47 Therefore, I do not consider that Mrs Cowan's denial that she had been told of a diagnosis of bipolar disorder reflects adversely on her credit. That said, for the reasons outlined above, I do not consider that anything turns on the disputed evidence on this issue (other than as an indication that care must be taken before accepting Ms Darmanin's account of events). Even if Mrs Cowan (and her husband) had known the depressive illness was categorised as a bipolar disorder I am not convinced that this would have led to any particular realisation as to the defective impact that could have had on Ms Darmanin's thought processes at those times when she appeared well or (as seemed to be the case towards the end of 2007) when she ceased taking medication and may have started to display symptoms towards the more manic end of the bipolar spectrum.
48 Thus, I find that, as at April/May 2007, what the Cowans were aware of was that Ms Darmanin was suffering some form of depressive illness and was sufficiently unwell to be unable, for a period of time, to care for the physical wellbeing of herself or her daughter. What I do not accept is that they were aware that this illness was something that was present, and could continue adversely to affect Ms Darmanin's judgment or cognitive thought processes, even after she had appeared to recover or behave more normally (ie once she had moved out of the 'dazed and stupified' state she seemed to have been in during the 4 or 5 day period in which she stayed with the Cowans in mid 2007).
Ms Darmanin's ability to manage her affairs as at mid 2007 and alleged reliance on the Cowans
49 Insofar as it is alleged that, by mid 2007, Ms Darmanin's ability to manage her affairs (and make decisions as to financial matters) was significantly impaired, I accept Dr Roberts' evidence that the latest scientific research would suggest that there is a continuing impairment to some subtle degree even during quiescent stages of a bipolar disorder. Thus, over the period from mid 2007 onwards, it seems reasonable to assume that Ms Darmanin suffered some cognitive impairment although the degree of that impairment may have fluctuated. (I note that Ms Easson did not see Ms Darmanin until November 2007 and so (like Dr Roberts) cannot express a view based on direct observation at that stage but said that it was likely that Ms Darmanin was entering a hypomanic phase in the three months leading up to her first consultation.)
50 Insofar as it is alleged that the Cowans knew by the middle of 2007 that Ms Darmanin's ability to manage her own affairs was so impaired, I accept that the Cowans were on notice that Ms Darmanin was suffering from a depressive illness and unable to manage at least her personal affairs at the time she stayed with them in mid 2007 (and this surely would have extended to her financial affairs). As noted above, what I am not satisfied about is that the Cowans were cognisant of a significant degree of impairment in this regard after Ms Darmanin responded to the medication and started to resume a more active life.
51 It is alleged by Ms Darmanin that by mid 2007 she was "heavily reliant" on Mrs Cowan for emotional and practical support and that she was "heavily reliant" on both the Cowans for practical support. At least in relation to the question of emotional support it seems to me not unlikely that Ms Darmanin was to a degree reliant on Mrs Cowan's friendship and assistance. However, there is nothing to suggest that Ms Darmanin was not also reliant (at least once she left the Glenorie property) on others, such as Mr Blackmore and her employer Dr Zafiropoulos, for emotional and practical support at this time. Nor is there anything to suggest (as seems to be asserted) that Mrs Cowan encouraged Ms Darmanin to rely on her and her husband (to the exclusion of others or otherwise) for such support, as opposed to simply offering assistance where she could.
52 To the extent that Ms Darmanin's affidavit asserts that there was no one other than the Cowans who were giving her advice during the relevant period, this again seems to me to be an exaggeration. Not only does Mr Blackmore seem to have offered at least some support during this period, (contacting Mrs Cowan for assistance and accompanying Ms Darmanin to the Cowans in mid 2007 and visiting her on the property) but there is also evidence that, at least at the time Ms Darmanin entered into the legal arrangements for sale of her Gymea property, she had discussed the sale price with her employer.
53 The statement by Ms Easson that Ms Darmanin had limited social support seems to be solely based on what Ms Darmanin told her. I would be inclined to count Ms Darmanin's evidence on this point as self-serving (particularly when Ms Darmanin also said that 'lots' of people had spoken against the idea of the cottage or, to use her words, had said "this is crazy" and she should not be doing this T 21 - suggesting at the very least that she had discussed this proposal with more than simply the Cowans).
54 At some point in 2007, Ms Darmanin went back to work for Dr Zafiropoulos and did so through to about October 2007. It seems (having regard to the evidence of the real estate agent, Mr Bill Anastasiadis, who acted on the sale of the Gymea property, that on at least one occasion Ms Darmanin had referred to discussions with her employer as to the final sale price offered by the purchaser) that Ms Darmanin also placed reliance during this period on his advice. I am thus of the view that the alleged reliance placed on the Cowans has been overemphasised by Ms Darmanin.
Suggestion that Gymea property be sold
55 Ms Darmanin says that it was when she was staying at the Glenorie property in April/May 2007 that the suggestion of the sale of the Gymea property was first raised (and this does not seem to be disputed). However, she says (at paragraph 18 of her affidavit) that Mrs Cowan suggested that she sell her house. Mrs Cowan, on the other hand, says that Ms Darmanin told her that she was not able to continue working, was suffering depression and, as she would have no income, she would have to sell her townhouse (para 6, 24 May 2010 affidavit). Mrs Cowan denies suggesting that the premises be sold (para 8).
56 It seems to me not implausible that, at a time when Ms Darmanin was in a zombie-like state and unable to look after her daughter, she expressed concerns to Mrs Cowan about her ability to continue working and to meet her mortgage repayments. (Although Ms Darmanin gave evidence that she had not missed any repayments, the likelihood of so doing must surely have occurred to her if she were unable to continue working. She had apparently already used additional borrowings to meet her repayment obligations in early 2007.) The knowledge Mrs Cowan had of Ms Darmanin's financial position can only have come from Ms Darmanin herself. Had Ms Darmanin not expressed concerns about her ability to continue to work and meet mortgage repayments, there would be no logical reason for a sale of the property to come up at all (in other words, if all Ms Darmanin had needed was a place to stay for a while then there would have been no logic to a suggestion that the house be sold).
57 There is nothing to suggest that Mrs Cowan had any knowledge of, or interest in, Ms Darmanin's financial affairs prior to that point such as might lead me to conclude that the suggestion of a sale of the property emanated originally from Mrs Cowan. Similarly, despite the submission by Mr Crossland that the Cowans were 'shepherding' Ms Darmanin out of her Gymea property (and wanted to have a cottage erected on their land), there is nothing to suggest that there was any motivation for personal gain on the part of the Cowans in what occurred and, insofar as I am asked to infer this, I am not satisfied on the evidence before me that I should do so.
58 I do not accept Ms Darmanin's evidence on this issue.
Initial offer
59 Mrs Cowan acknowledges that she said to Ms Darmanin that she could purchase a "moveable home" and place it on their property but was clear that it was always to be Ms Darmanin's property. Mrs Cowan says that she said to Ms Darmanin "after you feel better you could sell the portable home" - para 10 of her affidavit. (In the witness box, though not in her affidavit, Mrs Cowan explained that her thought process was to assist Ms Darmanin to find out why she was having bouts of depression.)
60 The original offer or suggestion, which Mrs Cowan acknowledges she made, is broadly consistent with Ms Darmanin's recollection of the conversation (as it appears at paragraph 23(f) of Ms Darmanin's affidavit) and is consistent with the evidence as to a caravan having previously been located on the Glenorie property (as a temporary measure to accommodate some workers).
61 The portability of any dwelling to be placed on the Glenorie property was accepted by all parties to have been a feature of the initial discussion. It was suggested by Mr Crossland, in his cross-examination of the Cowans, that the use of the adjective "relocatable" was something which had been adopted for the purpose of creating an impression as to the nature of the accommodation which had been contemplated by the parties and that this terminology had not been used in discussions between the parties. In effect, as I understood it, Mr Crossland was suggesting that the Cowans were seeking to put a label on the dwelling that would assist in their argument whereas that had not been the term used in the discussions between the parties. Mrs Cowan conceded that in what I would call everyday parlance (conversations with her children and the like) the cottage was referred to as "Tracy's home" or "Tracy's cottage" but insisted that in discussions as to the arrangements between the parties the reference was to a relocatable (or moveable) home. I note that Ms Darmanin herself refers to a conversation where the home was referred to in similar terms (para 23(f) of her affidavit). I do not think that the Cowans can be criticised for referring to the cottage as a relocatable home when the initial offer was in those terms and I accept that they have at all times considered that what was to be placed on the land should be relocatable. (I do not see this as a case of deliberately appending a label to something and then using that label as an aid to construction.)
62 Where the respective accounts seem to diverge at this point is as to whether there was any consensus reached at that stage in relation to the proposal and as to whether by then it was contemplated that there should be a more permanent cottage (as opposed to a mobile home) on the land.
63 Mrs Cowan contends that after the offer was made the subject was not raised again until some time later (around September 2007) (and she says this was after Ms Darmanin had considered the possibility of renting elsewhere). Mrs Cowan recalls a conversation in which Ms Darmanin asked her if the offer was still open (something which Ms Darmanin denies).
64 Ms Darmanin contends instead that there was a discussion (which she seems to put as around mid 2007) with Mr Cowan in which he said that he did not like the thought of a portable home on the land and that he suggested that there be a cottage. Mr Cowan, however, was fairly blunt in the witness box as to his views about the arrangement and I have difficulty accepting that he made any proposal at all about a cottage on the property (the thrust of Mr Cowan's evidence, which I considered was said with genuine feeling, was that his wife had prevailed upon him to accept that Ms Darmanin should be permitted to stay on the property and to accept the view expressed by Ms Darmanin, with which his wife agreed, that a caravan would be too small for Ms Darmanin and her daughter; and that he had only reluctantly agreed).
65 As to the timing of the discussion about a cottage, as opposed to a caravan or 'portable home' (assuming for present purposes that there is a difference between the latter and a cottage, which seems to me to be moot), had it occurred in April/May 2007 then it would seem to me to be surprising that nothing seems to have been done at that stage to consider what kind of cottage would be suitable. The evidence is that steps to identify a suitable home to place or build on the land did not take place until about September 2007 (after Mrs Cowan says that Ms Darmanin raised the offer with her again).
66 There was also a dispute as to whether anything was said at that stage (mid 2007) as to who was to own the cottage (or portable home). Mrs Cowan, as noted above, said that she had said to Ms Darmanin that when she felt better she would be able to sell the 'portable home'. That seems to me to be consistent with the arrangement being one to assist Ms Darmanin with temporary accommodation, in circumstances where Mrs Cowan had made clear that there was insufficient room in her own house to do so (and makes sense of the motivation being to achieve a cost responsible solution - since it contemplates that there will be a residual value in the structure so that Ms Darmanin would have the benefit both of a period of rent-free accommodation and then of the sale of the structure). Ms Darmanin's version on this seems to be limited to what is said in paragraph 23 (p) of her affidavit (which I consider in due course).
67 Ms Darmanin's evidence was that she would not have sold the property had she not had the offer from the Cowans (as she would have had nowhere to live). Ms Darmanin denied having asked in September if it was still all right for her to stay on the Glenorie property for some time, but did not deny having looked at rental properties, which seems consistent with her having made a final decision to move to Glenorie only some time later in 2007 after she had seen what was available on the rental market (in which case the conversation attributed to her by Mrs Cowan makes sense as a matter of logic).
68 Although there is some doubt as to when (accepting that it was asked) the question was raised by Ms Darmanin as to whether it was still all right if she still stayed on the property for some time, (and in particular, some emphasis was placed by Mr Crossland on the fact that Mrs Cowan conceded in the witness box that the Cowans' 'offer' could have been made before the Gymea property was sold suggesting that this meant that the sale of the property was in reliance on the offer made by Mrs Cowan), it does not seem to me that much turns on this for present purposes, since even after the Gymea property was sold Ms Darmanin was not in my view committed to proceeding with the construction of the cottage. It would have been open to Ms Darmanin at that point to take some different decision in relation to her future accommodation (and to have used the net proceeds of sale in a different fashion).
69 What seems more relevant to me is that if the question was raised by Ms Darmanin (and I accept Mrs Cowan's evidence that it was), it indicates to me that Ms Darmanin well understood the temporary nature of the arrangement and it explains the underlying logic of the arrangement as one in which Ms Darmanin would spend what would otherwise have been rent on an asset in which she could live for a while and then either sell in due course or relocate once she was able to resume working and caring for her daughter.
70 Whether or not the Cowans' offer was accepted by Ms Darmanin before the decision by Ms Darmanin to sell the Gymea property, it certainly seems to be accepted by the Cowans that the possibility of temporary accommodation on their land was discussed before the Gymea property was put on the market and, a fortiori, before the sale was completed. Significantly, in light of the agreement on which Ms Darmanin now relies, Ms Darmanin acknowledges that the initial proposal or offer was that she would be able to reside in a caravan or portable home - an offer which both underscores the temporary nature of the accommodation being made available and is inconsistent with the suggestion that it was intended that the Cowans were to obtain any rights to the temporary residence in question.
Involvement of Ms Darmanin in sale process
71 There was also a dispute as to the level of involvement Ms Darmanin had in the sale process in respect of the Gymea property. In around July 2007, thus about two months or so after the initial suggestion in relation to the caravan/portable home, Mrs Cowan made enquiries (she says at Ms Darmanin's request) as to suitable real estate agents to market the Gymea property. It is not disputed that Mrs Cowan made the initial arrangements for the agents to make appraisals of the property and that she was present when the various prospective agents were interviewed.
72 Mrs Cowan accepts that it was she who recommended that Mr Anastasiadis be appointed as real estate agent. It is not suggested that there was any personal motivation in her so doing or that there was any previous business or social relationship between the Cowans and Mr Anastasiadis. He is the principal of the Ray White Real Estate agency at Gymea and has been a real estate agent for approximately 20 years.
73 In Mr Anastasiadis' affidavit of 26 May 2010 he recounts his recollection of the marketing/sale process insofar as it relates to each of Ms Darmanin and Mrs Cowan. He refers to an initial meeting with the two, following an enquiry in April 2007 in relation to a marketing appraisal. Some weight was placed by Mr Crossland on the seeming inconsistencies between the events as described in Mr Anastasiadis' affidavit and his account of those events when cross-examined in the witness box - in particular, what was the initial 'meeting' (the witness referring to that as a telephone call and suggesting that telephone discussions constituted 'meetings') and as to how much of a role Mrs Cowan had (he saying that she had 'more' of a role in the initial 'meeting' when the initial contact was solely with Mrs Cowan). I formed the impression that Mr Anastasiadis had simply been imprecise in his language on those aspects and that the respective accounts were broadly consistent.
74 Another example of imprecision in Mr Anastasiadis' evidence was in his answer to questioning about the statement he had attributed to Mrs Cowan, which was that "Tracy's had a hard time and is not well". Mr Anastasiadis suggested in the witness box that she may have had a cold at the time but when pressed it became clear that he was using this as an example and that he was not suggesting that he recalled that she had actually had a cold at the time. From that, I infer that he did not recall having seen or heard anything to suggest that there was a major problem with her health at the time. In general, I found Mr Anastasiadis to be an honest witness, perhaps inclined to speculate at times such as in relation to this issue.
75 I would accept Mr Anastasiadis' evidence that he did not notice anything about Ms Darmanin to cause him concern as to her capacity to give instructions as vendor in relation to the sale, since I think it likely that a real estate agent who was concerned as to the mental capacity of a vendor to commit to a sale of the property would be concerned to protect his or her own position before proceeding to take instructions for the sale of the property. However, again, I place little reliance on such evidence because there is nothing to tell me that as a lay person he would have been in a position to realise the impact of bipolar disorder on Ms Darmanin's thought processes even if he had understood her to be suffering a manic depressive illness and (other than the conclusion expressed by Ms Easson as to the emerging hypomania in the 3 months prior to her seeing Ms Darmanin) it is not suggested that Ms Darmanin was exhibiting symptoms of mania or hypomania in the period July-August when the property seems to have been marketed and sold (it having a 3 month settlement date according to Ms Damanin and the completion date being October 2007).
76 More relevantly, however, what Mr Crossland's cross-examination of Mr Anastasiadis did cast doubt on was his evidence that Ms Darmanin had been 'actively involved' in negotiating the commission in relation to the sale (something Ms Darmanin denied). With respect to Mr Anastasiadis, it seems as if there was hardly any "negotiation" of the commission at all, at least if negotiation is used in the sense of parties making offers and counter offers. When pressed on this issue, it became apparent that the low rate of commission (favourable to the vendor), which was the very feature of the sale which enabled Mr Anastasiadis to recall the transaction out of the many in which he was involved over and since that period, was one which Mr Anastasiadis was happy to offer in order to increase the agency's listings in the area and the only negotiation as such seems to be that he put forward a lower figure by way of commission than he ordinarily would have done and this was accepted. Even treating 'negotiation' as an imprecise use of language (and assuming that what he may more likely have meant was 'discussion'), Mr Anastasiadis could not point to any real discussion of the commission with Ms Darmanin. Therefore I place no weight on his evidence that Ms Darmanin had 'actively' negotiated the commission (though I do not think that Mr Anastasiadis' evidence on this issue casts doubt on the balance of his evidence - it seemingly being a product of being focussed on his own perceptive of events in this regard).
77 Mr Anastasiadis also recalled that Ms Darmanin had been firm in the price she wanted for the property. However, I place little weight on that factor since it is by no means clear whether, even if she had demonstrated a firmness in this regard, this was something impressed upon her by others such as the Cowans or Dr Zafiropoulos or was indicative of her mental capacity.
78 I accept Mr Anastasiadis' evidence that Ms Darmanin had told him on one occasion (when he was seeking instructions as to an amount offered for the property) that she wanted to speak to her employer (someone whose name he did not recall though he remembered it was a Greek sounding name). Mr Anastasiadis' recollection is that after the initial telephone call and meeting at which Mrs Cowan was present he did not meet or deal with her at all. That evidence seems to me to be consistent with the faith Ms Darmanin placed in Dr Zafiropoulos ('he knows everything about my life' - para 14 affidavit) and some discussion was broadly conceded by Ms Darmanin in the witness box. The relevance of this is that it indicates that, at least in relation to the sale, Ms Darmanin was not wholly reliant on Mrs Cowan or her husband (nor can she have been "heavily reliant" on them if she was seeking final approval or advice from Dr Zafiropoulos).
79 Finally, although it was suggested that Mr Anastasiadis would be expected to have difficulty remembering this out of all the transactions in which he had been involved over the relevant time, I accept that the lower commission rate is something that might well have caused Mr Anastasiadis to remember this transaction. I note that he also recalled Ms Darmanin saying that she needed to sell the property because of debts, which strikes me as information of a kind a real estate agent might be more likely to remember (since it might have had an impact on the sale he or she might need to achieve and/or on the attitude the vendor might have to prospective offers). Mr Anastasiadis was not challenged on that aspect of his evidence.
80 Ms Darmanin's evidence was that she was undecided as to whether to sell the Gymea property up until the time that she signed the contract (and that this was why the real estate agent had brought the papers to her work place to sign). (If so, this seems inconsistent with there being any binding arrangement or agreement in place in relation to the cottage at this stage other, perhaps, than one which gave Ms Darmanin the option whether or not to proceed.) Had Ms Darmanin been as heavily reliant as she claims on the Cowans for emotional and/or practical support at this stage, one would have expected Ms Darmanin to have told Mr Anastasiadis that she needed to confer with the Cowans (not her employer) in relation to the final sale price.
Jones v Dunkel inference
81 I note that Mr Ward submitted that I should draw an adverse inference from the failure of Ms Darmanin to adduce evidence from Dr Zafiropoulos (Ms Darmanin's response to questions as to his availability being that he was in Sydney but that he had enough problems of his own and that he was in and out of court - a rather cryptic explanation). In response, Mr Crossland submits that no Jones v Dunkel inference should be drawn since there were numerous lay witnesses to speak to the outward appearance of Ms Darmanin's mental state.
82 A Jones v Dunkel inference ([1959] HCA 8; (1959) 101 CLR 298, at 312, 320-321) is open to be drawn in relation to an unexplained failure to call evidence in relation to a particular issue (such as Ms Darmanin's mental state) only if the evidence otherwise before the court is sufficient to give rise to an inference as to a matter which calls for explanation by her. The rule in such a case would permit evidence in relation to that matter to be given greater weight, and an inference or inferences more readily to be drawn, when the party who might have called evidence to the contrary has chosen not to do so (see Davies AJA in Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572; HML v R [2008] HCA 16; (2008) 235 CLR 334; (2008) 245 ALR 204, at [302]; [303]; Brandi v Mingot (1976) 12 ALR 551, at 559-60; Jones v Dunkel; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, at 197). Thus in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 (although see the unreported version of this judgment as it was not reported entirely, NSWCA, 31 December 1996), Handley and Beazley JJA noted that the rule typically applies to strengthen or weaken an inference otherwise available on the evidence, for the benefit of the party not in default.
83 I such an inference arises it permits the court to infer that the uncalled evidence or missing material would not have assisted the party in question, not that the uncalled evidence was in fact damaging to his or her case. Thus it allows for the more ready acceptance of evidence which might have been contradicted (but which was not).
84 Here, I accept that there is evidence from a number of lay witnesses as to their observation of Ms Darmanin's mental condition, as well as evidence from Ms Easson, and that whatever Dr Zafiropoulos might have said as to his observation of Ms Darmanin's mental health it is not likely to have taken the matter much further than the other lay witnesses' evidence.
85 However, what Dr Zafiropoulos would have been well placed to answer is the evidence of Mr Anastasiadis to the effect that Ms Darmanin had said she needed to consult with him in relation to the sale price. That is evidence which, if disputed by Ms Darmanin, one might have expected her to adduce from her employer (who she says was so familiar with her life and her financial commitments). There was evidence as to an unsuccessful attempt by the solicitors acting for the Cowans to speak with the dentist. Ms Darmanin's account of why he was not there to give evidence was rather cryptic ("He has got his own issues at the moment" T12.50; "He is in and out of court as well at the moment" - T13.32).
86 In the circumstances, it seems to me that there is nothing to contradict Mr Anastasiadis' evidence as to the conversation with Ms Darmanin in which she mentioned her employer as someone with whom she would have to speak in relation to the final sale price and that it would have been open to Ms Darmanin to call Dr Zafiropoulos to refute the suggestion that she had turned to him for some form of advice or recommendation had that been incorrect. (Ms Darmanin herself appeared to concede that she had discussed the final sale price with her employer - saying "The reason why I discussed it with my boss is I was so unwell that the real estate agent actually came to my work to ask me to sign it… that's why I spoke to my boss because they were actually at my work to sign the paperwork" - T 15.50.)
87 I would thus draw a Jones v Dunkel inference to the effect that Dr Zafiropoulos could not have assisted Ms Darmanin's case and therefore that Ms Darmanin did at least discuss with her employer the final offer made for the purchase of her Gymea property (and thus I am not satisfied that Ms Darmanin has established heavy reliance, let alone that she was wholly reliant, on the Cowans for advice or support in that regard). What I cannot draw from the absence of any evidence from Dr Zafiropoulos is an inference as to what advice he may or may not have given during that discussion or as to how often Ms Darmanin may have discussed the proposed sale with him. Nevertheless, the limited inference that I think can and should be drawn casts real doubt on the assertion of Ms Darmanin that she was under pressure from the Cowans to sell the Gymea property (in the witness box she said "I am sure if I wasn't put under pressure it wouldn't have ever been sold" - T16.8). This seems to me again to bear the hallmark of exaggeration on Ms Darmanin's part.
88 I should also note that although there was evidence from Dr Roberts as to what conclusion one might draw as to Ms Darmanin's state of mental health (or that of someone suffering from bipolar disorder) by reason of the fact that she was employed by Dr Zafiropoulos over the period through to October 2007, ultimately I do not draw any inference from the fact of Ms Darmanin's employment over this period (other than to infer that she cannot have been in as zombie-like a state at that time since at the very least she was capable of attending the dental surgery during her work hours).
Conclusion as to circumstances of Gymea sale
89 While I am not satisfied that the decision to sell the Gymea property was one made solely in reliance on the offer made by Mrs Cowan and nor do I accept that it was one made at Mrs Cowan's initial suggestion or behest, I accept that the decision to sell the Gymea property was made by Ms Darmanin in the knowledge that there was an option of residing on the Glenorie property in a caravan or portable home if Ms Darmanin chose to take up that option down the track.
90 I am not satisfied that Ms Darmanin was put under any pressure by the Cowans to sell the Gymea property; nor am I satisfied that this was their idea. I think the far more likely explanation is that Ms Darmanin realised that she would have difficulty meeting her mortgage payments if she continued to be too unwell to work and that she sought assistance from the Cowans to arrange the sale.
91 Nor am I satisfied that Ms Darmanin had no one advising her other than the Cowans in relation to the sale (as she has asserted). Further, I note that although Ms Darmanin emphasised in the witness box that but for the pressure she would not have sold her home, it is not the sale of the Gymea property with which Ms Darmanin now takes issue - rather, it is the fact that the net proceeds were used to build a cottage the benefit of which is not now available to Ms Darmanin as a practical matter unless she is able to relocate the cottage to another block of land.
Completion of Gymea sale
92 The property was sold with completion taking place in October 2007. The net proceeds of sale received on completion by Ms Darmanin were in the order of $78,000. It seems to me that it is not until around this time that the final decision by Ms Darmanin to proceed with the cottage can logically be said to have been made - in the sense that there does not seem to have been anything to commit Ms Darmanin to the construction of the cottage until after the proceeds of sale had been received, by which time Ms Darmanin had been well enough to have worked for Dr Zafiropoulos for some time since her depressive episode in April/May 2007 (albeit on a part time basis and noting that Ms Darmanin said her work had not been satisfactory - T 13) and at which stage Ms Darmanin would have had at least one alternative accommodation option (namely renting a property for some time). (I note that she had formerly shared accommodation with Mr Blackmore and that such an option might have been available as well.)
93 I consider it likely, having regard to Dr Roberts' evidence, that Ms Darmanin would not have been perceived by lay persons, such as the Cowans, in October 2007 as being as unwell as she was in April/May 2007 when she was, in Mrs Cowan's words, in a dazed and stupefied state.
Terms of the arrangement re cottage
94 The critical issue in this case (on both of the ways in which Ms Darmanin pleads her claims) is what were the terms of the arrangement pursuant to which Ms Darmanin then took up residence with the Cowans. Leaving aside whose suggestion it was that Ms Darmanin should sell the Gymea property in the first place (though my conclusion is that it was more likely to have been Ms Darmanin's), and accepting that both sides agree that the initial offer was that Ms Darmanin could reside on the Glenorie property in a caravan or portable home, how is it said that the more complicated tenancy agreement asserted by Ms Darmanin originated?
95 Ms Darmanin's account seems to be that, at or about the time of the initial suggestion, Mr Cowan said that he did not like the thought of a portable home or caravan and suggested a cottage (para 23(g) of her affidavit). I have indicated above the difficulty I have accepting that Mr Cowan made any such suggestion. However, the agreement as pleaded (one which it is alleged was made in mid 2007) goes further than this and includes an arrangement by which the period of occupation is determined by reference to a notional rent calculation. There is nothing at around this time at around this time to suggest that anyone had raised the question of a notional rental for a structure the design of which had not yet been considered in any detail and which had not then been built. Ms Darmanin deposes in para 23(p) of her affidavit of 13 August 2009 to a conversation to the following effect: