by anything personal.
Mr Yesilhat was overseas between 5 January 2012 and 29 February 2012. A few days after his return there are telephone contacts between them on 5 March and for a period thereafter. But again no pattern emerges beyond two friends with a financial relationship speaking to each other on a regular basis.
Finally, Mr Yesilhat went overseas on 1 August 2012, for the birth of his daughter in Germany. Before leaving, the deceased and Mr Yesilhat's mutual telephone contact intensified on 28 and 29 July. This is consistent with two financially engaged friends having some final discussions about what was to happen in relation to their mutual business affairs while one of them was away.
After Mr Yesilhat's return to Australia on 2 November 2012, first telephone contact between him and George appears on 20 and 30 November. This does not show a great intensity of communication. Mr Yesilhat seeks to explain this by observing that there may have been visits to the pharmacy or the tyre business in the interim. Of course, that is possible. But in the absence of the Court accepting any of Mr Yesilhat's uncorroborated testimony the evidence does not provide a basis to infer regular personal contact.
What is to be inferred therefore from the consensual account linkage in July and August 2011 and the use of that linkage thereafter in the absence of the Court accepting Mr Yesilhat's evidence? The timing and context is important to any inferences. Linkage occurs just after the settlement of the Yesilhat brothers' business purchase. George had been frequently giving Mr Yesilhat cheques in anticipation of the purchase. Before then there is no pattern of substantial money transfers between them despite a friendship of some years back to 2007. It can be minimally inferred as probable that in the context of their existing friendship a manipulative Mr Yesilhat persuaded an all-too-generous George not only to advance him money to assist in the purchase and operation of Australia's Best Tyres but to make things easier for a trusting George for Mr Yesilhat to have the benefit of account linkage.
The business context of the advances effected through these account linkages with George's accounts is reinforced by the fact that after July 2011 Mr Yesilhat did undertake some substantial personal (not business) expenditure for which he did not take advantage of the account linkages. For example the largest of these personal expenditures was his acquisition of a second residential property at Spring Farm for $700,000 on 26 October 2012. He had purchased his first residential property with Susan Katri in May 2002. Mr Yesilhat says that George gave him $60,000 to assist him in the acquisition of this property. But I do not accept this oral evidence to this effect. Mr Yesilhat has not demonstrated exactly how any account linkages were used to advance funds from George to fund the acquisition of this property. There was a $60,000 funds transfer in July 2012 but it has not been demonstrated it was used for this purpose and there are no other substantial funds transfers to Mr Yesilhat before the end of 2012.
That is not to say that some of the advances for George did not find their way into his personal expenditure but a trusting George did not have complete or easy visibility of the ultimate destination of all his monies.
In the absence of the Court believing Mr Yesilhat's account, this business context of the advances without a domestic overlay is not readily compatible with the advances being gifts. In my view the contest suggests they were loans. The substantial repayments that occurred from time to time, identified elsewhere in these reasons are more consistent with that construction. As will be seen this business context and the conclusion that the advances were loans is further reinforced principally by two other matters, to which these reasons now turn: (1) admissions Mr Yesilhat made to third parties that the advances were loans from George; and (2) the pattern of Mr Yesilhat's regular repayments of $2,500 in 2013 discussed later in these reasons.

[31]

George and his Nieces Discuss his Advances to the Yesilhat Brothers - April 2011

The Sclavos family always gathered together to celebrate Orthodox Easter. In accordance with tradition, they did so as usual in April 2011. In the course of the festivities that year George revealed for the first time to Ms Sclavos-Lahana and Ms Calokerinos that he had advanced about $100,000 to the Yesilhat brothers to assist their purchase of a tyre business. This revelation troubled them both.
I accept Ms Calokerinos' account of this Easter 2011 conversation with her uncle. "George: I've lent money in a new business venture. It might be big. Ms Calokerinos: What business venture? George: A tyre business. Australia's Best Tyres & Auto, it's on Canterbury Road around Lakemba. Ms Calokerinos: How well do you know the people? They're not going to take advantage of you are they? George: It's a business loan. Its 2 Turkish brothers Okan and Gokan who live around Casula. They need to start off they're having some trouble with the bank. Ms Calokerinos: Do you have anything in writing? You're not a bank. George: Not at this stage."
Ms Calokerinos was uncomfortable about George's involvement in this transaction. She resolved to ask the deceased periodically about the current status of this loan. She was mindful of the deceased's natural generosity. Not long after she had another conversation with him: "George: I've loaned another $50,000.00. Ms Calokerinos: What? Why? George: They need money for stock. Ms Calokerinos: Have they repaid anything yet? George: They will. I'll keep an eye on it."
The deceased's April 2011 revelation led to a series of conversations with his nieces about the money he had lent to Australia's Best Tyres. Conversations between Ms Sclavos-Lahana and George about monies owed to him by Australia's Best Tyres arose in their family setting. I accept the account of Ms Calokerinos that during a conversation with her uncle George, in late 2012 or early 2013, he mentioned to her a lack of funds as a reason for him not being able to go on holidays to Greece. She recalls that he said to her "Nah, it's too hard to go on any holidays, I can't leave the pharmacy, I'm running at a loss and I can't afford to use a locum. Also I am owed so much money from those guys (Australia's Best Tyres), they haven't repaid the money I've lent them".

[32]

Anna Sclavos-Lahana and her Husband Visit Australia's Best Tyres - 27 April 2013

This added to Ms Sclavos-Lahana's concerns. She and her sister had his best interests at heart. In April 2013 Ms Sclavos-Lahana and her husband, Mr Mark Lahana, decided on the spur of the moment to make an informal visit to Australia's Best Tyres. They attended its trading premises on 27 April and met Mr Yesilhat.
The parties strongly contest what happened during this visit on that day. What follows is a combination of Ms Sclavos-Lahana's account and her husband's account of this occasion, accounts which the Court accepts in preference to Mr Yesilhat's version of events. Mr Mark Lahana answered questions directly and gave precise and clear evidence, without exaggeration about these events. The Court could rely upon his evidence. He gave much of his account spontaneously under cross-examination.
Paximadakia are flavoursome sweet biscuits made in Orthodox Greek tradition during Lent. A Greek bakery in Belmore was the reason Mr Mark Lahana and Ms Sclavos-Lahana came to Australia's Best Tyres on 27 April 2013. That bakery sells Paximadakia. Mark and Anna Sclavos-Lahana were travelling in their car together on 27 April 2013 to buy the bakery's famous Paximadakia.
Mr Lahana gives a compelling account of how this domestic trip to a bakery diverted into a "look see" at Australia's Best Tyres. On the way to the bakery Ms Sclavos-Lahana turned to her husband and said "Aren't we close to the tyre place that uncle George has lent his money to?" Mr Lahana responded to his wife, "Yes it's around here, somewhere around here". The couple then started discussing the money that George had lent to Australia's Best Tyres. The subject clearly disquieted Ms Sclavos-Lahana. She pressed the subject with her husband. As her husband said: "[she] was getting a little bit worked up about it" and she said "I want to go past, let's go past". He acceded to his wife's suggestion.
They knew exactly where the bakery was, but not where Australia's Best Tyres was located. They decided to call George on their car phone. They said to him of Australia's Best Tyres, "Look we're close by in the area; we're going to pop into this place and have a look at the business". But they told the deceased that they couldn't quite remember where it was. They asked George for the address and for Mr Yesilhat's name. George gave "Okan" as the owner's name. But George could not remember the exact address. So he simply said to them, "Look, you can't miss it; it's on Canterbury Road, a big tyre place". George invited the couple to "give me a call when you finish", inviting them to give him their opinion of the business after their visit. They soon found it, pulled into the car park, woke up their children and walked in.
Ms Sclavos-Lahana introduced herself to Mr Yesilhat as "George's niece". To this Mr Yesilhat responded "are you the solicitor?" (apparently mistaking her for her sister, who is a barrister). Ms Sclavos-Lahana replied, "No, that's my sister". She continued, revealing her actual intention, "I thought we would come and see where uncle George's money is going. He keeps bragging that this place is going to become 'big'. Uncle George told us that he has lent you a lot of money to help you start in business". I accept Ms Sclavos-Lahana's account that Mr Yesilhat did not deny or contest her statement to him "that he has lent you a lot of money" [emphasis added].
There was no reason for Mr Yesilhat not to dispute on this occasion that the deceased had loaned, rather than given, Australia's Best Tyres the money to "start in business". But he did not dispute it; in my view because he knew the assertion was true. Mr Yesilhat's failure to contest Ms Sclavos-Lahana's assertion to him that the deceased had loaned him money for the business is an important ingredient in the Court's conclusion that these advances were loans, not gifts.
Mr Yesilhat had a darker explanation for this visit. His case is that they only visited Australia's Best Tyres because George had told Ms Sclavos-Lahana that George had helped Mr Yesilhat to buy the business and had taken care of Mr Yesilhat in his will. Mr Yesilhat's case was that George did not want the family to interfere with what he had done for Mr Yesilhat but they were determined to do so and were fishing around to find out whether George had provided for Mr Yesilhat in his will.
Mr Yesilhat's version of the meeting has Ms Sclavos-Lahana recounting to Mr Yesilhat that George had spoken highly of him and had actually asked her to meet Mr Yesilhat. And Mr Yesilhat says that she said to him "I haven't seen George show this much interest in anybody. He must really like you. This is a very big place. George keeps bragging that this place is going to become big. You have done well". He also has her saying "I don't know why George has pushed us to come and see you?" And later he recounts Mr Lahana saying "yes my employer runs a fleet of cars, maybe I can get them to bring them here?"
Mr Yesilhat says that he replied "Yes it's very big. A lot of hard work goes in keeping a place running. George has helped me an enormous amount in establishing the business. He has been like a father to me."
Much of this was fantasy. But it did have within it elements of what was actually said. Beyond what Ms Sclavos-Lahana and her husband concede, in my view Mr Yesilhat's version is his convenient and complete false invention, designed to make use of Ms Sclavos-Lahana's and her husband's visit to Australia's Best Tyres to assist his case.
Mr Lahana's limited acceptance of Mr Yesilhat's version is persuasive. He agrees that both Mr Yesilhat and his wife referred to the place being "big" and that Mr Yesilhat may have referred to George being "like a father to me" and that he, Mr Lahana, may have mentioned bringing "a fleet of cars" to be serviced there. But he denies the rest of the conversation and I accept his denial.
Like his wife, Mr Lahana convincingly repelled Mr Yesilhat's account of this meeting. I accept his denial that his wife told Mr Yesilhat that "George had spoken highly of him" or that she said to Mr Yesilhat that George had "asked her to meet him [Mr Yesilhat]". He denied that his wife said to Mr Yesilhat anything to the effect of "I haven't seen George show this much interest in anybody" or anything like the balance of Mr Yesilhat's account of this occasion.
The visit was truly spontaneous. The Court accepts Mr Lahana's evidence that George had "no idea we were going" to look at the business until probably "five minutes before we actually stepped into that door". Mr Lahana said, and I accept, that he and his wife did not visit the premises to threaten or intimidate Mr Yesilhat, to find out whether Mr Yesilhat was benefiting under George's will, or to express concern that the loan was not documented. That was not in their nature anyway. Moreover, Mr Yesilhat's version is unconvincing. Mr Lahana was heavily challenged in cross-examination that his account of this 27 April 2013 conversation was more complete than anything in the very consistent police statement (Exhibit R) that he made about various matters, including this event. I do not accept that Mr Lahana collaborated with Ms Calokerinos to leave material out of his affidavit in these proceedings. I accept that the police statement was not concerned with exactly what was important in this case. And I accept his answers in cross-examination that there was no reason to use the word "loan" to describe George's advances in a subsequent conversation with George after this visit.
Why did they visit? Mr Lahana's and his wife's visit that day was an exercise in signalling. Their visit was designed to make Mr Yesilhat aware, as Mr Lahana frankly said, "that uncle George was not a lone bachelor who could be taken advantage of". This did not require threats. Their mere presence and claim of association with George would, he thought, be enough to send the desired signal to Mr Yesilhat. So far as they were aware at this stage, George had merely imprudently lent money to Mr Yesilhat. They were as yet quite unaware of the depth of Mr Yesilhat's penetration into George's bank accounts.

[33]

George and his Nieces Discuss Loans Further - April 2011 to July 2013

After April 2011 Ms Calokerinos discovered that the deceased had lent the Yesilhat brothers in excess of $100,000. Ms Sclavos-Lehana began to press her uncle to be more commercially realistic about recovering this loan. She offered to him from time-to-time "Do you want help in enforcing the loan? They need to pay you back?" I accept Ms Calokerinos' account that the deceased responded to such urging in ways that showed his disappointment with the Yesilhat brothers. George said to Ms Calokerinos, "They haven't done what they agreed to do. They have used money to pay off personal debts". But George was ever an optimist. He still said to Ms Calokerinos, about the Yesilhat brothers, "They'll pay it back".
A few months prior to George's death in August 2013 the loan issue came up again between George and Ms Calokerinos. An important conversation took place, which explains the commencement of recurrent payments of $2,500 from Mr Yesilhat to George in the months before his death. The parties are in strong contest about the reason for these regular transactions.
Ms Calokerinos said, and I accept, that she and George then conversed in the following way about the loan to the Yesilhat brothers: "George: They used some of the money to pay some of their debts. Ms: Calokerinos: Have they repaid you at all? You're not Santa Claus. George: They've made some repayments. Ms Calokerinos: How many? Have they repaid much? George: They've started paying."
This conversation infers that Mr Yesilhat had begun to repay George's loans in some way. In my view indeed they had. An agreement between George and Mr Yesilhat on a repayment program is the best explanation for the payments from Mr Yesilhat into George's accounts that commenced about the time of this conversation. Nor could Mr Yesilhat provide any other persuasive reason for these payments commencing.
Features of this conversation illuminate George's relationship with Mr Yesilhat. George never takes the position in the conversation that these advances are gifts. He does not reveal to his nieces any kind of special relationship with Mr Yesilhat. And he treats the Yesilhat brothers equally in his references to them. Moreover, he accepts his nieces' judgment that he needs to be more commercial in his dealings with the Yesilhat brothers.

[34]

Mr Yesilhat's Loan Repayments up until George's Death on 13 August 2013

Mr Yesilhat began to repay the advances made to him in regular near-weekly amounts. George decided to start regular collections from Mr Yesilhat. This in my view is not compatible with the original advances being gifts not loans. I conclude this not only because of the close relationship in time between the two events but because Mr Yesilhat could advance no other credible explanation for this change in the pattern of his transactions with George.
This explanation for the regular deposits from Mr Yesilhat back into George's bank accounts has wider implications. It not only shows George treating his transactions with Mr Yesilhat commercially, but it shows him acting on the opinions of Ms Sclavos-Lahana and Ms Calokerinos, in deciding to call in the loans for Australia's Best Tyres. I infer (as they were loans) that until then Mr Yesilhat had been content to leave them unpaid. These regular deposits before his death show George accepting his nieces' advice to call in the advances, over Mr Yesilhat's contrary preference.
Mr Yesilhat repaid $82,000 during the period 17 October 2011 to 24 July 2013, whilst the deceased was still alive. Repayments significantly ceased upon his death. This tends to show at least that Mr Yesilhat preferred not to make the payments unless George was there to ask for them.
I do not accept Mr Yesilhat's explanation that as between him and George these substantial repayments are best explained as George allowing him to use to George's accounts more or less as his own on a come and go basis. This is another part of Mr Yesilhat's testimony which the Court is not prepared to accept, because of Mr Yesilhat's poor credibility but also because the pattern of only eight repayments between October 2011 and April 2013 is not frequent enough to support such an inference.
These various repayments payments are tabled below: Date Source Account Recipient Account Amount 17 October 2011 4085 7244 $500 31 May 2012 4085 2428 $8,000 31 May 2012 4085 2428 $12,000 1 June 2012 4085 2428 $4,000 12 June 2012 4085 2401 $10,000 2 July 2012 4085 2401 $10,000 2 July 2012 4085 2428 $10,000 10 January 2013 7383 7244 $5,000 3 April 2013 7383 2428 $2,500 10 April 2013 7383 2428 $2,500 17 April 2013 7383 2428 $2,500 24 April 2013 7383 2428 $2,500 1 May 2013 7383 2428 $2,500 15 May 2013 7383 2428 $2,500 22 May 2013 7383 2428 $2,500 12 June 2013 7383 2428 $2,500 24 July 2013 7383 2428 $2,500 TOTAL $82,000

[36]

Were the Yesilhat Brothers at the Pharmacy Mid-Afternoon on 13 August 2013?

Ms Palmer, an employee of the deceased for over 20 years, said that she saw the Yesilhat brothers outside the Pharmacy on the afternoon of 13 August 2013, when the deceased was being attended by the ambulance paramedics. She says that she saw them again in the evening of the same day, when she says they returned and Ms Calokerinos spoke to them. Mr Yesilhat and his brother, Gokan both deny that they were there mid-afternoon. But they agree they were there in the evening.
The issue is important for at least two reasons. First, it potentially throws light on Mr Yesilhat's relationship with the deceased. If Mr Yesilhat was as close to the deceased as he says he was, and if he were there mid-afternoon, he could be expected to have gone straight into the pharmacy to be with the deceased or at the very least to make himself known to those physically around the deceased at the time.
Secondly, whether Mr Yesilhat was present mid-afternoon at the pharmacy is also relevant to the recovery of money from Mr Yesilhat in the debt/trust proceedings. Mr Yesilhat transferred approximately $170,500 from the deceased's accounts into his own bank accounts via transactions (between 5.43pm and 5.58pm). Mr Yesilhat swears: that he was unaware at the time of these bank transfers that the deceased was dead; and, that he believed he was transferring these funds with the deceased's authority. Ms Calokerinos says that Mr Yesilhat knew the deceased was dead because he had been at the pharmacy mid-afternoon, there possibly being other ways Mr Yesilhat knew of the deceased's death prior to 5.43pm.
Ms Palmer was an excellent witness. She had worked with the deceased for 20 years and knew him well. She was a close observer of his habits and a keen observer of events around her. She very strongly adhered to her evidence that Mr Yesilhat was one of two men standing outside the pharmacy in the mid-afternoon period after the discovery of the deceased's body.
Apart from Ms Palmer's high credibility, her account contains features that are inherently likely to be true. Ms Palmer gave the following evidence about the two men that she saw outside the pharmacy in the mid-afternoon of 13 August: "I saw them earlier in the day, when everything was going on and then later on in the evening, I was in the shop, Cleopatra come to the shop and I saw her approached by two men out the front, talking and when she come in, I asked who they were and she told me who they were and I said, 'They were here earlier in the day at the door and I wondered myself who are they. I haven't seen them before. Why are they hanging around the front of the shop?' But with all the commotion that was going on, I didn't take any notice of it."
When the issue came up, Ms Calokerinos answered Ms Palmer's inquiry in the evening of 13 August 2013 about the two young men, "they're two men that are involved with George with a tyre business".
Ms Palmer correctly identified Mr Yesilhat in the back of the courtroom as one of the two men that she saw twice that day. The identification did not reach the rigorous standards expected in criminal justice and does not assist in deciding whether the Yesilhat brothers were present at the pharmacy mid-afternoon as well as in the evening. But it displays no errors in Ms Palmer's identification.
Ms Palmer was in a good position to observe both men on the first occasion. She said, and I accept, that they were only about three to four metres away from her. She said she may have been mistaken as to the exact time she saw them there. She thought the two occasions were about three-four hours apart. But she says that she was not mistaken about the brothers being there on a separate first occasion. She recalls that at the time "Everybody was running in and out, there was people coming, customers coming, people hearing that George had died, there was just - it was crazy". She was not sure whether the ambulance was still there but she recalls that at the time it was still daylight.
She was certain that she did not see two separate groups of "gentlemen" on these two occasions". She gave a reason for her certainty. When asked "What makes you so certain, given that George had just died?", she said "I saw them together and then there again a couple of hours later and I didn't know who they were then, so I was curious when I saw them the second time. I wanted to know who it was". Her recollection has this additional interesting feature, which in my view is a marker of her veracity, that recognising the same two men the second time as having been there before, she wanted to know who they were, and she asked Ms Calokerinos.
Ms Palmer could not give an age estimate for the two men but called them "young men". But she was certain that she was not mistaken in the confusion of the moment, as she firmly said in answer to the questions put to her: "Q. I understand that and what I'm suggesting to you, is with everything that was going on that day, with the ambulance George having died, the shock of all of that, that you may be mistaken about you saw two men at lunch time or middle of the afternoon, two men in the evening. What I'm suggesting is you may be mistaken that they were the two same people-- A. No. Q --but they could have been different people? A. No."
Ms Calokerinos deposed in her affidavit of 19 November 2013 that she received a telephone call from the police at about 5:45pm to inform her that the deceased had died. She attended the pharmacy. She explained her meeting with the Yesilhat brothers early that evening. I accept that she did speak to them. As a result, she was in a position to tell Ms Palmer who the two men were when Ms Palmer asked her. She said: "Sometime that evening between 7.30pm and 8.30pm on 13 August 2013 whilst standing near the shop counter located near the rear of the pharmacy I was asked by a staff member to go to the front door of the shop as there were 2 men asking to speak to me. I approached the door and noticed 2 thin men on [sic] Mediterranean appearance, one wearing a polo top bearing a business logo. One of the men at the front door introduced himself as Okan, the other as Gokan. Okan did most of the talking for the 2 men at the front door. During the conversation my husband approached me and stood next to me."
Probably because of the order in which witnesses were called, Ms Calokerinos was not asked whether or not she told Ms Palmer who the two men were. Nothing that she said on this issue is inconsistent with Ms Palmer's evidence.
I accept Ms Calokerinos' evidence as to the time that she met the Yesilhat brothers. I also accept Ms Palmer's evidence that she saw them about three to four hours earlier. That would put Ms Palmer's earlier sighting at between 3.30pm and 4.30pm.
Mr Yesilhat submitted that Ms Palmer's evidence that the Yesilhat brothers were present at the pharmacy in the afternoon should be rejected for several reasons. First, Ms Palmer was unable to describe the men or what they were wearing. Secondly, her evidence was not corroborated. Thirdly, her evidence in her affidavit of 7 December 2015, in which she states that she saw the men "in the car parking area" in the afternoon, was said to be inconsistent with her evidence in cross-examination in which she stated that the two young men were "standing near the doorway". It was further submitted that Ms Palmer may have mistaken Mr Loader and a Mr Zuvela for the Yesilhat brothers, because Mr Loader's evidence was that he and Mr Zuvela were standing at the front of the shop.
But there is no requirement for Ms Palmer's evidence to be corroborated. As she says that the Yesilhat brothers did not enter the pharmacy, it is perhaps not surprising that they were not seen by others. Nor is her failure to describe their clothes or other features a requirement of a sound recollection.
The alleged inconsistency in Ms Palmer's evidence about the two men being "near the doorway" or "in the car parking area" is more apparent than real. The pharmacy has a glass front and is part of a strip of shops that are on a drive up from the main road. There are car parking spaces directly outside the front of these shops. So a reference to being at the doorway at front of the shop and a reference to the car parking area can refer to much the same area.
It is unlikely Ms Palmer may have mistaken Mr Loader and Mr Zuvela for the Yesilhat brothers. Mr Loader's evidence was that he and Mr Zuvela were standing at the front of the shop. Mr Loader does not look like either Yesilhat brother.
Mr Yesilhat says he first learned of the deceased's death about 6.41pm when he rang the pharmacy. This was a full two hours after Ms Palmer says she saw him and Gokan outside the pharmacy together. He says, and the electronic evidence supports him, that he sent SMS messages to, and called, the mobile telephone of the deceased at 5.44pm and 6.01pm and called again later at 6.41pm and got through to police. He contends that these communications are consistent with his case that he was unaware the deceased was dead until about 6.41pm. In the mix it should be noted at this point that Mr Yesilhat made a further telephone call to the deceased's mobile on 15 August 2013 at 11:01am two days after the deceased's death. Ms Calokerinos says that Mr Yesilhat sent these messages as a cover for a financial transaction he had just executed in the few minutes after 5:43pm.
Mr Yesilhat's account is firm that he was unaware of George's death until after 6:25pm on 13 August 2013 (later amended to 6.41pm). In his affidavit of 24 April 2014, he explained exactly how he learned of George's death: "On the day George died at about 6:25pm, I rang George on the mobile to say Hi and inform him that I had transferred money from the account, but he didn't answer. I tried to ring him a few times without success. I rang the Pharmacy and I was advised he had just passed away. I thought it was a bad joke and did not believe what I had been told. I then drove to the Pharmacy, thinking that the message was a joke. When I arrived I saw that the front door was closed and that inside were people including police. I knocked on the door and a female person came to the door. She remained inside and only partially opened the door whilst my brother and I remained outside. I said to the female person "are you George's niece?" to which she replied "yes". I asked what happened and she said "We don't know yet, but he has passed away."
Mr Yesilhat says that when he did find out that George had died "I was in a state of shock and disbelief." He says that it was a police officer who answered the phone at the pharmacy and advised him of George's death.
Mr Yesilhat explains in his affidavit of 19 November 2015 the profound effect that hearing of the deceased's death had upon him and why he asked Gokan to go with him to the pharmacy: "I was in shock for some time as my partner and mentor had died. … I did not know what to do but went to the pharmacy with my brother to see what had happened. I took my brother as I was shaken up and did not know what I would be confronted with and I wanted someone to be there with me. After 13 August 2013 I panicked and felt overwhelmed, confused and scared."
Mr Gokan Yesilhat also denies going to the pharmacy mid-afternoon. In his affidavit of 24 April 2014 he gave the following version of the relevant events of the day, saying that he first went with his older brother to the pharmacy about 7:00pm: "I recall at about 7.00pm on 13 August 2013 I was asked by my brother to accompany him to George's pharmacy as he told me that he had just been informed that George had died. My brother and I arrived at the pharmacy at about 8.45pm the front door was closed. There were several persons inside as well as police. We knocked on the door and a female person, who I now know to be the Plaintiff, came to the door. …"
All the versions agree on one point at least that Mr Yesilhat met and spoke to Ms Calokerinos at the pharmacy in the early evening. Almost everything else is in issue.
Mr Yesilhat contended that Ms Palmer could not possibly be right. He said that objectively verifiable electronic evidence proves he was at Australia's Best Tyres all afternoon. Mr Gokan Yesilhat's affidavit of 12 February 2016 annexes an Optus telephone billing statement that lists telephone calls on 13 August 2013 from Mr Yesilhat's mobile telephone at 10:32am, 11:39am, 12:46pm, 3:02pm (two calls), 4:23pm, 5:22pm and 6:08pm. In the column on the statement entitled "Origin" and indicating the telecommunications cell in the area from which the call originated, each call is described as having been made from either "Roselands" or "ROSELAND". Australia's Best Tyres is located near Roselands.
Mr Yesilhat also stated that the brothers would never leave the business premises together during opening hours. Annexed to Mr Yesilhat's affidavit of 28 January 2016 were print outs of two soft copy invoices that had been electronically issued by the Australia's Best Tyres business on 13 August 2013 at 10:49 am and 4:02 pm respectively. These invoices record "Sam" and "Manager" (both said to be names commonly used for Mr Yesilhat) in the field for the person who received the cash or EFTPOS amounts at these two transaction times. This matches Gokan's invoice receipts between 11.15am and 3.20pm.
I accept that the electronic telephone and EFTPOS records are accurate. But the question is what do they prove against the convincing testimony of Ms Palmer? The EFTPOS records do not necessarily show that Mr Yesilhat was personally responsible for the EFTPOS transactions. It is conceivable that another employee used his name in his absence. I do not accept that Mr Yesilhat would have adhered to a rule never to leave the business during working hours, if he had suddenly discovered that his friend George was seriously ill or had died. George was sufficiently financially important to Mr Yesilhat for an exception to be made to such a general policy.
But unless Mr Gokan Yesilhat left his mobile phone at the Australia's Best Tyres business before going to the pharmacy, the phone records indicate he was probably at the business at 12:46pm and from 4:23pm, and also at 3:02pm when he made two phone calls on his mobile phone.
Factored into this analysis must be the timing of the discovery of the deceased at about 2.30pm. News was certainly out by then. Many people at the Leppington shops were aware. He was pronounced dead at about 4.00pm. But the police and ambulance were there long before. The time that it would take for the Yesilhat brothers to travel between Australia's Best Tyres and the pharmacy is about 45 to 50 minutes, depending on the traffic.
Ms Calokerinos and Ms Sclavos-Lahana were not advised of George's death themselves until about 5.40pm. The parties' agreed Telstra chronology reveals the following communications between Mr Okan Yesilhat's mobile and George's mobile phone. The times and calls are as follows. These are all communications from Mr Yesilhat's mobile phone to George's mobile phone: 1. 17.44.44 - call, 3 seconds 2. 17.44.47 - further call, 3 seconds 3. 17.44.53 - SMS 4. 18.01.31 -call, 3 seconds 5. 18.01.34 - call, 4 seconds 6. 18.01.38 - SMS 7. 18.41.49 - call, 140 seconds
This patterns of calls is equally to be accounted for by Mr Yesilhat having undertaken the transactions of that evening and was seeking to make it appear as though he was trying to get in touch with the deceased. Such a stratagem is well within his capacity for inventiveness.
I accept that if these electronic records are interpreted as showing that Gokan and Okan were at Australia's Best Tyres doing business then Ms Palmer must be wrong. But so compelling was her evidence that I do not think that she was wrong. The only way that the two can be reconciled is if the Yesilhat brothers handed over some of their electronic devices and work authorities to other employees in the business. It provides a hypothesis on which Ms Palmer's evidence could be accepted. In my view it is probable that something like this must have happened.
But this is ultimately a false issue. It is not necessary for Ms Calokerinos' case to show that Mr Yesilhat went to the pharmacy with Gokan mid-afternoon for him to be aware by 5.30pm George had died. In my view Mr Yesilhat was aware of George's death at the time he did the unusual transactions in the 15 minutes before 6pm on the night of 13 August 2013. He may have found out about George's sudden turn for the worse, or death, by some other means. Even if Ms Palmer is wrong, which I do not think she is, the best explanation for the sudden and unusual transactions on the night of 13 August 2013 is that Mr Yesilhat was by then aware that George had died.

[37]

Financial Transactions on the Afternoon of George's Death - 13 August 2013

Mr Yesilhat's financial transactions on George's accounts the day of George's death became the subject of intense controversy. Mr Yesilhat made four withdrawals from the deceased's bank accounts between 5:43pm and 5:58pm, withdrawing a total of $170,500. Three of the transactions were made from the deceased's 7244 account, from which $73,000, $74,000 and $10,000 were withdrawn. The outstanding transaction was made from the deceased's 9317 account, from which $9,200 was withdrawn.
Mr Yesilhat's case is that 13 August 2013 was only "a couple of weeks" after a conversation he had with the deceased at Australia's Best Tyres. In this conversation he and George are said to have discussed the ordering of two containers of tyres from overseas and George authorised Mr Yesilhat to use his authority over George's bank accounts to make more advances from George to fund the tyre containers purchase. Mr Yesilhat says that he decided to go ahead with the transaction on the very day, 13 August, and executed these funds transfers shortly before 6:00pm to fund this transaction. He says the timing on the day of George's death is a mere coincidence.
The alleged tyre purchase transaction itself is suspicious. It was unsupported by legitimate commercial documentation, was not attended by ordinary commercial communications that might be expected upon a transaction of this type and Mr Yesilhat can provide no persuasive reason why he suddenly decided to proceed with a transaction that had been long in the making at 5.45pm on 13 August 2013, rather than any other time.
The 13 August Funds Transfers. In a little over 15 minutes between about 5.43pm and 5.58pm on 13 August 2013, Mr Yesilhat transferred approximately $170,500 from George's CBA accounts into his own accounts, using the account linkages that George had provided to him.
Prior to this sequence of transactions, Mr Yesilhat's main CBA daily operating account, 4085, had a debit balance of $1,851.46DR and his other savings account, 3095, had a credit balance of only $9.37CR.
The transactions involved ten consecutive funds transfers, which are summarised below. The summary shows the commencement time of each of the ten transactions, its duration, the account number (and account holder) from which and into which each funds transfer occurred, and finally the access identity that was used to effect each funds transfer. 1. 5.43.20pm (20 seconds) - transfer from 7244 (George Sclavos account) to 3095 (Okan Yesilhat account) $77,300 - using identity George Sclavos 2. 5.46.56 (56 seconds) - from 2428 (George Sclavos account) to 7244 (George Sclavos account) $11,600 - using identity George Sclavos 3. 5.48.02pm (2 seconds)- 2401 (George Sclavos account) to 7244 (George Sclavos account) $3,900 - using identity George Sclavos 4. 5.49.40pm - 2775 (George Sclavos account) to 7244 (George Sclavos account) $25,800 - using identity George Sclavos 5. 5.50.25pm (25 seconds) -8183 (George Sclavos account) to 7244 (George Sclavos account) $12,700 - using identity George Sclavos 6. 5.52.09pm (9 seconds) - 7485 (George Sclavos Mastercard account) to 7244 (George Sclavos account) $20,000 - using identity George Sclavos 7. 5.53.34pm (34 seconds) - 7244 (George Sclavos account) to 3095 (Okan Yesilhat account) $74,000 - using identity Okan Yesilhat 8. 5.54.16pm (16 seconds) - 9317 (George Sclavos account) to 3095 (Okan Yesilhat account) $9,200 - using identity Okan Yesilhat 9. 5.58.00pm (zero seconds) - 7485 (George Sclavos Mastercard account) to 7244 (George Sclavos account) $10,000 - using identity George Sclavos 10. 5.58.47pm (47 seconds) - 7244 (George Sclavos account) to 3095 (Okan Yesilhat account) $10,000 - using identity Okan Yesilhat
After these transactions Mr Yesilhat's balances on his 3095 and 4085 accounts totalled $155,432.52. His account 3095 had a resulting balance of $77,309.37 CR and his account 4085 had a resulting balance of $78,123.15CR. The withdrawals took all George's credit and debit facilities to their available limits.
Only four of these transactions, (1), (7), (8), and (10), effected funds transfers from George's accounts to Mr Yesilhat's accounts. Every one of these Sclavos-Yesilhat transfers went into Mr Yesilhat's daily 3095 account, the one he uses for everyday expenditure. Three of them came out of George's 7244 account, a cash management account, which was one of the deceased's three personal accounts.
The other six transactions (2), (3), (4), (5), (6) and (9), had the apparent purpose of gathering funds into the deceased's 7244 account (which was linked to Mr Yesilhat's accounts) so that that account would be put in funds for the subsequent transfers through to Mr Yesilhat's accounts.
Purchasing Tyres from the USA? The USA tyre purchase story may be briefly told. In July 2012, almost a year following the purchase of Australia's Best Tyres, Mr Yesilhat claimed that the deceased suggested that he import stock from overseas in order to maximise the profit to be made on foreign tyre sales in the business. Following this conversation, Mr Yesilhat says that as a result he undertook research about the cost of importing tyres from various Asian countries, including Vietnam, and from the USA.
On 3 January 2013 Mr Yesilhat entered into an agreement with a company in Vietnam to purchase a container of tyres for $US 57,990.69. Between 4 and 31 January, a number of monetary transfers were made from the deceased's 7244 account to the Australia's Best Tyres account. On 4 January 2013, amounts of $18,000 and $1000; on 15 January an amount of $4,000; on 13 January, an amount of $35,000. Mr Yesilhat claims that this money was used to assist in the purchase of the shipment of tyres from Vietnam.
The payment for the Vietnamese tyres was made from the Australia's Best Tyres account.
It appears that a number of payments were made from Mr Yesilhat's account to the deceased's account. On 10 January, an amount of $5,000 was paid from Mr Yesilhat's personal account with the message "pay back george ty". This could refer to paying back George for monies loaned for the acquisition of tyres. As earlier indicated this payment was followed later by regular fortnightly repayments of $2,500 from the Australia's Best Tyres account on 3 April, 10 April, 17 April, 24 April, 1 May, 15 May, 22 May, 12 June. On 24 July, the deceased's account received a late repayment of $2,500 from Australia's Best Tyres Account.
Mr Yesilhat claims that the deceased visited him at Australia's Best Tyres in early August 2013 and suggested that he import more stock from overseas. In his affidavit of 24 April 2014, Mr Yesilhat claims that the conversation was as follows: "George: I looked at the reports again, the ones we discussed the other night. You need to get more stock from overseas. Myself: I have already got a price and I'm ready to bring in two containers from the US. It will cost about $250,000 for both. But I am waiting for the dollar to get stronger. I will pull out the funds in a week or two. George: Ok, the funds are there when you want them. You should make good money from these containers. Myself: It's a lot of money. It's not going to leave much money in your account, is it? George: Don't worry, it's there if you need it. I want you to get bigger than Tempe Tyres."
This conversation is too convenient. In my view it is an invention to cover the problem of the size of the unusually large withdrawals Mr Yesilhat made on the day of George's death.
But the conversation is also improbable. The deceased had already started Mr Yesilhat on a regular repayment program. In this context, the deceased was hardly likely to offer more loan money to Mr Yesilhat.
Mr Yesilhat's case is that he had put in motion a purchase of a tyre shipment from the United States of America and had commenced the transfer of funds to facilitate that purchase on the day that George died but that George was well aware of this purchase before he died. Mr Yesilhat submits that once funds had been transferred from George's various accounts in accordance with prior practice the order could be placed from the US shipment and the money immediately transferred. I do not accept the conversation he alleges that he had with George about the tyres. I do not accept George said, "Whatever it is Okan. The money is in the account. You know you can take it out when you need to. There is always about $250K at home as well".
Mr Yesilhat says there was no particular "magic to the $170,500" transferred on 13 August 2013 other than that he "was moving to a total transfer of the $250,000". Mr Yesilhat said he did not transfer the entire $250,000, which he claimed he was authorised to transfer to complete the acquisition of the container of tyres discussed later in these reasons, because the Netbank system prevented him from doing so. He said: "You can't, your Honour, because each, each account had limits. So you, you need to play with the accounts to get it to work to pull that money. So even, even if I wanted 60,000, which I've transferred before, that amount while he was alive as well, I - you know, you had to play with the accounts."
His response to the Court's question whether he transferred as much as possible from the accounts subject to available account limits was: "That's right, but that has got to do with the NetBank's set up system itself".
The figure for the 13 August 2013 transfers was $170,500. But the reasons Mr Yesilhat gave for stopping at that amount before he reached the full $250,000 purchase price for the tyres were: first, "the rest was going to come from him [George] as well if, if he was alive", and second, "because there's some accounts that I couldn't access, that were locked, and they just stayed like they were". I accept this much of Mr Yesilhat's evidence, because it accords with the described operation of CBA's NetBank: that he transferred everything that the CBA's NetBank system permitted him to transfer on 13 August.
Mr Yesilhat explained that the process of purchasing tyres such as this is lengthy process. He says he selects and lists all the tyres he wants and sends the list to the supplier. The supplier then sends a form of invoice which requires immediate payment if the price is to be locked in. Mr Yesilhat says that he needed all the funds to be transferred from George's various accounts into his account to enable the immediate transfer of funds to the US once he received a form of invoice requiring the payment to be locked in.
He refers to prior transactions to Vietnam and the USA where he says he engaged in a course of communications with the US supplier to prepare a list of tyres that would enable him to send an order and for a formal invoice to be issued for that order.
But why $250,000? Mr Yesilhat says that the US supplier's list would have been the order that he would have placed if George had not died on 13 August and that on his own handwriting on Exhibit 27 the words "$115,000 Total" are written and that that is the price for one container, the order being for two containers. Mr Yesilhat says the $115,000 was in US dollars. He says that the US Australian dollar exchange rate at the time for $230,000 was converted to around A$267,000 and the amount he discussed with George was that the two containers would cost "about $250,000 Australian".
Exhibit 27, the document said to be the tyre list compiled for purchase is: a document of the most doubtful provenance. It looks like a mere collection of notes. It does not appear to be dated near or speak to the date 13 August 2013. And, it does not itself explain why there was any urgency for Mr Yesilhat to prepare to undertake this tyre transaction that night.
Funding the Australia's Best Tyres shipment of stock is not consistent with the business' own records. Robert Moylan, an expert accountant reviewed the stock records for Australia's Best Tyres. Based on that documentary analysis he produced a report dated 23 October 2015, which concluded that Australia's Best Tyres "did not purchase imported tyres during the period 1 June 2012 to 28 February 2013" and that there were "no stock records for the period 1 June 2012 to 28 February 2013 evidencing purchases of import of stock from Vietnam, Asian Countries or the USA" and that Australia's Best Tyres did not purchase imported tyres during the period 1 June 2013 to 31 December 2013" and that there were "no stock records for the period 1 June 2013 to 31 December 2013 evidencing purchases of import of stock from Vietnam, Asian Countries or the USA".
In any event, the foreign tyre purchase did not proceed. Mr Yesilhat explained that upon discovering the deceased had passed away he was so emotionally shaken, he was unable to go on with the payment for the stock, so the funds sat in his account. I do not accept that is true. He did subsequently begin to use those funds in ways that were hardly consistent with this explanation.
Two matters assist in conclusion. First, the 13 August financial transactions must be seen in a broader time perspective. Mr Yesilhat removed $170,500 from the deceased's bank accounts through transactions on the day of George's death. He withdrew further monies in the weeks thereafter until mid-September, when shortly after 13 September 2013 Ms Calokerinos finally terminated his capacity to operate the accounts in question. Mr Yesilhat's case accepts, as it must, that he was aware George had died when he removed funds after 13 August 2013.
If Mr Yesilhat was prepared to withdraw funds after 13 August knowing the deceased had died, he does not gain the benefit of any assumption that on 13 August 2013 he would have been reluctant to withdraw monies after he became aware the deceased had died. In my view, Mr Yesilhat would have had no hesitation on 13 August 2013 in withdrawing money from the deceased's bank accounts, even if he had been aware the deceased was already dead. He did just that during the next month or so.
Secondly, as a result of Mr Yesilhat's transactions on 13 August 2013, had the deceased survived, his financial position would have been tight. Even on his own evidence, Mr Yesilhat's intent on the 13 August 2013 was to withdraw from the deceased's accounts the maximum funds that the CBA's account management systems would permit him to withdraw, that day from all the deceased's overdraft and credit card facilities. He must have known that clearing out the accounts would potentially cause financial inconvenience to the deceased.
A person with any respect for the deceased and who believed the deceased was alive at the time of the 13 August 2013 transactions, would have hesitated risking the deceased's near-term financial comfort without first speaking to him. But Mr Yesilhat proceeded without such communication. He says he tried to call the deceased but could not get through. But this was after the event. In my view Mr Yesilhat could give no credible explanation of why he did not wait just a little longer to try and connect with George on the telephone.
Most importantly, there is no objective evidence that Mr Yesilhat was being pressed by anyone to pay for or to prepare to pay for the alleged tyre purchase that very night. There is no contemporaneous email correspondence that would give even an air of plausibility to Mr Yesilhat's need to undertake the largest single transaction ever on George's accounts in one day, and to do it that night. I infer he was well aware there was no point in waiting to speak to George. He knew George was already dead.

[38]

The Yesilhat Brothers Go to the Pharmacy - 13 August 2013

Mr Yesilhat and his brother Gokan did go to the pharmacy about or shortly after 7.30pm on 13 August 2013. They met Ms Calokerinos there. Mr Yesilhat's and his brother's version of what happened that evening conflicts with hers. I wholly accept her version, not theirs.
The timing of the Yesilhat brothers' second arrival at the pharmacy is uncertain. Mr Gokan Yesilhat says his brother told him of George's death about 7.00pm and they arrived at the pharmacy about 8.45pm. It could well have been this late. But if this is right, their arrival is over a full two hours after Mr Okan Yesilhat agrees he found out about George's death. The Yesilhat brothers were not moving with the speed one might have expected of a first visit to the scene of a death for a very close bereavement. The late and slower timing of the second arrival is consistent with their having been at the pharmacy earlier, as Ms Palmer says.
Ms Calokerinos' version says that Okan and Gokan Yesilhat approached her at the front door of the pharmacy between 7.30pm and 8.30pm that evening. Ms Calokerinos recalls Mr Okan Yesilhat asking at least twice during the conversation "Are you the barrister?" and again "You came to the shop with your husband Mark". She responded, and I accept, in words to the effect, "My sister and brother in law went to the shop but I am the lawyer". His alert interest in pinning down her profession shows a curious focus at such a time.
Ms Calokerinos recalls Mr Yesilhat saying to her, and I accept, "We didn't just have a business relationship with George. There was a personal relationship as well. We talked about cars for hours. He was like a father to me and I was like a son". She agrees that Mr Yesilhat asked her "Let us know when the funeral is on".
She quickly appreciated that these two men were associated with Australia's Best Tyres. Ms Sclavos-Lahana had probably told Ms Calokerinos about her and her husband's contact with Mr Yesilhat earlier that year. Ms Calokerinos and Mr Yesilhat exchanged mobile telephone numbers that night. This was not special. She gave her mobile telephone number to quite a number of people that evening to facilitate her continuing conduct of the pharmacy business.
I accept Ms Calokerinos' evidence that the only personal relationship with George that Mr Yesilhat described to her that night was one like "father and son". Mr Yesilhat did not hint at anything more. This is consistent with what Mr Yesilhat had said to Ms Sclavos-Lahana and her husband earlier that same year.
Here is Mr Yesilhat's version. He says that he knocked at the pharmacy door and Ms Calokerinos came out and he introduced himself. According to him, the conversation proceeded thus: "Mr Yesilhat: Are you George's niece? Ms Calokerinos: Yes. Mr Yesilhat: What happened? Ms Calokerinos: We don't know yet but he has passed away."
Shocked and speechless, Mr Yesilhat says he turned to his brother and said, "this can't be true" and then asked "Can I come in?" To this Ms Calokerinos is alleged to have replied, "No". But she apparently agreed, according to him too, to give him her mobile telephone number. He also asserted in cross-examination that he "definitely mentioned" his personal relationship with George to Ms Calokerinos on this occasion, in his evidence "somewhere".
His affidavit evidence does not clearly have him saying anything that night to Ms Calokerinos about a close personal relationship or a de facto relationship. In his further lengthy affidavit dated 20 September 2014, Mr Yesilhat does not claim that he informed Ms Calokerinos at the time of George's death that he was in a close personal relationship with George. I accept that Mr Yesilhat did mention he had a "personal relationship" with George, but not a de facto relationship as he alleges in these proceedings. I accept he referred to a "personal relationship" because Ms Calokerinos agrees he did. But nothing in what he said that night alerted her to the fact that Mr Yesilhat might have been in a same-sex de facto relationship with George.
Mr Yesilhat's version is strange at several levels. Ms Calokerinos was entitled to ask herself at this moment "Well, who are you?" Mr Yesilhat, who had not met her before, was on his version asking her questions about her uncle, without explaining who he was. And it is to be wondered why Mr Yesilhat, who on his own version had already been told by a policeman on the telephone that George had died, would simply ask Ms Calokerinos the bald opening question, "What happened?" Some reference to the information he already had from the police is a far more probable starting point, had the conversation he alleges with Ms Calokerinos actually occurred.
He says he asked her for her mobile number, so that he could ring her and "get in contact with her about the organisation of the funeral". He says that she gave him a handwritten note of her mobile telephone number. This much is uncontentious.
But Mr Yesilhat says that he tried to telephone her twice after that evening and before the funeral. At the first attempt he says she fobbed him off with "I don't know what's going on yet". On a second attempt Mr Yesilhat claims that Ms Calokerinos was rude and on the third attempt even more rude. Ms Calokerinos denies any subsequent pre-funeral contact with him. I accept her denial. She presented to the Court as not only truthful but fundamentally courteous.
Mr Yesilhat seemed dumbfounded at the suggestion that he should have said to Ms Calokerinos in this conversation on 13 August that, as the deceased's de facto, he was the one who should be organising the funeral, and not her. In cross-examination he said that he only introduced himself to Ms Calokerinos by the name "Okan" and said that he was "in a personal relationship with George". He agrees he did not go on to say to Ms Calokerinos that it "is my right to organise, or have a say in, the funeral". When asked to explain why he did not, he simply said, "I couldn't even have a conversation and on the third phone call the phone was hung up in my face". I accept that he made phone calls to Ms Calokerinos about the funeral because she recalls he did. But I accept her evidence that she told him, like many of the locals, that there would be a funeral notice in the Leppington pharmacy window, as there was.
If he truly believed he was the closest person to George, taking part in organising the funeral should naturally have occurred to him, either that night or in the days immediately after. He does not lack intelligence. He says his main aim at the time was "to get in contact, to talk and introduce myself first". But he does not explain, when he received what he thought was the brush off, why he did not press more strongly, a case that he says he believed was righteous. These proceedings show he can press a case.
Mr Yesilhat claims at one point that Ms Calokerinos had accepted in her own evidence that he had told her, "I was in a personal relationship [with George]", and that this implied a domestic relationship between them, to which she did not respond. Ms Calokerinos says no such thing in her evidence. She denies Mr Yesilhat implied or claimed a domestic relationship to her. Mr Yesilhat was misrepresenting her evidence.
The objective probabilities strongly support her denial, which I accept. Had Mr Yesilhat claimed that very night to be in a close personal relationship with the deceased, Ms Calokerinos is likely to have reacted strongly. Her reactions in her evidence, and throughout the trial, indicate she would not have received such startling information with equanimity. Yet in Mr Yesilhat's version of the conversation there is no strong reaction on Ms Calokerinos' part to his declaration of a personal relationship with George.
The following weeks are equally significant on this issue. Had Ms Calokerinos been informed at 8.30pm on the night of the deceased's death, of a close or intimate personal relationship between Mr Yesilhat and George, she is likely to have taken a much more proactive role: to ascertain what George's financial position was; and, to find out whether any financial interdependence existed between them. After all, she and her sister already had an inkling of George making some loans to Mr Yesilhat. But she did not rush to undertake financial investigations into her uncle's affairs. Until Mr Yesilhat first alleged in inter partes correspondence that he was in a same-sex de facto relationship with the deceased, there is a lack of evidence of any discussion of that subject within George's family. It is inconceivable that had Mr Yesilhat declared such a close personal relationship with George to her on that night that it would not have been the subject of intense discussion among George's family members.
Mr Yesilhat's other explanation for not acting further at this time to assert his primacy in organising the funeral was, "I think things like this are teamwork and that's why I wanted her number". Mr Yesilhat has no discernible interest in teamwork with others. I do not accept this explanation.
Mr Yesilhat acted strangely in other ways to news that the man, who had been everything to him for 14 years, had just died. On his own version, on hearing confirmation of the news Mr Yesilhat admitted to being in a "state of shock". But, according to him, he managed not to cry until he got home. He did not make any attempt to see the deceased's body after he died, or even to enquire about that possibility. And as these reasons show below, he was surprisingly financially active for a man distraught by grief.
At the moment of his meeting Ms Calokerinos that night, Mr Yesilhat had detailed financial knowledge about the deceased's financial affairs that he must have appreciated that she did not have. Only hours before speaking to her he had transferred $170,500 out of George's bank accounts into his own and to the limit of his withdrawal capacity. At no stage did Mr Yesilhat attempt to share that information with Ms Calokerinos. He felt no need to account to George's family for this transfer, either that night or during the next few weeks. But it must have been clear to Mr Yesilhat by 8.30pm that evening that George may have died before he made the transfers commencing at 5.43pm that afternoon. When Mr Yesilhat spoke to the policeman during that afternoon, even if it were after 6.00pm, George had already been found, the police and ambulance had been called and arrived and George pronounced dead. And when Mr Yesilhat says he asked "What happened?", Ms Calokerinos could not tell him. But Mr Yesilhat decided to keep the information about the transfers to himself. He explained why he did not disclose it, with a frank but unhelpful "they could have rung me" and then, "I would have been happy to answer it".
This was hardly the reaction of an honest person. Faced with the realisation that he may have just transferred $170,500 by mistake out of the account of a dead man, and therefore the transfer was possibly without authority the honest reaction would be quickly to disclose these transactions to those who may probably be administering George's estate, so they could manage the consequences. But Mr Yesilhat's reaction was different. He decided to wait and see whether he would ever be asked about the $170,500. He resolved to explain as little of the transfer as he could.
Another option for an honest person in Mr Yesilhat's position, who nevertheless did not think clearly on the night of 13 August, was: to put the money back into the deceased's accounts, pending clarification of when the transfers had taken place, in relation to the deceased's death; or at least, to declare a willingness to do that, pending an investigation of whether the transfers were indeed proper. This option was clearly open to him, because he did not apply any of the $170,500 to his declared purpose of acquiring imported tyres for Australia's Best Tyres.

[39]

At Strathfield, Wills, More Transfers & Mr Middlebrook goes - 14 to 20 August 2013

After leaving the pharmacy on the night of George's death Ms Calokerinos and her husband travelled from Leppington to the Strathfield property at about midnight. Having reached the property they did not go inside. They returned the following morning at 7am to change the locks.
Mr Yesilhat contends that there are only two credible explanations for Ms Calokerinos' urgent need to travel to the Strathfield property at midnight on 13 August 2013 and then again at 7am the following day: (1) she needed to secure large amounts of cash George kept at the property, that he had told Mr Yesilhat and Mr Middlebrook were there; and (2) she needed to locate George's will, which three months earlier he had told her would be at the Strathfield property. I accept Ms Calokerinos' evidence she did not go inside the property at her midnight visit. She had been disquieted by the very strange conversation she had with Mr Middlebrook. She did not know a lot of about the deceased's financial and personal affairs. She and her husband undertook the visit as a precautionary measure to check the property and to think through the changing of the locks the next day. The changing of the locks the next day, only seven hours after her visit is itself some indication of the purpose of the visit the night before.
Ms Calokerinos was not sure who had keys to the house. She had tried to call a locksmith on the evening of the deceased's death, but her evidence, which I accept, is that she had been unable to find someone who could change the locks earlier than the following day. Ms Calokerinos says and I accept she had the locks on the house changed because she had by then met Mr Middlebrook, Okan Yesilhat and his brother and did not trust them. She said, "I wanted to take steps to secure my uncle's house, because I did not trust these people". I accept this mistrust was her genuine motive for action this day.
Ms Calokerinos did then go into the house on 14 August. But I accept that she was not looking for a will. She was looking for the deeds of the deceased's Diamond Bay property which were located in his bedroom. She wanted to secure these from theft and she found them in the cabinet in his bedroom.
I accept that she saw the deceased's Bible at the side of his bed but she did not touch it. She conceded that it would not be "out of character" for George to leave his will in the Bible given his "religious streak". But I accept her evidence that she did not pick up the Bible, because all George had said to her was that they would find the will at the house. He did not give any specific indication where it would be within the house or that it would be in the Bible. Therefore it did not occur to her even out of curiosity to say to herself, "I wonder if that's where he left his will?"
Mr Yesilhat's subliminal suggestion in raising this issue is that it was on this occasion Ms Calokerinos went hunting for the will, found it in the Bible, and commenced to execute her alleged scheming for its destruction and replacement.
But I do not accept the basic premise of this argument: that she was even looking for the will on 14 August 2013. Ms Calokerinos found during the later de-cluttering process after the deceased's funeral that the more sentimental, or significant, items in George's personal life were found closer to his bed and that other things such as bills and less sentimental items were in other parts of the house. But none of this was evident to her from her quick house visit on 14 August. I do not doubt her testimony that she did not look for a will that day.
Ms Calokerinos and Mr Efstathiou disagree as to whether she visited the property on 15 August 2013. She says that she did not enter the house on 15 August. He says that that date he was asked to accompany her to the Strathfield property to collect "some documents" from there. She considered it might be possible that she went back on the 15 August. But I accept her evidence that if she did it was only to look for bills, documents to do with George's properties and anything to assist the temporary administration of his personal and business affairs. I accept her evidence that she did not go to Strathfield property at any stage for the purpose of searching for a will but only for de-cluttering. And this is consistent with Mr Efstathiou's evidence that he was never told that they were "specifically looking for a will that George may have left".
Some general will inquiries. After George's sudden death, with Anna Sclavos-Lahana overseas, Ms Calokerinos found herself very busy. Apart from changing the locks to the Strathfield property on the morning of 14 August 2013, she made arrangements for the pharmacy to keep trading and she also made enquiries of five different solicitors who had been associated with the deceased during his life and the Public Trustee, with a view to seeing whether the deceased may possibly have left a will with any of them.
Ms Calokerinos' account of attempting to contact these lawyers and the Public Trustee was itself challenged. In the probate proceedings in the lead up to the grant on 5 December 2013 Ms Calokerinos received two requisitions from the Court seeking information as to what attempts she had made to satisfy the Court that all steps had been taken to locate any will of the deceased. In response she filed an affidavit explaining her attempts to contact these lawyers and the Public Trustee. In the preparation for the hearing Mr Yesilhat issued a notice to produce to her seeking her communications with these law firms. At the directions hearing on 18 November 2015 nothing was produced. She explains, and the Court accepts, the simple reason for the non-production: she did not write to any of these lawyers.
This is not surprising. A range of matters pre-occupied her on 14 and 15 August, before George's funeral. And she explains "a will was subsequently found", so there was no need later to write to these solicitors or the Public Trustee. So she produced no correspondence. She was criticised for not making file notes of her telephone contacts. But this criticism is without substance. I accept that making file notes of such communications was the last thing on her mind within 48 hours of the deceased's death. There is no substance to this attack on Mr Calokerinos' credibility.
But whilst these events were taking place, Mr Yesilhat was transferring more money from George's accounts. Periodically as further funds became available in or were seen to be available in George's accounts in the period after 13 August 2013 through to 13 September 2013 Mr Yesilhat transferred funds from the deceased's accounts. At the time Mr Yesilhat was removing these funds he says he did not know who was managing the pharmacy. He said, "Well, to be honest, I don't think I even thought about it" and he assumed that after the deceased's death, "everything would have just shut down, closed". I do not accept this evidence. He had not clearly been told the pharmacy had been closed, and he was aware it had a handful of employees. It would have been reasonable for him as a businessman to have worked on the basis it may still be operating as it clearly had more value as a going concern. But he did nothing to check with George's nieces, or to assert his present claims against them, before transferring funds out of these accounts between 13 August and 13 September 2013. So I infer he really did not know what impact his continuing transfers would have on the business. He conceded, "I didn't think that far ahead".
The 14 August Funds Transactions. On 14 August 2013, Mr Yesilhat withdrew $62,000.00 in cash directly from his CBA account 4085, which had been put in funds as a result of the transactions the day before. He effected this transfer at the Roselands CBA Branch, which is reasonably close to Australia's Best Tyres. Mr Yesilhat also transferred $80,000 from accounts 3095 to 4085. This kept his daily use account 4085 in funds after the cash withdrawal of the $62,000.
The same day Mr Yesilhat twice applied part of the credit balance of account 4085 by electronic funds transfer from out of that account. First, he transferred $15,000 from account 4085 to his Personal Loan Account 7409 to reduce the then outstanding loan balance on that account from $17,494.50 DR to $2,494.50DR.
Secondly, Mr Yesilhat purchased two return airline tickets for flights between Munich (Germany) and Trabzon (Turkey) at the Flight Centre for his second wife's parents, using his account 4085.
The same day, 14 August 2013, Mr Yesilhat withdrew $10,000.00 in cash from account 4085, but this time from the CBA's Lakemba Branch.
Thus in summary on 14 August Mr Yesilhat used funds transferred from George's accounts to: (i) withdraw cash totalling $72,000 in separate amounts of $62,000 and $10,000 from different CBA branches; and (ii) purchased airline tickets and reduced a personal loan balance.
An honest person acting honestly would have hesitated to deal with the deceased's money in this way; until it was clear he had the authority to transfer it from the deceased's bank account on the 13 August. Mr Yesilhat did not wait.
The timing of these two transfers is inconsistent with another part of Mr Yesilhat's case. He says he was, "in shock" and "speechless" at George's death, and he also says he was "crying" on 13 August at George's loss. These claimed convulsions of grief did not inhibit Mr Yesilhat from cashing out for what were apparently domestic purposes, the next day and the day after, a substantial part of the 13 August funds transfers, without making any attempt to follow through by applying the funds to the purchase of imported tyres that had seemed so urgent just before 6.00pm on 13 August. I infer Mr Yesilhat was not as upset about the deceased's death as he claims and certainly not as much as would be expected of a 14 year de facto partner.
Mr Middlebrook is dismissed. The same day, 14 August 2013, Ms Calokerinos dismissed Mr Allen Middlebrook as the estate's accountant over the telephone. Mr Middlebrook had been the deceased's accountant for 24 years.
Diplomacy is not Mr Middlebrook's forte. He too attended the pharmacy the night of the deceased's death. When he met Ms Calokerinos that night at the pharmacy, he made a jarring comment that profoundly shocked her. Speaking of George's death earlier that afternoon, he said to her, "I have just lost a client. What are you going to do about it?" I accept Ms Calokerinos' evidence that he said this. I accept he was upset about George's death and may not have been at his best that day. But, her revulsion at this comment is understandable. It immediately put her on guard and made her reticent to engage Mr Middlebrook to perform any accounting work for George's estate. Her experience with him was so peculiar that she decided to terminate his services the following day by phone. On the whole, Mr Middlebrook's evidence about the deceased on any subject was unsatisfactory. The Court gave it limited weight and prefers Ms Calokerinos' version of their communications.
Something must now be said about Mr Middlebrook's credibility. The Court approached Mr Middlebrook's evidence with great circumspection. Mr Middlebrook was an unusual witness, both in his presentation to the Court and in his dealings with the deceased and Ms Calokerinos. When tested, Mr Middlebrook had a poor memory. He also presented as strangely emotionally labile. He could respond at times to questions quickly and aggressively, for no apparent reason. His impulsively hostile responses were often not apt to the questions he was being asked. Then just as quickly he would settle into a quieter more co-operative mood. What was behind these changes of mood was unclear but his affect was often disconnected from the content of his evidence. This made him a disquieting witness to assess.
Assessing Mr Middlebrook's reliability is all the more difficult because he is such an unusual professional. His practice as an accountant is so different from the professional norm that calling it "unconventional" understates the evidence. He provided accounting services to the deceased for over 20 years. But during most of that time he never sent the deceased a bill. This was apparently his practice with other clients.
The 15 August Funds Transactions. Mr Yesilhat transferred another $45,000 between his accounts, from 3095 to 4085 on 15 August and he withdrew $10,000 in cash from his CBA account 4085 from the Lakemba CBA Branch.
Another visit to Strathfield on 17 August 2013. George's nieces and their families made a short visit to the Strathfield property for about 40 minutes between about 10.00am and noon on 17 August 2013. They were just checking the property.
It is not in dispute that Ms Sclavos-Lahana and her husband saw Mr Middlebrook that day attempting, without prior arrangement, to enter the deceased's house. Mr Mark Lahana challenged him. Mr Middlebrook said then, and repeated to the Court, that his reason for being at the Strathfield property that day was because he had discussed purchasing George's Mazda MX5 with him before he died, and George had invited him to inspect the car and agree on a price.
I accept Ms Sclavos-Lahana's evidence that when she and the rest of the family went into George's bedroom on 17 and again on 24 August 2013, on neither occasion did she did not pick up his Bible. And I accept her evidence that she did not tell Mr Efstathiou that they were specifically looking for a will. This is because indeed they were not specifically looking for a will. They were just starting tentatively to de-clutter.
Mr Yesilhat submits that the de-cluttering exercise was "the means by which a non-family member, Mr Efstathiou could locate the fabricated will that had been replaced in the Bible". The defects in this theory are discussed elsewhere in these reasons.
Perhaps all that can be said about the events of this day is that they confirm Mr Middlebrook's strange conduct. An accountant would be expected to appreciate after George had died that he had to deal with George's legal personal representative before seeking acquire anything from his estate.
The 20 August Transactions. On 20 August 2013, the day before the deceased's funeral, Mr Yesilhat once again accessed the deceased's CBA Bank Accounts using the deceased's login. He then withdrew the sum of $4,000.00 in two steps. First, he transferred $4,000 from account 7485 (George's Mastercard account), to account 7244 (George's linked personal account).
In the second step at 5.13.02pm - that day using the access identity Okan Yesilhat, Mr Yesilhat transferred $4,000 from account 7244 (George's linked personal account) into his account 3095 (Mr Yesilhat's special purpose savings account).

[40]

The Deceased's Funeral - 21 August 2013

Neither Mr Yesilhat nor his brother Gokan Yesilhat attended the deceased's funeral on 21 August 2013. Ms Calokerinos submits that Mr Yesilhat's non-attendance shows the true quality of his relationship with the deceased and is inconsistent with his claim to be the deceased's de facto partner. Mr Yesilhat sought to repel the inference that he did not attend the funeral because of his lack of affection for the deceased. He says that he failed to attend because he was misled as to its date.
Mr Yesilhat failing, without explanation, to attend George's funeral would be inconsistent with his claim to have been George's de facto partner. Mr Yesilhat needed to explain his absence. So in my view he falsely manufactured conversations with the deceased's friend and employee, Mr Silvio Torrisi, a man who worked two evenings a week for the deceased. A unifying theme of Mr Yesilhat's evidence on this subject is that he transfers responsibility for his absence from George's funeral onto George's nieces.
Mr Yesilhat gave several explanations for his funeral absence. First, he stated that he had harboured mixed feelings about attending the deceased's funeral, as it was not a place where he felt comfortable and preferred to remember the "good days" when the deceased was alive. However his second explanation was that he had been prevented from attending the funeral due to George's nieces, not calling him to inform him of the date and time of the deceased's funeral, and who he says placed an incorrect notice in the pharmacy as to the date and time of the funeral, and as a result he was unable to attend. Thirdly, Mr Yesilhat stated that he tried to telephone Ms Calokerinos and the pharmacy to make inquiries about the funeral, but nobody would speak to him. Ms Calokerinos and her sister have rejected these allegations, as false: testifying first, that the funeral notice posted at the pharmacy was correct and second, that Mr Yesilhat never made any inquiries of them after 13 August about the funeral. I accept their evidence on this subject.
Mr Yesilhat alleges that Mr Torrisi told Mr Yesilhat over the telephone that he (Mr Torrisi) did not attend the funeral himself, because of the incorrect date of the funeral notice. Mr Yesilhat says Mr Torrisi told him, "they buried him [the deceased] yesterday. Hundreds of people missed the funeral because the bloody stupid nieces put the wrong time down. I was so upset Okan. All these years they were nowhere to be seen. George dies and they come from nowhere. I have even missed the funeral myself and I've been working with George for 30 odd years".
Mr Torrisi denies having any such a conversation with Mr Yesilhat and says that he did actually attend the deceased's funeral, although he concedes he was late for the burial. Mr Torrisi identifies his own signature in the condolence book at the funeral. The condolence book shows both Mr Torrisi and his wife as signing. I infer on this basis alone that Mr Torrisi attended the funeral. Confronted with the book Mr Yesilhat said with credibility-destructive defiance, "well that doesn't say to me that he was there".
I wholly accept Mr Torrisi's evidence on this subject. Moreover, Mr Torrisi's attendance at the funeral is confirmed by the independent evidence of other members of the funeral congregation. I find that he and his wife did attend. I accept Mr Torrisi's evidence: that he went to the funeral with his wife, "as a mark of respect for George"; and, that he and his wife put their names in the condolence book for the funeral.
Mr Torrisi was a witness committed to and careful about telling the truth. He was firm about what he did and did not know or see. He was an older man. But age had not diminished his confidence, alertness and interest in all that was happening around him. He gave many details of George's funeral: attending at George's graveside at Rookwood Cemetery, the number of cars present that day and his travels to the various sections of Rookwood Cemetery. His evidence was compelling and, despite firm challenge, showed no sign of error or uncertainty. Mr Torrisi's evidence unfolded in a lively storytelling style with examples of the deceased's conduct vividly embedded within his narrative.
Mr Torrisi strenuously disagreed that in his conversation with Mr Yesilhat that he, Mr Torrisi, had ever used the words "bloody stupid nieces" to refer to Ms Sclavos-Lahana and Ms Calokerinos. I accept that he did not. He did not regard George's nieces in an adverse light and would not have said such a thing about them.
It was suggested to Mr Torrisi that he had collaborated with Ms Calokerinos in forming the content of his affidavit. Ms Calokerinos did make contact with Mr Torrisi to invite him to become a witness in the proceedings. But I accept Mr Torrisi's evidence that in doing so Ms Calokerinos said to him "write the truth as you know it" and that Mr Torrisi did just that. I accept Mr Torrisi's evidence that Ms Calokerinos did not ban him from speaking to Mr Yesilhat.
Mr Yesilhat was closely cross-examined about his version of the conversation with Mr Torrisi. It was put to him that his account was an invention. But he did not depart from it. There is no reason to believe that Mr Torrisi's signature in the condolence book is not genuine. Mr Yesilhat was prepared to cleave to an improbable version of events in the face of clear objective evidence to the contrary. It is improbable that Mr Torrisi would have had the conversation that Mr Yesilhat alleges, if Mr Torrisi had actually attended the funeral, as I find that he did. And it is unlikely that several other credible witnesses would have been mistaken as to whether Mr Torrisi and his wife were at the funeral. The proper conclusion, which I draw from this, is that Mr Yesilhat invented this conversation to help overcome a problem in his case. But the detail of this evidence is important to forming an understanding of Mr Yesilhat's deep capacity for invention.
Mr Torrisi showed genuine puzzlement at Mr Yesilhat's contention that he, Mr Torrisi, shared with Mr Yesilhat the idea that he had missed the deceased's funeral. Mr Torrisi was mystified because, as he explained, and I accept as factually accurate, "I actually was at the funeral". He does recall Mr Yesilhat ringing him about a week or two after George's death. Mr Torrisi said of this exchange: "Again it was about a week or two after the funeral, but I did speak to him, about the day after the funeral when he rang me, and, and he wanted to know what happened and I told him. And that is what I can't understand why he said that I never went to the funeral….He said he missed the funeral, and, and he said he was actually prevented from going to the funeral, and I couldn't understand that either. I thought there is something wrong here. He couldn't have been prevented from going to the funeral because on the front window there was a notice when the funeral was, and the notice was correct, the date was correct, and anybody could see it and a number of people came to the pharmacy to actually ask me, they walked in the shop, they didn't see the notice, walked in and asked me and I said the notice was on the front window and this is the time and place and that was it."
Mr Torrisi's attendance at the deceased's funeral was noted by a number of witnesses, all of whom the Court finds to be reliable. These include Mr Gino Elasi, Mr John Elasi, Mr Cameron, Ms Palmer and Ms Wosik. Indeed, Mr John Elasi recalled seeing Mr Torrisi's car take a wrong turn at the cemetery, which explains why Mr Torrisi was late for the burial. Mr Torrisi was the one who handwrote his and his wife's names in the funeral condolence book. He was not mistaken about his own handwriting.
Mr Torrisi stated that the funeral notice posted in the front window of the pharmacy had been accurate. He said "the date was correct, and anybody could see it". He stated that the only "mix-up" had occurred on the day of the funeral, when several of the funeral goers, Mr Torrisi included, had been unsure of where the deceased was to be interred, became lost and concerned about missing his burial.
Mr Torrisi's affidavit evidence explains this in detail, which the Court accepts. Mr Torrisi's detailed evidence about the occasion, marks his undoubted presence at the funeral and the cemetery: "I have respect for George and for his memory and I have respect for George's family being his sister in law and nieces. I was at the church on the day of George (sic) funeral with my wife as a mark of respect. My wife and I put our names in the funeral book. We went through the whole ceremony. After the church ceremony was over at least 25 or 30 of us were still in the church then somebody came in and said 'do you realise the hearses are gone?' We all went outside and I saw that the hearses were gone. Khaled drove my wife and I home and left my wife there. I picked up my own car at home and drove to the cemetery. I got lost in the cemetery. I went to the beginning of the cemetery where the map was. We found head office and when we got there head office told us "it was over half an hour ago". My car and at least 10 other cars went to the grave site. When we got to the gravesite we saw Boguslawa Wosik, George's bookkeeper waving to us so we got out of the cars and went towards her and we all went to the gravesite and the coffin was still there unburied. We all stayed there for about an hour then the gravedigger told us 'mate we've got to go now. We've got to fill it in'. I was the very last person to leave as the sun was going down."
Mr Yesilhat's explanation of the wrong posting on the pharmacy window does not withstand the scrutiny of common sense. As Mr Evans pointed out to Mr Yesilhat in cross-examination, Mr Yesilhat knew some of the other employees at the pharmacy. Mr Yesilhat did not answer Mr Evans' questions on this subject directly. But a person in Mr Yesilhat's position could readily infer that some of those many pharmacy employees mentioned in the evidence would probably know the correct date and would be going to the funeral. He could reasonably expect they were likely to find out when and where it was to be held and could let him know, if he asked them. Yet he did not take the simple course of trying to find out from any of them. Pressed on this, he speculated at one point that he "might have" rung one of these employees. But I do not accept he did.
Mr Torrisi accepted that Mr Yesilhat spoke with him over the phone twice following the deceased's funeral. On the first occasion, Mr Yesilhat asked Mr Torrisi to sign a document stating that he was unaware of any business dealings between Mr Yesilhat and the deceased. Mr Torrisi signed this document after speaking to Ms Calokerinos.
On the second occasion, Mr Yesilhat spoke to Mr Torrisi about the deceased's funeral. Mr Torrisi said in evidence-in-chief he could not understand how Mr Yesilhat had gained the impression from this conversation that the notice in the pharmacy window had been incorrect and that Mr Torrisi had not attended the funeral. But under cross-examination Mr Torrisi accepted that he may have spoken to Mr Yesilhat of the mix-up on the day of the funeral. And he accepts that it is possible that Mr Yesilhat may have mistaken his concern about missing the burial as missing the funeral. But this indeed is speculation.
The cross-examination of Mr Torrisi failed to displace the only proper conclusion here: that to suit himself Mr Yesilhat simply invented a conversation with Mr Torrisi. It is quite unlikely that Mr Yesilhat misheard Mr Torrisi. Mr Yesilhat's account has Mr Torrisi expressly and falsely blaming the deceased's nieces for putting the wrong notice in the Leppington pharmacy. It is difficult to see how a wrong turn at the funeral could possibly be mistaken for failing to make the funeral at all.
There is no evidence anyone else was misled by an incorrect notice in the pharmacy window, and complained. Moreover, Mr Yesilhat's invention takes a somewhat egocentric view of Ms Calokerinos' motives: it postulates that Ms Calokerinos was prepared to mislead many of the deceased's friends, just so she could ensure Mr Yesilhat could not go to the funeral. She did no such thing. At this time Ms Calokerinos had no idea that Mr Yesilhat would later allege he was the deceased's de facto partner. At that stage Ms Calokerinos only suspected that the deceased had been lending too freely to Mr Yesilhat, hardly a basis to bar him from the funeral.
This whole discreditable episode illustrates Mr Yesilhat's untroubled readiness to invent false evidence to suit his case.

[41]

Mr Efstathiou Discovers the Informal Will - 13 August to 31 August 2013

Findings about the discovery of the deceased's October 2012 informal will are set out in this section. Mr Yesilhat's case is that Ms Calokerinos and her sister fraudulently constructed and printed the informal will on paper upon which George's genuine signature already appeared. They denied this and said they found the informal will in its exact present form near the deceased's bed at the Strathfield property. Further analysis of the fabrication issue and the expert evidence about the informal will are set out later in these reasons in the section, "The Administration Proceedings".
On 31 August 2013, Mr George Efstathiou discovered the informal will in the deceased's Bible next to the deceased's bed in the Strathfield property. The will consisted of two pages, the first of which was folded around a photograph of the deceased's nieces, Ms Sclavos-Lahana and Ms Calokerinos and the second of which was located separately in the Bible. There were also two pieces of pharmacy prescription paper in the Bible.
Mr Yesilhat's wider case was: that a major hunt for a will initiated by George's nieces was underway from the moment of George's death; that they found a will favouring Mr Yesilhat; that Ms Calokerinos and others destroyed this will or caused it to be destroyed; and that they replaced the destroyed will with the October 2012 informal will. But I accept Ms Calokerinos' evidence to the contrary of all of this.
Grieving for George after his death initially preoccupied the family. I find that a concerted effort to go through George's personal effects only began after the funeral on 21 August 2013.
The informal will, as found, was printed on two small sheets of paper (10.4cm wife and 10.9cm in length) and is dated 16 October 2012. The left margin of the printed text is 1cm from the left edge of both sheets of paper. No one disputes that the deceased's genuine signatures appears at the foot of the informal will. The text of the informal will follows (and where George's signature appears on the document it is represented below thus [George's signature]): "16/10/2012 Been felling unwell Must put things in order Do Christ's will in my life Must do Christ's will in all things FINAL WISHES I revoke all previous wills These are my final wishes. For my niece Cleopatra Sclavos-Summers to be executor of my estate I give the whole of my estate to my nieces Anna Sclavos-Lahana and Cleopatra Sclavos-Summers Greek Orthodox burial at Rookwood Cemetery and"
This is the end of the first page. The second page continues the sentence giving directions for the deceased's burial. All the text on the second page lies above George's signature which is 2.3cm from the top of the page. "to be buried with my father Angelo Sclavos [George's signature] George Sclavos [address not published] Newton Road Strathfield NSW 2135 These are my final wishes 16/10/2012"
I accept that the two pages of the informal will were found without a staple joining them together. As they now appear in Exhibit 8 they are stapled together. This appears to have been done by somebody who was handling the original in preparation for or during its journey through the Court system. It is not a significant matter to the issues joined between the parties.
Mr Yesilhat's case that the October 2012 informal will was a fabrication was never compelling. But it has trouble at the first hurdle. It was necessary on Mr Yesilhat's theory to show that the allegedly fabricated informal will was planted by somebody so that the false document could be conveniently discovered and used to Mr Yesilhat's disadvantage.
This led to strong challenges: to the bona fides and the evidence of the man who claimed to have discovered the informal will, Mr Efstathiou, to the evidence of George's nieces about its discovery; and to their contention that they did not find another will favouring Mr Yesilhat with which they replaced the fabricated will.
The first hurdle to Mr Yesilhat's case theory was Mr Efstathiou. He proved an excellent witness about the spontaneous moment of his finding the will on 31 August 2013. He is a witness in whom the Court has complete confidence.
The Efstathiou/Sclavos Version. Mr Efstathiou was a close family friend of Ms Calokerinos and her family. Despite this, his evidence was impartial, sincere, truthful and accurate. He gave a genuine and compelling account of his finding the informal will on 31 August 2013 through an interpreter of the Greek language. He struggled at times to remember some events that others recalled about finding the will. But some gaps in his memory did not indicate a fabricated story. His evidence differed from other witnesses in minor ways that did not matter in my view. But in cross-examination he could add consistent detail to his account.
Mr Efstathiou's close association with the Sclavos family, explains his attendance upon family members frequently in the days after George's death. Mr Yesilhat's case is that his very presence was suspicious. The implication was that Mr Efstathiou was some kind of non-family stooge thrust into a charade organised by George's nieces for him to find the informal will. This entirely misjudges Mr Efstathiou. In reality, he was just there to help the Sclavos family in their time of need. As the detail of this contest shows, Mr Efstathiou thought they needed him.
Here is Mr Efstathiou's account. Describing himself as a "close family friend" in his affidavit of 27 October 2015, Mr Efstathiou said that on 13 August 2013, he received a telephone call from George's sister-in-law, Chrisanthy who informed him that the deceased had died and asked him to support Ms Calokerinos who was pregnant at the time. On the night of 15 August 2013, he accompanied Ms Calokerinos and her husband to the airport to pick up Chrisanthy. The same day he went to the Strathfield property with family members to retrieve some documents. He and others went back again to the Strathfield property to help clean up on 17 August, and again after the funeral on 27 and 31 August.
But Mr Efstathiou had volunteered for more than he expected. Assisting in the clean-up at the deceased's Strathfield property was a major task. Mr Efstathiou had broken his ankle in December 2012. He had "limited mobility" but stated that "I could, I was walking because I had to walk." He said his only limitation was that "I wasn't able to lift heavy things". So he took "rest breaks" during the clean up. He adhered to his evidence of how he found the informal will on 31 August; evidence which used his nickname for Ms Cleopatra Calokerinos, "Patra". Her sister used the same familiar name: "During one rest break at Strathfield on 31 August 2013, I took a chair and sat on the front verandah so I could look through a number of books. I found small pieces of paper in some books and around the house, some of which George wrote street directions, prices and thoughts. Anna's daughters were sitting on a blanket on the verandah with me. Looking in a black Bible I noticed a very old photo of Anna and Patra. I then noticed that the photo had been put between two stapled pieces of paper. I said words to the effect: Me: "Patra, come here. Look what's this? That's a photo of the girls." Chrisanthy: What's that?" Me: "It's a photo of the girls when they were young. I can see something else here. There's a paper as well." Chrisanthy: "What is it?" I started reading words on the paper but I did not understand all of the words used. Me: "I'm not sure. It says something about Angelo, I can see George's signature on it." Chrisanthy, Anna, Patra and William came up to me from inside the house. Mark was somewhere at the back of the house cleaning up. I kept reading words and said words to the effect: "it says Anna's & Patra's name and Christ, don't feel well." Anna and Patra read the papers. Anna and Chrisanthy started to cry. Anna said words to the effect: "That must be his will" Patra said words to the effect:" Let me look. Yes, that's a will."
His cross-examination left this account wholly intact. But he expanded in moving and authentic detail how Ms Sclavos-Lahana wept upon his discovery.
Ms Calokerinos was present too, as Mr Efstathiou says. I also accept her evidence in her affidavit of 27 October 2015 as to the discovery of the will. It complemented Mr Efstathiou's evidence: "On 31 August 2013, I heard Mr Efstathiou calling out from the front verandah where he was sitting on a chair. At this time I was in the front landing of the house sorting through stacks of empty boxes. Anna, mum, William and I approached Mr Efstathiou when he called out. Mark was somewhere at the back of the house cleaning up. Mr Efstathiou stated in Greek words to the effect: George: "Look what's this? There's a picture of the girls in the Bible." (meaning Anna and me) Mum: "What?" George: "It's an old picture of the girls when they were young. There's something else here. There's a paper." Mum: "What is it?" George: "I don't know. It says something about Angelo, it's got a signature on it." Mr Efstathiou kept reading words "it says Anna's & Patra's names, Christ, don't feel well." Anna and I read the document which was small in size. I realised the document stated Uncle George's final wishes and I recognised Uncle George's signature on the 2nd page. I recognised the photo placed with the document as a childhood photo of Anna and I. Anna and my mother started crying. ..."
Ms Sclavos-Lahana gave an equally consistent account of finding the informal will on 31 August. I accept her account of the event in her affidavit of 22 October 2013 in the probate proceedings. She observed that Mr Efstathiou appeared to be experiencing pain due to his ankle injury. She told him to sit down and look through a pile of books, newspapers and magazines. Her account continued: "I came out to see my mother holding onto an old and discoloured photo of Cleopatra and myself. Mr Efstathiou was reading a small square sheet of paper and saying words to the effect: "something about Angelo. It's got a signature" then in Greek he said words to the effect "it's about pappou (i.e. Grandad)". At first I dismissed what he was saying as English is not his native language, and I was saying put it in another box for documentation we need to look through, everyone started to amalgamate. … … Mr Efstathiou continued to say things and I switched off. I then saw Cleopatra come out of the front corridor of the house closer to Mr Efstathiou and I approached Mr Efstahtiou. It only dawned on me when Cleopatra and I both held onto the paper as she was reading it that it was a form of a will. I burst out in tears, and couldn't see the writing."
Ms Sclavos-Lahana sketched the relationship between the Sclavos family and Mr Efstathiou. I accept her account of this relationship. Because Ms Calokerinos and Ms Sclavos-Lahana were without a father for a long time, a number of Greek families were, as she said "there for us". She explained that Mr Efstathiou was one of those who helped look after her family "from the very beginning of our life". Mr Efstathiou was also a friend to the deceased.
Ms Sclavos-Lahana did not tell Mr Efstathiou that they were specifically going to the Strathfield house to look for a will. In her view that was not what they were doing. She explained "we were de-cluttering. We weren't specifically looking for a will either. We knew that, we knew that there was something in the house and as we were cleaning we would find it". I accept Ms Sclavos-Lahana's evidence that the approach to the de-cluttering exercise at the Strathfield house was not to target a will in the search but to see what turned up as the search progressed in an orderly way.
But the sisters did have a sense they might find a will there. Three months earlier the deceased had told Ms Calokerinos that they would find his will "at the [Strathfield] house". But as she explained "He didn't tell me where inside the house it would be. All he said is that we would basically find it at Strathfield, we would find it in the house. That's all he said and that was in my uncle's style to tell you in that manner". She did not question him further about it. The subject then had no priority for her. Ms Calokerinos was cross-examined as to whether she thought to check whether there was anything in the deceased's Bible. It is not at all surprising that she did not pick up his Bible, even out of curiosity thinking "I wonder if that's where he left his will." She had no indication from George as to exactly where a will might be.
And Ms Calokerinos did not confine her enquiries about a will to the house. She said in her affidavit of 22 October 2013 in the probate proceedings that on 14 and 15 August 2013, she had contacted various solicitors and the NSW Public Trustee to ask whether they were in possession of the deceased's will but to no avail. She was still uncertain whether there was a will and where it might be found.
I accept Ms Calokerinos' evidence that the search at the Strathfield property revealed that "all the more sentimental or significant items were kept closer to [George's] bed" and that "we discovered during the de-cluttering process that is what we observed, that, that some of the bills and some of the other, other less sentimental things were in other parts of the house and that was as we, as we progressively went through the house".
Ms Sclavos-Lahana swore in her affidavit on 19 November 2013 in the Probate proceedings that the deceased described the use of solicitors as "too expensive" and "a hassle". I accept this evidence was that the deceased was the kind of person who would take his own course about giving effect to his testamentary intentions and was not one readily to seek professional advice. He kept people at a distance from his interior life. This aspect of the deceased's character ultimately gives the Court greater confidence that the informal will document was indeed the deceased's creation.
Mr Yesilhat's Version. Mr Yesilhat took a more sinister view of this whole de-cluttering exercise. He submitted that it was the means by which a non-family member, Mr Efstathiou, could be set up to locate the fabricated will that had been replaced in the Bible. He explained his reasons for this conviction in his affidavit of 24 April 2014, where he said that: "George told me on several occasions that he had a Will and that he made me a beneficiary of the Will. He did not tell me where the Will was but I verily believe a copy of it, at least, would have been in the pharmacy. I verily believe that someone has destroyed the Will so that I would not receive my entitlement that George had promised me."
Mr Yesilhat also saw Mr Efstathiou's intervention in Sclavos family affairs directly after the deceased's death, including going to the airport with them on 15 August to collect Chrisanthy and Ms Sclavos-Lahana's family, as sinister.
Mr Efstathiou going to the airport is readily explained. Mr and Mrs Efstathiou had Ms Calokerinos and her husband over for dinner within two days after George's death. They were giving Ms Calokerinos and her husband support because Ms Sclavos-Lahana, her husband and the two girls' mother, Chrisanthy were away in Greece at the time of George's death. In the course of the dinner Ms Calokerinos said to her hosts "Mrs Efstathiou I have got to go and get mum and my sister and the rest of them from the airport". I accept that Mr Efstathiou jumped up and said "No you're not going on your own, you stay here" Mrs Efstathiou added "you stay here, you're pregnant, let him go with your husband. Let him go". Ultimately they all went together.
That is the kind of relationship Mr Efstathiou had with the Sclavos family. Mr Efstathiou and his wife have children about the same age as Ms Calokerinos and Ms Sclavos- Lahana. So they integrated well and were partly raised alongside the Efstathiou family. Their contact was very close. Before Ms Calokerinos and Ms Sclavos-Lahana were married almost every Christmas and Easter they spent together and every family Sunday event included Mr and Mrs Efstathiou and their family. Mr Efstathiou's involvement in assisting George's nieces in the second half of August 2013 was a natural gesture given the family history.
Mr Yesilhat also suggested that Mr Efstathiou was not close to the Sclavos family and was therefore an easy vehicle for George's nieces to discover a fabricated and planted will. Mr Yesilhat supported his contention the relationship was not close on several grounds: Mr Efstathiou had not seen the deceased since Greek Easter in 2010; Mr Efstathiou had not visited the deceased in the Strathfield property at any time between the death of the deceased's father in 1992; The deceased did not visit Mr Efstathiou after the deceased's father died; and Mr Efstathiou did not attend the deceased's 50th or 60th birthday parties.
None of this carries any persuasive power. It is Mr and Mrs Efstathiou's relationship with George's nieces rather than George that is the more important for present analysis. George did not entertain at the Strathfield property. The deceased's 50th birthday party at the pharmacy was not a family event.
Mr Yesilhat submitted that there were other "odd" aspects of Mr Efstathiou's involvement: the fact that Mr Efstathiou was asked to assist despite having "mobility problems"; allegedly Mr Efstathiou discovered the informal will in the bedroom, a room that was "reasonably uncluttered"; and Mr Efstathiou was not informed that it was hoped that a will would be discovered.
None of these facts are sinister in context. Mr Efstathiou was there at the Strathfield property because he could not bear not to assist the Sclavos family in their time of need, mobility problems or not. That George's bedroom may have been less cluttered than other parts of the house is probably a suitable place for someone with mobility problems to be searching, so less movement was required on his part. That Mr Efstathiou was not informed that it was hoped the will would be discovered is only evidence that such a hope was not high on the searchers list of priorities.
In the analysis below in the administration proceedings, the Court finds that the informal will is the valid will of the deceased and that neither Ms Calokerinos nor Ms Sclavos-Lahana destroyed any other will of the deceased favouring Mr Yesilhat, in part because that case theory makes little sense. Both these conclusions then become a platform for other important inferences.
Once the informal will is accepted as the final will of the deceased, as it contains provisions for the two nieces and not for Mr Yesilhat, and in the absence of any other will favouring Mr Yesilhat, it becomes another basis for judging Mr Yesilhat's and Ms Calokerinos' evidence in the debt/trust proceedings. I infer from the terms of the informal will: that the deceased wanted to express his testamentary preference among the persons who he assessed were nearest to him at the time of his death; and, that among those persons his only nieces, Ms Sclavos-Lahana and Ms Calokerinos, were preferred over Mr Yesilhat, to whom the deceased decided to give nothing under this will. The informal will and the lack of a will favouring Mr Yesilhat, assist the Court to infer that the deceased loaned rather than gave Mr Yesilhat money to help establish Australia's Best Tyres with his brother. If Mr Yesilhat was not so close to the deceased to receive gifts in his will, it is probably less likely the deceased would have made substantial gifts to him during his life.

[42]

Mr Yesilhat's Dealings After George's Funeral - 23 August to 13 September 2013

The 23 August Transactions. On 23 August 2013, now two days after the deceased's funeral, Mr Yesilhat again accessed the deceased's CBA Bank Accounts using the deceased's login details. This time a transfer of $30,000 was sourced from one of George's Leppington Pharmacy business overdraft accounts, account 8183. The transfer was in two steps.
In the first step, Mr Yesilhat transferred $30,000 from account 8183 (one of George's pharmacy overdraft accounts) into 7244 (George's personal account).
In the second step, at 3.13.16pm (over a period of 16 seconds) Mr Yesilhat transferred $30,000 from George's account 7244 to Mr Yesilhat's account 3095, using the identity Okan Yesilhat.
This transaction shows Mr Yesilhat being prepared to use the pharmacy accounts for funds transfers for the first time. He must have appreciated that the pharmacy was probably still being operated by George's legal personal representative and that only the current operator of the business (operating it with the executrix's consent) would be in a position to authorise the transfer of these amounts. But he made no attempt to contact that operator. This throws light on his general willingness, despite doubt about his own authority to do so, to proceed to take money from the estate without obtaining any consent.
The 9 September Transactions. On 9 September 2013, Mr Yesilhat accessed the deceased's CBA Bank Accounts again using the deceased's login details. Mr Yesilhat's preceding transactions during the period from 13 August up to 9 September had the effect of withdrawing all available cash reserves and drawing to the limit of existing debt facilities.
Mr Yesilhat withdrew an additional $2,000.00 from the deceased's accounts. Once again he executed this in two steps. The first step was to put George's linked account 7244 in funds. He transferred $2,000 from account 2775 (another one of George's Leppington pharmacy overdraft accounts) into the linked account 7244.
In the second step, executed at 4.09.20pm, Mr Yesilhat transferred $2,000 from George's linked account 7244 to 3095 (one of Mr Yesilhat's special purpose savings accounts) using the identity Okan Yesilhat.
The amount withdrawn from the CBA up until this point totalled $206,500. The defendant's pleaded case is that a total of $206,500 was wrongfully withdrawn by Mr Yesilhat from the deceased's bank accounts after his death. The plaintiff himself agrees the amount transferred was $206,500 also. However, in the plaintiff's supplementary written submissions and elsewhere references were made to an amount claimed by the defendant which totals $206,000. In my view, nothing turns upon this $500 discrepancy. This will need to be clarified when the parties bring in short minutes of order to give effect to these reasons.
The 13 September Transactions. The final transfers, before Ms Calokerinos stopped Mr Yesilhat's activity, on George's accounts took place on 13 September. On that day, Mr Yesilhat accessed the deceased's Westpac Bank Account. This was Mr Yesilhat's first and only use of George's Westpac login details after George's death to transfer funds out of the deceased's Westpac facilities. He used the deceased's login details and the deceased's identity to access George's Westpac account 1160 to effect a series of Bpay transactions to satisfy utility liabilities payable by Mr Yesilhat, which had the effect of extending this debt facility to its limit.
These transactions were as follows: Telstra $1,800 AGL $1,500 Telstra Bill payment $702.28 Sydney Water Bill payment $304.60 Sydney Water $860 Sydney Water $1,500 Sydney Water $1,500 But it is not in contest that these sums have since been reversed by Westpac and are therefore not the subject of the estate's current claim. Notwithstanding that, the fact of the making of the payments is still relevant to the issues in the proceedings. Any declarations sought in respect of these monies may be dealt with in short minutes of order to give effect to these reasons.
Mr Yesilhat making financial advances to himself from the deceased's bank accounts between 13 August and 13 September 2013 must be judged against the background of the rest of his case that he expected that a will of the deceased existed, which benefited him. It is difficult to understand why Mr Yesilhat continued to take money out of the deceased's accounts in the month after his death, if he genuinely thought that he benefited substantially under a will of the deceased. The more logical course to be expected from an honest person in his situation would be to cease undertaking further transactions on the accounts, find out the identity of the deceased's executor, contact the executor to ascertain who had authority to operate the accounts, ask the executor whether or not the will benefited him, explain the nature of the gift monies and the reason for the account linkage between Mr Yesilhat and the deceased, and explain their relationship to the executor and seek permission to continue to use the accounts in the way that he had in the past. Mr Yesilhat did none of these things.
Mr Yesilhat realised in mid-November 2013 that he was no longer able to access the deceased's accounts.
Ms Calokerinos argued that the various withdrawals put the Leppington pharmacy in actual financial jeopardy after George's death. Mr Yesilhat countered by contending that it was not necessary to draw on the three fixed term deposits held in George's name during the period, so there was no 'cash crisis' in fact, as Ms Calokerinos had contended.
No detailed financial analysis was done of the Leppington pharmacy's cashflow after George's death, so it is too difficult to determine this issue and I decline to do so. Moreover, the more important question is not so much the actual cashflow position of the pharmacy but whether Mr Yesilhat perceived that his withdrawals may have an adverse effect on the pharmacy's cashflow and financial position. And on that question I conclude he should have.

[43]

The Probate and Debt/Trust Proceedings - 13 September to December 2013

On about 13 September 2013, Ms Calokerinos and her sister first discovered financial irregularities in George's accounts and began a deeper investigation. It is probable that had Ms Calokerinos had the conversations with Mr Yesilhat that he claims on the night of George's death that she would have started investigating his financial affairs much earlier. But it was a full calendar month before her investigations started.
After making discoveries about the deceased's financial affairs in mid-September 2013, Ms Calokerinos moved quickly to obtain the legal authority to administer George's estate. She commenced the probate proceedings in October 2013 claiming a grant of probate of the October 2012 informal will. She was granted probate of the informal will in December 2013. But in the meantime, making use of an interim grant she commenced the debt/trust proceedings on behalf of the estate in November 2013. The detail of the events of these last four months of 2013 gives insight into the emerging knowledge of the parties.
George's domestic mail first revealed the financial irregularities. Ms Calokerinos' evidence in her affidavit of 19 November 2013, which I accept, is that on 13 September 2013, she and her husband "completed a check of Uncle George's letterbox" at the Strathfield property. A credit card statement that she found in his mail alerted her to two large cash advances on 13 August 2013, the day he died, and another cash advance on 20 August 2013. Ms Calokerinos immediately contacted the police and the CBA to make inquiries and to try and place a watch on George's accounts.
Ms Sclavos-Lahana confirms that these unusual transactions were discovered on 13 September 2013. Ms Calokerinos telephoned her that day and said words to her to the effect: "I'm going to the police station. Uncle George's credit card was maxed out on the day and after the days he died. It's very unusual. He wasn't feeling well since the morning of that day."
Ms Sclavos-Lahana widened the inquiry. She telephoned the Leppington pharmacy the following day to see whether any of the deceased's other bank statements had been received at the pharmacy.
On 17 September 2013, the sisters informed Westpac that George had died. A freeze to his accounts was requested, and seems to have been implemented the same day. Both sisters' quick reactions at this time indicate that before 13 September they did not suspect any unusual activity had occurred on the deceased's bank accounts. Their reactions confirm that Mr Yesilhat had not told either of the sisters, or anyone else likely to be in communication with them, of any of his activity on the deceased's bank accounts on the day of and after his death.
On 26 November 2013, Ms Calokerinos formally put the CBA on notice by email of the unusual activity on her uncle's accounts. The CBA took action on this notification.
On 27 November 2013, Ms Calokerinos filed a Summons and Notice of Motion in the debt/trust proceedings seeking recovery of $304,100 (being the difference between the sum of $386,100 advanced by the deceased to Mr Yesilhat and entitles associated with him between 8 March 2011 and 1 August 2013 and the sum of $82,000 repaid by Mr Yesilhat) and the $206,500 transferred from the deceased's CBA accounts between 13 August and 13 September 2013. Her action seeks declarations that these sums were held by Mr Yesilhat on constructive trust for (and alternatively, were owing as debts to) the deceased's estate and orders for the return of these monies.
Lindsay J granted an interlocutory injunction in the debt/trust proceedings on 27 November, restraining the defendants from dissipating the monies claimed. His Honour granted special letters of administration to Ms Calokerinos for the purposes of conducting these proceedings, preserving the property of the estate and the operating of the deceased's CBA accounts.
On 5 December 2013 the Registrar in Probate granted probate of the informal will to Ms Calokerinos. She had advertised her intention to seek probate in November 2013 through an online announcement and in the Law Society of NSW Journal.
In support of her application for probate, Ms Calokerinos' affidavit of 22 October 2013, stated that the deceased "was never married, he did not have any children and he was not in any relationship". In the probate proceedings Ms Sclavos-Lahana swore an affidavit dated 19 November 2013 in which she stated that the deceased "lived a true bachelor's life …. Never married and was never in a spousal relationship … [and] had not been in a de facto relationship for at least the past 20 years". That is what they each then believed and still do.

[44]

The Administration/Family Provision Proceedings - January to July 2014

In July 2014 Mr Yesilhat launched proceedings challenging the October 2012 informal will and claiming administration of the deceased's estate as the deceased de facto partner and in the alternative, orders for family provision.
In January 2014, Ms Calokerinos reported both to the police and to Westpac further transactions apparently carried out by Mr Yesilhat using the deceased's Westpac account in September 2013. The police undertook investigations. They have since charged Mr Yesilhat under Crimes Act 1900, S192E with 14 counts of Dishonestly Obtaining Financial Advantage by Deceit in respect of the transactions on the CBA and the Westpac accounts after the deceased's death. These criminal charges have been adjourned pending the outcome of these proceedings.
Mr Yesilhat objected to giving certain parts of his evidence during the trial in part due to these unresolved criminal charges. On 3, 5 and again on 8 February 2016 during the course of the hearing, the Court raised with Ms Culkoff, counsel for Mr Yesilhat, the potential for the grant of a certificate under Evidence Act 1995 (NSW), s 128 for part of his evidence. A certificate under Evidence Act 1995, s 128 has not yet been granted in relation to Mr Yesilhat's evidence, but may be applied for by motion after the delivery of this judgment.
On 31 March 2014, Russo & Partners wrote on behalf of Mr Yesilhat to Ms Calokerinos' legal representatives, foreshadowing that probate of the informal will was contested. This was the first formal indication to the executrix that the grant of probate of the will was contested. Initially the contest appeared to relate to whether the deceased's signature on the document was genuine. The letter stated: "Further, our Client is in possession of a number of documents which have the original testator's signature. We have examined the signature and there appears to be patent inconsistencies in the signature which appears on the purported Will provided by you, and the prime source documents that are in our Client's possession."
But after further forensic testing that issue fell away.
Mr Yesilhat first stated that he had a sexual relationship, and a "very close personal relationship" with the deceased in his affidavit dated 24 April 2014 filed in the debt/trust proceedings. In correspondence exchanged a month earlier at the end of March 2014, the solicitors for Mr Yesilhat had placed Ms Calokerinos on notice that their client intended to make a family provision claim. But they did not provide details regarding the precise basis for their client's claim at that time, nor had they included any reference to the alleged sexual relationship between Mr Yesilhat and the deceased.
Ms Calokerinos' evidence, which I accept, is that she first saw a reference to Mr Yesilhat allegedly being in a "de facto" relationship with the deceased when she read the Summons filed in July 2014 in the administration/family provision proceedings. I infer that this is when Ms Calokerinos first became clearly aware of Mr Yesilhat's allegations that he was in a de facto relationship with the deceased. She could therefore have had no motive to undermine his family provision claim before March/April 2014 at the earliest.
It might perhaps be posited that she had a motive to undermine Mr Yesilhat's defence to the debt/trust proceedings, which she had launched late in 2013. But the Defence filed in the debt/trust proceedings was very limited. It was served by letter upon Ms Calokerinos' lawyers on about 12 February 2014, and expressly pleads the deceased provided the passwords and login details for certain bank accounts to the first defendant, Mr Yesilhat. It also denies liability in general terms and does not admit any wrongdoing on Mr Yesilhat's part. It pleads he had been provided with that account access for use by him and the third defendant, Australia's Best Tyres inter alia to, "share the use of the funds" and "to operate" the deceased's relevant CBA bank accounts. But the Defence did not refer to any de facto relationship or any other close relationship between the deceased and Mr Yesilhat.
Ms Calokerinos was, in my view, clearly aware of allegations of a "very close", and a sexual, relationship only by about April 2014, and not before then. These findings are inconsistent with Mr Yesilhat's case that Ms Calokerinos in late 2013 deliberately attempted to undermine his family provision claim against the estate by destroying documents and other evidence, which he says were supportive of his case. She had no motive to do so. Moreover, Russo & Partners' letter dated 31 March 2014 to Ms Calokerinos' legal representatives foreshadowed that probate of the informal will was contested. This was the first indication after the grant of probate that it would be contested, and as indicated, it was initially on the basis of a challenge to the deceased's signature.
On 18 July 2014, Mr Yesilhat filed a Summons claiming family provision. On 24 July 2014, an Amended Summons was filed which included a challenge to the grant of probate on 5 December 2013.

[46]

The First Pre-Trial Contest - The Deceased's Diary

George kept a detailed diary of his life. The parties contested the meaning of entries within the diary. Ultimately the Court found the diary to be of limited use in resolving the matters in issue.
The diary has been referred to from time-to-time throughout these reasons in specific ways. But in my view that is the only limited use that can be made of it. It cannot be reliably used, for example, in the way that Mr Yesilhat's case propounds: that is, as some proof that the deceased was having a struggle with his sexuality. It is clear from the contents of the diary that the deceased was an introspective man who wrote down things that many people would simply think and not write, especially about the scruples in his life. Examples of this are abound in the diary, as Mr Yesilhat points out in submissions, for example: ""THOU SHALL NOT F"; "NEW TYPE OF JOB REPENT"; "CHASTITY"; "NO F"; and "BE HONEST; STICK TO THE LAW; PRAY TO GET OUT OF PHARMACY"
I do not accept Mr Yesilhat's submissions that statements such as this can be used to infer that the deceased was struggling with a suppressed same-sex orientation. In my view the entries are equally consistent with a conscience-bound man with strong heterosexual interests.
The diary is potentially open to misinterpretation to Mr Yesilhat's disadvantage. Commencing in July 2012 there is an increasing number of entries in the diary "SLP O/N" which it is agreed means that George has slept at work overnight. Ms Calokerinos submits that these entries do not mention the fact that Mr Yesilhat is present, as the usual symbols for contact between him and George in the diary do not coincide with the "SLP O/N" entry. But this is an overly simplistic interpretation. The absence of any of the deceased's common references to Mr Yesilhat with these entries is not in my view a proper basis to infer that Okan was not there.
It is these kinds of difficulties that ultimately cause the Court to use the diary cautiously in the limited ways that these reasons do.

[47]

The Second Pre-Trial Contest - The Greek Properties

Mr Yesilhat contends that eleven properties in Greece ("the Greek properties") in which the deceased had an interest were concealed from him until just before the hearing of the proceedings. He submits the circumstances of the alleged concealment severely discredit Ms Calokerinos and reveal a determination on her part to defeat him by any means at her disposal.
Ms Calokerinos and her sister deny any scheme to conceal the Greek properties from Mr Yesilhat. They say the Greek properties are of little value and have been going through an unexceptional process of estate administration in Greece and in any event have now been clearly identified in these proceedings.
The Greek properties are principally matters of estate administration. They cannot ultimately be dealt with until one or other party for these proceedings is confirmed as the deceased's legal personal representative. But the issue is canvassed for two reasons. It bears upon the size of the deceased's estate in relation to Mr Yesilhat's family provision claim and it is relevant to credit.
Ms Calokerinos identified the eleven Greek properties in her affidavit of 28 January 2016. Two were on the mainland in Piraeus, the ancient port of Athens. The rest were on Kythera, an island near the south-eastern tip of the Peloponnese. Her inventory was: "(a) One derelict house property in Piraeus (mainland Greece) - this property has no roof and is not inhabitable (sic). This property has been hit by at least two major earthquakes and has been deemed uninhabitable by the Greek Government. … (b) One small shop in Piraeus (mainland Greece) that derives small rental income from a tenant and distributes NIL net income to the owners in Australia. … (c) One derelict house property in Kythera (ancestral home - "Mitata house") that had been subject to several earthquakes and is not inhabitable (sic). … (d) Eight parcels of vacant land on Kythera which are not being farmed and are not being used in any way. …"
Mr John Tripidakis gave expert evidence early in the proceedings in relation to Greek inheritance, real estate and property taxation law. I accept his evidence that, based on his searches of Greek land registries: the deceased owned a half share in these eleven Greek properties comprising two properties in Piraeus and nine on Kythera. Mr Tripidakis described the Kythera properties as consisting of five "rural plots", two "lots" with buildings, and two entirely vacant "lots".
The Greek Properties originally belonged to Nicholas Sclavos, the deceased's grandfather, who died in 1947. They passed to Evangelos Sclavos, the father of the deceased, who died in 1992. From Evangelos Sclavos the properties passed to the deceased and to Chrisanthy Sclavos (Ms Calokerinos' and Ms Sclavos-Lahana's mother and the deceased's sister-in-law) as co-owners. This last step was effected by way of a Greek property transfer instrument that was formally registered on 19 November 2010. Ms Christina Antonopoulou, a Greek attorney, assisted the Sclavos family to achieve registration of this November 2010 transfer.
Kythera is earthquake prone. It has suffered two major earthquakes this century, one on 5 November 2004 (5.8 on the Richter Scale), and the second on 8 January 2006 (6.9 on the Richter Scale). The latter earthquake caused significant damage in the Mitata region where some of the Sclavos properties are located. On 29 March 2012, an earthquake loan was taken out with respect to one of these Sclavos properties on Kythera, "Mitata House". The building had apparently been significantly damaged in the 2006 earthquake.
On 17 June 2013, two months before the deceased died, he granted a power of attorney at the Greek Consulate in Sydney to Chrisanthy, to assist in the administration of the Greek Properties.
Ms Sclavos-Lahana consulted Ms Antonopoulou around the time of her uncle's funeral on 21 August 2013 to advise Ms Antonopolou that the deceased had died and that the family was searching for a will. Ms Antonopoulou advised Ms Sclavos-Lahana to progress the administration of George's estate with respect to the Greek properties by taking the following steps: "You need to do the following: 1. Obtain death certificate translated into Greek with a stamp from the Department of Immigration; 2. Organise two witnesses to prove who we were and prove we are next of kin; 3. Execute a Power of Attorney with Christina Antonopoulou, Attorney for all eleven Greek Sclavos properties."
In September 2013, in execution of this advice Ms Sclavos-Lahana and Ms Calokerinos attended the Greek Consulate in Sydney. Ms Calokerinos then posted the relevant documentation to Ms Antonopoulou, who applied for letters of administration in Greece on behalf of Ms Sclavos-Lahana and Ms Calokerinos in October 2013.
The District Court of Athens granted them representation of the deceased's estate on 19 December 2013. Ms Calokerinos explained the timing of her application for the Greek letters of administration this way: "A large factor in my decision to apply for Greek probate rapidly was due to urgent structural and underpinning work that had commenced to prevent the collapse of the earthquake affected ancestral home on the island of Kythera and which needed to continue after the death of my late Uncle. In addition, there was a government loan attaching to the ancestral home for which repayments were to commence in October 2013."
In 2014 Ms Calokerinos and Ms Sclavos-Lahana paid inheritance taxes on the Greek Properties and remitted €14,000 of their own funds to Greece to facilitate execution of urgent engineering works to the ancestral home, Mitata House, on Kythera. Apart from these payments Ms Antonopoulou took over the handling of the Greek land transfers.
On 13 August 2014, one year after the deceased's death, the period for what is known as "renouncement" elapsed under Greek law. But deeds formalising the transfer of the deceased's half interests in the Greek properties to Ms Calokerinos and Ms Sclavos-Lahana were not executed until 15 December 2015. This was ultimately done by Ms Antonopoulou on behalf of George's nieces under her power of attorney.
The two issues for consideration in relation to the Greek properties are their value and whether their alleged non-disclosure raises any questions of credibility for George's nieces.
The final land transfers completed in December 2015 to Ms Calokerinos and Ms Sclavos-Lahana were not achieved using the deceased's Australian will, the informal will admitted to probate in December 2013. Rather, on Ms Antonopoulou's advice Ms Calokerinos and Ms Sclavos-Lahana used the bloodline (intestacy) as it was a quicker process [under Greek inheritance law] as opposed to relying on a foreign Will such as the October 2012 informal will.
As to the market value of the Greek properties, I accept Ms Calokerinos' evidence that the Greek properties "only have nominal or nil value in the current Greek economy and further to this, they have been financial liabilities for the Sclavos family". They add nothing to the size of the deceased's estate for the Court's consideration of Mr Yesilhat's family provision claim.
As to the credit issues, Mr Yesilhat first submitted Ms Calokerinos misled this Court about the Greek Properties. He contended that in answer to enquiries about the Greek properties, at a directions hearing on 18 November 2015, Ms Calokerinos incorrectly instructed her counsel that there was "no property in Greece" in George's estate. Then, on 30 November 2015, after being directed by the Court to make inquiries of Chrisanthy, it is contended that Ms Calokerinos once again failed to inform the Court about the existence of the Greek properties. It was not until 17 December 2015 that she informed the Court that searches had revealed the eleven Greek properties in the name of the deceased, two days after the execution of the deeds transferring them into the names of Ms Calokerinos and Ms Sclavos-Lahana. Mr Yesilhat submitted that Ms Calokerinos must have been aware of the deceased's interests in the Greek properties at least because of the communication between Ms Sclavos-Lahana and Ms Antonopoulou around the time of the deceased's death.
In response to these contentions, Ms Calokerinos said that she believed that the Greek properties had been transferred from the deceased to herself and Ms Sclavos-Lahana when the 12 month renouncement period elapsed on 13 August 2014. She said that she thought that there were no Greek properties in the name of the deceased as at November 2015. I accept her explanation. The pre-trial directions hearings were concerned with many issues of which the Greek properties were but one. And she had not dealt with them recently before November 2015. Though incorrect in fact, her instruction to her counsel are explicable on this basis and do not affect her credibility in my view.
Mr Yesilhat raised a supplementary credit issue concerning the Greek properties. He separately submitted that Ms Calokerinos misled the courts in Greece by failing to disclose to them that the deceased's will that disposed of his whole estate had been found in Australia.
The evidence of Mr Tripidakis in his affidavit of 3 February 2016 was that: "Greek inheritance law provides the bequest of the deceased's property to his heirs in two ways: (a) By virtue of a Will; (b) By virtue of the Greek law, that is the intestacy rules; According to the law of Greece every person holding a Will, must probate it. Therefore the method referred to at [(a)] is followed at all times if the deceased has left a Will and the bequest of the Estate Property is performed according to the provisions of the Will. Only if the deceased has not left a will, or if the will has been nullified totally or partially, or in the case that the Will settles only a part of the deceased's inheritance will the succession be settled in accordance with the intestacy rules."
Mr Tripidakis stated that because the informal will of the deceased had been admitted to probate under Australian law, that it should therefore have been disclosed and admitted to probate in Greece. But it was not.
I accept as true the way Ms Sclavos-Lahana repelled this contention. But she explained that as estate administration was so busy after George's death she really left all of what was required in Greece for the land transfers to her attorney in Greece, Ms Antonopoulou: "Q. At that point in time [December 2013], that's only less than four months after your uncle died, it didn't occur to you to bring that to the attention of your Greek attorney, that there had been a will probated here? A. So we had no contact with her whatsoever. I mean, you know, we, we were still grieving Uncle George, as I said, we, we had so many other things on our plates, I had two very young children myself, who were still, you know, at preschool, I work full-time myself and no, none of this occurred to me. Q. So it didn't occur to you to ring her and say, look we made an error or I made an error in my initial instructions and in fact, there is a will and it's been probated in Australia? A. So we - as I said, we sent her these documents, we had no contact. I didn't even ring to ask if she received them, for instance. We had no contact whatsoever. We knew she would take care of things, as they always do there. In the meantime, I think the only contact we had was when Cleopatra, I think it was - must have been - 2016, it must have been the middle of last year, rang to see what we were up to, how, how it was all going and it was only because we had a conversation about it."
Ms Sclavos-Lahana made further inquiries about this issue in the first days of the trial. She said in her affidavit of 2 February 2016, and I accept, that she telephoned Ms Christine Antonopoulou on 1 February 2016 and had a conversation in words to the effect: "Anna: My sister tells me that in our Court case in Australia, there was an issue raised about the Greek judgment for the Greek probate on 19 December 2013 Christina: What is the issue? Anna: The Court in Greece for the Greek probate relied on an application and documents to pass the probate. Who signed those documents who [sic] and executed them? Christina: I did all that as your Power of Attorney. I handled all those matters. Anna: Could you please organise those probate documents urgently as we need them. Christina: What do you mean? Anna: The other side is making an issue about the Greek probate was passed on bloodline and not pursuant to my Uncle's Will. The Supreme Court is losing the main issue that money was stolen from my Uncle's bank accounts post death and a loan was not repaid by a tyre company. Christina: Just to remind me, the beneficiaries were the same in that Will, you and Cleopatra, correct? Anna: Yes Christina: There is no difference. I would have advertised a Will instead of letters of administration, but there is no difference whatsoever. Same outcome. Anna: Thank you, I need those documents urgently. Christina: I will send them to your fax at home in Sydney."
I accept all Ms Sclavos-Lahana's evidence about her conversations with Ms Antonopoulou. Neither niece was actively involved in the estate or land applications in Greece: they left them in Ms Antonopoulou's hands. These very inquiries of Ms Antonopoulou show this is what happened. There is no basis to infer active concealment of the Greek properties here, and no misleading of Courts in Greece. There was merely a long course of conventional estate administration related to them.

[48]

The Third Pre-Trial Contest - Gathering Evidence from Pharmacy Employees

Mr Yesilhat challenged the case against him in part by contending that Ms Calokerinos had engaged in an exercise of selectively seeking out pharmacy employees who would favour her case and avoiding those who might assist his case. It was a pre-trial contest because it was suggested that Ms Calokerinos had failed to produce the pharmacy wage books that would identify them.
Mr Yesilhat submits that Ms Calokerinos failed to provide evidence from three evening employees by the names of Zayneb, Sarah and Helena (or Eleanor). The submission put on his behalf is that such employees "would have assisted the plaintiff's case".
The first answer to the submission is that it does not correctly cite Jones v Dunkel (1959) 101 CLR 29 ("Jones v Dunkel") which does not stand for the proposition that the absent witnesses would have assisted the other party's case. Rather Jones v Dunkel's stands for the proposition that where a party fails to call a witness or adduce evidence without explanation, an inference may be drawn that the evidence would not have assisted that party's case: Jones v Dunkel (1959) 101 CLR 298.
Mr Yesilhat's case is that all the pharmacy employees that Ms Calokerinos called in evidence were mostly daytime employees and that the three missing employees Zayneb, Sarah and Helena (or Eleanor as she might be known) were evening employees who were more likely to witness Mr Yesilhat staying behind with the deceased.
It is true that Ms Palmer worked a shift between 3pm and 7pm Tuesdays and Fridays and that she said that the employee Sarah came in after she left. Ms Palmer also recalls Helena (or Eleanor) working in the evening. Ms Wosik agreed that Ms Palmer did day shift and Sarah and Zayneb did the night shifts. But Ms Wosik thought that Ms Dacic did some night work too. So in my view the exclusion of night shift employees is not as complete as Mr Yesilhat suggests.
Ms Calokerinos was pressed as to why she did not invite these three employees to give evidence. I accept her explanation in answer, that she did not "specifically ask for people to give evidence". Rather in this small community people really decided to approach her rather than her specifically ask them. I do not accept there is some conspiracy not to ask the night employees.
Moreover, George died well over two years before the hearing started. This is not a case where pharmacy employees were controlled by one party or the other. If Mr Yesilhat's case was right and he had seen these employees much in the evening he would have been in a better position than Ms Calokerinos to contact and call them. Her nominal position as executrix seeking to manage the pharmacy at somewhat of a distance puts her at a disadvantage in securing these witnesses. In my view no Jones v Dunkel inference is drawable against her. Even if it were able to drawn, the Court's conclusions on the evidence would not alter.

[49]

The Fourth Pre-Trial contest - The missing wages book

Under the deceased's management the pharmacy kept a wages book recording the money paid to all his employees. Mr Torrisi confirms it was kept in a drawer under the sink in the pharmacy. He wrote the book up listing the employees and their hours of employment. The wages book was also available to the employees to check whether their pay was correct. Ms Wosik occasionally collected the wages book, from which she did the pharmacy accounts.
The evidence of where the wages book was last seen is hazy. Mr Yesilhat claims that the wages book has gone missing in the hands of Ms Calokerinos without any credible explanation; the implication being that Ms Calokerinos has disposed of it in some way with intent to hinder Mr Yesilhat's case. This conduct is said to go to her credit and be an admission by conduct against interest. But in my view the issue is of no substance.
It can be accepted that there was a pharmacy wages book: Mr Cameron, Mr Torrisi, Ms Wosik and Ms Dacic all confirm this. And the Court is prepared to infer that it is probable the wages book went through Ms Calokerinos' hands at some stage, either before the sale of the business to Mr Cameron, or for doing estate accounts. It would certainly have been an important record for issuing employees' group certificates for the financial year ending 30 June 2014. But that would have been Mr Cameron's responsibility, as the business had been sold to him by May 2014.
But in the end the highest the criticism of Ms Calokerinos on this issue is: that she should have informed the Court when a call was made for the wages book on 18 November 2015 that enquiries could have been made of Mr Cameron as to its whereabouts. I accept her evidence that she does not know where it is or what has happened to it. I find that she has not deliberately destroyed it or diverted it from Mr Yesilhat's use in these proceedings.
A measure of realism is required here. An executrix taking over conduct of a small retail business, like a pharmacy, can be expected to have obvious challenges in finding and securing all the documents of the business. This alone probably explains why it has gone missing. But it is stretching a very long bow to suggest that even after Mr Yesilhat had made an allegation of a very close personal relationship in March/April 2014, and then ultimately a de facto relationship in July 2014, that Ms Calokerinos would have been complicit in destroying this document. If her posited destruction of the document was to make it more difficult for Mr Yesilhat to connect up with the employees, who he might have seen at night at the pharmacy when he was there with the deceased; it would take extraordinary prescience for Ms Calokerinos to understand this document was important to those connections even in July 2014.

[50]

The Fifth Pre-Trial Contest - The Alleged Missing Pharmacy Computer

Mr Cameron took over operation of the pharmacy after George's death. But it is common ground that Ms Calokerinos remained responsible for its financial operation.
There were at least three computers at the pharmacy. This can be gleaned from Mr Cameron's oral evidence and from an inventory (Exhibit C) that he made when he was preparing to acquire the pharmacy business from the executrix, Ms Calokerinos.
Mr Cameron wrote to Ms Calokerinos on 12 November 2013 suggesting that one of the computers was "in the pharmacy awaiting collection". This appeared to be one of George's older computers which, when George was alive, were normally located just outside the pharmacy dispensary. Mr Cameron's evidence was this was primarily used as a computer on which employees could watch Youtube videos to amuse themselves in the evenings, whilst working on night shift.
Mr Cameron's understanding, which I accept, was that Ms Calokerinos removed the computer in response to his email. He thought that she was also going to look at the computer to see if she could find any emails or other documents relevant to George's affairs. The inventory (Exhibit C) identifies the three pharmacy computers, two as being "loan computers", and the other being "temporarily with the executor".
Ms Calokerinos denied drafting the inventory herself. Her memory of the sale to Mr Cameron was that he had told her that the pharmacy's fixtures and fittings were valueless and all needed to be replaced. I accept her evidence as to these matters. It appears the inventory has been drafted by someone without consulting her.
The sequence of events was that the computer was placed into her hands in about November 2013 and she disposed of it somewhere in about December 2013, although she is unsure of the exact date. I accept her evidence that as at the date of the (Exhibit C) inventory, 23 May 2014, she did not have any such computer in her possession.
Ms Calokerinos was cross-examined to suggest that she "disposed of that computer sometime later [namely after May 2014] because you did not want to take the risk of it being forensically examined". I accept her complete denial of this suggestion that she attempted to pervert the course of justice. The computer probably came into her possession and was destroyed in December 2013, long before she became aware that the October 2012 informal will was contested and long before Mr Yesilhat gave notice of his claim of a de facto relationship with the deceased. There was no obligation on her to maintain the computer in these circumstances. She was unaware the will was going to be challenged until March 2014. She would have had no way of knowing the computer's relevance to a future possible challenge, or that it might even be a candidate to be retained to show that George might have had the capability of preparing the will in the pharmacy.
Moreover, this whole argument of Mr Yesilhat to a degree depends upon an assumption that George must have prepared the will in the pharmacy. In my view this is probable but certainly not the only explanation for the deceased's production of the will.

[51]

The Sixth Pre-Trial Contest - The Night Shift Employees

Mr Yesilhat contended that Ms Calokerinos orchestrated the presentation of only day-shift employees to defeat Mr Yesilhat's case. She undoubtedly was a principal point of contact for witnesses ultimately called in the estate's case. But I accept her denial of any such conduct in preparation of the case against Mr Yesilhat.
Moreover this contention lacks substance, in any event. Mr Torrisi for example was an employee who worked Mondays and Wednesdays and would stay sometimes at the pharmacy until anywhere between 11.30pm and 2am.
Ms Dacic also worked long hours and into the morning at the pharmacy. Although she was only in her mid-teens when she commenced work there, once she turned 18 she stayed much later, sometimes until 2, 3 or 4 in the morning. She says, and I accept, that she only saw Mr Yesilhat there 5 or 6 times and when she did Mr Yesilhat and the deceased were just talking but not eating or cooking there. She agreed too that she had seen George occasionally grilling meat there at the pharmacy but only rarely and certainly not routinely.
It was suggested to her that her evidence was a fabrication. But in my view it certainly was not. She described convincingly her mother ringing the pharmacy in the early hours of the morning to see how she was. It was put to Ms Dacic that her mother regularly staying up until the early hours of the morning to ring the pharmacy was "a fabrication". Far from it. In my view, given Ms Dacic's evidence that I accept that she had "strict parents and a strict upbringing", this is an authentic family cameo.
To the extent that Mr Middlebrook contradicts evidence that Ms Dacic sometimes worked late shifts I prefer the other witnesses over Mr Middlebrook.
And I accept Ms Calokerinos' evidence that when she was contacting witnesses for this case she did not actually know "who was day shift and who was night shift". This is understandable from someone who did not run the pharmacy herself. Her approach to the gathering of evidence, and I accept, "whoever wanted to give evidence or whoever didn't or whatever, was free to do what they wished". This issue is an example of Mr Yesilhat's inferring conspiratorial calculations against him when the simpler and more persuasive explanation is that without any special plan Ms Calokerinos found the witnesses that made themselves available.
Ms Calokerinos' evidence was corroborated by her sister Ms Sclavos-Lahana. When it was put to her that 63 affidavits were prepared in the proceedings and neither Zayneb nor Sarah were among them or were apparently invited to put evidence forward she said, and I accept, "I didn't invite anybody. More or less the people who have given evidence, have done it of their own accord, so nobody was asked to write any evidence, it was whoever was willing to".

[53]

Validity of the Informal Will - Analysis of Mr Yesilhat's Case

Mr Yesilhat contends the informal will is attended by great suspicion. Much of that alleged suspicion attaches to the form of the will and the probability, or otherwise, of the deceased executing a will with the features of the informal will. Expert evidence from Ms Michelle Novotny verifies that the signature on the informal will is indeed that of the deceased. But her report identifies that some of the text of the informal will was printed onto the will paper after the deceased's signature was applied, not before. The expert evidence is analysed in the next section.
These reasons have found that Mr George Efstathiou discovered the will at the Strathfield property inside a Bible of the deceased. This placement is consistent with the deceased's religious convictions. The Court's acceptance of Mr Efstathiou's evidence and that of George's nieces damages the contention that after fabricating the will someone placed it there, so that Mr Efstathiou could find it. The emotionally spontaneous scene they all describe at the finding is incompatible with the proposition that George's nieces fabricated and planted the informal will.
At one level that is a complete answer to Mr Yesilhat's case. But quite apart from Mr Efstathiou's and the nieces' evidence, Mr Yesilhat's fabrication case lacks a compelling rational basis. There are four main reasons for this. 1. A motive for the fabrication? 2. Mr Yesilhat's case theory assumes Ms Calokerinos had knowledge of matters that had not yet come to her attention. 3. No rational sequence of events can be advanced to explain the nieces looking for and destroying George's alleged original will in Mr Yesilhat's favour. 4. The date of the informal will is not consistent with fraudulent fabrication.
(1) A Motive? Mr Yesilhat's case spends little time attempting to analyse whether Ms Calokerinos or her sister Ms Sclavos-Lahana would have had any real rather than theoretical motive to fabricate a document such as the informal will. Ms Calokerinos and her husband are both barristers. Ms Sclavos-Lahana is an optometrist and appears both from her curriculum vitae and presentation to Court to be well educated. Both of them are intelligent and can be assumed to understand the law. But the legal position and the factual position must be distinguished.
As to the legal position, the deceased's only nieces Ms Calokerinos and Ms Sclavos-Lahana do gain more from the will than they would have upon intestacy. On the deceased's intestacy, in the absence of someone such as Mr Yesilhat establishing that he was a de facto spouse of the deceased, and upon the undisputed assumption that the deceased had no children and his parents, siblings and aunts, uncles were dead and that Ms Calokerinos and her sister Ms Sclavos-Lahana were the only nieces or nephews of the deceased under the New South Wales law, the nieces would not inherit his estate: see Succession Act, Part 4.3. They therefore had some legal motive to manufacture the informal will. They would not benefit without it. And one can perhaps hypothesise a motive for them to destroy a will in Mr Yesilhat's favour.
But it is difficult to see why they would create the informal will. The Court accepts their evidence that George told them he had made a will in their favour and it was at the Strathfield property. They really had to wait and see what they found there. They had no reason to go looking for a will benefitting someone else. They could assume George was sloppy in his formal affairs but not that he was misleading them.
(2) Unproven Assumed Knowledge. Mr Yesilhat suggested the informal will was created in order to thwart attempts by Mr Yesilhat, to claim administration of the estate as the deceased's de facto partner. Mr Yesilhat would then be put in a position where he would have to bring a claim under Succession Act, s 58 for family provision against Ms Calokerinos as executrix.
This theory has serious flaw. It assumes that Ms Calokerinos and her sister were conscious of the possibility that Mr Yesilhat might make a claim for administration of the estate as a de facto partner before they allegedly manufactured and planted the informal will for Mr Efstathiou. But Mr Efstathiou found the will on 31 August 2013. Ms Calokerinos applied for probate of the informal will on 11 November 2013. It was only upon Ms Calokerinos suing for the return of estate monies and seeking interim relief on 27 November 2013 that Mr Yesilhat made his allegation that he had a long term same-sex relationship with the deceased, and emerged as a competitor for administration of the estate.
Ms Calokerinos and her sister Ms Sclavos-Lahana had no reason to believe that anyone would be alleging a de facto relationship with the deceased at any time before they propounded the informal will for probate. Mr Yesilhat's case therefore faces the curious puzzle of why Ms Calokerinos or anyone in association with her would have been motivated to forge the informal will to thwart him. Mr Yesilhat's case about the forged will never really negotiates this conundrum. Instead, his case preferred to focus upon features of the informal will that were said to be badges of fraud. But such features cannot be examined alone. Whether they were indicators of fraud by Ms Calokerinos depends in part upon whether Ms Calokerinos or Ms Sclavos-Lahana had any reason to create this false will to deflect him.
(3) No Explanation for Looking for the Original Will. Another way Mr Yesilhat puts the case is to say that Ms Calokerinos hunted for, found and destroyed a will which the deceased had made in Mr Yesilhat's favour and then manufactured another will to replace it, to ensure that even if the deceased had given a copy of the first will to Mr Yesilhat, the fabricated will would ensure that the first will would be revoked. Aside from the improbability of aspects of this theory and the Court's findings about the honesty of Ms Calokerinos, it attributes to her participation in a clueless ruse which is inconsistent with her intelligence.
Ms Calokerinos did not consciously look for the deceased's will between his death on 13 August 2013 and his funeral on 21 August 2013. There were some brief visits to the Strathfield property on 15 and 17 August 2013 before the funeral and I accept that from about 23 or 24 August 2013 that groups of people accompanied Ms Calokerinos and her sister in looking through the deceased's personal effects at the Strathfield property. But the will was not the central object of their searches. Given these findings, Ms Calokerinos would in a practical sense only have had about 7 days from, 24 August 2013 to 31 August 2013, when the informal will was found to engage in the scheme of which she was accused.
But I also accept that Ms Calokerinos never undertook searches in the Strathfield home on her own. She was in the course of a difficult pregnancy. I accept her evidence that she did not feel up to such a thing without being supported by others. On the basis of that finding it is difficult to see how she could have searched for, found and destroyed the true will of the deceased favouring Mr Yesilhat, without someone else knowing about it. There is no credible evidence that either Ms Sclavos-Lahana or Mr Efstathiou were co-conspirators in any such will search or will destruction.
Why would Ms Calokerinos have been motivated to look for a will at all? Behind Mr Yesilhat's hypothesis is an assumption that someone had told Ms Calokerinos before August 2013 that the deceased had made a will benefiting Mr Yesilhat. According to Mr Yesilhat, the deceased told him that he, the deceased had done just that. She denies that the deceased told her he had made a will benefitting Mr Yesilhat. I accept her evidence, not Mr Yesilhat's evidence, on this subject. And it is improbable that anyone other than the deceased himself would have told Ms Calokerinos about the deceased having made a will favouring Mr Yesilhat - so she would not have found out any other way.
But if the conversation Mr Yesilhat alleges had taken place, why would the deceased not have given Mr Yesilhat a copy of the will? And why would the deceased have made Ms Calokerinos custodian of any of his affairs when, according to Mr Yesilhat, he thought so poorly of her and her sister? Entrusting to Ms Calokerinos, a person he allegedly disliked, knowledge of a will that, contrary to her expectations, gave much of his estate to a secret de facto partner seems an improbable course for anyone in the position of the deceased to take. But fundamentally I do not accept that Mr Yesilhat was told anything by the deceased about a will favouring him.
Why would Ms Calokerinos attempt to destroy a will, when she did not know that there might not be a copy of it in Mr Yesilhat's hands? Even if Ms Calokerinos did look for and find a will, her alleged act in destroying the original was fraught with great danger for her. If she were minded to destroy it, she did not know whether there might be another copy in Mr Yesilhat's hands, which would show up despite her destruction. But she would also be well aware as a barrister that in the absence of the original that a copy could be proved. So what was the point of her destroying the original without sure knowledge there was no copy? Mr Yesilhat's case never dealt satisfactorily with these questions.
(4) The Will's Date is not Consistent with Fabrication. To overcome such problems Mr Yesilhat postulates that the informal will must have been created as an insurance policy so that if Mr Yesilhat was able to bring forward a copy of any will favouring him, the will from which the copy was made would nevertheless be revoked.
This further theory raises more questions than answers. Firstly and most importantly, I accept Ms Calokerinos' evidence that she neither destroyed a will favouring Mr Yesilhat nor manufactured the informal will. Ms Calokerinos was not the kind of person who would create a false will. This finding is not based on some view that barristers do not do such things but on the Court's assessment of her as a witness.
But the argument that the informal will was an insurance policy has its own problems. A fraudster would be hardly likely to create a will such as the informal will to act as such an insurance policy. Even if it could be established that Ms Calokerinos might have been made aware of a will made in favour of Mr Yesilhat, why would Ms Calokerinos create a will in late August 2013, after the deceased's death, but date the fraudulent will ten months before his death. One might expect a fraudster of moderate intelligence to have created an insurance policy will very close to the deceased's death, to ensure that every possible prior will would be swept up by the revocation clause. Ms Sclavos-Lahana and Ms Calokerinos are gifted with both intelligence and good judgment. If their objective was to plant a will to ensure revocation of any prior will of which a stray copy may have existed, why should they backdate the will to October 2012 and allow for any will executed since then to go unrevoked?
Ms Sclavos-Lahana's conversation with the deceased near Easter 2013 at Australia's Best Tyres might be said to perhaps indicate that she (and therefore Ms Calokerinos) could have conjectured that the deceased may have made a will in Mr Yesilhat's favour by then, even though the subject was not expressly discussed. But the informal will dated in October 2012 would not revoke any will that the deceased made between October 2012 and Easter 2013 and is an unlikely act of fraud on their part in response to such conjecture.
Finally, how does Ms Calokerinos find the deceased's signature on a blank sheet of paper in order to manufacture the informal will? The principal theory Mr Yesilhat's case offers for this is that she recycled the signature on the page of the will favouring Mr Yesilhat that Ms Calokerinos had herself just destroyed. This theory has its problems: it improbably depends on Ms Calokerinos finding and destroying a prior will.

[54]

Validity of the Informal Will - the Expert Evidence

Ms Michelle Novotny, a Forensic Document and Handwriting Examiner, gave uncontested expert evidence in relation to the October 2012 informal will. She was given the original informal will to undertake her examination. Ms Novotny's conclusions still left open a range of debatable theories about the possible creation of the informal will.
Ms Novotny's evidence may be briefly examined. Her principal expert report dated 23 October 2015 answered five questions. Those five questions and her answers appear below. (1) Is the signature on the questioned document ("the questioned signature") the signature of George Sclavos? "I concluded that the questioned signature was written by the writer of specimen signatures attributed to George Sclavos." (2) Is the signature on the questioned document on top of or under the printed word "George" with which it intersects on page two of the document? "I concluded that the questioned signature was written before the printing of the name "George" with which it intersects." (3) Have the two pieces of paper, comprising the questioned document, been cut in any way and, if so, which of the four edges of each of the two pieces of paper have been cut and which have not? Comments are to be provided as to the findings. "I found no unevenness in the paper edges that would suggest that any of the four edges of either of the two pages of the questioned document had been trimmed using scissors. Careful use of a blade with a guide (such as a ruler) or of a guillotine are further possibilities for the cut edges. If the paper edges were guillotined, I cannot determine whether it was commercially or by hand." (4) Can any opinion be expressed as to whether there are any identifiable differences between page one and page two of the questioned document, including but not necessarily limited to: type of paper; font; ink; spacing; alignment of printed text; creasing. "While the lack of difference in the paper is what I would expect to observe if the paper stock of pages one and two originated from a common source, papers from different sources can be indistinguishable in terms of the properties considered. The non-standard paper size, if commercially cut, combined with the other observations provides support for a proposition that the paper stocks of pages one and two of the questioned document have a common origin. Aside from slight inconsistencies in the left margin alignment of the printed text, no differences in print appearance, baseline alignment, line spacing or font were observed between pages one and two of the questioned document. Given these combined observations, I am more inclined to the view that the slight inconsistencies in left margin alignment of the printed text are an incidental or accidental anomaly rather than evidence of manipulation of the printed text by the use of multiple printing sessions, although I cannot exclude the latter possibility. This finding is highly qualified and is not expressed in qualitative probability terms. In the absence of any evidence of the paper edges having been trimmed using scissors, the combination of the small paper size and computer printed text does not provide support for a proposition that the document is the product of some form of manipulation. It also does not provide support for a proposition that the questioned document is genuine. This observation is neutral. I cannot determine the significance of the observations of similar and different creases in pages one and two other than to say that there is apparent commonality and disparity in the folding history of the two pages. There do not appear to be any significant differences in the pattern of staples and staple holes when considered in combination. I cannot determine the significance of what appears to be graphite transfer on the back of page two of the questioned document." (5) Can any opinion be expressed as to whether the signature was placed on the questioned document at some time other than the printed text and, if so, was it earlier or later, with regard to any matter including the ink penetration?" "Other than the signature being written before the printing of at least the name "George" on page two, no conclusion can be expressed as to whether the questioned signature was placed on the questioned document at some time other than the printed text. That is to say, I cannot determine the elapsed time between signing and printing the intersecting text on the questioned document."
Ms Novotny produced a supplementary report on 14 December 2015 in response to an additional question, formulated as a result of submissions during pre-trial directions hearings. The additional question sought further to explore the guillotining, or cutting, of each of the two pieces of paper comprising the informal will. The question aimed to explore a number of possibilities, including the possibility that the informal will may have been cut down from larger, possibly A4 sheet, or sheets, of paper.
The informal will was re-delivered to her from the Court, to which she had returned it upon completion of the work for her first report. Her supplementary report answered the following addition question: "On the assumption that the two small "non standard" pieces of paper comprising the Will in question were not the subject of any "cut to customer order", are you able to determine whether any of the 4 sides of each piece of paper were guillotined (either commercially or by hand) such as to distinguish any side from that of a standard A4 paper sold commercially?"
Ms Novotny answered this additional question. In her answer she could not distinguish between the cutting of the two pages of the informal will. Her answer stated: "Within the limitations discussed in this supplementary report, I found no features in the paper edges of either page of the questioned Will which would serve to distinguish them from one another in terms of how they were created. Furthermore, no useful comment can be made as to whether or not any of the paper edges of the two pages of the questioned Will can be distinguished from that of a standard A4 page sold commercially."
The "limitations discussed" in Ms Novotny's supplementary report related to the condition of the original of the informal will as re-delivered to her compared to the condition in which she had last seen it. She noted on that issue: "The original questioned Will was received in a condition different to the condition it was in when I returned it to the Supreme Court Registry on 26 October 2015. While I have not re-examined the entire document, I note that at least the top left corner of the first page has loosened significantly at the staple. … Consideration of the significance of any observations made regarding the paper edges is limited by a number of interference factors. Firstly, given the straight and square nature of the paper edges, any edge detail pertaining to their method of creation would be fine and subtle in detail. Such fine and subtle detail could well have been compromised by the handling of the document. Secondly, there are a number of creases in each page which have distorted the page edges at the points where they run off the edge."
But the limitations Ms Novotny identified did not themselves lead to any further investigation.
Ms Novotny produced another supplementary report on 20 January 2016, her second supplementary report (Exhibit 22). This report did not relate to the informal will but to the CBA "Authority for Business Accounts" document apparently executed by George and Mr Yesilhat and dated 1 August 2011. Ms Novotny's conclusions in relation to this document are dealt with separately, where this document is considered in the narrative of findings.
No one contested that the signature on the informal will was the deceased's signature. The remaining issue in contest arising out of Ms Novotny's evidence became whether the informal will document was created by the manipulation and trimming of an existing (possibly A4) document already containing the deceased's signature.
Mr Yesilhat's case in final submissions propounded two theories as to how Ms Calokerinos had fabricated the deceased's October 2012 informal will. The first was that the deceased's signature, which can be seen now on the informal will, is a part of the original will that was not destroyed; and George wrote his original will on A4 paper and signed it about two-thirds of the way down, there was a space between the signature and the final line of the original will and then that document was guillotined or trimmed in some way to remove the writing of the original will.
Mr Yesilhat propounds a second theory for the fabrication of the will. What follows is how Mr Yesilhat himself describes in final submissions the steps in execution under this theory. It involves Ms Calokerinos using her expertise as a barrister to go to the Supreme Court's own website and from there downloading this Court's Probate Form 112 on which indenting and a small font size were able to be automatically generated. Mr Yesilhat says this would enable the signature page of the will to be typed easily, on the blank portion at the bottom of an A4 piece of paper on which the original handwritten will had been written. According to Mr Yesilhat a separate A4 sheet of paper was then used to generate the first page of the will. After that, the two standard A4 pieces of paper were then printed normally on a laser printer, being cut by hand to the non-standard size, resembling the script paper used at the pharmacy.
Mr Yesilhat claimed that he could easily duplicate the production of the will according to the second theory. Ms Calokerinos denied being involved in any way fabricating the will according to either theory but specifically also in relation to this second theory. I accept her denial. Her alleged involvement in fabricating a will by the means posited in the second theory is even more improbable than by the means the first theory contemplates.
Ms Calokerinos submitted that it is implausible that she would have fabricated a will, because she would have been "placing her standing as a barrister and officer of the court in peril; and secondly because "she and Anna would take on George's intestacy in any event".
As to the first matter, the Court regards it as highly implausible that Ms Calokerinos might fabricate a will in the manner alleged, or at all. But that does not detract from the need to examine the merits of Mr Yesilhat's argument based on the objective circumstances.
As to the second matter, the Court did raise the hypothesis in submissions that George's nieces would take on George's intestacy. But in the course of preparing these reasons it is clear that hypothesis was based on an erroneous assumption as to the present State of New South Wales law at the time of the deceased's death. The nieces or nephews of an intestate in New South Wales have no entitlements; the State of New South Wales would be entitled to his estate: Succession Act, Parts 4.3 and 4.5.
Why did George sign the second page before printing? Ms Calokerinos submitted that the printing of the name "George" after the insertion of the deceased's signature could be explained by the deceased, having noticed that he forgot to print his name below the signature and taking the following steps: "[P]ut the second page back in the printer, reversed so that what he was to add would appear below his signature. Then, he would delete the first line on page 2, so that that line would not be printed over a second time, press the Return key 5 times, thinking he had then given enough space for the signature, and type in his name and address and the final words of the Will, including the date a second time."
In my view this does not need much explaining. Maybe he just signed first. Too much close analysis beyond that is just speculation.
Ms Calokerinos submitted that it is inherently unlikely that the informal will that was found with all of its actual characteristics, would have been fabricated by her, or indeed by anyone. Ms Calokerinos submits, and in my view correctly, that to have fabricated the will between 13 and 31 August 2013 she would have had to carry out the following steps: (1) She had to find an original genuine document that was signed by George, at or about that time, which document had enough space above the signature to be cut out to create the document that became the second page of the informal will. And the chances against any document she found even being a will are high, as George had not told her where his will was. (2) Having cut that piece of paper from that original will document, she would then have had to type and print the material found on the first page of the informal will on another piece of paper of the same size. And she needs to find paper for the first page of the informal will that is, as Ms Novotny found, indistinguishable in composition from the signed second page. (3) She would have had to type and print the word "George", as part of the material that shows George's name and address, ensuring as far as possible it was below his signature on the second page of the document, being the page already bearing George's signature. (4) In writing the terms of the Will that appear on the first page she had to pick a date that fitted with George feeling unwell, which suggests finding and investigating his diaries, and then coming upon the diary entries for 8 and 9 October 2012. (5) Ms Calokerinos also had to remember that as at 16 October 2012 George knew her as Cleopatra Sclavos-Summers and not as Sclavos-Calokerinos. (6) All this had to be done and the new fabricated will planted in George's Bible inside his house Ms Calokerinos submits between 13 and 31 August 2013, but on the Court's findings it must be done after 21 August and on or before 31 August 2013.
Mr Yesilhat attacks the informal will itself as an equally improbable product of George's genuine will-making efforts. He contends it is not credible that the deceased would "exert the necessary time and energy", in taking what must have been the following steps to make the informal will: (1) placing his signature on the second piece of paper, just 2.3cm from the top of the second page; (2) cutting the 2 pieces of paper to the non-standard size that they were, either before or after placing his signature on the second sheet; (3) manipulating the font size of what was printed and creating such very narrow indenting; (4) typing the 14 very short lines on the first page; (5) typing the single line "to be buried with my father Angelo Sclavos" above that signature and then the 5 lines below it; and finally (6) printing the two pages on a laser printer.
Leaving aside the Court's acceptance of Ms Calokerinos' evidence, the balance of objective probabilities clearly favours Ms Calokerinos' hypothesis. What she would have to do to fabricate the informal will seems to the Court to be unlikely in the extreme. Whereas for the deceased to create the document does not seem to be the insurmountable burden that Mr Yesilhat suggests.
George's task was not that difficult, as is suggested. Signing 2.3cms from the top of the second page merely indicates that the text had run out by then. The text is complete. Cutting the two pieces of paper to a non-standard size is explained by their needing to fit into a printer of prescription size paper in the pharmacy. The next section of these reasons shows this is probably what happened. Manipulating the font size seemed well within the deceased's word processing capability. Creating very narrow indenting is probably no more than the product of the small paper being used and George's lack of typesetting experience. The 14 lines in the first page and the single line on the second page do not seem remarkable. There was a laser printer in the pharmacy, a matter which is established below.
In conclusion, in cross-examination and final submissions, counsel for Mr Yesilhat put to Ms Calokerinos that the reason that her Counsel sought to limit the expert's investigation to only whether the signature was genuine was "to prevent Mr Yesilhat from investigating whether the signature was written below or on top of the typing". But this takes on unnecessarily conspiratorial view of the executrix's case. Either order of printing and signing does not matter much in my view.

[55]

Validity of the Informal Will - Provenance of the Document

Mr Yesilhat contended that the deceased lacked the computer skills, the language ability and the cutting and printing capacity to create the informal will, so it could not be genuine. These contentions created a vigorous evidentiary contest about the deceased's computer and printing skills and language habits.
Mr Yesilhat said in his affidavit of 20 September 2014 that: "During my 14 year relationship with George, I observed that George never typed anything other than short prescriptions. When he did this, I would observe him typing with two fingers slowly. … Based on my 14 year close relationship with George and the thousands of hours spent with him discussing many aspects of life and business, I say that George: - would not have used the legal term "revoke" in any will prepared by him - would not have hyphenated the names of his two nieces or used their married names - was not sick or "unwell", as asserted in the Informal Will at or about the date of the Informal Will, being 16 October 2012"
I do not accept Mr Yesilhat's evidence on these issues where it conflicts with the evidence of other credible witnesses.
(1) The Deceased's Computer Skills. Mr Yesilhat's evidence about the deceased's poor computer skills included that he would not have been able to change the font size to the small font used in the informal will document, or alter the page margins to those of the document. He further stated that the pharmacy printer was not a laser printer, when the informal will seems to have been printed in a laser printer.
But the evidence of other credible witnesses well supports Ms Calokerinos' case that the deceased had passable typing, computer and word processing skills. Ms Boguslava Wosik the pharmacy bookkeeper was in a good position to observe George's facility with computers. She gave evidence that she never saw the deceased typing anything other than labels for medication but that he could do this, as one might expect of a pharmacist.
The informal will only contains 92 words. This number of words should not have been a great challenge for someone of even limited word processing skills.
Mr Torrisi in his affidavit of 10 October 2014 states, and I accept, the deceased taught him how to use the computer program "Project Stop", during an external investigation into the alleged sales of pseudoephedrine products at pharmacy.
Ms Dacic in her affidavit of 23 October 2014 stated, and I accept, that she taught the deceased how to use Microsoft Word and that he "took notes of things I taught him". Her evidence was that "I had seen that George's typing wasn't as fast as mine, he would type slow usually using a few fingers". But it is clear from her evidence that he could use word processing software.
I specifically reject Mr Middlebrook's contrary evidence about the deceased's computer skills; and that he was not computer literate. Mr Middlebrook can be accepted to the extent he says George had a preference for paper and handwriting but he could use a computer far more than Mr Middlebrook says.
(2) The Deceased's Language. Another issue was whether the language of the informal will was the language and vocabulary of the deceased. Mr Yesilhat said it was not. Ms Calokerinos said it was. In my view the deceased had quite sufficient linguistic sophistication to produce the informal will. After all, he had studied a tertiary degree, pharmacy, at Sydney University, had written pharmacy scripts and had managed a pharmacy business all his professional life and kept a detailed diary of his life. Several language and vocabulary sub-issues emerged.
As to the hyphenated names of the nieces used in the will, I accept Ms Sclavos-Lahana's affidavit evidence of 17 October 2014 that the deceased was "very aware of both our surnames". She recalled a conversation in which the deceased was happy with the hyphen she used in her name and said of the practice "the Sclavos gene is still in the blood". In her affidavit of 20 October 2014, Ms Calokerinos similarly recalled, and I accept, a conversation in which she discussed her using a hyphen in her sister's name with the deceased. I infer the deceased was well aware and approved of these hyphenations and was likely therefore to use them himself.
Mr Yesilhat submitted that the deceased would not have used the word "revoke" as part of his vocabulary. But I accept Ms Calokerinos' evidence that the deceased's vocabulary "was well enough developed for him to understand that word [revoke]". The fact the will has a revocation clause at all indicates that the author probably consulted some legal source to help composition.
The deceased says he is "unwell" in the informal will. The parties looked for markers of the deceased's health on its date, 16 October 2012 that might support an inference about his either making, or not making, a will on that particular day. The deceased's diary entries for 8 and 9 October 2012 refer to the deceased vomiting (a translation of the Greek word he used "emeto"). In cross-examination, Ms Calokerinos repelled, in responses I accept as true, the suggestion she had created the informal will on 16 October to fit these diary entries. "Q. Did you find that reference to the Greek word vomit on 8 and 9 October 2012 that led you to put those words in there, "been feeling unwell"? A. No, no, I read those - no. Q. Did you find those references to vomit on 8 and 9 October 2012 that led you to choose 16 October 2012 as the date for that will? A. No."
If this suggestion had any force it might be asked why the will was not dated 8 or 9 October 2012 to fit the diary even better.
As to the use of the word "emeto" by the deceased, Mr Yesilhat said he was aware "emeto" in Greek means vomit. But he pointed out there is also a business called "Emeto". But he had never heard George refer to such a business.
Mr Yesilhat says George was not feeling unwell in October 2012. But I do not accept this evidence. Apart from Mr Yesilhat's general lack of credibility; the diary says what it does, and the deceased was 9 months from death, and Mr Yesilhat is unlikely to be able to accurately account for George's feelings of well-being throughout a whole month.
(3) The Informal Will's Paper, Size and Printing. The evidence of the witnesses familiar with the pharmacy, further assists in inferring the provenance of the informal will. When that evidence is considered, in my view it turns out that the pharmacist, George Sclavos made his last will on pharmacy script sized paper that neatly fitted into his laser, or possibly dot matrix printer in the pharmacy. Many theories were canvassed in the evidence but this is the simplest and in my view is the most probable. On this matter the evidence of Mr Torrisi, Mr Cameron and Ms Dacic were of central importance.
George did cut up pharmacy paper. I accept Mr Torrisi's evidence that the deceased had a habit of writing things on bits of paper, of regular or irregular dimensions. He had many types of paper in the pharmacy. Mr Torrisi was sure that George would cut paper down to size to suit the margins of the print on the page he was printing. Mr Torrisi even indicated that George would use scissors, or a Stanley knife blade to cut the paper down to size to achieve this. And he gave a convincing impression that George did this often.
Mr Torrisi's evidence dealt with other related matters. Mr Torrisi denied that Mr Yesilhat asked him as to the whereabouts of a will. Mr Torrisi denied that he knew whether George had a will and was therefore not able to confirm to anyone that he had a will.
Neither Mr Torrisi nor any of the pharmacy employees ever saw the informal will. But this is not surprising. The informal will was not the kind of document the deceased would have shared with his employees. The deceased was likely to make a will privately. The will contains the very private thoughts of its author about "feeling unwell" and doing "Christ's will in my life" that are similar to sentiments George expressed on small pieces of paper left around the pharmacy, that Mr Torrisi found from time to time.
Mr Cameron confirmed that George kept a variety of paper types at the pharmacy. He also said that there was a laser printer at the pharmacy able to print the informal will. I accept his evidence on this. He was meticulous. As the pharmacist-in-charge on Fridays he was in a position to see and make choices about the quality of and then use the pharmacy's printing capability.
Mr Cameron could not offer an opinion about whether the computer in the main area of the pharmacy had word-processing software installed. He had never seen George use the shop computer for word processing purposes. Consequently, he was not able to offer an opinion about whether George had the word processing skills to type something such as the will. But that evidence comes from other witnesses that I accept.
Finally, in compelling testimony which I accept, in my view Ms Dacic really solved the mystery of how the informal will had been printed. She thought it was printed on the dot matrix printer at the pharmacy. This explains the small size of the will paper: which as she said, was the exact size used for pharmacy scripts.
Ms Dacic had good recollection of any witness on the issue of the pharmacy's word processing and printing arrangements. Ms Dacic remembers re-typing a document for George using Microsoft Word. I accept her evidence that Microsoft Word was installed on all three computers in the pharmacy and that George was capable of using such software.
I accept her evidence but with one qualification: that as Ms Novotny says the will was printed by a laser printer. Mr Cameron's evidence explains that could well have occurred.
The use of prescription sized paper for the informal will contains its own silent indication of the authorship of the will. George, the pharmacist, more than anyone, was likely to use prescription sized paper for making his will. Such pharmacy paper was readily available in his pharmacy. Paper in the pharmacy could have been trimmed to produce the will of the prescription size that we now see. The printers in the pharmacy may well have printed the informal will. As Mr Cameron said there was a laser printer there and they probably did. But it should be remembered that it is not necessary to Ms Calokerinos' case in support of the informal will for her to show it was printed in the pharmacy.
The Court's conclusion that the informal will was made on pharmacy script sized paper suitable for printing in the pharmacy printers and printed there also incidentally assists the inference, that the Court otherwise draws, that Ms Calokerinos did not fabricate it. If the informal will was produced in the pharmacy itself, which the paper size and printing would suggest, were Ms Calokerinos to try and fabricate the will, she would need to find the original will, destroy it, and then go to the pharmacy to produce the informal replacement will, or for some unexplained reason to decide to create the informal will the size of pharmacy script paper. None of this makes much sense.
(4) George's Habit of Handwriting in Block Letters. Mr Yesilhat also postulates that the deceased had a habit of handwriting documents using block or capital letters. As a basic proposition, there can be no doubt that this was the deceased's writing habit. George's diaries are generally written in block letters, in English or Greek letters.
Mr Yesilhat also places reliance upon a letter (Exhibit N) the deceased hand wrote as a draft to be addressed to public health authorities to report a robbery that had taken place on 8 July 2011 at the pharmacy at 11.20pm. He did not type the draft letter or the final form of the letter itself. Instead he hand wrote the final form of the letter, correcting errors he had crossed out in his earlier draft and then signed it at the bottom, leaving a gap between the last line of his letter and his signature.
Mr Yesilhat submits that it is probable that George wrote out his original will, the one that Ms Calokerinos is alleged to have destroyed, in a similar format to Exhibit N, with characteristics of leaving a gap between the last line and his signature and that it was probably a fully handwritten document. Exhibit N is said to be significant to Mr Yesilhat's case because in its final form it is only 155 words, only a few words longer than the text of the will.
In my view Exhibit N proves little. It only provides another platform for more speculation in a case which the Court regards as otherwise unsustainable. George was quite capable of typing a 92 word letter will even though he had handwritten in block letters a little over a year before a letter of 155 words. None of this proves very much.

[57]

Should Probate of the Informal Will Be Confirmed?

Before confirming that the existing grant of probate of the October 2012 informal will should not be revoked, it is necessary to recognise that the grant of probate for that document was an exercise of the Court's jurisdiction under Succession Act, s 8. It was not in contest that the October 2012 informal will was not executed or witnessed in conformity with the formal requirements of Succession Act, s 6(1). There were no witnesses to the will.
The source of the applicable jurisdiction here, Succession Act, s 8 provides: "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will-if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."
There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16]-[17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J, and Bechara v Bechara [2016] NSWSC 513 at [127] per Hallen J.
The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph.
The October 2012 informal will was a "document". Interpretation Act 1981, s 21 includes within the meaning of the word "document" anything on which there is writing, or anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them. The deceased's signature and the printing are written in English and capable of ready interpretation.
The second Succession Act, s 8 requirement is that the document "purports to state the testamentary intentions of the deceased". Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey (2002) 4 VR 406; [2002] VSC 83 at [16] per Beach J and see In the Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 at 455 per Mahoney JA.
The informal will clearly qualifies as something which records the deceased's testamentary intentions. Given the Court's findings about the parties' relationships with the deceased the document is a logical testamentary instrument. The document refers to the deceased "feeling unwell" as if contemplating death and property dispositions after death "must put things in order". His reference to doing "Christ's will in my life" is also consistent with this. The gift then of "the whole of my estate" to his nieces in context shows an intent to pass or dispose of his property after death.
Finally, in my view the deceased intended this document to form his will. It has all the indicia of a will except execution by the testator in the presence of two witnesses. It appoints an executor, selecting in a logical way between his two nieces the one who is a lawyer. It refers to the disposal of "the whole of my estate", it revokes previous wills, it declares "final wishes", it gives directions for a Greek Orthodox burial at Rookwood with his father "Angelo Sclavos". There can be little doubt in my view this qualifies as a will and that probate under s 8 should now be solemnly confirmed.
These reasons now move to Mr Yesilhat's claim for family provision.

[59]

Applicable Legal Principles

The Court may make an order for provision out of an estate in favour of an applicant under Succession Act, s 59, which relevantly provides: "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made…"
For such an order to be made, the Court must be satisfied that the applicant constitutes an "eligible person" in accordance with Succession Act, s 57(1): "(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person: (a) a person who was the wife or husband of the deceased person at the time of the deceased person's death, (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, (c) a child of the deceased person, (d) a former wife or husband of the deceased person, a person: (e) who was, at any particular time, wholly or partly dependent on the deceased person, and (i) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, (ii) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death. Note : Section 60 sets out the matters that the Court may consider when determining whether to make a family provision order, and the nature of any such order. An application may be made by a tutor (within the meaning of the Civil Procedure Act 2005 ) for an eligible person who is under legal incapacity. Note: "De facto relationship" is defined in section 21C of the Interpretation Act 1987 ."
Mr Yesilhat claims eligibility under Succession Act, s 57(1)(b), (e) and (f). Mr Yesilhat primarily claims that he was living in a de facto relationship with the deceased at the time of his death. An order for family provision as the de facto of the deceased under Succession Act, s 57(1)(b) only requires an applicant to establish the fact of their relationship "at the time of the deceased person's death" to be an eligible person. It does not require, as does intestate succession under Succession Act, ss 104 and 105, that a de facto domestic partner claiming against an estate must show a relationship for a continuous period of at least two years.
In the alternative, Mr Yesilhat advances his claim on the basis of Succession Act, s 57(1)(e) or (f) respectively; namely, that he was a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member, or alternatively, a person who was in a close personal relationship with the deceased at the time of his death. Special considerations apply to applicants who claim eligibility by these avenues.
The Court when applying s 57 may have regard to Succession Act, s 60(2), which lists non-exhaustively the matters that the Court may consider in determining whether an applicant constitutes an "eligible person". The Court may exercise its discretion as to whether or not to make an order for provision with regard to these same s 60(2) matters.

[60]

De facto relationship - Succession Act, s 57(1)(b)

Legal Principles. For the purposes of Succession Act, s 57(1)(b), "de facto relationship" is defined by Interpretation Act 1987 (NSW), s 21C(1) and (2) which provide: (1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) The person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) The person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or Instrument, a person is in a "de facto relationship" with another person if: (a) They have a relationship as a couple living together, and (b) They are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else."
As indicated, importantly a de facto relationship can exist, even if one of the persons is legally married to someone else: s 21C(2). Mr Yesilhat was twice married during the period of the de facto relationship alleged here. In Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 Hallen AsJ (as his Honour then was) at [83] observed that it may be more difficult to establish a de facto relationship exists in this situation. The Court's reasoning in the narrative of findings above shows that this difficulty arises here for Mr Yesilhat's case.
To determine the existence or otherwise of a de facto relationship, the Court must consider all of the circumstances of the relationship, including any appropriate matters listed under s 21C(3). Section 21C(3) provides: "(1) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and (e) any arrangements for financial support, between them, (f) the ownership, use and acquisition of property, (g) the degree of mutual commitment to a shared life, (h) the care and support of children, (i) the performance of household duties, (j) the reputation and public aspects of the relationship."
No particular finding in relation to any of those matters is necessary in determining whether two persons have a relationship as a couple.
Interpretation Act, s 21C(3) spells out that no finding in respect of any of the matters in the sub-section is to be regarded as necessary for the existence of a de facto relationship; and further, that a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.
The section does not prescribe a precise test for the existence of a de facto relationship. Indeed, in Jonah v White (2011) 258 FLR 236; [2011] FamCA 221 ("Jonah v White"), Murphy J at [47] held that when determining the existence of a de facto relationship the Court should examine each situation on a case-by-case basis. However, in Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 at [78], Hallen AsJ held that collectively the matters listed within s 21C(3) "all suggest a continuing course of conduct and behaviour, not a fixed point in time". Earlier in the judgment, His Honour also stated at [74]: "Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship."
In NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894, Young AJ at [13] affirmed Murphy J in Jonah v White, holding that it was important to consider whether a couple manifested a relationship of 'coupledom' which involved the merger of two lives. The role of commitment within a de facto relationship was expounded further in Marando v Rizzo [2012] NSWSC 739 where Hallen AsJ stated at [52]: "... in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, and grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another."
Conclusions on De Facto Relationship. Mr Yesilhat has not established that he was in a de facto relationship with the deceased. His case is incapable of making out almost every one of the indicia of a de facto relationship. The narrative of findings above provides the overall factual basis for this conclusion. But in summary the following may be said by reference to the main indicia.
The deceased and Mr Yesilhat did not have common residence. He was a regular visitor to the pharmacy, mainly in the evenings. But I do not accept he in any sense resided with George at the pharmacy. And George did not use it as a residence. Mr Yesilhat was not there often enough for it to be a common residence.
I do not believe Mr Yesilhat's evidence that he had a sexual relationship with George.
There was a high degree of financial inter-dependence between George and Mr Yesilhat, especially after March 2011. But this inter-dependence is explained by the existence of informal commercial arrangements between an older man and a younger friend where for the sake of convenience and because the older trusted the younger, the older man gave bank account linkages and other confidential information to the younger man to allow the younger to transfer and then repay funds. To more cautious individuals than the deceased this would seem imprudent. But the deceased was both generous and trusting. He conducted all his affairs with that attitude. But there was not here the financial inter-dependence to be expected of a de facto couple. And there is scanty evidence of their getting food and other small discretionary items for one another out of common funds.
The advances George made provided some financial support for Mr Yesilhat. But support was really limited to giving Mr Yesilhat loans on less than fully commercial terms. The deceased was really someone in a position of a subordinated lender to the small business, Australia's Best Tyres, rather than a broader financial supporter of Mr Yesilhat's personal and business life.
The case is remarkable for the lack of common property between the deceased and Mr Yesilhat. The deceased kept his own motor vehicles, decided how to service and care for them himself, kept the pharmacy, real estate and all his accounts in his own name, never opened a joint account with Mr Yesilhat, and did not seek to take a joint interest in any property with Mr Yesilhat, as he did with Ms Anne Sklavos. The argument from any joint property and financial arrangement as a foundation for inferring a future life together for the pair is substantially absent in this case. The mere sharing of passwords and NetBank access through the CBA is principally consistent here with an arrangement of convenience. The deceased did not take any interest in Australia's Best Tyres. He was a mere unsecured lender to the business.
Mr Yesilhat was married to other people for the last nine years of George's life. By his marriages, Mr Yesilhat had publicly declared a mutual commitment to a shared life with two women. It is difficult to infer from any of Mr Yesilhat's and George's interactions, that they had any mutual commitment to a shared life.
George and Mr Yesilhat neither cared for nor supported children nor discussed the possibility of having children. This was not part of their world.
The absence of performance of household duties is a curiosity in this case. Mr Yesilhat did not offer to help to clean up the Strathfield property. Nor did he regularly supply services such as laundry, clothes purchases, the acquisition of food items or other personal inventory for George; nor indeed did George for him. Mr Yesilhat did not clean, tidy up or buy furniture or other accoutrements for their supposed residence in the dispensary area of the pharmacy.
Finally, this alleged relationship was totally secret from everyone except its alleged parties. It was first revealed only in correspondence after George's death. There was no reputational or public aspect to the relationship at all.
In my view the interaction between George Sclavos and Okan Yesilhat did not at any time qualify as a "de facto relationship"; nor were they "de facto partners" within the Interpretation Act, s 21C.

[61]

Dependant - Succession Act, s 57(1)(e)

Mr Yesilhat further claims that he was a person who was at a particular time "wholly or partly dependent upon the deceased person", and accordingly, is entitled to family provision under Succession Act, s 57(1)(e). He also claims to fulfil the cumulative requirement in Succession Act, s 57(1)(e)(ii) of being at the time of his dependence or at other times "a member of a household of which the deceased was a member". To be successful on this ground, it is not sufficient for an applicant to merely prove the fact of his or her relationship with the deceased; they must also demonstrate "factors which warrant the making of the application" before the Court will hear their substantive case.
In Ball v Newey (1988) 13 NSWLR 489 Samuels J at 491 held that: "Dependent", in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) 98 LJKB 49 at 53; 21 BWCC 401 at 408, that in "deciding whether or not there is dependency the factors to be considered are past events and future probabilities". While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."
The applicable law in relation to dependence has been defined in authority to embrace concepts of both material and financial dependence as well as emotional dependence. These cases start with Petrohilos v Hunter (1991) 25 NSWLR 343 and their course is well summarised in Hallen AsJ's recent decision in Drury v Smith [2012] NSWSC 1067. In Petrohilos v Hunter, a case under the former legislation Family Provision Act, s 6, Hope AJA, Clarke and Sheller JJA agreeing, explained at 343 the width of the concept of dependence embracing, as it does, more than material dependence: "I would respectfully disagree with the master. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McLelland J said in Re Fulop Deceased or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."
Furthermore, as Campbell J explained in Amaca Pty Ltd v Novek (2009) 9 DDCR 199; [2009] NSWCA 50 at [44] citing earlier authority, a legal duty to maintain can exist independently of dependence in law: "In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"
The question of whether an applicant was a member of the deceased's household is, as was expressed by Young J in Markulin v Drew (1993) DFC 95-140, "a question of fact in each case". In Kingsland v McIndoe [1989] VR 273, Gobbo J stated that the concept of membership of a household connoted a degree of continuity and permanency of living arrangements and a form of special familial relationship.
In Benney v Jones (1991) 23 NSWLR 559, Young J found that the requirement to be a member of the same household did not mean that the applicant must have been a member of the deceased's household at the time of his death, but rather, it had to be shown that at some time both the deceased and the applicant were members of the same household.
Mr Yesilhat fails on this ground. He was never part of the deceased's household. He does not qualify under Succession Act, s 57(1)(e).
The pharmacy dispensary area was not a "household" that Mr Yesilhat "shared" with the deceased. Neither of them tended it, lived in it or treated it like a household which these two individuals shared.
The video taken of the area in about 2010 (Exhibit OY2) shows it exactly as it is: a pharmacy dispensary area occupied primarily for business purposes by a business proprietor and some associates.
Nor does Mr Yesilhat establish dependency within Succession Act, s 57(1)(e). The financial relations between the deceased and Mr Yesilhat were ultimately commercial, although less rigorous than most commercial relations. The proper analysis here is that George provided to Mr Yesilhat fairly relaxed but nevertheless commercial loan support for a period after March 2011 for special purposes associated with Australia's Best Tyres. But this did not amount to Succession Act, s 57(1)(e) dependency in my view.

[62]

Close Personal Relationship - Succession Act, s 57(1)(f)

Mr Yesilhat also submits that he is an "eligible person" under Succession Act, s 57(1)(f) by virtue of his "close personal relationship" with the deceased. Akin to s 57(1)(e), special considerations apply to persons who pursue eligibility under s 57(1)(f).
The meaning of a "close personal relationship" is defined by Succession Act, s 3(1) which provides: "For the purposes of this Act, a "close personal relationship" is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care."
In relation to the identically worded Property (Relationships) Act 1984, s 5(1), Macready AsJ found in Dridi v Fillmore [2001] NSWSC 319 at [102] - [104]: "the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care". So far as the first requirement is concerned since we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home. The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg, shopping for both parties, washing clothes etc"
The scope of the concept of "living together" has been the subject of judicial authority. Brereton J in Sharpless v McKibbin [2007] NSWSC 1498 at [71] affirmed Macready AsJ in Fridi v Fillmore that the reference to persons "living together" in the Property (Relationships) Act 1984, s 5(1) was not an attempt to impose concepts applicable to couples onto a "close personal relationship". His Honour found that a "close personal relationship" may cover a wide range of relationships, and did not typically involve a "practical union of lives and property": Jurd v Public Trustee [2001] NSWSC 632 at [22]-[24] per Macready M; Harkness v Harkness [2011] NSWSC 1421 at [41] per Hallen AsJ.
Further, in Hayes v Marquis [2008] NSWCA 10 McColl JA at [78] held that the statutory language did not require full time cohabitation, and that it would be satisfactory if there was sufficient shared residence. McColl JA also held at [76] that the reference to the term "domestic" in collaboration with the phrase "living together" carried connotations of "matters relating to a household", and that in turn the definition contemplated that "the facts permit of the conclusion that the two adults are living as a household".
Mr Yesilhat is not eligible under Succession Act, s 57(1)(f) to make a claim for family provision. For the reasons stated under the earlier grounds of claimed eligibility he and the deceased were not "living together". Nor were they in a "close personal relationship". They had a friendship with some fairly informal commercial elements to it but that was all.

[63]

Factors Warranting Provision from the deceased's estate - Succession Act, s 59(1)(b)

For the court to deem an applicant an "eligible person" under Succession Act, s 59(1)(e) and (f), factors warranting their application must be established.
The meaning of "factors warranting" was addressed by this Court in Christine Anne Lumsden v Ian Ross Sumner as Executor of the Estate of the Late Dorothy Jean Lawliss [2012] NSWSC 1140, wherein it was found at [86] - [89]: "[86] The question of what are "factors warranting" has bedevilled the Courts since family provision legislation was first passed in this form in 1982. The vagueness of this aspect of the legislation has been much criticised. Despite that legislative defect, the law has become more certain through judicial exposition. [87] The classic statement explaining what are "factors warranting" is that of McLelland J, as His Honour then was, in Re Fulop Deceased (1987) 8 NSWLR 679: that the factors are, when added to the facts that make the applicant an eligible person, factors which give the applicant the status of a person who would generally be regarded as a natural object of testamentary intention by the deceased. See also: Churton v Christian (1988) 13 NSWLR 241, Diver v Neal [2009] NSWCA 115, Penfold v Perpetual Trustee [2002] NSWSC 648, Evans v Levy [2011] NSWCA 125, Porthouse v Bridge [2007] NSWSC 686 per Bryson J, Drury v Smith per Hallen AsJ, Morgan v Public Trustee [1999] NSWSC 1112 per Macready AsJ and Meers v Permanent Trustee Co Ltd [2000] NSWSC 1108. These authorities indicate that the traditional Re Fulop view of "factors warranting" has been in competition for some years with the Court of Appeal's statements in Brown v Faggoter (unreported, NSWCA, 13 November 2011) which offer another test of "factors warranting": that an application might be warranted if the applicant has reasonable prospects of success. [88] This conflict has been commented on in the Court of Appeal, in Evans v Levy [2011] NSWCA 125, and in Porthouse v Bridge by Bryson J. I agree with Hallen AsJ's view that the trend of authorities does not favour the view suggested in Brown v Faggoter, although the Court of Appeal has not said that Brown v Faggoter is wrong. [89] It seems to me looking at the development of this line of authority and especially what the Court of Appeal said in Evans v Levy, that the aspect of prospects of success, mentioned in Brown v Faggoter as a possible factor warranting, cannot be a decisive factor on its own. The authorities do not suggest that the applicant's prospects of success cannot be taken into account as a factors warranting. This seems to be self-evident from the reasoning of McLelland J in Re Fulop and from Churton v Christian, which both show that there must often be a substantial degree of overlap in practice between (1) the factors warranting, and (2) those matters which must be addressed in determining whether the testator has made adequate provision for the applicant."
It is not strictly necessary to consider whether there are factors warranting this case, because Mr Yesilhat has failed to qualify as an eligible person under Succession Act, s 57(1)(e) or (f). But in this case it is to be observed that identification of any factors warranting would have been unlikely because of the sequence of events in the last two years of the deceased's life.
The deceased made his October 2012 informal will: when he had already supported Mr Yesilhat's Australia's Best Tyres venture with substantial advances, and when he had known Mr Yesilhat for many years and the habits of their interaction were well established. But he made the October 2012 informal will giving the whole of his estate to his nieces, not to Mr Yesilhat. He can hardly have forgotten Mr Yesilhat given his regular interaction with him and the urgings of his nieces. The deceased clearly judged that Mr Yesilhat was not a natural object of his testamentary intentions.

[64]

Adequate Provision

Should Mr Yesilhat have satisfied the Court that he is an "eligible person", in line with established authority the Court should then determine whether provision ought to be made in his favour. This shall be determined according to a two-stage test as propounded by the majority of the High Court in Singer v Berghouse (No.2) (1994) 181 CLR 201; (1994) 123 ALR 481, and reaffirmed in Vigolo v Bostin (2005) 213 ALR 692; (2005) 221 CLR 191, in relation to the test under the previous legislation.
First, the Court must consider whether or not the provision made in favour of Mr Yesilhat by the deceased either during the deceased's lifetime or out of the deceased's estate was "inadequate for the proper maintenance, education and advancement in life of the eligible person". Secondly, the Court must consider "what provision (if any) ought to be made in favour" of Mr Yesilhat, taking into consideration the matters outlined by s 60: Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520; 12 ASTLR 268 at [89].
Whether the two-step test operates with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case.
For these family provision purposes Mr Yesilhat's primary assets include two properties in Spring Farm and Prestons respectively, which have an approximate total value of $1.14 million. He also has superannuation and a $200,000 share in the Australia's Best Tyres business. The total asset pool is approximately $1,361,920.00. His liabilities include mortgages over the two properties, personal loans to the CBA and "family", HECS debt, legal costs and a loan from the business. These liabilities amount to a net sum of $185,720.00. In his statement of assets and liabilities annexed to his 20 September 2014 affidavit, the following statement appears: "the plaintiff has not included $206,500.00 held in a Commonwealth Bank of Australia account in his name".
It is not necessary to decide this issue as Mr Yesilhat is not an eligible person.

[66]

Monies Paid Before the Day of the Deceased's Death

The Court's overall conclusions in the debt/trust proceedings may be shortly stated. The narrative of findings shows that the monies the deceased advanced to Mr Yesilhat before his death were loans. But the deceased was well aware of these advances and he agreed to make them to Mr Yesilhat. I find no basis to conclude that Mr Yesilhat went behind the deceased's back and fraudulently procured account linkages and passwords to use the deceased's accounts and authority to operate on those accounts, without the deceased's knowledge. It is impossible to accept that the deceased was unaware that Mr Yesilhat was able to use the account linkage between July 2011 and July 2013. The deceased would almost certainly have become aware of the linkages. Accordingly, the estate is in a position to recover the monies the deceased advanced to Mr Yesilhat before 13 August 2013, less the repayments Mr Yesilhat made as loans due to the estate.
Executors not uncommonly find themselves in the position of alleging that money paid by a deceased person to another was a loan, only to encounter a defence that the money paid was a gift. The High Court considered just such a situation in Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111 ("Heydon"), a case often cited as authority for the proposition that a plaintiff bears the onus of proof of the loan in such circumstances.
In Heydon an executor trustee company brought an action for 150 pounds allegedly loaned by a testatrix to the defendant, Heydon or alternatively an action for money had and received by the defendant as trustee for the plaintiff. The defence was that the testatrix had given the money to the defendant. At first instance the trial judge had held the burden of establishing a gift was on the defendant. The defendant gave evidence of the circumstances that she said showed that the payment was a gift. The plaintiff gave evidence as to the payment, but did not establish a loan. The defendant was disbelieved and on the evidence the trial judge held that the defendant had failed to establish her case of a gift due to its own inherent weakness and entered judgment for the executor with costs, which judgment was confirmed on appeal.
The unsuccessful defendant appealed to the High Court which unanimously (Gavan Duffy J, Rich, Starke, and Dixon JJ agreeing) reversed the judges below and decided that "'the burden of proving the facts in support of either one or other cause of action set out in the statement of claim lies on the plaintiff". The plaintiff, the respondent to the appeal in the High Court, to support the decisions of the judges below cited cases such as Scott v Pauly (1917) 24 CLR 274, at 281, Pink v Pink [1912] 2 Ch. 528 at 540 and Bouts v Ellis (1853) 17 Beav. 121, 51 ER 978 and to argue that a voluntary payment of money to a stranger raises a presumption of resulting trust. But Dixon J said in the course of argument that the correct principle was that chattels which passed by delivery are not within the rule and a presumption arising from the voluntary delivery of chattels is that a gift was intended in the absence of circumstances to the contrary. The course of argument in the case Dixon J referred counsel for the respondent to George v Howard (1819) 7 Price 646, at 651, 146 ER 1089 at 1090, where Richards CB said "If I deliver over money…to another, even although he should be a stranger, it would be prima facie a gift".
The decision Heydon has been frequently applied. Recently in this Court White J referred to Heydon in Schmierer v Taouk [2004] NSWSC 345 at [63] (Shmierer). Lindsay J has also referred to it in Voce v Deloraine [2012] NSWSC 1187 at [12] ("Voce"). These cases confirm that the plaintiff in such actions bears the onus of proving that the payment should be characterised as a loan or in some way other than as a gift. And Shmierer (at [59]) makes clear that the onus of establishing the monies were a loan always lies upon the plaintiff and that onus is not discharged by mere proof of the payment itself.
In my view this is a case where the deceased's estate has established on the balance of probabilities that all monies paid prior to the date of George's death were loans and not gifts. The executrix establishes that though the many different indications that the Court has examined in the factual narrative that the advances were loans. Principal among the findings are: the October 2012 informal will which is inconsistent with the deceased having a domestic relationship with Mr Yesilhat; conversations between the deceased and third parties where he indicated they were loans; conversations between Mr Yesilhat and Ms Sclavos-Lahana and her husband in which he did not dispute that loans had been advanced; the pattern of regular repayments commencing shortly before the deceased's death, which is a strong indicator of the repayment of a loan; and, overall the fact that the deceased was sloppy about his financial affairs with many people did not mean that he was giving money away to Mr Yesilhat. All of this is in the context that the Court accepts none of Mr Yesilhat's evidence on which he relies to assert that these monies were gifts. The onus lies on the estate but in my view it has been discharged. In the circumstances the estate can recover all the monies proven to be advanced to Mr Yesilhat or Australia's Best Tyres before the deceased's death, less the monies that were repaid to the deceased.
No interest rate was fixed for these loans between George and Mr Yesilhat. The Court will order Mr Yesilhat to pay interest on the outstanding monies under Civil Procedure Act 2005, s 100 at the applicable rates. The parties are directed to agree upon calculations of interest and bring in short minutes of order to give effect to those calculations.

[67]

Monies Paid On and After 13 August 2013

But on and from the day of the deceased's death the position is different. The Court has found that Mr Yesilhat transferred all the funds on 13 August 2013 and on the separate occasions thereafter knowing the deceased was dead. In my view Mr Yesilhat could not have had any genuine belief that he had any legitimate authority to transfer those funds when he did. I do not accept he was ever told by the deceased that a will was made in his favour or that he would be the deceased's executor. Nor did Mr Yesilhat apart from these transactions behave as though he had any authority over the deceased's estate.
The money so transferred was in my view fraudulently transferred from the estate of the deceased. In these circumstances an institutional constructive trust will ordinarily be implied in the estate's favour in respect of the monies so transferred.
The decision of the High Court in Black v S Freedman & Co (1910) 12 CLR 105 supports the estate's claims that monies paid by Mr Yesilhat on and from the date of the deceased's death are all held on constructive trust for the estate. In that case the appellant, Mr Black, paid sums of money stolen from his employers into his personal bank account. He subsequently withdrew monies from his bank account and paid them into an account in his wife's name. The question before the High Court was whether the employers could recover against Mr Black's wife. In this context O'Connor J stated (at 110): Where money has been stolen, it is trust money in the hands of the thief, and he cannot divest it of that character. If he pays it over to another person, then it may be followed into that other person's hands. If, of course, that other person shows that it has come to him bona fide for valuable consideration, and without notice, it then may lose its character as trust money and cannot be recovered. But if it is handed over merely as a gift, it does not matter whether there is notice or not.
This statement of principle has recently been restated by the Court of Appeal in Sze Tu v Lowe [2014] NSWCA 462 at [141] (Gleeson JA, Meagher and Barrett JJA agreeing). Gleeson JA continued at [147]-[150]: "Whether the trust based on a Black v Freedman claim is more properly characterised as a resulting trust: (Robb Evans at [112]-[117]); or a constructive trust: (Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] NLJR 877; AC 669 at 716 (Lord Browne-Wilkinson)), the trust is properly viewed as being of an institutional rather than simply a remedial character. It arises because the conscience of the thief is bound: Heperu at [154]-[155]; Wambo Coal Pty Ltd v Ariff [2007] NSWSC 589; 63 ACSR 429 at [40] (White J). In Robb Evans, Spigelman CJ said (at [113]) that the thief holds any property into which the stolen property has been converted on trust in a manner which should be seen as automatic. That is, a trust arises immediately upon the acquisition of the property, not when recognised by a court. He continued (at [115]): If appropriately characterised as 'constructive', the trust that arises upon receipt of stolen funds by an active participant in the theft is of an institutional rather than remedial character. [Emphasis added.] The authors of Jacob's Law of Trusts in Australia (7th ed, LexisNexis Butterworths) observe (at [1310]) that there is a remedial flavour about various constructive trusts, including that in Black v Freedman. Nonetheless they state (at [1311]) that "it does not follow that the constructive trust in such cases is 'remedial' in the sense that it first has existence and effect only upon the Court making its decree". The authors point out that in Black v Freedman, O'Connor J meant (at 110) that the thief became a trustee forthwith. The institutional character of such a constructive trust may be seen as "connoting a relationship which arises and exists under the law independently of any order of the Court": Muschinski v Dodds [1985] HCA 78; 160 CLR 583 at 614 (Deane J), although his Honour doubted (at 613) that there was any perceived dichotomy between institutional and remedial constructive trusts, preferring to view a constructive trust both as an institution and a remedy."
The question in Sze Tu v Lowe was whether the trial judge erred in failing to consider whether proprietary relief was appropriate, on the basis that the facts of the case (the purchase of real properties using misapplied partnership funds) could only give rise to a remedial (as opposed to an institutional) constructive trust (at [156]). The appellants in that case placed reliance on a statement of the Full Federal Court in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 at [255] as suggesting that the principle of appropriateness has application to a claim based on Black v S Freedman & Co in respect of assets in the hands of a volunteer.
The Court of Appeal held in Sze Tu v Lowe that the trial judge did not err in concluding that the claim based on Black v S Freedman & Co "gave rise to an institutional constructive trust over the partnership monies or their traceable product" (at [162]). Gleeson JA (at [157], [238]) emphasised the remarks of Allsop P (Campbell JA and Handley AJA agreeing) in Heperu Pty Limited v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 at [154]-[155] to the effect that "the trust rests on the existence of property rights and in that sense is not purely remedial".
In coming to this conclusion, Gleeson JA acknowledged at [155] that it has been suggested in the United Kingdom that it is not strictly correct to speak of the fraudster as a "trustee", even though the fraudster may be "liable to account as if they were" (Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 per Lord Millett). I note in this context that Spigelman CJ in Robb Evans v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 at [115]-[116] also questioned whether the trust that arises upon receipt of stolen funds by an active participant in the theft is properly characterised as a constructive trust, as opposed to a presumed or resulting trust.
Subject to the defences pleaded, it is unnecessary for the Court to resolve these analytical debates.

[68]

Mr Yesilhat's Authority Defence

Mr Yesilhat mounts a defence based on the Authority for Business Accounts Form and the terms and conditions for access to Netbank. Those documents relevantly provide as follows.
The signed 1 August 2011 Authority for Business Accounts Form, which listed both the deceased and Mr Yesilhat as 'authorised signatories' contained the following statement, extracted in part from the section titled "5. Persons authorised to open the above account(s). This is your declaration and acceptance of the Terms and Conditions": "I/We have read a copy of the Terms and Conditions for this/these account(s) and agree that those Terms and Conditions (including the section on 'Privacy') govern the operation of this/these account(s), by signing below and returning this form. I/We request you to recognise and act upon this authority or any variation of this authority until the branch of the Bank where the account/s is/are conducted receives notice in writing from us, or any one of us (In accordance with the method or operation), of the cancellation of this authority. The Bank has received for Inspection the current documentation relevant to the type of entity…"
The deceased's name, his description as a 'sole trader' and signature appear below the acceptance extracted above.
Mr Borg's affidavit sworn on 30 December 2015 annexed a number of Commonwealth Bank documents including information available on Netbank under the heading "Give someone online access to my accounts". Under the information relating to adding a person to allow them account access, the following text appears: "Important: You must not enter the person's client number yourself Sharing client numbers constitutes a breach of the Electronic Banking Terms and Conditions (PDF 291KB). You/this person may be held liable for any unauthorised transactions on their account."
There were also "Terms & Conditions" which related to providing another person with bank account access. The deceased was also required to tick a box confirmed he had read those "Terms & Conditions": "By ticking this box I acknowledge that: The added person(s) is/are authorised by me to transact on my account(s) using their own NetBank facility. I am aware that their daily NetBank payment limit may be higher than mine. The added person(s) may not give access to my account to anyone else. Any transactions completed on my account(s) by me or person(s) authorised by me are done subject to the Bank's present and future Transaction Savings and Investment Accounts Terms and Conditions (PDF 440KB) to which I have agreed. I may cancel this authority at any time by clicking the 'Remove access' or 'Remove person' link however I acknowledge that this cancellation will not take effect immediately and I will continue to be liable for all transactions until my request is processed. Alternatively, for immediate removal I can cancel this access by calling 13 2221 or visiting any Commonwealth Bank branch."
Those additional account terms and conditions were not before the Court. Like Bryson J in the factually similar case of Noonan v Martin (1987) 10 NSWLR 402 (at 406G) ("Noonan"), I will proceed on the assumption that those unseen provisions do not bear on the issue of authorisation now before the Court.
The complete documentation including the "Electronic Banking Terms and Conditions" and the "Transaction, Savings and Investment Accounts Terms and Conditions" were not before the Court for consideration. Nevertheless, it is clear from the information on the Netbank facility above, that the CBA required notification before an authority could be removed.
Mr Yesilhat submits that because the CBA was only notified of the deceased's death on 9 September 2013, that the Court must draw an inference that the plaintiff was permitted to transact on the linked bank accounts, as a matter of contract law, until the CBA became aware of the death of the deceased.
The estate submits on the other hand that the Court should find that the deceased did not give Mr Yesilhat authority to withdraw moneys from his bank accounts for any purpose and without specific permission on each occasion. The estate further submits that the Court should find that if any authority was provided, it terminated upon the death of the deceased on 13 August 2013.
The estate relies upon the decision of Bryson J in Noonan and says any authority the deceased might have conferred on Mr Yesilhat to operate his bank accounts died with the deceased.
In my view it is important to distinguish between the relationship between the deceased and his bankers and the relationship between the deceased and Mr Yesilhat. As between the deceased and his bankers, the two documents above to which Mr Yesilhat points do indicate that the authority would continue until cancellation. As between the estate and the CBA the estate cannot be heard to complain that Mr Yesilhat's use of these authorities was unauthorised.
But that in my view does not govern the position between the deceased and Mr Yesilhat and this is the point, which in my view, Mr Yesilhat's submissions have missed. This case in my view is very like Noonan. At the minimum the deceased gave an authorisation to Mr Yesilhat to withdraw money from his accounts. It did not purport to be an assignment to Mr Yesilhat of the debt represented by the deceased's bank account. It was a mere authorisation. In my view what was said in Noonan is true of this case and is how the bare relationship between the deceased and Mr Yesilhat should be understood. Bryson J said in Noonan at 408B-C: "What she intended to give him and gave him was the opportunity to do these things; that opportunity depended for its effect on the existence of her authorisation to him to do them and would be brought to an end if that authorisation were brought to an end in any manner, including its being brought to an end by her death, which would be the end of the existence of her legal personality and of all authorisations which it had created"
In my view any authority to Mr Yesilhat to use either of these authorisations ended with the death of the deceased.
In my view Mr Yesilhat was not aware of these terms and conditions between George and the CBA. If he were he would have contacted the executrix and attempted to ascertain whether the authorities would be continued or cancelled. He did not do that. All he had was a simple authority from the deceased, which he could act upon whilst the deceased was alive.
In my view the circumstances of Mr Yesilhat's withdrawals on the evening of 13 August 2013 and their lack of commercial substance and the lack of any colour of consistency with a real commercial transaction are powerful indications that he had no belief in any continuing authority to use George's accounts in the same way that he had whilst George was still alive and that his conduct in so doing was dishonest.
In accordance with the principles stated in Black v S Freedman & Co and restated in Sze Tu v Lowe, I am satisfied that Mr Yesilhat dishonestly diverted to himself or for his benefit all the funds transferred from the deceased's accounts on and from the day of the deceased's death and that the circumstances of the present case give rise from the date the funds were fraudulently obtained to an institutional constructive trust in favour of the estate over the proceeds that thereby came into and remain in Mr Yesilhat's hands. The Court will make declarations accordingly if requested in short minutes of order. The position of the other defendants was not fully addressed in the parties' submissions so I will reserve it for further consideration.

[69]

Estoppels Based on George's Alleged Representations

Both Yesilhat brothers and the company Australia's Best Tyres and Auto Pty Ltd, the defendants in the debt/trust proceedings, in part defend the proceedings by claiming that the deceased represented to them that he would give them all the funds required for the acquisition of and running of the tyre business to be purchased by the company. They contend that in reliance upon those representations that both brothers terminated their secure employment, caused the company to purchase the business and they committed to the long-term obligations and expenses associated with running the business. They contend that because of those representations that Ms Calokerinos as the executrix of George's estate is now estopped from claiming the funds from any of these three parties which were used for the acquisition of and running of the business. They further contend that the Yesilhat brothers and the company should not be restricted from the continual use of the funds in the deceased's CBA accounts for the ongoing running of the business and that Ms Calokerinos holds the funds on trust for them.
Mr Yesilhat also submits that he has the benefit of estoppels arising out of George's alleged representations that he would assist him, Mr Yesilhat, with the purchase of his properties. There is an issue between the parties as to whether this latter part of the estoppel may yet require leave to amend the pleadings. But that issue does not have to be decided because of the Court's factual findings.
Mr Yesilhat's estoppel by representation claim relies upon statements made in Whitehouse v BHP Steel Ltd [2004] NSWCA 428 at [39] - [40] and Coghlan v SH Lock (Australia) Ltd (1985) 4 NSWLR 158 at 167. It is not necessary to develop the argument in support of this case any further.
All of this part of the Yesilhat brothers and the company's case depends upon various statements that George is alleged to have made to them. Statements such as "I want you to buy it. I will give you the money...I am not asking for it back, it's from me to you". And again, "You have been there for me whenever I have needed you and you have to understand that I will always be there for you, even after I die. I will make sure that I will put you in my will". And again, "I told you that I would make sure that you would have enough money to run the business and you have money to build up the business. What I am going to do is that I am going to give you access to some of my accounts so that when you need to pay for stock you will be able to pay for that stock with money that I have in my account…". There are many more examples of these statements in Mr Okan Yesilhat's evidence. But the problem with all of them is that they depend upon the Court accepting Mr Okan Yesilhat as a witness of credit. The Court is not prepared to accept any of this evidence and the estoppel by representation case must fail.
The estoppel by representation case concerning Mr Yesilhat's acquisition of the two real estate properties was much the same. He allegedly promised Mr Yesilhat "I will help you", "I want you to purchase this property", "I will go guarantor for you", "don't worry if you need some money to pay the mortgage, I am more than happy to make sure you don't fall behind", "I never want you to struggle and I don't want you to ever be afraid to ask me for money. I have a bit over $200,000 in cash sitting at home".
I do not accept that the deceased said any of this. This defence fails.

[72]

[4]: Change "… will was not revoked" to "will were not revoked" [15]: Change "…was close and loving and hat the deceased" changed to "..was close and loving and that the deceased" [24] Change "Yesilahat" to "Yesilhat" [25]: Change "…he is same-sex attracted…" to "he was same-sex attracted" [44]: Change "Yesilat" to"Yesilhat" [49]: last line, delete per Dixon J. [79]: Change "help finanice his acquisition" to "…help finance his acquisition…" [86]: Correct spelling of "George" [94]: Change "..including working and cash flow requirements" to "including working capital and cash flow requirements" And change "…able to afford it" to this Mr Yesilhat says…" to "…able to afford it". To this Mr Yesilhat says" [147]: Change "case contails some…" to "…case contains some…" [155]: Change "Yeslihat" to "Yesilhat" [166]: Change "risque" to "risqué" [185]: Change "and Ms Sklavos reaxed and seated…" to "…and Ms Sklavos relaxed and seated…" [210]: Change "Secondly, such an alibi was.." to "Thirdly, such an alibi was.." Change "Thirdly, Mr Yesilhat's case, of…" to "Finally, Mr Yesilhat's case of…" Change "elsewhwere" to "elsewhere" [219] and [226]: Correct spelling of "Yesilhat" [229]: Change "government authorites are not determnative" to "government authorities are not determinative" [262]: Change "if" to "of" [281]: Correct spelling of "Yesilhat" [302]: Correct spelling of "Calokerinos" [311]: Change "But the last word on this should go to Mr Torrisi. His perceptive…" to "But the last word on this should go to Mr Torrisi, with his perceptive observations…" [327]: delete ID number and insert [ID number not published] [338]: Change "becase" to "because" [339]: Change "…George gave him his bank passwords and direct numbers for the CBA and Westpac." to "…George gave him his bank passwords and login numbers for the CBA and Westpac". [340]: Change "Netbank" to "NetBank" [347]: Change "I can mostly accept this evidence: there are…" to "I can mostly accept this evidence: yet there are…" [357]: Correct spelling of "Yesilhat" [358]: Correct spelling of "Ms Sclavos-Lahana" [367]: change "(Apparently mistaking her for her sister…" to "(apparently mistaking her for her sister…" [372]: Correct spelling of "Yesilhat" [385]: Change "between he and George" to "between him and George" [421]: Change "strategm" to "stratagem" [423]: Correct spelling of "unusual" [424]: Change " and $10,000 was withdrawn" to " and $10,000 were withdrawn". [436]: Change "…an amount of $5,000 from Mr Yesilhat's personal account…" to "…an amount of $5,000 was paid from Mr Yesilhat's personal account…" [454]: Change "given" to "give" [467]: "I accept that he mad phone calls to…" to "I accept that he made phone calls to.." And change "Leppington pharmacy window as there was" to "Leppington pharmacy window, as there was" and change "organize" to "organise" [476]: Change "…pending in investigation…" to "…pending an investigation…" [478]: Change "…Ms Calokerinos urgent need to…" to "…Ms Calokerinos' urgent need to…" [479]: Change "says and I accept she" to "says, and I accept, she…" [481]: Change "…because all George had only said to her was…" to "…because all George had said to her was that…" [488]: Change "…I don't think I even though about it'" to "…I don't think I even thought about it'" [502]: Change "…Mr Middlebrook said then and repeated to the Court that his…" to "Mr Middlebrook said then, and repeated to the Court, that his…" [503]: Change "…and again on 24 August 2013. But on nether occasion…" to "…and again on 24 August 2013, on neither occasion…" [515]: Correct spelling of "Sclavos-Lahana" [551]: Correct spelling of "Efstathiou" [534]: Change "sending the original…" to "handling the original…" [560]: Change "favouring Mr Yesilhat, becomes…" to "favouring Mr Yesilhat, it becomes" [570]: Change "Notwithstanding that the…" to "Notwithstanding that, the…" [573]: Change "'cash crisis' in fact as Ms Calokerinos" to "'cash crisis' in fact, as Ms Calokerinos" [594]: Change "…late 2013 she deliberately…" to "late 2013 deliberately" [598]: Change "Ms Yesilhat" to "Mr Yesilhat" [606]: "...registries; the deceased" to "registries: the deceased" [618]: Correct spelling of "Antonopoulou" [623]: Change "I accept as true the way she repelled this contention. But Ms Sclavos-Lahana" to I accept as true the way Ms Sclavos-Lahana repelled this contention. But she…" [625]: Change "applciations in Greece" to "applications in Greece" and "Court in Greece" to "Courts in Greece" [628]: Change "stance for the proposition" to "stands for the proposition", add full stop. [636]: Change "issue comes is:" to "issue is:" [656]: swap (3) and (4)'s sequence [658]: Change "hypothesize" to "hypothesise" [672]: Change "…Best Tyres it might be said" to "Best Tyres might be said…" [684}: Change "this Court's Probate form 112" to "this Court's Probate Form 112" [700]: Change "gave evidence that he" to "gave evidence that she " [724]: Change "…addressed to 'Public Health Authorities'" to "addressed to public health authorities…" The level of heading above [728] "Should Probate of the Informal Will Be Confirmed?" changed (unbold, italicised) [739]: insert sub-paragraph (f) [744]: Add "(as his Honour then was)" [791]: add spacing [792]: Add spacing:"death,which" to "death, which" [817]: Change "…accordingly if reqwuested" to "accordingly if requested" [818]: Change "brothers in the company should not…" to "brothers and the company should not…" 15 June 2017 - [59] - Change "1900s" to "1990s". [155] - Change "Nor do accept" to "Nor do I accept". [363] - "Sclavos-Lahana" be Sclavos-Lahana's"? [694] Change "as" to "a". [607] Change "1980" to "1947" [828] Change (1) and (2) "Sklavos" to "Sclavos". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2017