Dedakis v Deligiannis; The estate of Rebecca Deligiannis

Cruzado [2023] NSWSC 502 Estate of the late Genevieve Bryan [2022] NSWSC 965 ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128 Finlay v Tucker [2015] NSWSC 560 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWSCCA 195 Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67 Kouroutis v Kouroutis [2023] NSWSC 608 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 Lee v Blakeney (1887) 8 LR (NSW) 141 Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 Lim v Lim [2023] NSWCA 84 Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22; [1994] NZCA 266 Mao v Peddley [2001] NSWSC 254 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 New South Wales Crime Commission v Hindmarch [2023] NSWSC 332 Nguyen v Rickhuss [2023] NSWCA 249 Oliveri v Jones [1999] NSWSC 154 Oliveri v Jones [1999] NSWSC 796 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14 Ramzan v Brookwide Ltd [2011] EWCA Civ 985; [2012] 1 All ER 903 Re Estate Capelin, Deceased (2022) 107 NSWLR 461; [2022] NSWSC 236 Re Estate of Griffith (1995) 217 ALR 284 Richardson v Pedler [2001] NSWSC 221 Richardson v Richardson [2021] NSWSC 353 Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Smith v Smith [2011] NSWSC 938 Starr v Miller [2021] NSWSC 426 Starr v Miller [2022] NSWCA 46 Stott v Cook (1960) 33 ALJR 447 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Wilkinson v Kirby (1854) 15 CB 431; 139 ER 492 Willoughby City Council v Roads and Maritime Services (2014) 201 LGERA 177; [2014] NSWLEC 6 Wintle v Nye [1959] 1 WLR 284 Texts Cited: J Chitty and T Chitty, Chitty on Pleading (Sweet and Stevens, London, 1836) G Lindsay, "The 'Why?' and 'What?' of 'Suspicious Circumstances' in Probate Litigation", paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018 R Lush, The Practice of the Superior Courts of Law at Westminster (C Reader, London, 1820) C Mitchell and L Rostill, "Making Sense of Mesne Profits: Causes of Action" (2021) 80 Cambridge Law Journal 130 New South Wales Law Reform Commission, 'Supreme Court Procedure', Rep 7 R Stevens, "Should Contributory Fault Be Analogue or Digital?" in A Dyson et al (eds), Defences in Tort (Hart Publishing, 2017) 247 R Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (facsimile of 2nd ed 1863 published 1974, Sydney University Press) Category: Principal judgment Parties: In 2022/345407: Marika Dedakis (Plaintiff/Cross-defendant) Jim Deligiannis (Defendant/Cross-claimant)

In 2022/103382: Jim Deligiannis (Plaintiff) Representation: Counsel: T Alexis SC, S Speirs (Marika Dedakis) C P Birtles (Jim Deligiannis)

Solicitors: Di Girolamo Lawyers (Marika Dedakis) Deutsch Miller (Jim Deligiannis) File Number(s): 2022/345407; 2022/103382 Publication restriction: Nil

JUDGMENT

1. LEEMING JA: Two proceedings were heard by me, both arising from the death of Ms Rebeka Deligiannis on 22 January 2022 aged 85. The parties to each are two of her three children, Ms Marika Dedakis and Mr Jim Deligiannis. For convenience and without disrespect or unwarranted familiarity I shall refer to the various family members by their given names in the form used at the trial, noting that Rebeka is variously spelt, and was also known as Aunt Rena, Jim was also known as Dmitri, and Marika was often known as Maria and is so named in the will, but "Marika" conveniently distinguishes her from her cousin Maria and her sister-in-law Mary, each of whom gave evidence in Jim's case. The only substantial asset in the deceased estate is a home in Australia St, Camperdown which is valued at some $2.9 million. Aside from the costs of this litigation, the liabilities are few, such that the net value of the estate is approximately $2.74 million.

Procedural background

1. By summons in the Succession & Probate List (Probate) dated 6 May 2022, Jim seeks a grant of probate in common form in respect of a will executed by the deceased on 20 August 2013 appointing him as sole executor which leaves the estate 75% to him and 25% to Marika. Marika responded by two general caveats, the first filed on 17 May 2022, and the second on 17 November 2022 (upon the lapsing of the first: Supreme Court Rules 1970 (NSW), Pt 78 r 69).
2. By summons in the Succession & Probate List (Family Provision) filed on 16 November 2022, Marika opposes the will being admitted to probate, on the bases of capacity, knowledge and approval, and undue influence. She seeks a declaration that her mother died intestate. Marika also makes a claim for a family provision order under the Succession Act 2006 (NSW). Her application was made within the 12 months specified by s 58(2), and it is accepted that she is an "eligible person".
3. By cross-claim filed in the proceeding commenced by Marika, Jim seeks a grant of probate in solemn form, as well as a claim for mesne profits for the period during which Marika remained in possession of the home after her mother's death. The cross-claim also seeks possession of the home, but that relief is no longer needed (although the claim is relevant to an issue concerning the availability of mesne profits). Jim obtained a representation order pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) on 27 October 2023 for the purposes of the family provision claim and the cross-claim, and an order for administration pendente lite of the estate for the purposes, inter alia, of preparing the house for sale and selling it. Marika vacated possession on 20 February 2024. The property has not been sold, although it seems inevitable that that will occur on any view of the outcome of the litigation, and Jim's evidence is that he intends to do so.
4. Nothing turns on there being two proceedings. That has been brought about because the parties are, sensibly, having two quite different aspects of their dispute resolved at the same time. One is a question of probate: whether there should be a grant of probate of the 2013 will. The other is whether a family provision order should be made in favour of Marika. The two are inter-related. When opening the case, Mr Alexis SC, who appeared with Mr Speirs for Marika, confirmed that he only pressed the claim for an order for family provision if Marika's challenge to the grant of probate failed (T12.32). When closing the case, Mr Birtles who appeared for Jim confirmed that he did not press his claim for mesne profits if Jim succeeded in obtaining a grant of probate (T214.33).

Issues

1. The principal legal issues are readily stated. They are: (a) whether Jim has established that the deceased (i) had capacity in 2013 and (ii) knew and approved the will, (b) whether Marika has established undue influence, and (c) if probate is granted, (i) whether adequate provision for the proper maintenance, education or advancement in life of Marika has not been made by the will and (ii), if not, whether an order should be made and in what amount.
2. The principal factual issues will not be obvious from the above, but it is convenient to state them now: (a) whether there was a pre-existing will and its effect and whether that was known to Jim, (b) how the 2013 will came to be drafted and executed, (c) whether the justification contained in the will for the less generous provision to Marika is correct - this turns on the circumstances by which Spiro came to own property at Belmore and Marika came to own property at Wiley Park, and (d) whether there were reasons for the limited provision made to Marika other than those stated in the will.
3. The parties joined issue as to whether there were "suspicious circumstances". I find that suspicious circumstances attended the making of the 2013 will. That is a result of the collocation of circumstances that (a) an elderly woman made a will so as to leave unequal portions amongst her children, (b) prior to its being made, the son and daughter shared equally in the mother's deceased estate, (c) the new will was made when the daughter was out of the country, (d) the new will was executed in the presence of the son who became the primary beneficiary, (e) the son who became the primary beneficiary took the testatrix to the solicitors in order for the will to be made, and (f) the solicitor has been unable to produce any file note or any contemporaneous record of instructions made by him.
4. However, I have heard full evidence on all issues, including capacity, knowledge and approval and undue influence. This is not a case that should be decided by reference to onus, and I find it difficult to see how anything turns on whether or not there be suspicious circumstances. Indeed, my experience in this trial confirms my view that where there has been a full hearing, the introduction of a requirement of "suspicious circumstances" which if found cause an evidentiary onus to shift is generally unwarranted. That approach introduces an additional issue, to no useful purpose, and may (as occurred in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197) contribute to error by distracting from an evaluation of the totality of the evidence. I agree with Justice Lindsay's extra-judicial observation on this point: In the modern form of 'judge alone (case managed) trial' it is generally artificial, at least at a final hearing, to analyse a case in terms of a 'prima facie case' or dispositive 'presumptions'. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence: G Lindsay, "The 'Why?' and 'What?' of 'Suspicious Circumstances' in Probate Litigation", paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.

Uncontroversial facts

1. All of the events occurred more than a decade ago, and many occurred more than three decades ago. Memory is fallible and malleable, especially memory concerning past beliefs. One of Lord Leggatt's first judgments contains an extensive and influential consideration of the frailties of memory, including (relevantly for present purposes) that memories of past beliefs are revised to make them more consistent with present beliefs: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [18]. It is usually desirable to start with reliable contemporaneous documents and uncontroversial facts. "Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation": Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA). That is not to deprecate the potential significance of testimonial evidence. In particular, as was said by Bell P in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128 at [27]-[29], testimonial evidence may provide valuable assistance in explaining the context of, and omissions from, the contemporaneous documents. That is of particular pertinence in the present case, in respect of the property transactions which occurred in 1988 and 1992. Accordingly, I start with what is either uncontroversial or established by contemporaneous documents.
2. There were three children of the marriage of Rebeka and Con Deligiannis: Spiro (born in 1960), Marika (born in 1966) and Jim (born in 1968). All children lived with their parents at the Australia St property until they were married, and, in the case of Marika, after she was married. Very little emerges from the evidence about Rebeka's and Con's early life. According to her death certificate, she was born in Agios Kostantinos Sparti in Greece, and arrived in Australia aged 21. Rebeka only ever spoke broken English, and seems to have been unable to write in English. She had an English signature, but revealingly a signature she made in 2016, when she was ailing, uses Greek characters (the 'e's in Rebeka are epsilons and the 'g' in her surname is a gamma). It seems probable that she arrived in Australia from Greece after the Second World War, like many others, and worked hard to establish herself in a new country. There is evidence that the traditions of the church, especially Easter and Christmas, were very important to Rebeka.

The purchase and sale of Lakemba

1. In 1980 Spiro became a co-owner, with his parents, of property at McDonald St Lakemba. On paper, he was tenant in common as to half, and his parents as joint tenants of the other half interest. The purchase price was $46,000. Spiro gave evidence that his parents were guarantors; it also seems likely that their presence was necessary in order to obtain a bank loan, prior to the deregulation of the banking system a few years later.
2. Spiro gave evidence in cross-examination, and I did not understand there to be any challenge to it, that he made all of the repayments of principal and interest by himself, and became entitled to the entirety of the proceeds of sale in 1988. That this was uncontroversial was made clear from Spiro's cross-examination: Q. … I think many years after, you were surprised to see - that the Lakemba unit was purchased not only in your name, but also in the name of your parents? A. In those days, what I was - I was 20 years old, but couldn't get a bank loan, so I went with my father to the CBC Bank to get the loan, and it was, you know, on the proviso that he's the - their name's on the title also. Now, the situation is that I worked nightshift. I worked Friday nights and Saturday nights. I full gave up my - my - my life to get a - to get ahead in life. Q. Understood. This isn't controversial, I don't think, but I just want to tick this off with you, if I may. Your mother and father didn't contribute one cent to the purchase of the home unit at Lakemba? A. That's correct. Q. They, for all intents and purposes, treated you as the only owner, the sole owner of the property? A. Correct.
3. In 1988, after Con's death, Rebeka and Spiro sold the Lakemba property, for around $59,000. There was uncontroversial evidence that there was talk of giving it to Marika, who found the property unsuitable.

The acquisition of Wiley Park by Spiro and Marika

1. In 1988, Marika paid a holding deposit of $500, and then Spiro paid the balance of the deposit of $11,000, on a flat in Denman Avenue Wiley Park acquired by them at a price of $115,000. Spiro and Marika acquired the property as tenants in common in equal shares, with the balance of the purchase price coming from a loan from the National Australia Bank in the amount of $60,000, and the rest from Spiro.
2. In around June 1988 when Marika obtained a half interest in Wiley Park, she was aged 21 (about to turn 22) and living at home. Marika made no suggestion that she contributed any of the deposit (save for the $500) or any of the funds required at settlement, although it is also common ground that she was solely responsible to service the mortgage. She accepted that Spiro's contribution to the purchase price was $59,131.40 (being $11,000 of the deposit and the entirety of the amounts required on settlement (principally, stamp duty of $2,515.50 and $1,588.45 charged by Coombes, Lucas & Co) save for the $60,000 borrowed from the bank).
3. The memorandum of costs and disbursements at settlement includes an amount of $95 described as: TO OUR COSTS of acting on your behalves in relation to Power of Attorney and attending to the stamping and registration thereof say
4. No other evidence, so far as I can see, refers to any power of attorney. However, there is no reason to doubt that one came into existence at this time. The donor must have been Spiro or Marika or both of them. The memorandum of transfer is signed by the vendors, but not signed by either Spiro or Marika but instead is signed by the "solicitor for transferee", Nicholas Constantine Coombes (although to be clear he does sign explicitly as the donee of a power of attorney). Nonetheless, it seems likely that neither Spiro nor Marika attended settlement. This curiosity was not explored in the evidence, despite the contrast with what occurred in 1992.
5. The property at Wiley Park was tenanted thereafter, initially at a rent of $140 per week, which was almost sufficient to meet the repayments required by the bank (which were $656 per month for a 20 year mortgage of $60,000 at 14.5% per annum). Spiro gave evidence that he made no repayments, and that it was agreed between the siblings that Marika would be solely responsible for the repayments and outgoings, and solely entitled to the rent. Marika accepted that it was a relatively spacious unit, renovated by Jim ten years ago, with two bedrooms and an internal laundry.

Marika acquires full ownership of Wiley Park and Spiro is given Belmore

1. In 1990, Spiro married his first wife, and left the Australia St home. His wife died in 1992, following which Spiro returned to the family home, living there until 1999.
2. Two memoranda of transfer were signed on 20 March 1992. In one, Rebeka transferred the Belmore property to Spiro. In the other, Spiro transferred his half interest in the Wiley Park property to his sister.
3. Both memoranda of transfer identified a consideration. There is no suggestion in the evidence that any money was paid by anyone in these intra-family transfers, but the fact that a transaction was not for valuable consideration did not mean that ad valorem duty was not payable, and accordingly it was necessary to determine a price. In the case of Rebeka's transfer of Belmore to Spiro, the stated consideration was $140,000, and the document has a handwritten annotation of $3,388 which is highly suggestive of stamp duty (it is almost exactly "$1,290 plus $3.50 for every $100 or part thereof by which the amount exceeds $80,000" which was the rate prescribed for conveyances of property where the amount of consideration exceeded $80,000 but did not exceed $300,000 in Part 1 of the Second Schedule to the Stamp Duties Act 1920 (NSW)). In the case of Spiro's transfer of a half interest in Wiley Park to Marika, the stated consideration was $62,500. The transfer is stamped, but the amount of duty paid is illegible on the copy tendered.
4. The signatures of each of Rebeka and Spiro on the Belmore transfer, and each of Spiro and Marika on the Wiley Park transfer, were witnessed by Mr Coombes.
5. The transfer of Spiro's half interest was not lodged until some months later, at the same time as Marika, now as sole owner, mortgaged the land to secure her obligation to the bank. At that stage, the mortgage appears to have been stamped for loan security duty on the basis of indebtedness of $64,000. (The stamp is unclear, but the handwritten numbers 64,000 and 197 are perfectly legible, and loan security duty was payable at the time at the rate of "$5 for the first $16,000 and 0.4% on the amount exceeding the first $16,000", and 197 = 5 + 0.004 x 48,000.) That is suggestive, although not determinative, of Marika's indebtedness to the bank in 1992, almost four years into the term of the facility, having increased to $64,000.

Events between 1993 and 2013

1. As noted above, Spiro returned to Australia St in 1992, where he lived until his second marriage in 1999. Jim lived in Australia St until he married in 1996. Marika lived in Australia St with her mother for the entirety of her life, until February this year. However, in 2013 she married, and thereafter her husband also lived at Australia St.

The 2013 will and handwritten document

1. The will is a straightforward document of four short clauses. It was plainly typed in Mr Coombes' office. Clause 1 revokes earlier wills. Clause 2 appoints Jim as executor and trustee. Clause 3 gives the entirety of Rebeka's estate 75% to Jim and 25% to Marika. Clause 4 provides: I CONFIRM that I have intentionally and specifically not provided in this my Will for my son SPIRO DELIGIANNIS or a greater share for my daughter MARIA DELIGIANNIS as I have assisted them both financially during my life and in particular but not limited to SPIRO DELIGIANNIS in respect of a residential property in Belmore and MARIA DELIGIANNIS in respect of a residential unit in Wiley Park.
2. The will was signed by Rebeka, using English characters. Her signature was witnessed by Mr Coombes and another solicitor in the office.
3. Mr Coombes did not retain a file for the steps taken in 2013. However, he produced the following document which was kept with the will in his safe, which became Exhibit F:
4. It was uncontroversial that most of the handwriting was that of Mr Fotis Kakaroubas, a friend of Rebeka (or more precisely, the son of her friend) who lived nearby and who got to know the deceased while he and his mother were walking in Camperdown. The signature at the bottom left (which is in a different pen) appears to be that of Rebeka, and closely resembles that on the will. The writing at the top right is that of Mr Coombes, and says "Prepared by a neighbour!"
5. It may be noticed that while the will speaks of Marika receiving the unit in Wiley Park, the note refers to her receiving the unit at Lakemba. Wiley Park and Lakemba are neighbouring Sydney suburbs.

Events between 2013 - 2022

1. There was no challenge to Marika's evidence that she first learnt of the 2013 will in around 2016. She said that after her mother's cognitive function had declined, she attended Mr Coombes' office with Jim and perhaps Spiro for the purpose of Rebeka executing an enduring power of attorney and appointing an enduring guardian. Those documents were executed and are dated 22 July 2016.
2. Marika said she was shocked when, while waiting for Mr Coombes in his offices, there was a conversation to the following effect between her and Jim after she suggested that they look at their mother's will, with a view to its being updated to include Stacie (Jim's second child) and Constantine (Spiro's child). She said that the following exchange then occurred: Jim: Don't worry, it's been fixed. Marika: What do you mean, it's been fixed? Jim: 70-30. Marika: What do you mean 70 - 30? Jim: 70 per cent to me and 30 per cent to you. Why should the kids get my inheritance? And the money is not going to end up in Canberra.
3. Jim agreed that most of the above exchange took place, and the two of them were whispering, waiting to be called into Mr Coombes' office. Marika and Jim agreed that Rebeka did not react to the conversation. Marika suggested but Jim denied that that reflected Rebeka's dementia at that stage; Jim said that the two of them were whispering and their mother had not heard them. But it is clear that on that day, Rebeka was unable to sign one of the documents, save with a cross, and she had been diagnosed with dementia more than a year earlier, in June 2015. I note that no medical records whatsoever were tendered in this trial, and June 2015 is a reference to Jim's substantially unchallenged testimonial evidence.
4. Marika said she was shocked and speechless and had a feeling of helplessness. She said that she would "never forget" the abrupt response she received from Mr Coombes when she told him she was in a state of shock because she had just learned of the will, and he said "Well, that was your mother's wishes".
5. On 1 December 2016 Marika forwarded an authority, purportedly signed by her mother, to Mr Coombes which stated: Dear Nick, I authorize your office to provide to my daughter Marika Dedakis (Maria Deligiannis) a copy of my will. Yours faithfully [signature] Rebeka Deligiannis
6. The signature resembled that of Rebeka. In cross-examination, Marika volunteered that she had forged her mother's signature. Neither the enduring power of attorney nor the appointment as enduring guardian authorised her to do so. However, Marika's counsel observed that while it had been wrong for Marika to deceive Mr Coombes, her claim that she had been under a deal of pressure at the time was not challenged in cross-examination, and far from seeking to conceal what she had done, she volunteered the fact that she had signed the letter as soon as the issue was raised. I agree with Mr Alexis that very little turns on Marika's credit in this litigation.

Was there a previous will?

1. I find that there was a previous will. Rebeka made it in around 1998. No such will was in evidence. However, the inherent probabilities coupled with the weight of evidence supports its existence.
2. First, it will be recalled that after her husband's death in 1982, Rebeka was a widow who owned the family home and a property at Belmore, and co-owned a property at Lakemba with Spiro. The evidence all points one way in favour of the gift of land at Belmore to Spiro in 1998 being in lieu of an inheritance. A pre-inheritance gift to a child, in lieu of an inheritance, is only effective if there is a will which departs from the equal sharing of children on intestacy.
3. Moreover, Spiro's first wife died in 1992, and he had returned to the family home with his widowed mother. He married his second wife in 1999. Jim married in 1996 and their son Constantine was born soon after. Those significant changes in the family structure would have made the making of a will by the mother in 1998 or 1999 a reasonably obvious and appropriate step to take.
4. Thirdly, there is testimonial evidence of an earlier will: 1. Marika gave evidence, about which she was not cross-examined, that she had spoken with her mother about the previous will, and had at one stage been given it and read its contents. She remembered that it left $30,000 to Jim's son, and $30,000 to Spiro to give to his future child, and divided the balance equally between herself and Jim. 2. Spiro likewise accepted in cross-examination, consistently with his response to Marika's email reproduced above, that his mother told him there was an earlier will, and that he believed that Marika's godfather took her to Mr Coombes for it to be drawn up. He agreed when responding to Marika's email that "there was a monetary amount for the grandchildren, born and future". The references by Marika and Spiro to future grandchildren dovetail with Spiro's second marriage in 1992 and the prospect of children. 3. Maria gave evidence, consistent with her email of 1 August 2022, that she had had a conversation with Rebeka before the wedding in which she had asked if "Aunty Rena" had a will and had been told that she did. 4. Mary's evidence was to the effect that Rebeka had asked her to take her to a solicitor in Marrickville to amend her will, and she agreed in cross-examination that she knew that the earlier will left some money (she was unsure how much) to her son, and was aware that the position had changed. The cross-examination on this issue concluded as follows: Q. But two things are clear. Before August 2013, you had an understanding that your son was to benefit under-- A. Yes. Q. --his grandmother's will? A. Yes, correct. Q. After 2013, you learnt that that had changed? A. Yes.

What was the nature of the earlier will and was Jim aware of it?

1. There was some evidence that the earlier will left Australia St to Jim. In particular, that was Maria's evidence in her 1 August 2022 email reproduced above. She confirmed it in an affidavit which was to substantially the same effect as that email. Jim gave evidence to the same effect in cross-examination.
2. It will also be noted that Marika's email to Spiro proceeded on the basis that the earlier will divided Rebeka's estate equally between Spiro and Jim; this may have been another error.
3. But the difficulty with any scenario whereby Marika received nothing under her mother's earlier will is that in that event there was scarcely any plausible basis for a fear that "the Canberrans" would take such property as Marika might inherit if Rebeka predeceased her (as was probable) and Marika's marriage foundered. Further, to the extent that there was still such a basis, amending the will would not address the fear.
4. Marika was married on 22 June 2013. She took her husband's name. I shall refer to him as "Costa", without disrespect or familiarity, because it was the name universally used in the evidence.
5. There was a deal of evidence that Rebeka was agitated by her daughter's marriage and the threat she perceived it entailed. No doubt she wished the best for her daughter, but that is not inconsistent with a concern that there was a possibility that her marriage might fail, in which case Marika's former husband might make a claim against such property as Marika had inherited. Thus Jim gave evidence of his awareness of his mother's agitation at the time of the wedding concerning the risk that Costa might make a claim, perhaps especially if the house ended up being owned or partly owned by Marika: Q. And you knew that Costa might be able to make a claim in the sense that your mother's property or money might end up in Canberra? A. That was my mother's biggest concern. My mother's biggest concern, yes. Q. What I'm asking you is whether you understood that? A. I guess, yeah, I would've understood it, I guess. But, yeah, it wasn't my biggest concern, it was my mother's. Q. If we just go to the conversation which you told the Court now you can't remember saying to your sister, "And the money is not going to end up in Canberra", that's a short hand way of expressing something that you well understood at the time, namely Costa could make a claim and any inheritance that Marika received from her mother could go via such a claim to Canberra; correct? A. That sounds correct, I guess. Q. That's exactly what any reference to money ending up in Canberra-- A. Yeah, but like I said to you before, it was my mother's words. They weren't my words. That was my mother's biggest fear. Q. But you shared that fear as well; didn't you? A. Well, it's my mother's fear, yeah. Any family would. Q. May his Honour take it that you and your mother discussed that subject at least once but may I suggest many times before your sister got married? A. It was, but I can't say many times. Mum did bring that up with me.

The circumstances in which the will was executed

1. The 2013 will was evidently prepared and printed in Mr Coombes' office. There is no reason to doubt his recollection that there were two conferences with the client: the first to elicit her instructions, and the second to execute the typed document. That accorded with his usual practice, and is the obvious inference to draw from the fact that the will had been prepared on a computer but left undated when Rebeka came to execute it. It is possible that there were more than two meetings, but the will was straightforward so that seems unlikely.
2. There is no reason to doubt that before execution, the will was read out aloud, in Greek, and that Rebeka executed it, in the presence of the witnesses who subscribed their names, one of whom was Mr Coombes.
3. Mr Coombes has retained the original will and the handwritten document signed by the deceased. He has not retained a file. It is unclear precisely what efforts were made by anyone to obtain a diary, an appointments schedule, or records of timing or billing from 2013, and it is indeed possible that he provided the service of drafting a straightforward will to a long-standing client for free.
4. The handwritten document is the only contemporaneous record of the deceased's instructions which precedes the will. Unfortunately it is undated. What is also not known is when the first meeting with Mr Coombes took place, and on what days Mr Kakaroubas called upon Rebeka: first when he prepared his document, and second when he was told by Jim words to the effect that his assistance was no longer needed.
5. As it happens, quite a lot turns on the precise sequence of events in June, July and August 2013.

The sequence of events in 2013

1. I find that there were two meetings with Mr Coombes, the second of which took place on 20 August 2013 when the will was executed.
2. I accept the entirety of Mr Kakaroubas' evidence. He was assisting a friend of his mother, in a very personal matter, which involved a division of her estate after her death unequally between her children, the wedding of one of whom he had recently attended as a guest. The occasion was unusual and intrinsically memorable, and there is no reason for his memory to have been distorted by time. I accept his evidence (as did his cross-examiner) that Rebeka had told him, either then or at some later time, "I don't want Costa and his children to take this house or my money". I accept that the production of the handwritten note occurred in accordance with his evidence - which involved him attending at the Australia St property twice having taken instructions from Rebeka on the first occasion, and returning with his handwritten note later (my impression from his evidence was that this occurred on the same day although that was not explicitly said). I also accept that at some later stage he returned to Australia St where he encountered not only Rebeka, whom he had been expecting, but also Jim. I accept that Mr Kakaroubas was surprised because he thought he had been helping Rebeka in a matter in which her children were not involved. I also accept that he has no precise recollection of whether Jim said "Thank you for your help, there's no need for further assistance" or "I'll take care of things" (he acceded in cross-examination to questions to the effect that Jim told him all those things, but I attribute that to his manner of answering questions, rather than accepting that all of those words were said). Mr Kakaroubas was clear that whatever the words used, Jim made it clear that his role was complete.
3. Evidently Mr Kakaroubas' first visits occurred before 20 August 2013. I find that those visits occurred after Rebeka's first appointment with Mr Coombes.
4. I start with the objective evidence, which is not informed by any assessment of any witness. 1. The handwritten note is in English. Rebeka took some effort to have it made in English. If she had wanted, when she first visited Mr Coombes, a written explanation for her instructions, it would have been easy for her to provide it to him in Greek, and that would not have required the involvement of a third person. That is to say, I can see no good reason why Rebeka, in advance of her first meeting with Mr Coombes, would consider it necessary to prepare a document in English. 2. The handwritten note commences with the words "I Revika Deligiannis am writing this letter to express my intentions regarding my estate upon my death". That is the sort of language that a solicitor might use when asking a client to provide in handwriting the reasons for a will which treated her children unequally. Conversely, it is an unlikely introduction to a letter which was drafted unprompted by her solicitor. 3. There is a discrepancy between the handwritten document and the will. While both provide an explanation for the diminished gift to Marika by reason of her inter vivas receipt of property, the handwritten note refers to Lakemba while the will refers to Wiley Park. If the handwritten note were provided at the first meeting, then the reference to Lakemba must have been corrected at that meeting in order for the will to refer to Wiley Park. If that is what happened, it would be natural for the handwritten note to be amended and initialled by Marika so that it coincided with the will. While I think this is a consideration of less weight than the two mentioned above, the fact that the handwritten note was unamended but nonetheless retained with the will also tends to suggest that it was provided at the second meeting.

The accuracy of clause 4 of the 2013 will

1. Marika sought to make something of the textual discrepancy between Wiley Park and Lakemba in the handwritten note and the will. More substantively, she also sought to make something of what was said to be the basic error on the face of the will, namely, that Marika did not receive Wiley Park from her mother. I do not accept these submissions.
2. There was some evidence that Rebeka more naturally referred to the location as Lakemba rather than Wiley Park. Jim at one stage said that "if you said Lakemba to my mother or Wiley Park to my mother, it was the same thing to her" and although that evidence was volunteered, it is not implausible. Wiley Park is a suburb and has a train station, between Belmore and Punchbowl, but it has little by way of shops compared to the neighbouring suburbs. I have lived in Sydney for most of my life and I am certain that Lakemba is better known than Wiley Park. Counsel's submission in this respect was appropriately muted: We candidly accept that Rebeka may have been mistaken or confused about whether Wiley Park was Lakemba, or Lakemba was Wiley Park. However, it shouldn't be forgotten that in the mix of property transactions, there was actually a transaction with respect to a separate property in a separate suburb at Lakemba. And so, there is in our submission a question around whether or not the reference to "Maria has received the unit at Lakemba" is a reference to the Wiley Park unit, or this is the mother saying, she - Maria - received the unit at Lakemba. That is to say, the unit at Lakemba that Spiro used to own.
3. I agree with the approach taken by counsel. The discrepancy between Wiley Park and Lakemba is a distraction. The substantive point is whether Marika received property in Rebeka's lifetime.
4. Marika did receive ownership of Wiley Park. She did so on the basis that she contributed a small fraction of the deposit ($500). The balance of the purchase price came from Spiro and money borrowed by her and Spiro from the bank. Four years later, Spiro gave her his half of the property, and she appears to have assumed sole responsibility for the mortgage. The upshot is that she obtained ownership of a unit after contributing $500 of capital and assuming the obligation to repay mortgage debt. It is accepted that she obtained the sole benefit of rent received on the property.

Did Rebeka have capacity to execute her will, and did she know and approve it?

Principles

1. The requirements of "capacity" and "knowledge and approval" are distinct, although it is self-evident that the same evidence may bear both upon whether a testatrix understood the nature of the act of making a will, the property which was its subject, and the claims of potential beneficiaries, and whether the testatrix appreciated the contents of a will and its effect.
2. Capacity is often associated with what was said in Banks v Goodfellow (1870) LR 5 QB 549, although it is tolerably clear that at least some of the language (notably, the disentitling factors of "disorder[s] of the mind" and "insane delusions") are inapt today: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6], [130]-[134], although they reflected what at the time may have been the latest state of science. Further, there is, as Basten JA explained in Carr v Homersham at [7]-[11], some imprecision in describing the conventional three positive elements of the test in terms of "capacity". An understanding of what a will does and of the property likely to be disposed of by the will is qualitatively different from a knowledge and understanding of the persons who have claims upon the bounty of the testatrix.
3. "Knowledge and approval" is also, upon examination, more complicated than it may appear. The requirement emerged in England from a combination of judgments and procedural changes in the second half of the nineteenth century which became incorporated into New South Wales law, which I sought to explain in Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [130]-[136]. In some cases there may be a significant difference between knowledge and approval of the words used in a will and their effect, a point well illustrated by Lewis v Lewis. But that is not the case for this simple will.
4. The simpler the will, the easier it will be to establish both capacity and knowledge and approval. In respect of capacity, White JA explained in Croft v Sanders [2019] NSWCA 303 at [126]: Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342) at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17; the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument.

Evidence going to capacity

1. There was some evidence of Rebeka's cognitive deficits in 2013. The evidence post-dated the execution of the 2013 will, but of course that did not prevent it being used to support the conclusion that the deficits were previously in existence. Marika gave evidence of an occasion after her honeymoon, in September 2013, when she said "Can you believe that I don't remember anything from your wedding". Marika also recalled an occasion in November or December 2013 when her mother told her that she had become disoriented while returning home from Newtown to Australia St in Newtown Memorial Park, a park which she had walked past or through on hundreds of occasions. Marika also gave generalised evidence of an earlier decline.
2. It was said in final address, correctly, that it was an "astonishing" thing that an event so significant as the wedding of a mother's only daughter could have been forgotten so soon afterwards. The same is true of becoming disoriented in a park near where she had lived for many decades. However, telling against the force of that submission is the fact that it was not suggested that any immediate steps were taken to have Rebeka examined by a general practitioner or a specialist. An occasional moment of disorientation or memory loss does not of itself deny testamentary capacity. The evidence before me was that she was first diagnosed with dementia in around June 2015.
3. A great deal of objective evidence tells against any serious cognitive deficiency in August 2013. Some of this turns on the fact that other family members' conduct, including Marika's, is inconsistent with Rebeka suffering from loss of her faculties as early as August 2013. That evidence included the facts that: 1. Marika lived at Jim's house for 6 weeks in 2014, and although Marika visited her mother every day, Rebeka was living at home independently by herself; 2. Marika travelled to Canberra to visit her husband's family in 2015 and 2016; 3. Marika's evidence that from either 2016 or 2017 it became impossible for Marika and her husband to leave home without somebody staying with her mother; 4. Marika applied for, and obtained, a carer's pension in 2017 (rather than earlier); 5. There is also the fact that Marika found out about the 2013 will in 2016 in circumstances where she had suggested that the will might need to be updated, to include her niece.

Evidence going to knowledge and approval

1. Turning to knowledge and approval, the evidence summarised above, coupled with the simplicity of the will, is relevant.
2. The evidence is absolutely clear that on four separate occasions Rebeka confirmed her intention that 75% of her estate go to Jim and 25% go to Marika: on two separate occasions, separated by some days, to Mr Coombes, and on two occasions on the same day to Mr Kakaroubas. As was emphasised in Jim's closing submissions, that must be so irrespective of the order of events. It is powerful evidence that the testatrix knew precisely what was the effect of a very simple will disposing of a very simple estate.
3. The gravamen of the challenge to knowledge and approval was that the will wrongly recorded that Marika had received property during her lifetime. For the reasons already given, I disagree. What was recorded in the will was correct.

Undue influence

1. The applicable principles were recently considered in Schwanke v Alexakis; Camilleri v Alexakis. They need not be restated here. While Marika's claim for undue influence was advanced in the written submissions served prior to the trial, it was not developed in closing submissions. That was an appropriate course to take, in light of what emerged from the cross-examination of Jim and Mr Kakaroubas. This claim is not established, and can be dealt with concisely.
2. It was put in writing that Jim exerted undue influence over his mother when he arranged to take her to see Mr Coombes in 2013, when Marika was away, and without informing Spiro or Marika about this, in circumstances where the 2013 will represented a significant change to Rebeka's testamentary intentions. I accept that Jim took Rebeka to Mr Coombes, twice, when Marika was away, and did not inform Marika about it, and I accept that the 2013 will significantly altered the disposition of Rebeka's estate. But that alone is insufficient to establish undue influence.
3. I am satisfied that Rebeka had capacity, and knew perfectly well what she was doing when altering her will. Both of her older children had in fact received advances in the form of property during her lifetime, on 20 March 1992, and Jim had received no parcel of land. I am unpersuaded that this is a case where Jim preyed upon his mother creating the sense of anxiety she felt prior to making the new will.
4. Jim was pressed in cross-examination for why he did not tell his sister of the fact that his mother had changed her will. His answer was that it was his mother's will. That is inherently plausible. I accept that his answer represented the best of his recollection. His mother and sister lived together. Evidently Rebeka did not wish to tell her daughter that she had changed her will. In those circumstances, far from there being any obligation upon him to do so, I think it would have been wrong for him to do so - just as it would have been wrong for Mr Kakaroubas to do so.
5. It was also put to Jim that he contributed to his mother's fear concerning "the Canberrans". I accept that he responded to his mother's concerns on that issue and that he was aware that she was upset by this, but I do not accept that his conduct contributed in any material way to her decision to amend her will.
6. There is another matter which bears on this issue. There was ample evidence that Rebeka had said repeatedly that Belmore went to Spiro, Wiley Park/Lakemba went to Marika, and Camperdown was to go to Jim. If Jim in fact exercised undue influence upon his mother, why not procure her to make a will which left the entirety of the estate, rather than 75% of the estate, to him? It is far from unknown for daughters to be wholly excluded from a parent's will; a recent example is Kouroutis v Kouroutis [2023] NSWSC 608.

Marika's family provision claim

1. The threshold issue under s 59(1)(c) of the Succession Act is whether the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made by the will for Marika. The Court is entitled, by reason of s 60, in determining whether to make an order and if so its nature, to have regard to a wide range of matters identified in s 60(2), which include in s 60(2)(j) "any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person".

Written submissions

1. Marika invited the Court to have regard to the facts that she was Rebeka's primary carer and long-time companion, that she had lived in Australia St for her entire life until leaving earlier this year, that she lived with Rebeka until Rebeka moved into a full-time care facility in June 2020, aged around 82. She pointed to the fact that for some 15 years, between 1999 and 2013, Rebeka and Marika lived together, Spiro and Jim having married and moved out of Australia St, during which period they had dinner almost every weeknight, and would share most meals on weekends, and that she felt obliged to stay with Rebeka because their lives were so intertwined and because Rebeka depended on her for companionship. Marika said that she contributed to the day-to-day costs of Australia St, thus enabling Rebeka, funded by an old age pension to maintain her lifestyle and to continue living there. Even after Marika's marriage, she continued to live at Australia St, on the basis that: I did not feel that I could leave my Mum once I got married. By this stage Mum depended on me for her day-to-day needs, financially to meet the expenses of living at home and the maintenance of the Camperdown House. I believe that she also depended on me emotionally for companionship.
2. In cross-examination, Marika emphasised this: "how could I leave her after all these years when she needed me the most".
3. After Rebeka was diagnosed with dementia in 2015, Marika said she was dedicated to her care until she went to an aged care facility. This included cooking, dressing Rebeka and assisting her with toileting. Her evidence was that she stopped going out with her husband and seeing her friends so as to avoid leaving her mother alone at home. She said that "I effectively had no social life and became her full-time carer". When Rebeka moved into full time residential care, Marika visited her daily, subject to Covid restrictions.
4. Marika suffers from a number of health conditions. She has a weak left leg which prevents her from walking stairs, a consequence of an infection after a cyst was removed from her leg in 2021. She has diabetes and high-blood pressure for which she is medicated. She also suffers from macular degeneration which requires monthly injections in her eyes (at a cost of $800 per month, $400 after government rebate), which regularly prevents her from working.

Oral submissions

1. Marika's oral submissions in support of her claim for a family provision order, described aptly as her "back-up case" were brief, occupying two pages of transcript (pp 220-1). Making the assumption that both sides' costs would come out of the estate (and very properly recognising that there might be a debate about that), the net estate was just around $2,060,000, such that 25% was some $520,000. It was said that that was not adequate provision, because the value of Marika's assets was small, that insofar as those assets included a modest amount of superannuation, she did not presently have access to it, that the capital available to her did not permit her to buy a modest house in Sydney, and that acquiring a house in Canberra would exhaust the resources available to her leaving her with no cushion for contingencies which were potentially significant having regard to the medical conditions from which she suffered. In contrast, Jim's assets were so substantial that they could be disregarded.
2. Jim's oral submissions were also concise. He emphasised that Marika had not put forward evidence about what she wanted in order to support a claim of more than 25% of the estate, that she could if she wished live in the Wiley Park flat and have a contingency fund left over after discharging the mortgage. Jim said that if she sought provision for accommodation purposes, it was incumbent upon Marika to have put forward evidence as to the type of accommodation she ought to have, the reasons for it, an estimate of how much it would cost, and some evidence as to properties of that nature available for purchase. Even if Marika did not wish to live in Wiley Park, she was able to acquire a home in the ACT, near her husband's family, and advertisements were tendered stating that suitable properties were available with asking prices of $700,000 plus, and $750,000 plus. He also said that there was no evidence of her husband's bank balance or superannuation.
3. The parties joined issue as to the relevance of there being two reasons for Rebeka's will: the fact that Marika had received real property during her lifetime and the concern that Marika's husband or his family might end up with property. Jim said that both reasons were rational, and invoked the reasoning in Sgro. On the other hand, Marika maintained that the fear which motivated Rebeka had the effect of punishing her daughter for getting married, and had the testatrix actually thought about that, then things might have been done very differently.

Consideration

1. I accept that Marika had a very close relationship with her mother, closer than any of Rebeka's other children, and which involved a much longer period of time sharing a household with her, and that Marika cared for Rebeka in her final years. I also accept all of Marika's evidence about her medical conditions.
2. However, I also accept that Marika, like Spiro but unlike Jim, had received real estate during Rebeka's lifetime. For the reasons earlier given, in substance this culminated in Marika's gift on 20 March 1992. For the ensuing three decades, Marika had enjoyed the benefit of ownership of the Wiley Park flat, for which putting to one side funding the mortgage had cost her $500.
3. I do not accept everything said on her behalf concerning her own contribution to Rebeka's daily financial needs.
4. As Marika conceded in cross-examination, at least in some small respects, she used funds in Rebeka's bank account for her own personal expenses. Marika accepted that tobacco purchases recorded as EFTPOS transactions in her mother's bank account on 26 September 2018 of $87.90 and 17 June 2019 of $32.95 were for her own personal use. It seems probable that a purchase of $475.09 from Dan Murphy's on 24 December 2018 falls into the same category.
5. Further, it is not correct to say, as appears in paragraph 65(d) of Marika's affidavit sworn 10 May 2023, that: From the time that Mum moved into the day-care facility (in 2017), I have paid for all expenses relating to the Camperdown House. My Mum did not contribute to anything as her old age pension was being used to pay for the day-care facility (from 2017) and the nursing home (from 2020).
6. Those propositions were tested in cross-examination, and Marika made appropriate concessions. What follows is more elaborate, based on an audit of what occurred in the first half of 2018 and the first half of 2020.
7. In 2018, Rebeka was living for the most part at Australia St, but spending many days and some nights at a care centre run by "Uniting" at Petersham. According to a fee statement, Rebeka spent 4 nights and 19 days in January, 11 nights and 11 days in February, 5 nights and 18 days in March, 2 nights and 21 days in April, 24 days in May and 21 days in June 2018, the cost of which was $947 + $1243 + $1394 + $1048 + $792 + $693 = $6117 (Jim's affidavit of 1 August, pp 5-6). Over that period, Rebeka's pension was $894.40 per fortnight, rising to $907.60 per fortnight in April, with the deposits of pension and withdrawals to Uniting coming out of Rebeka's account. The balance in the account remained stable (it commenced at $5940.90 and ended at $5298.65), and it may be noted that in addition to payments to Uniting were regular payments to the Inner West Council (presumably for rates) ($411.58 on 13.3.18 and $410.25 on 31.5.18), Sydney Water ($188.25 on 13.3.18 and $157.65 on 31.5.18) and EnergyAustralia ($309.75 on 12.2.18, $146.96 on 13.3.18 and $294.02 on 31.5.18), There are also cash withdrawals from the account of $450, $250, $200, $800 and $200 in the same six months.

Jim's claim for mesne profits

1. In light of the above, Jim's claim to mesne profits does not arise. But it may be as well to say the following.
2. Jim's claim was from June 2023 to February 2024. The earlier date was chosen to correspond with a demand by the executor named in Rebeka's will that Marika vacate the property unless she paid an occupation fee; the latter date was when Marika vacated. The evidence of a real estate agent (who was not required to attend for cross-examination) established rent at $1,200 per week until 15 March 2023, and $1,500 per week thereafter. The claim in total was $117,600. I did not understand there to be any dispute about any of the factual integers comprising that claim.
3. Marika's response, based on Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 and Richardson v Richardson [2021] NSWSC 353, was to deny Jim's entitlement to an occupation fee, because he had not first obtained possession. The facts were quite different in the former case, but in the latter (and passing over a complex procedural history) an administrator sued a child of the deceased who had remained in possession of the family home when the will left the entire estate equally between the three surviving children. The administrator said that upon the grant, the home vested in him in accordance with s 44(1) of the Probate and Administration Act 1898 (NSW) and thus he was entitled to claim mesne profits against the defendant who occupied it thereafter. Ward CJ in Eq rejected the claim, stating at [152]: Minister of State for the Interior v RT Company stands for the proposition that a claim for mesne profits cannot succeed unless a plaintiff proves that the plaintiff entered into actual possession or occupation of the subject premises before bringing such a claim. In the present case, the claim for possession and the claim for mesne profits were brought in the same proceeding (see statement of claim filed 29 May 2019), and thus the plaintiffs did not enter into actual possession of the Epping Property before bringing the claim for mesne profits. While the plaintiff in this case has cited a number of cases in this Court where mesne profits have been awarded before the plaintiff entered into possession of the relevant property (as to which, see above), none of those cases appears to cite Minister of State for the Interior v RT Company or to deal with the proposition arising from that case.

Conclusion and orders

1. For those reasons, there should be a grant of probate in solemn form in favour of Jim, Marika's summons should be dismissed and Jim's cross-claim should otherwise be dismissed. I indicated at the conclusion of the trial that I would permit the parties to be heard on the form of orders, including as to costs. Accordingly, the only orders I shall make are the following: Direct the parties to file and serve either an agreed short minute of order, or alternatively proposed short minutes of order for which they contend, accompanied by submissions not exceeding five pages, within 14 days of today, followed by submissions in reply not exceeding three pages 7 days thereafter. The submissions in reply are to indicate whether either side seeks an oral hearing or is content with any dispute to be resolved on the papers. 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 August 2024