Gill v Garrett

Judgment

1. MACFARLAN JA: I agree with Emmett AJA.
2. LEEMING JA: I agree with Emmett AJA.
3. EMMETT AJA:

Introduction This appeal is concerned with a dispute between the appellant, Mr Jason Gill (Mr Gill), and the respondents, the executors of the estate of the late Dr William Garrett. Mr Gill claimed that, after February 2009, Dr Garrett (Dr Garrett) told him that he wanted Mr Gill to continue living with him as his companion and carer until he died and in recognition of their friendship and care, Dr Garrett would give Mr Gill his house in Paddington (the Paddington Property). However, by his will dated 20 June 2008 (the Will), although he gave a significant legacy to Mr Gill, Dr Garrett gave the residue of his estate, which included the Paddington Property, to his three children, Alice Jemima Garrett (Jemima), Catherine Garrett (Catherine) and Thomas Garrett (Thomas), who are the executors of the Will (together the Executors).

1. Mr Gill commenced proceedings in Family Provision List of the Equity Division against the Executors, in which he claimed a declaration that the Executors hold the Paddington Property on trust for him. In the alternative, Mr Gill claimed a family provision order under the Succession Act 2006 (NSW) (the Succession Act). The Executors filed a cross-claim seeking possession of the Paddington Property and orders for the payment of money said to be owing to the estate by Mr Gill.
2. On 16 July 2020, for reasons published on that day, a judge of the Equity Division (the primary judge) dismissed all of Mr Gill's claims and ordered that possession of the Paddington Property be given to the Executors by Mr Gill. In addition, on 23 October 2020, the primary judge made orders under the cross-claim that:

• the legacy of $200,000 given by Dr Garrett to Mr Gill in the Will be reduced by the sum of $152,134.80 being the balance of outstanding loans owing by Mr Gill to the estate of Dr Garrett;
• judgment be given for the Executors against Mr Gill for the sum of $43,155.64, being the amount owing to the estate of Dr Garrett for storage fees incurred by Mr Gill, and for the sum of $142,100, being the amount owing to the estate of Dr Garrett in respect of unauthorised cash withdrawals made by Mr Gill from Dr Garrett's bank accounts; and
• Mr Gill pay interest on the judgment amounts in the sums of $7,360 and $24,208 respectively pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

1. By notice of appeal filed on 18 October 2020, Mr Gill appealed from the orders made by the primary judge. Mr Gill filed an amended notice of appeal on 1 February 2021. By the amended notice of appeal, Mr Gill seeks orders that the orders made by the primary judge on 16 July 2020 and 23 October 2020 be set aside and that it be declared that the Executors are estopped from denying that he is the equitable owner of the Paddington Property. While the amended notice of appeal seeks no relief under the Succession Act, the submissions and oral argument advanced on behalf of Mr Gill make it clear that he seeks, in the alternative, a family provision order under the Succession Act.
2. The proceedings in the Equity Division were commenced by summons filed on 3 November 2016 in the Family Provision List. In his statement of claim filed on 6 April 2017, Mr Gill alleged that he and Dr Garrett entered into a contract in 2009 whereby Mr Gill would continue to reside with Dr Garrett until his death as his carer and companion in consideration of which Dr Garrett would give Mr Gill the Paddington Property. The claim of a binding contract was not renewed in the appeal. In the alternative, Mr Gill alleged in the statement of claim that:

• Dr Garrett promised him that he would receive the Paddington Property if he continued to reside with Dr Garrett and provide services of companion and carer until Dr Garrett's death and encouraged him to assume the role of full-time carer until his demise.
• Mr Gill acted on Dr Garrett's alleged promise and encouragement to his detriment and altered his position in reliance upon that promise.
• In those circumstances, the Executors are estopped from denying Mr Gill's claim to the Paddington Property. In addition, Mr Gill claimed a family provision order under Ch 3 of the Succession Act.

1. By their cross-claim filed on 5 May 2017, the Executors claimed judgment for possession of the Paddington Property, where Mr Gill has continued to reside since the death of Dr Garrett. The Executors also sought declarations that Mr Gill had acted in breach of fiduciary duties owed to Dr Garrett and claimed equitable compensation.
2. Mr Gill's principal claims were based on the alleged conversation that took place between himself and Dr Garrett sometime after February 2009. The primary judge did not accept that the conversation alleged by Mr Gill took place so as to constitute an offer and acceptance capable of giving rise to a binding contract. Further, because his Honour did not accept that the conversation alleged by Mr Gill took place, the first element of the estoppel case pleaded by Mr Gill was not made out. His Honour did not accept that the representations alleged were made by Dr Garrett. Further, his Honour concluded that Mr Gill did not rely upon any assumption or expectation as alleged in his pleading. Accordingly, the alleged estoppel was not made out.
3. Mr Gill claimed he was an eligible person under the Succession Act by the operation of s 57(1)(e) and s 57(1)(f). The Executors conceded that Mr Gill was an eligible person under s 57(1)(e), in light of which the primary judge did not examine eligibility under s 57(1)(f). However, the primary judge concluded that Mr Gill consciously misused Dr Garrett's position of special disadvantage in relation to him and concluded that Mr Gill did not satisfy the requirements of s 59(1)(b) of the Succession Act. Accordingly, his Honour concluded that Mr Gill's claim for a family provision order under Ch 3 must fail.
4. The primary judge then considered the claim by the Executors under their cross-claim. His Honour concluded that the Executors are entitled to possession of the Paddington Property. His Honour found that the executors were entitled to judgment in respect of the three items referred to above.

Dr Garrett and Mr Gill

1. Dr Garrett was born in 1927. In 1951 he graduated from the University of Sydney with degrees in medicine and surgery. He undertook further study at the University of Oxford, where he was awarded the degree of Doctor of Philosophy in Medicine in 1955. He was also awarded the degree of Doctor of Medicine by the University of Sydney in 1962.
2. While in the United Kingdom, Dr Garrett married his wife, Nancy. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, the Executors, were born. In 1959, Dr Garrett, with a team of research scientists and doctors began investigating whether high-frequency sound waves could be applied to image the pregnant uterus. By 1965, they had developed the foundations of ultrasonic pregnancy imaging as part of clinical practice at the Royal Hospital for Women in Paddington. By the early 1970s, the technology that they developed was in widespread use throughout the medical world.
3. Until 1981, Dr Garrett and his wife and their three children lived in Lindfield. The family then moved to a house in Goodhope Street, Paddington. The family also owned a holiday house at MacMasters Beach on the Central Coast. In July 1994, Nancy Garrett transferred to Dr Garrett a half share in a property in West Yorkshire owned by her. Nancy Garrett died suddenly in December 1994. Upon Nancy Garrett's death, the Executors inherited their mother's half share in the West Yorkshire property and Dr Garrett retained the other half share. From that time on, until he became incapable of looking after his own financial affairs, Dr Garrett managed the West Yorkshire property for himself and the Executors.
4. Nancy's death affected Dr Garrett profoundly and, in 1995, he retired from medical practice. In 1998, he moved from the Goodhope Street house to the Paddington Property. An investment property acquired after the family moved to the Goodhope Street house was sold by Dr Garrett in 2005.
5. Mr Gill was born in New Zealand in 1957 and is a New Zealand citizen. Accordingly, he is some 30 years younger than Dr Garrett. After leaving school, Mr Gill obtained employment in the computer industry. He migrated to Australia in 1977 and obtained employment in the hospitality industry and as a taxi driver. In 1981, he re-entered the computer industry as a sales representative. In 1981, Mr Gill married an American citizen and moved to Los Angeles, where he continued to work as a computer broker. In 1987, he set up his own business as a computer broker, buying and selling computers and computer equipment in a partnership. After a dispute with his partner, he continued as a sole trader from 1989.
6. Mr Gill and his wife returned to Sydney in 1992. In 1997, Mr Gill and his wife separated after Mr Gill's wife, having received a substantial settlement from litigation, returned to the United States with the proceeds of the litigation. At that time, Mr Gill was left with no more than $15,000 in assets. He resumed his computer broking business and lived in rented accommodation. He lived a financially self-sufficient but modest lifestyle, making enough from his business to make ends meet.
7. Dr Garrett met Mr Gill in 1996, at a time when Mr Gill's marriage was breaking down. Mr Gill invited Dr Garrett to join a team that competed in a trivia night competition on Tuesday evenings at the Royal Hotel at Five Ways in Paddington. Not long thereafter, Dr Garrett and Mr Gill began meeting on most nights with a circle of friends at the Royal Hotel. The primary judge accepted that, at that time, Dr Garrett was looking for more convivial company and joining Mr Gill's circle of friends at the Royal Hotel buoyed his spirits. Dr Garrett was generous in supporting social activities at the Royal Hotel, often buying drinks and dinner for Mr Gill and other members of the circle.
8. The relationship between Dr Garrett and Mr Gill developed into one of greater mutual dependence. The primary judge characterised the development of the relationship as surprising, in circumstances where Dr Garrett and Mr Gill were very different people. His Honour referred to the broad intellectual interests that Dr Garrett and Nancy Garrett had had with a wide circle of friends consistent with their "high achieving careers". His Honour characterised Mr Gill as a man of "little demonstrable ambition".
9. The primary judge found that, after the death of his wife, at a time when his children, the Executors, were at the most demanding stages of their own busy and successful professional lives, Dr Garrett was lonely and was in need of day-to-day companionship. His Honour found that Mr Gill was quick to fill the gap in Dr Garrett's life and sized up Dr Garrett as "a potential source of financial support". Mr Gill obtained financial advantages from Dr Garrett soon after their friendship commenced.
10. Thus, as early as December 1999, Dr Garrett lent to Mr Gill the sum of $1,800 and more and more loans followed over the next 10 years up to December 2009. The loans were recorded informally by Dr Garrett on chits, pieces of paper, ledgers, automatic teller machine receipts, cheque butts and notes kept by Dr Garrett in drawers and boxes in his bedroom. The total of the loans recorded in those materials was at least $146,306.80. The primary judge drew the inference from Dr Garrett's keeping of the materials that the clear understanding between Dr Garrett and Mr Gill was that Mr Gill would repay the loans. His Honour drew that inference from the way in which the loans were recorded. His Honour found that Dr Garrett made the loans in the expectation that Mr Gill would repay him. However, Mr Gill failed over the period of about 10 years from 1999 to 2009 to repay more than a small part of the substantial loans.
11. In April 2003, a sequestration order was made under the Bankruptcy Act 1966 (Cth) against the estate of Mr Gill. Dr Garrett was unaware that Mr Gill was a bankrupt and the Executors were unaware of his bankruptcy until shortly before Dr Garrett's death in 2015. Mr Gill also claimed that he was unaware of the bankruptcy. In any event, he did nothing in relation to it until the bankruptcy was annulled in 2016.
12. In July 2003, in anticipation of spinal surgery, Dr Garrett appointed Jemima, one of the Executors, as his attorney and enduring guardian. The primary judge found that the surgery undertaken by Dr Garrett in August 2003 preceded a slow physical decline for Dr Garrett. Nevertheless, Jemima had very little to do as her father's attorney until 2007 and 2008, since he was competent and able to manage his financial affairs until then. His Honour found that, as Dr Garrett took pride in his independence, Jemima was reticent to interfere in her father's private business.
13. In 2001, Mr Gill commenced renting an apartment in Glenmore Road, Paddington. The apartment was sold and he was required to vacate. As a consequence, he was left temporally without accommodation. At Dr Garrett's invitation, Mr Gill moved into the Paddington Property to tide him over whilst he looked for other accommodation. He moved back into his former premises, which he rented from the new owners. However, in late 2003, he was given notice to vacate.
14. In November 2003, Mr Gill moved into the Paddington Property permanently. By that time, Dr Garrett and Mr Gill had been acquaintances for some five years. They were spending considerable time with each other almost every day, probably more so than with either of their families or friends. The primary judge found that the companionship of Mr Gill suited Dr Garrett and it worked well for Mr Gill financially because he borrowed money regularly from Dr Garrett who was very generous in entertaining and maintaining the lifestyle of his friend. Mr Gill did not have any active business from which he earned a regular income so had free time during the day. By this time, Mr Gill's way of life was being funded by Dr Garrett. Moving in with Dr Garrett made Mr Gill's future more financially secure at least in the short to medium term.
15. Dr Garrett treated Mr Gill generously as a guest in the Paddington Property, providing all food, alcohol, accommodation and facilities without any charge. Mr Gill's own income from his computer broking business at the time was no more than $5,000 per annum and he soon became dependent on Dr Garrett's generosity. Dr Garrett and Mr Gill never discussed the payment of rent or board at any stage that Mr Gill resided in the Paddington Property with Dr Garrett. In the events that occurred, Mr Gill became a long-term occupant of the Paddington Property.
16. The primary judge found that Mr Gill's continued occupation of the Paddington Property was explained by the very different personalities of Dr Garrett and Mr Gill and by Dr Garrett's declining mental competence. His Honour held that Mr Gill has very little sense of the separate interests of other people and that it is his own comfort and security that matters to him. His Honour considered that it would never occur to Mr Gill that staying in the house of another person for a number of years might be perceived as an imposition. His Honour found that Mr Gill's first priority in life was to look after himself and to secure such advantages as he could from the people around him, in contrast to the weakness in Dr Garrett's outlook, that he did not comprehend that Mr Gill could be exploiting his relationship with him. There was no evidence that Mr Gill ever actively looked for any other accommodation and was quite content to remain in the Paddington Property.
17. The primary judge said that Mr Gill came across in the witness box as an obliging person who simply had the best interests of his "best mate" Dr Garrett in mind. However, his Honour drew inferences that Mr Gill was in fact of a "more calculating bent" and that, very occasionally, that side was revealed to others. His Honour considered that the "peculiar combination of personalities" explained substantially, but not wholly, why Mr Gill continued to stay in the Paddington Property. His Honour considered that the other factor that explained why Dr Garrett continued to accommodate Mr Gill at the Paddington Property was the slow weakening of Dr Garrett's mental competence, which was evident to other family members by 2006.
18. From the beginning of 2007, Dr Garrett began to shed responsibility for managing his own financial affairs and the financial affairs of the family. In the second half of 2007, Dr Garrett asked Jemima to take over the preparation of his tax returns for the previous two financial years. Jemima considered that, at that stage, he was no longer on top of the details of collating and sorting through the paperwork necessary to do his tax returns. During 2007, while working on Dr Garrett's finances, Jemima discovered a substantial recurring liability for goods storage of approximately $500 per month being paid from Dr Garrett's credit card as a direct debit and asked Dr Garrett what he wanted done. He replied that he wanted Mr Gill to "clear the storage facility". In a conversation shortly thereafter, Dr Garrett confirmed to Mr Gill that he wanted the goods to be moved. However, the storage charges continued to accumulate for some years thereafter. Indeed, the storage fees were paid from Dr Garrett's accounts or credit facilities until February 2015, when Mr Gill finally moved his goods, mostly into the Paddington Property. The total amount of the payments was $69,349.64.
19. In May 2008, Dr Garrett travelled to the United States to visit his daughter, Catherine, who lived in California. He took with him the materials that he had collected concerning the loans made to Mr Gill from 2002 to 2008 and Catherine helped him prepare a summary table of the loans. The total for that period was $103,166 less repayments of $5,135, leaving a balance of $98,031. The primary judge considered that a notable feature of the loans was that the overall quantum increased from 2004, the year when Mr Gill moved into the Paddington Property. His Honour drew the inference that Mr Gill's daily access to Dr Garrett while living in the Paddington Property gave him far greater opportunities than before to ask for loans, which Dr Garrett seemed unable to resist making.
20. While in California with Catherine, Dr Garrett composed a letter to his solicitors outlining his relationship with Mr Gill and his testamentary intentions in general terms, as follows: "The outstanding question on which I seek your counsel involves the amount I will leave to Jason Gill, who as you know is a friend who lives with me in my house. I have heard colloquially that there may be some issue as to the nature of his and my relationship and that upon my death he may have some legal claim to my estate. I have attached a short narrative which explains how Jason and I met and the circumstances under which he began living in my home, which began informally when I invited him to stay with me when he lost the flat he was living in at the time. While we both thought the arrangement would be temporary and have never formalized any agreements as to his tenancy or our living arrangements, we have come to a mutually agreed, informal understanding that he could continue living in my home rent free. While Jason has lived with me, he has helped with a number of things around the house, including cooking most meals and driving me as needed. In turn, since 2000 he has consistently borrowed money from me, of which I have kept a running tally, which I attach to this letter. Jason has always said he intends to pay back these loans, and on occasion has paid back small amounts, which are noted on the tally. Therefore, I would like your advi[c]e on all rights and obligations that I have with respect to this relationship before I determine what, if anything, I will leave him in addition to the outstanding balance of his loans."
21. The primary judge found that the letter constituted direct evidence of the existence at that time of a mutually understanding that Mr Gill could continue living rent-free in the Paddington Property. The summary of Dr Garrett's testamentary intentions, in a spreadsheet entitled "Intent of Will", stipulated that the Paddington Property, the MacMasters Beach property and the West Yorkshire property in were to be left to Dr Garrett's children, the Executors, in equal shares. However, Dr Garrett indicated that he intended to leave his motor vehicle and a specified painting to Mr Gill and that he was intending to "forgive loans" and give a cash legacy to Mr Gill, although the amount was left blank. His Honour considered that the blank space indicated that Dr Garrett was expecting to receive advice from his solicitors on whether he should forgive the existing loans and what the proper cash amount of the legacy should be.
22. On 20 June 2008, after his return to Australia, Dr Garrett made the Will, which reflected the instructions given to his solicitors. The primary judge was confident that Dr Garrett was of sound mind when he made the Will and observed that his capacity to make the Will had not been put in issue. Dr Garrett's solicitor, Mr Anthony Roberts, said that he had "absolutely no concerns" that Dr Garrett was anything other than capable and of sound mind to make the Will. His Honour accepted that assessment.
23. After legacies to his grandchildren and step-grandchildren, Dr Garrett and gave a legacy of $200,000 to Mr Gill in cl 4. He also made a number of specific gifts to Mr Gill, including the painting, and gave the rest and residue of his estate equally to his three children, the Executors. In the Will, Dr Garrett explained the reasoning for his gift to Mr Gill in the following terms: "IN MAKING the bequest referred to in clause 4, I have given careful consideration and had due regard to the contribution made by the Devisee by way of assistance he has provided to me whilst residing at my home in the nature of cooking meals, general household tasks, driving me to appointments and the like and his general companionship. The bequest which I have made to him in my view fairly and reasonably reflects the value of the contribution that I believe he has made. From September 2002, I have from time to time advanced monies to the Devisee by way of loan and have maintained a record of advances so made and also all amounts which have been repaid. At the time of making this my Will the balance of the outstanding loan monies amounts to approximately Ninety eight thousand dollars ($98,000). It is my expectation and requirement that the balance of the outstanding loan, if any, at my death will be repaid to my Estate at that time."
24. In the letter to his solicitors, Dr Garrett referred to a "short narrative", which was a document in Dr Garrett's handwriting headed "Confidential - Jason Gill" and which was later left with the Will. The primary judge found that the statement together with the Will constituted direct evidence from Dr Garrett about his relationship with Mr Gill. The handwritten document, after recounting some of Mr Gill's background and personal misfortune, said as follows: "He came to stay with me at [the Paddington Property] about 2002 and has remained with me since then. We are part of about 8 - 10 friends who drink regularly at the Royal Hotel, Five Ways, Paddington. I have not charged him rent and I buy virtually all the food and most of the wine at home. He has come to cook virtually all the meals. He is a very kind man and cooks about 2 or 3 meals a week for a disabled mutual friend, 48 years old who until recently has been bed-ridden with arthritis since his teens. Jason's occupation has been as a computer broker and has in the past has been very profitable but for about 6 years it has been collapsing, overtaken by new technology and he has come to borrowing from me. He now owes me $52,000. Against this he has paid me $6,249 to date and drives my car as chauffeur when I go to see my general medical practitioner or similar errand. His furniture storage fees were put on my Visa card and this has continued over the years. I have recently drawn his attention to this."
25. The primary judge considered that the document was a useful insight into Dr Garrett's then views about Mr Gill. His Honour characterised it as being "reasonably formal, honourably demonstrating gracious friendship towards Mr Gill". His Honour did not consider that it gave any intimation of a profound depth of obligation beyond the somewhat transactional calculation that ultimately appeared in the Will.
26. The primary judge observed that the structure of Dr Garrett's testamentary intentions in June 2008, as expressed to his solicitors, and as perfected in the Will, contain no suggestion that the Paddington Property would be given to Mr Gill. His Honour considered that that was significant in relation to Mr Gill's assertion in the proceedings that, by February 2009 at the earliest, no more than eight months later, Dr Garrett made an arrangement with him to give the Paddington Property to him in exchange for Mr Gill's caring for him for the rest of his life. His Honour observed that there was no obvious explanation for such a significant change of heart in that eight-month period. Rather, his Honour found, all that happened in that eight-month period was that Dr Garrett's physical and mental health declined.
27. In November 2008, Dr Garrett suffered a transient ischemic attack and was admitted to the stroke unit at St Vincent's Hospital. He was expected to make a full recovery although, as result of which of the attack, he developed a speech difficulty described as expressive dysphasia. The primary judge found that, through rehabilitation and medical care, Dr Garrett tracked well but his speech never fully returned to its previous level. The attack had occurred in a period when Dr Garrett was continuing to drink heavily with Mr Gill. There were often empty wine and whisky bottles in the Paddington Property when Jemima visited during that time. Dr Garrett and Mr Gill continued to visit the Royal Hotel each day and to drink at home afterwards, often with friends from the Royal Hotel. Dr Garrett paid for those outings.
28. The primary judge accepted Jemima's observations that the attack disabled her father further. From that time, she needed to shop with her father to buy his clothes and to buy birthday and Christmas presents that he wanted to give to others. He was no longer able to undertake such expeditions alone. By late 2010, Jemima was doing all of her father's shopping without him, since it confused and exhausted him too much. Mr Gill did not accompany Dr Garrett on any of those shopping trips with Jemima.
29. The primary judge found that Dr Garrett's family was heavily preoccupied with his immediate post stroke recovery after November 2008 and that Mr Gill was an important element of stability in the overall support for Dr Garrett during that recovery phase. His Honour observed that the family members each had doubts about the quality of Mr Gill's care but those doubts were temporarily put to one side whilst Dr Garrett was supported back to better health. His Honour observed that removal of Mr Gill would have upset Dr Garrett and would have thrust difficult adjustments upon him at a sensitive time.

The Alleged Representation

1. In his affidavit of 7 April 2017, Mr Gill asserted that from time to time before 2009 he had conversations with Dr Garrett in which he reminded Dr Garrett about what he, Mr Gill, claimed he was sacrificing to be Dr Garrett's companion. Mr Gill says that, on occasions, he said words to Dr Garrett to the following effect: "I do worry about my future prospects. I am not getting any younger, I need to consider what I should do. I may have to get back into and concentrate on business." The primary judge accepted that Mr Gill probably did say something like that to Dr Garrett.
2. In addition, Mr Gill asserted in his affidavit of 3 November 2016 that, at some time after February 2009, he had a conversation with Dr Garrett to the following effect: "Dr Garrett: Jason, you have been such a good friend and I really appreciate you living here with me and attending to much of my day to day care. I could not do it without you. There is no way I want to go into an aged care facility. Our arrangement suits me and because it saves me a lot of money it suits my children. However it is not so good for you. I want you to continue living with me as my companion and carer until I pass away and in recognition of our friendship and care I will give you my house at [the Paddington Property]. I will attend to the legalities. What do you think? Mr Gill: That offer is very generous [Dr Garrett]. Thank you so much. You are a great friend and I agree to your proposal. We will continue the arrangement on a permanent basis, as you request." The primary judge was not persuaded that a conversation took place between Dr Garrett and Mr Gill in those terms.
3. On the other hand, the primary judge accepted that the general topic of Dr Garrett giving the Paddington Property to Mr Gill in his will was discussed between them. However, his Honour rejected Mr Gill's evidence that the conversation set out above took place. The primary reason for rejecting that evidence is that his Honour considered that Mr Gill was an unreliable witness and did not believe him. His Honour also referred to other objective considerations that he considered supported that conclusion.
4. First, notwithstanding that such a conversation would probably have been one of the most financially significant conversations in Mr Gill's life, no contemporaneous note or other record, such as email, was made confirming the conversation. His Honour observed that Mr Gill's only corroboration was the evidence of eight witnesses described by his Honour as "the Paddington witnesses", all of whom gave evidence about Dr Garrett talking about giving the Paddington Property to Mr Gill.
5. The second reason for the primary judge's rejection of Mr Gill's evidence is that his Honour did not accept that Dr Garrett had the capacity or the inclination to raise spontaneously and on his own initiative the possibility of offering the Paddington Property to Mr Gill. His Honour concluded that, given his declining capacities, Dr Garrett was incapable by February 2009 of coming up with an idea such as that and explaining it in the terms alleged by Mr Gill. His Honour considered that, if such a conversation had been held on Dr Garrett's initiative, at a time when he was in full possession of his faculties and was exercising sound judgment, he would have first consulted Jemima about such a matter, since he had entrusted his financial affairs to her, and would have raised the idea with his family to whom he owed a great moral obligation. His Honour considered that a promise such as alleged by Mr Gill was inconsistent with Dr Garrett's strong sense of family obligation and affection for his own children, the Executors.
6. Thus, Dr Garrett had recently reaffirmed that central bond in his life when he made the Will as recently as eight months prior to the alleged conversation. His Honour found that Dr Garrett and his three children were very close. The Paddington Property represented about half the value of Dr Garrett's estate and was the single largest asset in his estate. His Honour considered that a gift of the Paddington Property to Mr Gill was in direct tension with his moral obligations to his own children.
7. Third, the primary judge considered that, if the statement "I will take care of the legalities" attributed to Dr Garrett had been made, Dr Garrett would have followed up the matter by engaging solicitors to formalise the arrangements. Mr Roberts, a partner in the firm of solicitors that had acted for Dr Garrett for some time, confirmed that Dr Garrett never took care of any relevant "legalities" after February 2009. His Honour considered that, if Dr Garrett were the moving party and author of such a proposal, it would be expected that Mr Gill would have been very keen to see it securely formalised as promised. However, Dr Garrett did not communicate his intention to his solicitor, his accountant, Mr Wayne Tilley, and or any of his children at that time.
8. Fourth, the primary judge considered that the statement attributed to Dr Garrett, that he feared going into an aged care facility, did not sit well with the evidence of Dr Garrett's three children that at all times they did their very best to ensure that Dr Garrett was cared for in his own home until he died. His Honour found that none of the conversations between Dr Garrett and his children would have given Dr Garrett any basis to hold a fear that he might be placed in an aged care facility. His Honour considered that, if Dr Garrett had made the alleged promise, and meant it, Mr Gill had little to fear from raising the issue with Dr Garrett's family thereafter. While they might not have liked the news, if Dr Garrett was sufficiently determined to put such a proposal forward, there was no reason why his children should not have been told. However, Mr Gill did not mention the alleged proposal to any family member until some six years later, in August 2015, when Dr Garrett was no longer in a condition to contradict what he said.
9. Fifth, the primary judge considered that a strange feature of the alleged proposal was that it was only ever discussed on one occasion between Dr Garrett and Mr Gill with no one else present. His Honour considered that it was surprising, if such a conversation took place, that it would have been mentioned only once between Dr Garrett and Mr Gill, in circumstances where they were together a substantial part of the day for years thereafter. His Honour considered that it was difficult to accept that, if such a proposal had been discussed once, it was not discussed thereafter on several occasions, particularly in the absence of any objective record being made of the proposal notwithstanding that Dr Garrett said he would address "the legalities". Mr Gill lived with Dr Garrett, drove him around and would have had an idea of whether or not Dr Garrett had been to see a solicitor after the alleged proposal was raised. His Honour considered that Dr Garrett was a very ethical person who would have tried to honour any obligation that he consciously undertook. His Honour considered that the fact that Dr Garrett did not give instructions for a new will, given his character, is best explained by Dr Garrett not having made the alleged promise and his executive capability being dysfunctional by 2009 or 2010. His Honour said that the surprising generosity of the alleged offer made it more remarkable that the proposal was not discussed between Mr Gill and Dr Garrett privately over the ensuing years.
10. Sixth, the primary judge considered that the timing of the alleged promise by Dr Garrett in relation to his will of the previous year was a significant factor in deciding whether or not the alleged promise is credible. Clearly, a promise made before the Will could not be accepted because of the direct inconsistency between the promise and the terms of the Will. His Honour took into account the fact that Mr Gill was at one time uncertain about the time at which the alleged promise was made by Dr Garrett. Mr Gill said in his affidavit, of 3 November 2016, about 12 months after Dr Garrett's death, that it was no earlier than February 2009 because in that month Dr Garrett and Mr Gill went to New Zealand to attend Mr Gill's brother's wedding.
11. However, on 19 August 2015, three months before Dr Garrett died, and closer to the time of the alleged discussion, Mr Gill's solicitors wrote a letter alleging that the promise and agreement had been made "by about 2008". Mr Gill agreed that he gave instructions for his solicitors to write that letter but sought to explain the reference to "about 2008" by saying that he was "panicking". He said that he told his solicitors that the conversation was "2008-2009, something like that" and that he had not really clarified it in his head but that he subsequently clarified it and it was 2009. The primary judge did not accept that Mr Gill instructed his solicitors that the conversation took place in 2008 or 2009 since, if he had, it would probably have appeared that way in the solicitor's letter. His Honour considered that the shifting account of the timing of the alleged conversation weakened Mr Gill's account and that the change is better explained by the fact that Mr Gill obtained a copy of the Will after 19 August 2015 and before he swore his affidavit.
12. Finally, the primary judge found that Mr Gill was aware from what Dr Garrett had told him that, under the 2008 Will, he was going to receive $200,000. His Honour said that Mr Gill gave the impression in his oral evidence that he would be receiving the Paddington Property in substitution for the legacy of $200,000. His Honour considered that that was odd in itself because nothing in the conversations to which Mr Gill deposed indicated that the $200,000 legacy would not be renewed when the Will was revoked. Mr Gill accepted that he just took it for granted that the existing Will would be revoked and that he would get the Paddington Property instead. His Honour held that, if Dr Garrett had had a conversation such as was alleged and was in full possession of his faculties, he would have expected him, thorough as he was, to have attended to that not so minor detail and would have explained to Mr Gill that he would not be getting the $200,000 legacy as well as the Paddington Property. His Honour concluded that the fact that that subject matter was not in the conversation alleged by Mr Gill indicates either that the conversation did not take place or that, if it did, Dr Garrett was not in full possession of his faculties.

The Paddington Witnesses

1. Mr Gill called eight witnesses to whom the primary judge referred to as "the Paddington witnesses". The evidence of a ninth witness called by Mr Gill, Ms Janet Greenwood, did not support any alleged statement that the Paddington Property would go to Mr Gill. Ms Greenwood was not cross-examined and the primary judge gave her evidence little weight.
2. Each of the Paddington witnesses gave evidence of Dr Garrett speaking between 2009 and 2011 about giving the Paddington Property to Mr Gill. A strong challenge was mounted against the accounts of the Paddington witnesses, each of whom was cross-examined to suggest that the conversations to which they deposed did not take place. However, his Honour generally believed each of the Paddington witnesses as to what they said they saw and heard.
3. The primary judge characterised the question about how Dr Garrett came to discuss an essentially private subject of his testamentary intentions openly with the Paddington witnesses as "intriguing". His Honour found that, when fully competent, Dr Garrett closely guarded the privacy of his finances and personal affairs and would have regarded that subject as "none of their business". His Honour considered that, by the time Dr Garrett was having the conversations in question with the Paddington witnesses, he had lost his capacity to avoid diplomatically being put in a situation that would have affronted his dignity when in full possession of his faculties. His Honour considered that it suited Mr Gill well for the matter to be discussed openly, since he wanted witnesses to the conversations.
4. His Honour recorded the claim by the Executors that the evidence of the Paddington witnesses was tainted because Mr Gill approached each of them saying something like "do you remember telling me that [Dr Garrett] was going to promise me the house". His Honour found that Mr Gill was prepared to prompt the memory of some of the Paddington witnesses on significant matters. However, his Honour considered that the chief problem with the evidence of most of the Paddington witnesses was that they were "not alert to the underlying dynamic" of Dr Garrett's mental weakness and that Mr Gill was actively utilising them as witnesses to assist him. His Honour considered that it was a strange contrast that, from 2009, as many as eight people were said to have witnessed the relevant conversations about the alleged arrangement and that Mr Gill was present at many of them but did not mention the arrangement once to Jemima prior to August 2015. His Honour concluded that Mr Gill was keeping his discussions with Dr Garrett about the question of leaving the Paddington Property to him from Dr Garrett's family.
5. The evidence of the Paddington witnesses was only slightly different. The Paddington witnesses were as follows:

• Mr John Davies was a retired banker and the primary judge described him as "an essentially credible historian". Mr Davies was unable to be any more precise than to say that a conversation occurred in about 2009 or 2010. He said that Mr Gill introduced the subject of Dr Garrett proposing to leave Mr Gill the Paddington Property although Mr Davies could not recall Dr Garrett saying anything in response.
• Mr Bruce Stephens remembered at least two and probably more conversations with Dr Garrett in which Dr Garrett described his "agreement with Jason" to the effect that he would leave Mr Gill the Paddington Property in his will. Although his Honour considered that Mr Stephens' evidence was given honestly, his Honour did not consider Mr Stephens to be a witness upon whose evidence the Court placed great weight. His Honour considered that Mr Gill prompted significant aspects of Mr Stephens' evidence.
• Mr John Duncan described himself as part of a regular lunch group that included Dr Garrett and Mr Gill and which often adjourned after lunch for drinks at the Royal Hotel. His Honour considered that, although Mr Duncan spoke in a straightforward manner and appeared to have a good memory, his Honour approached the evidence cautiously since his testimony was based in part upon a mixture of what he described as "common knowledge" in the lunching and drinking group.
• Mr Andrew Connolly had a long career as an air traffic controller. He was considered by his Honour to be a credible witness, having given careful evidence as might be expected from someone of that professional background. His Honour accepted the testimony of Mr Connolly that Dr Garrett said that he had decided to leave the Paddington Property to Mr Gill in his will.
• Ms Catherine Cook worked as a bartender at the Royal Hotel for a period of about two and a half years commencing in 2004. She became friendly with Dr Garrett and Mr Gill who were two of the regular customers. She described "Bill and Jason" as drinking at the Hotel "on most evenings" during that period. From 2007, Ms Cook worked in a nearby real estate agency but continued to drop in to the hotel to have a drink, where she maintained her friendship with Dr Garrett and Mr Gill. At Mr Gill's invitation, Ms Cook accompanied them both on a trip to New Zealand in February 2009 for Mr Gill's brother's wedding. His Honour observed that parts of Ms Cook's oral evidence differed from her affidavit evidence but under cross-examination she reaffirmed and recalled recollections and was able to add spontaneous detail about the occasions she remembered. His Honour accepted her recall of those conversations. His Honour did not consider that she was the kind of witness who would have been influenced by Mr Gill and his Honour accepted that a conversation took place as deposed to by Ms Cook. However, his Honour considered that Ms Cook's assessment of Dr Garrett's mental state was less reliable. She thought that, while his speech was "a little affected", the incident in 2008 had not affected his mental capacities and he seemed his usual intelligent, mentally capable self.

Conclusion as to the Discussions between Dr Garrett and Mr Gill

1. The primary judge drew inferences as to how a conversation about the Paddington Property probably unfolded between Dr Garrett and Mr Gill. His Honour began with the proposition that Dr Garrett was not mentally capable in February 2009 of planning and initiating such a proposal. His Honour considered that, if Dr Garrett were capable, he would have followed his initiative through and would have gone with it to his solicitor. Nevertheless, the evidence of the Paddington witnesses shows that the topic was on Dr Garrett's mind. His Honour concluded that Mr Gill must therefore have initiated it. His Honour considered that Mr Gill regarded his looking after Dr Garrett as an altruistic act for which he felt he was strongly entitled to be rewarded. His Honour drew the inference that Mr Gill pushed the proposition to Dr Garrett that he, Mr Gill, should have the Paddington Property as the fair reward for caring for Dr Garrett.
2. Mr Gill flatly denied in cross-examination that he had ever suggested to Dr Garrett that he should have the Paddington Property. However, his Honour accepted that Dr Garrett said to Catherine and to Thomas that "Jason wants the house". His Honour drew the inference that Mr Gill wanted the Paddington Property and was pressing Dr Garrett for exactly that and that Dr Garrett recalled and repeated Mr Gill's request to his children.
3. The primary judge accepted that Dr Garrett may ultimately have given indications of some form of verbal assent to the idea that Mr Gill was pressing upon him. However, his Honour concluded that what happened between Dr Garrett and Mr Gill was nothing like Mr Gill's account and that their exchange was far from the scene that Mr Gill painted, namely, a spontaneous act of generosity by an independent Dr Garrett in full control of his faculties. Rather, his Honour concluded, it was probable that Dr Garrett ultimately just outwardly surrendered to Mr Gill's pressed suggestions, in circumstances that his Honour was not prepared to infer amounted to the formalities of a recognisable contractual offer and acceptance. His Honour concluded that, once Dr Garrett had surrendered, sometimes he could remember what Mr Gill had proposed to him and sometimes he could not but, in Dr Garrett's "ever weakening mind" it remained Mr Gill's idea to which he would assent from time to time when prompted, especially in Mr Gill's presence.
4. The primary judge considered that that analysis was the best explanation for the anomalies in the case and explained why Dr Garrett did not take control of the proposal and advance it through his legal advisors and communicate it to his children. His Honour considered that it was consistent with the medical evidence that, by February 2009, Dr Garrett had impaired mental capability that made it improbable that he could have carried forward and taken responsibility for such an idea. His Honour considered that it also accounted for the evidence of the Paddington witnesses that Dr Garrett did in fact discuss the subject in front of them.
5. The primary judge placed considerable weight on the evidence of Professor Brennan who explained that in 2009 Dr Garrett was already suffering significant frontal lobe disease, with accompanying dysexecutive syndrome, which led to Dr Garrett having immense difficulty in undertaking the complex task of evaluating competing moral claims upon him, such that it became a task beyond him. His Honour concluded that that meant that, when Mr Gill pressed upon him the idea of giving him the Paddington Property in exchange for Mr Gill's care, Dr Garrett was probably only able to focus upon the one claim immediately being made by Mr Gill and was incapable of appraising that claim in relation to the genuine and significant claims of his three children. As a result, his Honour concluded, Dr Garrett was incapable of calling for legal advice or doing anything other than surrendering to Mr Gill. His Honour considered that that loss of higher-level functions explained Dr Garrett's inability to do anything about changing his will.
6. The primary judge concluded that that analysis also showed that, throughout the exchanges, Dr Garrett was, in relation to Mr Gill, in a position of special disadvantage by reason of his mentally weakened state and that Mr Gill well knew it. His Honour observed that Mr Gill had effective control of most aspects of Dr Garrett's daily life, including his feeding, his mobility and his contact with others and considered that it was probable that Dr Garrett wanted to please Mr Gill in the same way in which he wanted to please him by making improvident loans to him and to others at the Royal Hotel for years before Jemima intervened. His Honour considered that Dr Garrett had shown for years that he had little ability to resist Mr Gill's requests for money.
7. Mr Gill drew the attention of the primary judge to legal transactions in which Dr Garrett was involved in 2008 and 2009, presumably as an indication of his capacity to make a contract or a promise that could give rise to an estoppel. Thus, on 20 May 2008, Dr Garrett signed a binding nomination with respect to the disposition of superannuation. In early November 2008, Dr Garrett executed a deed of surrender in respect of a lease over the West Yorkshire Property. Both of those events were before the stroke of 17 November 2008.
8. On 14 July 2009, Dr Garrett consulted with his accountant to discuss the transfer of the West Yorkshire Property to his children and the possible transfer of the MacMasters Beach Property to them. On 7 August 2009, Dr Garrett executed a deed of appointment of his children as additional trustees of the West Yorkshire Property. On 10 September 2009, he consulted his financial advisor about superannuation investments and on 26 October 2009, Dr Garrett executed a revised enduring power of attorney in favour of Jemima.
9. The primary judge characterised those transactions as being very different from the alleged conversation in February 2009. Those transactions were in the presence of professional advisers, either lawyers, accountants or financial planners, all of whom were acting in the interests of Dr Garrett, assessing his lucidity at the time and directing his attention to necessary and relevant legal questions. Family members were also present in support. In contrast, his Honour observed, the alleged transaction deposed to by Mr Gill was without independent legal advice, without the support of family and involved the disposition of Dr Garrett's single largest asset, contrary to the terms of the Will that he had made, at the earliest, only eight months before.

Detrimental Reliance

1. The primary judge did not accept that Mr Gill relied upon anything Dr Garrett said and did not accept that Mr Gill was induced by anything that Dr Garrett said in order to stay at the Paddington Property and look after Dr Garrett. Mr Gill claimed that the promise alleged to have been made by Dr Garrett prevented him from pursuing other economic opportunities and that he refrained from applying for public housing. His Honour rejected both those claims of reliance.
2. The primary judge said that Mr Gill's case ignored the important factor of Mr Gill's outstanding loans from Dr Garrett. Not disturbing the situation that left the loans uncollected and unpaid, to the advantage of Mr Gill, was a powerful financial disincentive against Mr Gill leaving the Paddington Property. His Honour considered that that was a powerful factor motivating Mr Gill to stay at the Paddington Property, whether or not any alleged promise or representation was made.
3. At the time when the alleged representation or promise was made to Mr Gill, he had little money and had not pursued his own business opportunities for some time. He asserted that Dr Garrett's promise relieved him of his fears about the future and financial problems in the long term and that, had the promise not been made, he would have resumed his self-employed business activity in computer broking or perhaps sought other formal employment.
4. However, Mr Gill accepted that resuming a career in computer broking would be difficult for someone of his age, in his 50s, with no recent employment history and the primary judge considered that the years before 2009 gave no support for an inference that Mr Gill had any interest in returning to computer broking. His Honour did not accept that Mr Gill's care for Dr Garrett up to that time prevented him from pursuing part time computer broking work if he was truly interested in resuming that kind of work. Thus, Mr Gill had shown no willingness to restart such a business in the five years from 2004 to 2009 and had long had the opportunity of operating the business out of the Paddington Property if he had any inclination to do so. Indeed, Mr Gill readily conceded in cross-examination that he had not put much effort into resuscitating his computer broking business before or after 2009.
5. The primary judge did not accept that Mr Gill was seriously attempting to resuscitate his business and did not consider that his excuse that Dr Garrett needed constant companionship was persuasive. Thus, his Honour said, Mr Gill could have worked after hours and could have done some of the work in the presence of Dr Garrett. Further, his Honour said, Mr Gill could have substituted some of his eating and drinking outings with work but he was not prepared to take up any of those options. In any event, 2009 was the middle of the global financial crisis and was a most unlikely time for Mr Gill to be thinking about starting his own business. Rather, his Honour considered that Mr Gill just preferred to lead the pleasant relaxed life that he did, going to the Royal Hotel with or without Dr Garrett when he could easily have been working. His Honour considered that living at the Paddington Property suited Mr Gill.
6. Mr Gill said that Dr Garrett's promise relieved him of the worries that he previously had about his future accommodation, which he would have had to face if he was no longer able to reside with Dr Garrett in the Paddington Property. His Honour did not consider that that contention was persuasive. There were considerable benefits to Mr Gill from his arrangement with Dr Garrett, such as subsidised travel, access to a motor vehicle, free accommodation, free entertainment, interest-free loans, regular dinners out and fine wine. His Honour considered that Mr Gill did not want to hamper that pleasant lifestyle and never showed any willingness to do so. His Honour considered that Mr Gill's assertion that he would have left the Paddington Property and gone into public housing was well down his list of priorities, so far down that he had not thought about the issue at all.
7. The primary judge also considered that the other principal obstacle to Mr Gill leaving the Paddington Property was the outstanding loans that he owed to Dr Garrett. The Will recorded the extent of the loans in 2008 and the loans had not diminished by 2009, when Mr Gill asserts that he was considering "moving on". The last loan to Mr Gill, of $4,000, was made as late as December 2009.
8. Dr Garrett did not call up the loans while Mr Gill was in the Paddington Property. Despite Jemima becoming more closely involved in Dr Garrett's financial affairs, Dr Garrett made no demand for repayment. In any event, Mr Gill was never in a position to repay the loans and admitted that he had no other income and had no other assets from which he could fund repayment. Indeed, he was a bankrupt and the only practical way in which he could repay the loans was to borrow money from his parents or use his expected inheritance for that purpose. However, he showed no inclination for many years to borrow from his family to repay Dr Garrett and the primary judge drew the inference that Mr Gill was not minded to do so. Rather, his Honour found, leaving the loans outstanding suited Mr Gill.
9. Mr Gill accepted that, were he to move from the Paddington Property, he would have had to confront how he could repay the loans, then in excess of $100,000. His Honour considered that, by 2009, when Jemima was becoming more involved in Dr Garrett's financial affairs, it must have been apparent to Mr Gill that Jemima was likely to follow up collecting the loans, especially if Mr Gill left the Paddington Property.
10. The primary judge referred to Mr Gill's attempt to escape that logic by stating at one stage that, when he borrowed money from Dr Garrett, he intended to pay it back. However, when tested as to how he was going to pay the money back during Dr Garrett's lifetime, given his lack of resources and external income, he agreed that he did not know how he would have done that. His Honour characterised the assertion that he intended to repay the money as "an empty statement". His Honour considered that Mr Gill had a habit of saying whatever he needed to in order to sound plausible at the moment.
11. Finally, the primary judge considered that "another more subtle factor" kept Mr Gill in the Paddington Property, namely, that Mr Gill always felt that he was rather privileged to be in Dr Garrett's company and to be trusted as much as he was. His Honour considered that that sentiment helped ground the inference drawn by his Honour that Mr Gill would have stayed in the Paddington Property until Dr Garrett died, whether or not Dr Garrett had made the promise alleged by Mr Gill. Mr Gill wanted to remain associated with Dr Garrett.

Dr Garrett tells Jemima about the Paddington Property

1. By April or May 2011, Jemima was becoming increasingly concerned about leaving Dr Garrett on his own with Mr Gill without some supervision by other members of his family. The alternatives were for Dr Garrett to live with Jemima or to go into a nursing home. Avoiding those alternatives and maintaining continuity meant that Jemima would have to put up with Mr Gill's failure to respond to requests about Dr Garrett's finances and about Mr Gill's facilitating Dr Garrett's abuse of alcohol. The family accepted that, for the time being, without Mr Gill, Dr Garrett would not have been able to stay in the Paddington Property.
2. Dr Garrett travelled with Jemima to Tasmania in February 2011 for the annual meeting of the Order of Australia Association. Dr Garrett was very confused and lost his way, wandering at night. At that time, Jemima was concerned that Mr Gill regularly brought friends home from the Royal Hotel to drink into the early hours of the morning. She sometimes found Mr Gill deeply asleep on the couch after heavy drinking sessions and unlikely to be in a position to help Dr Garrett if required.
3. Accordingly, Jemima began to arrange supervision when she was away. That was regarded by the primary judge as an indication of Dr Garrett's further decline and of the Executors' growing distrust of Mr Gill's care skills. In May 2011, Thomas came to stay at the Paddington Property while Jemima travelled to Papua New Guinea in connection with her career. Thomas recalled a conversation he had with Mr Gill, which probably occurred in May 2011, when Jemima was away, in which Mr Gill said that Dr Garrett had plenty of money and suggested that $200,000 be put in the account so that there was ready access for all of Dr Garrett's living needs. Later, Mr Gill said to Thomas: "When your dad goes I want the house". Thomas said nothing for the moment. His Honour observed that that was a repetition of something similar that Catherine had heard Mr Gill say in about 2009. Mr Gill's evidence was that he said to Thomas: "You may be aware that [Dr Garrett] and I have an agreement that in return for my continuing companionship and care, he will leave me his house in his will". His Honour considered that that account of the conversation was improbable and, had it taken place, Thomas would have immediately done something about it.
4. When Jemima returned to Australia from Papua New Guinea, Thomas debriefed her about the discussions concerning the Paddington Property. The statement that Mr Gill had said that he thought he should get the house came as a shock to Jemima and she appreciated for the first time that Mr Gill thought he deserved the Paddington Property. His Honour accepted that that was the first indication to Jemima of Mr Gill's interest in the Paddington Property.
5. On 4 June 2011, Jemima took Dr Garrett to the cinema. After the film, they had a conversation at a coffee shop along the following lines: "Dr Garrett: I want to leave [the Paddington Property] to Jason. Jemima: Whose idea was this? Dr Garrett: I can't remember. Jemima: Remember that in your will you have made provision for Jason for $200,000 and the car. Dr Garrett: I had forgotten that. Jemima: I will organise for you to get some independent advice from [your solicitors] who have known you for decades."
6. The primary judge concluded that, by June 2011, Dr Garrett had lost the capacity to make considered decisions and considered that it would be surprising that such an idea would suddenly tumble out at that time unless Mr Gill had been raising the idea with Dr Garrett. Mr Gill denied prompting Dr Garrett to tell Jemima about the alleged arrangement with Dr Garrett. His Honour did not find persuasive Mr Gill's evidence that he had previously asked Dr Garrett to tell Jemima.
7. The primary judge observed that the conversation after the cinema, as Jemima recalled it, did not contain any reference to an agreement between Dr Garrett and Mr Gill of the kind alleged in the pleadings. His Honour considered that the conversation was more consistent with Mr Gill suggesting to Dr Garrett that he should give him the Paddington Property in his will and Dr Garrett, in his mentally deteriorating state, recollecting an unanchored belief that he was somehow obliged to do so.
8. Mr Gill said that he was aware, by 4 June 2011, that Dr Garrett had not told Jemima about the proposal that the Paddington Property be left to Mr Gill. Mr Gill was able to draw the inference that Dr Garrett had probably not changed his will at that time. Mr Gill said that he was a little concerned about that and wanted to enquire whether Jemima had been informed. Mr Gill said that shortly after the conversation with Jemima Dr Garrett volunteered to him: "I told Jemima I am leaving you the house".
9. The primary judge did not find Mr Gill's evidence about being concerned that Jemima had not been told or about Dr Garrett reporting to him about his conversation with Jemima at all credible. The statement that Mr Gill alleged Dr Garrett made after the cinema meeting was, his Honour considered, so lacking in context that his Honour had little confidence that it happened. His Honour did not accept that Dr Garrett reported anything back to Mr Gill about his conversations with Jemima and that Mr Gill had no reason to believe that Dr Garrett's family had been informed about his claimed arrangements with Dr Garrett about the Paddington Property.
10. Jemima followed up her conversation on 4 June 2011 with a much more detailed discussion with Dr Garrett on the following day. She recorded what she proposed to ask him on that day in a document entitled "Notes for discussion with Dad 5/6/11". The document records what his Honour characterised as "reasonable and balanced advice" and concluded with the suggestion that Dr Garrett consult his solicitors. That suggestion was not carried through.
11. The primary judge found that, by June 2011, Dr Garrett's memory lapses were becoming pronounced. Thus, in May 2011 he had a lengthy conversation with Thomas about Thomas' retirement as a scientist. By the following month, Dr Garrett could not remember any of that conversation.
12. On 30 June 2011, Dr Garrett was admitted to St Vincent's Hospital after having vomited about a litre of blood. Mr Gill telephoned Jemima, who was working in Melbourne, and told her that he had found Dr Garrett on the lounge room floor. Jemima flew straight back to Sydney and went directly from the airport to the hospital where she visited her father every day until his discharge on 25 July 2011.
13. When Dr Garrett was admitted to St Vincent's Hospital, he was suffering from delirium and, according to Professor Brennan, was clearly unable to make significant or important decisions. Professor Brennan said that delirium was common in people who have underlying impairment or diminished cognitive reserves, such as with dementia. Professor Brennan's experience was that, when people get very sick or have an accident or an acute medical problem, they often become confused. The primary judge accepted Professor Brennan's opinion that, during that hospitalisation, Dr Garrett became much more confused than he had previously been, by reason of his diminished cognitive reserve.
14. The primary judge said that Mr Gill characterised that event as the point from which Dr Garrett's health declined markedly and said that, from that time, Dr Garrett had trouble with decision-making, became physically frail and required a nurse's aide for at least two hours a day to assist Mr Gill with his care. His Honour did not accept that that was a marked turning point in Dr Garrett's cognition although it was a confronting physical incident. Rather, his Honour considered that Dr Garrett's mental decline had started to accelerate no later than 2008.
15. Upon Dr Garrett's discharge, Jemima arranged for an organisation known as "Around the Clock Care" to come six days a week to shower Dr Garrett, change his sheets, help him do the exercises recommended by the physiotherapist and, if necessary, help with lunch. That meant that Mr Gill's role would continue to be limited to much the same as before, namely, providing companionship, cooking meals, giving Dr Garrett his medications and helping him to get his breakfast and dinner, reporting to Jemima about medical issues, taking Dr Garrett to minor appointments and changing soiled sheets outside the hours of care services. His Honour concluded that the overall burden on Mr Gill to look after Dr Garrett was thereafter reduced.
16. Dr Garrett visited doctors and allied medical providers more frequently from July 2011. Jemima took him to many of those appointments. The primary judge accepted that it assisted Dr Garrett's medical care for Mr Gill to make observations about his health on a day-to-day basis, which could be conveyed to his treating doctors as well. His Honour accepted that, in the last five years of Dr Garrett's life, Dr Garrett had medical incidents that required ambulances to be called on about half a dozen occasions and that Mr Gill was involved in summoning the ambulances.
17. By 2012, carers were coming seven days a week, for about an hour a day or more. By November 2013, they were coming for two hours a day. As Dr Garrett became frailer, the number of care hours per day continued to increase.
18. Dr Garrett had become far less mobile by 2013. Instead of going to the Royal Hotel in the evening, Mr Gill more often had groups of people around to the Paddington Property for drinks. Mr Gill often made a spontaneous decision to move the "symposium" at the Royal Hotel back to the Paddington Property because that was as convenient for him as it was for anyone else. As Dr Garrett's health declined, Mr Gill became the main driver of those invitations, although his Honour accepted that Dr Garrett undoubtedly gained some satisfaction from interaction with those people, something he was unlikely to have done unless Mr Gill was living in the Paddington Property.
19. In late January 2015, in a discussion between Jemima and Mr Gill, Mr Gill said to Jemima: "You know [Dr Garrett] and I had a deal that I would look after him until the end of his life". His Honour accepted that was the first time that Mr Gill had mentioned any arrangement of that kind to Jemima, although the reference to "a deal" did not trigger for Jemima the idea that Mr Gill would acquire the Paddington Property as part of the deal.
20. Jemima arranged a meeting with Mr Gill on 6 August 2015 to tell him about proposed changed care arrangements. Jemima prepared notes in advance of the meeting as to what she was going to say and the primary judge accepted evidence that she covered all of the points in the document that she had prepared. The proposal was that Thomas and his wife, Sophie Garrett, would move to Sydney and live in the Paddington Property full time to look after Dr Garrett. At the conclusion of her remarks, the conversation proceeded as follows: "Jemima: I would like a proposal for me by next Thursday. Mr Gill: You are aware of my deal with [Dr Garrett] aren't you? Jemima: What deal? Mr Gill: With the house and everything. Jemima: Dad has a will. Mr Gill: I know he told you." After further discussion the following conversation continued: "Mr Gill: You know I had a deal with [Dr Garrett]. Jemima: Dad never told me about any deal. Mr Gill: He did, outside [the cinema]. Jemima: In the countless conversations I have had with dad he never mentioned any deal. The first time I heard of any deal was when you told me in January that you had a deal with dad to look after him for the rest of his life. Mr Gill: I know he told you because when he came home he told me that he had told you." The primary judge accepted that Dr Garrett had not told Jemima of any such "deal" in any of her conversations with him. In the conversation after the cinema on 4 June 2011, Dr Garrett had not referred to any agreement between him and Mr Gill, only a general wish to benefit Mr Gill with the Paddington Property.
21. Within a fortnight, Mr Gill had engaged solicitors as had Jemima, acting as Dr Garrett's attorney. While some negotiations about Mr Gill's claim continued through solicitors, no resolution was reached before Dr Garrett's death.

The Family Provision Order Claim

1. The Executors conceded that Mr Gill was an "eligible person" for the purposes of Ch 3 of the Succession Act on the basis that he was relevantly wholly or partly dependant on Dr Garrett and was a member of Dr Garrett's household. Accordingly, the primary judge did not examine the claim of eligibility under s 57(1)(f) on the basis that Mr Gill that was a person with whom Dr Garrett was living in a close personal relationship at the time Dr Garrett's death.
2. Since Mr Gill qualified as an "eligible person" under s 57(1)(e) of the Succession Act, it was necessary for him to establish, having regard to all the circumstances of the case, whether present or past, that there are factors that warrant the making of his application. [1] If there are no such factors, the Court must refuse to proceed. Section 59(1)(b) applies to applicants who are not generally regarded as natural objects of testamentary recognition by the deceased. The primary judge considered that the factors referred to in s 59(1)(b) are factors that, when added to facts that render the applicant an "eligible person", give that applicant the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. [2] The Executors dispute Mr Gill's contention that in the circumstances of this case there are factors that would warrant the making of his application.
3. The primary judge began with focus on the Will, which had been made by Dr Garrett in June 2008, and the events between that time and Dr Garrett's death. His Honour observed that, upon advice and after due consideration, Dr Garrett decided to make Mr Gill a beneficiary in the June 2008 Will. His Honour found that Dr Garrett was prepared to overlook the deficiencies in his relationship with Mr Gill, of which both Dr Garrett and his family were aware, and to include Mr Gill as a beneficiary under the Will, a deliberate decision with the benefit of legal advice.
4. The primary judge found that there were major deficiencies in Mr Gill's care for Dr Garrett over the seven years between June 2008 and Dr Garrett's death in November 2015, although those deficiencies existed before the making of the Will and, despite the deficiencies, Dr Garrett recognised Mr Gill as worthy of being among the objects of his testamentary intentions. His Honour noted that, between the making of the Will and Dr Garrett's death, whatever the inadequacies of Mr Gill's care, Mr Gill continued to provide companionship, care and assistance to Dr Garrett to the limited standard of which he was capable and he did so continuously over those years until August 2015, when Dr Garrett's family took over his day-to-day care.
5. The primary judge observed that there was no dramatic falling out between Dr Garrett and Mr Gill over the seven-year period from June 2008 until Dr Garrett's death. Mr Gill stayed in the Paddington Property and continued to provide companionship, which was a benefit to Dr Garrett, particularly as his cognitive capacities declined. While Mr Gill continued to spend Dr Garrett's money, controls over that spending were introduced and no more loans were made by Dr Garrett to Mr Gill after December 2009. While Dr Garrett's alcohol consumption increased to unacceptable levels, Mr Gill, after urging from Dr Garrett's family, participated in watering down Dr Garrett's alcohol intake. While from such a "limited analysis", as the primary judge characterised it, it might be thought that Mr Gill satisfied the requirements of s 59(1)(b), his Honour considered that other matters that had since come to light could not be ignored. Thus, his Honour found that very substantial benefits, quantified at $822,228.75, were received by Mr Gill throughout his relationship with Dr Garrett, although much of the information that went into the quantification of those benefits was not available at the time when the Will was made in June 2008. His Honour found it hard to accept that, given what is now known about the relationship between Dr Garrett and Mr Gill, community standards and expectations would require that Mr Gill, who had received such substantial benefits, would still be a natural object of testamentary recognition under Dr Garrett's will.
6. In addition, the primary judge had regard to his findings that Mr Gill consciously misused Dr Garrett's position of special disadvantage in relation to him. His Honour considered that, having regard to that misuse, to give testamentary recognition to Mr Gill in the Will would offend accepted community standards and expectations as to who was a natural object of his testamentary recognition. His Honour referred expressly to the findings of misuse of power by Mr Gill on the occasions where Dr Garrett was in a position of special disadvantage. More particularly, his Honour referred to "the whole scheme by which [Mr Gill] sought to acquire the Paddington Property by suggesting that outcome to a weakening Dr Garrett". His Honour observed that the findings made by him in his reasons were not available in 2008 but were clear at the time of his reasons as a result of the detailed evidence made available through the Court's compulsory processes. His Honour considered Mr Gill's conduct was the more serious because, had he paused for a moment, he must have appreciated that he was taking advantage "of the good nature and decorum of an honourable man". His Honour therefore concluded that Mr Gill did not satisfy the requirements of s 59(1)(b) of the Succession Act and that his claim for a family provision order must fail.
7. Nevertheless, the primary judge examined briefly the kind of award that his Honour might have made had s 59(1)(b) of the Succession Act been satisfied. His Honour considered that the process of reasoning in which he would have had to engage in order to give Mr Gill a family provision order tended to reinforce his conclusion that s 59(1)(b) was not satisfied.
8. In considering what, if anything, was appropriate provision from the estate of Dr Garrett for Mr Gill, his Honour gave consideration of the size of the estate and Mr Gill's financial position. The gross value of the distributable estate, after deducting unpaid debts, expenses and liabilities, including legal costs was $4,571,300.91 in March 2019, immediately before the commencement of the trial. On the other hand, Mr Gill's financial position was poor. In April 2017, his total assets were approximately $28,000, which represented the balance of the inheritance due to him from his father's unadministered estate, together with his clothing and personal effects. Mr Gill's mother died in New Zealand in October 2018 and he was entitled to a one third share of the residue of her estate. After the repayment of a loan made to him by his mother, Mr Gill received a total of $NZ163,600.58 from her estate. After repayment of other debts, his current liquid assets as at the commencement of the hearing in March 2019 were $92,500.
9. The primary judge referred to fees owing by Mr Gill to his solicitors and counsel for acting for him in relation to the proceedings and the sum of $28,000 relating to the successful defence of proceedings in NCAT by the Executors and in relation to the annulment of his bankruptcy. His Honour found that Mr Gill had not received any income from computer broking activities since he affirmed his original affidavit in April 2017 and has not obtained employment since that time. Mr Gill claimed that he had been unable to locate a suitable home unit in the eastern suburbs of Sydney for less than $800,000. There is no evidence of any particular need on the part of the Executors competing with Mr Gill's claims.
10. Under the Will, Mr Gill was to receive a legacy of $200,000 from which he was to repay outstanding loans of some $98,000. The legacy was expressed to be for: "… the contribution made by [Mr Gill] by way of assistance he has provided to me whilst residing at my home in the nature of cooking meals, general household tasks, driving me to appointments and the like and his general companionship." His Honour found that the object of the legacy was to recognise Mr Gill's contribution, by satisfying his loan liabilities to Dr Garrett and providing him with a net financial cushion of a little over $100,000. His Honour found that, in 2008, Dr Garrett wished that, when his life with Mr Gill came to an end, Mr Gill would have a legacy sufficient to alleviate any immediate hardship and to give him a financial cushion for the future in gratitude for Mr Gill's care for Dr Garrett. His Honour observed that, in June 2008, Dr Garrett was valuing Mr Gill's assistance at home and other services for a period of about four and a half years from late 2003. Nevertheless, his Honour did not consider there was any logical reason to depart very far from the structure of the Will and that it was difficult to justify any increase in the amount for two main reasons.
11. The first was that, once the full extent of the benefits that Mr Gill had already received as a result of his association with Dr Garrett were quantified and taken into account, it could be seen that Mr Gill had already been well rewarded. While his Honour accepted that Mr Gill's needs for financial support were greater in 2015 than they were in 2018 and his capacity to provide for himself had diminished after the additional passage of time, it was significant that, between 2004 and 2015, Mr Gill received substantial valuable net benefits of the order of $822,228.75. His Honour could see no reason to award him any more than he had already received over that period.
12. The second reason was what the primary judge characterised as Mr Gill's "unconscionable conduct towards Dr Garrett". His Honour considered that there was no basis for the Court to give Mr Gill sufficiently large further provision out of the estate. Thus, his Honour concluded that, had there been factors that satisfied s 59(1)(b), no further provision would have been made out of Dr Garrett's estate for Mr Gill.

The Cross-claim

1. The cross-claim by the Executors sought possession of the Paddington Property and, in the alternative, compensation for payments made by them in improving and maintaining the Paddington Property after Dr Garrett's death. They accepted the alternative claim would fail if Mr Gill's claim of estoppel in respect of the Paddington Property failed. Similarly, the claim for possession was dependent upon that conclusion.
2. In addition, the Executors claimed the following amounts from Mr Gill:

• $142,100, being the total that Mr Gill withdrew in cash from three accounts of Dr Garrett during the period from 17 November 2008 to 5 August 2015;
• $1,175.50 in automatic teller machine fees; and
• $43,155.64 for storage costs in respect of Mr Gill's furniture for the period 17 November 2008 to 23 February 2015 that were charged to Dr Garrett's credit card.

1. The primary judge found that Mr Gill was well aware that Dr Garrett did not want the storage charges incurred and that one of the reasons for their being incurred was that Dr Garrett was mentally weakened from late 2008 and early 2009 and was unable to insist on the storage coming to an end. His Honour found that, throughout the period, Dr Garrett was in a position of special disadvantage and that all the storage charges for the relevant period were recoverable from Mr Gill by way of equitable compensation.
2. The primary judge also found that, from the time of his stroke on 17 November 2008 until 8 March 2011, Dr Garrett was in a weakened state and allowed Mr Gill to withdraw cash at automatic teller machines using a debit card and PIN to pay household expenses. His Honour found that Mr Gill must have been involved in those withdrawal transactions because Dr Garrett could not complete them on his own. His Honour found that Mr Gill was taking for his own personal use a minimum of $58 per day from the cash withdrawn and that that amount was in excess of what was required for Mr Gill's and Dr Garrett's needs. His Honour found that the sum of $142,100 would be recoverable because of Mr Gill's unconscionable conduct in undertaking transactions that took advantage of Dr Garrett's position of special disadvantage, by withdrawing cash from Dr Garrett's accounts which was not restored to Dr Garrett. His Honour concluded that the sum of $142,100 plus interest was recoverable from Mr Gill by way of equitable compensation.
3. Accordingly, the primary judge directed judgment for the Executors against Mr Gill in the sum of $43,155.64, being the amount owing for storage fees incurred between 17 November 2008 and 6 August 2015 together with interest in the amount of $7,360 pursuant to s 100 of the Civil Procedure Act 2005 (NSW). His Honour also directed judgment for the Executors against Mr Gill in the sum of $142,100, being the amount owing from unauthorised cash withdrawals together with interest in the sum of $24,208 pursuant to s 100 of the Civil Procedure Act.

The Grounds of Appeal

1. By his amended notice of appeal filed on 1 February 2021, Mr Gill sought orders that the appeal be allowed and that the orders made on 16 July 2020 dismissing Mr Gill's claims, giving judgment for the Executors for possession of the Paddington Property and granting leave for a writ for possession to be issued, be set aside. Mr Gill also sought orders that the orders made on 23 October 2020 directing the entry of monetary judgments on the cross-claim and orders for costs be set aside. In lieu of the orders set aside, Mr Gill sought a declaration that the Executors are estopped from denying that he is the equitable owner of the Paddington Property and orders that they transfer the legal title to him and deliver possession to him. Curiously, there was no claim in the alternative for a family provision order. However, the appeal has proceeded on the basis that Mr Gill seeks a family provision order if he otherwise fails in relation to his estoppel claim.
2. The grounds relied upon by Mr Gill may be restated as follows: 1. The primary judge erred in rejecting Mr Gill's equitable estoppel claim in respect of the Paddington Property in so far as his Honour: 1. found that no representation was made by Dr Garrett to Mr Gill to the effect that Dr Garrett would leave the Paddington Property to Mr Gill in his will if Mr Gill agreed to look after and care for Dr Garrett in the Paddington Property until his death; 2. found that, if the Representation was made, Mr Gill did not detrimentally rely on any assumption or expectation created by Dr Garrett; 3. found that Dr Garrett was not aware that Mr Gill was relying upon anything that Dr Garrett had said to Mr Gill; and 4. failed to make any finding as to whether or not Mr Gill would suffer detriment if the Representation was not fulfilled by the Executors as the legal personal representatives of Dr Garrett. 1. The primary judge erred in finding that, by February 2009, and at all times thereafter, Dr Garrett did not have sufficient mental capacity to enter into a binding agreement with Mr Gill or to make a binding promise to the effect that Dr Garrett would leave the Paddington Property to Mr Gill in his will if Mr Gill agreed to look after and care for Dr Garrett in the Paddington Property until his death. 2. The primary judge erred in finding that, by February 2009, and at all times thereafter, Dr Garrett did not have sufficient mental capacity or the inclination to raise spontaneously the topic of leaving the Paddington Property to Mr Gill in his will and in finding that such conversations on the topic were initiated by Mr Gill. 3. The primary judge erred in finding that Mr Gill raised with Dr Garrett or engendered in Dr Garrett the fear that, or failed to alleviate Dr Garrett's fears that, Dr Garrett would have to go into a nursing home if he did not agree to or promise to leave the Paddington Property to Mr Gill in his will. 4. The primary judge erred in finding that, by no later than 2009 and as early as 2005, Dr Garrett was in a relationship of disadvantage or special disadvantage with Mr Gill. 5. The primary judge erred in dismissing Mr Gill's claim for a family provision order in so far as his Honour: 1. erred in finding that there were no factors warranting Mr Gill making the application; and 2. erred in finding that, even if there had been factors warranting the making of the application Mr Gill making the application, no further provision for Mr Gill out of Dr Garrett estate was justified or required. 1. The primary judge erred in finding that Mr Gill was liable to pay equitable compensation to the Executors in respect of storage fees charged to Dr Garrett's credit card on the ground that Mr Gill took unconscientious advantage of Dr Garrett on each occasion that a transaction to pay for storage charges was made on Garrett's credit card during the relevant period. 2. The primary judge erred in finding that Mr Gill was liable to pay equitable compensation to the Executors in respect of the withdrawal of money from Dr Garrett's bank accounts in the period between November 2008 and 5 August 2015.
3. There is no separate ground of appeal concerning the costs orders made by the primary judge on 23 October 2020. Specifically, his Honour ordered that Mr Gill pay the Executors' costs of the proceedings on the ordinary basis up to 9 June 2017 and on the indemnity basis from 10 June 2017. That order was made as a consequence of an offer of compromise made by the Executors on 9 June 2017. The essence of that offer was that the relief claimed in the statement of claim filed by Mr Gill be dismissed with no order as to costs and that, in lieu of the provision made for Mr Gill in the Will, Mr Gill be provided with a legacy in the sum of $1,001,000 together with the other bequests provided in the Will. The offer also provided for judgment for possession of the Paddington Property with no order as to costs but for dismissal of the other claims in the cross-claim. Clearly, in the result before the primary judge, the Executors' offer bettered that result. There is no complaint about the exercise of discretion in relation to costs in the event that the orders made by the primary judge are not varied on appeal.

The Estoppel Claim

1. The pivotal conclusion reached by the primary judge concerning the estoppel claim is that there was no reliance by Mr Gill on any representation alleged to have been made by Dr Garrett. There can be no doubt that the possibility of Dr Garrett's leaving the Paddington Property to Mr Gill in his will or in some way giving the Paddington Property to Mr Gill was raised during Dr Garrett's lifetime. That must follow from the evidence of the Paddington witnesses and from the discussion that Dr Garrett had with Jemima after the visit to the cinema in June 2011. Mr Gill does not challenge the rejection by the primary judge of his evidence about the alleged conversation with Dr Garrett that constituted the foundation for the estoppel claim. Nevertheless, Mr Gill relies upon the evidence of the Paddington witnesses and the evidence of Jemima in support of his contention that his Honour ought to have found that Dr Garrett made the alleged promise to Mr Gill sometime during 2009.
2. It is highly significant, as the primary judge observed, that there was no direct witness to the occasion in which Dr Garrett is said to have made the promise, other than the evidence of Mr Gill, whose credibility his Honour rejected. There were no contemporaneous emails or other records made by Mr Gill confirming any part of the conversation. Significantly, Mr Gill gave no evidence of any reliance upon any of the conversations said to have taken place in his presence with some of the Paddington witnesses.
3. The primary judge was simply not persuaded that a conversation took place in the terms alleged by Mr Gill. It is not insignificant that the case was originally put on the basis of a binding contractual promise. That contention was not maintained in the appeal. His Honour found that the general topic of Dr Garrett leaving the Paddington Property to Mr Gill was discussed. However, his Honour explained in some considerable detail why the discussions that took place did not amount to a binding contractual promise or any representation capable of giving rise to an estoppel.
4. The primary judge made no error in concluding that Mr Gill did not rely upon any alleged representation. Mr Gill had moved into the Paddington Property in about 2003 and started to provide assistance to Dr Garrett from that time. Reliance could not be demonstrated simply by the continuation of that arrangement because nothing changed. Mr Gill's case, of course, was that, but for the alleged representation, things would have changed. In effect, Mr Gill asserted that, but for the alleged promise or representation, he would have sought employment and alternative accommodation but, because of the alleged promise or representation, he forewent the opportunity of finding alternative accommodation and finding employment.
5. The continuation of the arrangement that began in 2003 had significant benefits for Mr Gill, including occupation of the Paddington Property without charge from November 2003 to the death of Dr Garrett and thereafter. Further, Dr Garrett provided Mr Gill's food, alcohol, travel, transport, living and entertainment expenses. In addition, Mr Gill had unrestricted access to and use of Dr Garrett's motor vehicle up to the time of his death. Mr Gill accepted in cross-examination that any services he provided to Dr Garrett were in exchange for free food, free board and spending money that he was receiving from Dr Garrett. That is inconsistent with the contention now being advanced. There was no error in the finding by the primary judge that Mr Gill "just preferred to live the pleasant relaxed life that he did". That finding disposes of Mr Gill's case that he relied to his detriment on the alleged promise or representation, which his Honour found, in any event, was not made.
6. There was no error on the part of the primary judge in concluding that there was no detrimental reliance by Mr Gill on any representation or promise alleged to have been made by Dr Garrett in early 2009. While there was discussion about the possibility of Mr Gill acquiring the Paddington Property, his Honour made no error in concluding that any conversation or discussion that may have occurred did not amount to a promise or representation that was capable of founding an estoppel such as that now claimed by Mr Gill. It follows that insofar as the appeal seeks to overturn the dismissal of Mr Gill's claim to an interest in the Paddington Property it must fail.

The Family Provision Order Claim

1. Having rejected Mr Gill's contentions concerning proprietary estoppel in relation to the Paddington Property, it is necessary to consider his alternative claim for a family provision order under the Succession Act. It is common ground that Mr Gill was an eligible person in relation to Dr Garrett, in that he was at a particular time a person wholly or partly dependent on Dr Garrett and a member of Dr Garrett's household, within the meaning of s 57(1)(e) of the Succession Act. However, under s 59(1), the Court may make a family provision order in relation to Dr Garrett's estate in respect of Mr Gill only if it is satisfied that:

• having regard to all of the circumstances of the case, whether past or present, there are factors that warrant the making of the application by Mr Gill; and
• adequate provision for the proper maintenance, education or advancement in life of Mr Gill was not made by Dr Garrett's will. Under s 59(2), the Court may make such order for provision out of Dr Garrett's estate as the Court thinks ought to have been made for the maintenance, education or advancement in life of Mr Gill, having regard to the facts known to the Court at the time when any such order is made.

1. The primary judge accepted that Mr Gill ought to be recognised as a proper object of Dr Garrett's testamentary intentions upon the making of the Will, in 2008. However, as at the time of Dr Garrett's death, his Honour considered that it was hard to accept that Mr Gill was still a natural object after taking into account what is now known about the relationship. His Honour rejected Mr Gill's application on the ground that there were no factors warranting the making of the application because of the monetary benefits that Mr Gill obtained during Dr Garrett's lifetime and because Mr Gill consciously misused Dr Garrett's position of special disadvantage in relation to him, including "the whole scheme" under which Mr Gill sought to acquire the Paddington Property. His Honour also concluded that, having regard to the quantum of the financial benefits already received by Mr Gill and also because of Mr Gill's "unconscionable conduct" towards Dr Garrett, even if there had been factors warranting the making of an application by Mr Gill, no further provision ought to have been made for Mr Gill.
2. Mr Gill contends that several matters warranted the making of his application and that the primary judge overlooked those matters. The first matter is that, when Dr Garrett made the Will in 2008, by which Mr Gill was provided with a substantial legacy, Mr Gill was already receiving all of the financial benefits identified by his Honour, being:

• rent free accommodation;
• food, alcohol and entertainment;
• use of Dr Garrett's motor vehicle;
• payment of Mr Gill's storage fees; and
• loans to Mr Gill.

1. Mr Gill says that his Honour was wrong in finding that evidence concerning those "financial benefits" had only come to light since Dr Garrett's death and points out that all that happened after 2008 was that the "financial benefits" continued to be provided to Mr Gill for a further seven years. However, the fact that Dr Garrett might reasonably have contemplated, when he made the Will in 2008, that Mr Gill would continue to receive the "financial benefits" does not derogate from the proposition that it was permissible for the primary judge take into account the total value of the "financial benefits" in considering whether or not there were factors warranting Mr Gill's application. Thus, it is clear enough that Dr Garrett had not calculated the value of the so-called "financial benefits" and that Jemima began analysing certain of those matters only after Dr Garrett had made the Will.
2. The second matter relied upon by Mr Gill is his assertion that it is difficult to characterise some of the matters relied upon as "financial benefits" received by Mr Gill at Dr Garrett's expense. For example, provision of rent-free accommodation to Mr Gill, assessed at $240,200.76, did not cost Dr Garrett anything to provide because, during the whole of the time when Mr Gill was residing in the Paddington Property, Dr Garrett owned it outright. The same analysis applies to the benefit said to be derived from the use of Dr Garrett's motor vehicle, valued at $11,990.46. Finally, the loans advanced by Dr Garrett to Mr Gill, amounting to $152,134.80 were required to be repaid out of the legacy of $200,000 under cl 8 of the Will. After the amounts of those three benefits are deducted, the total "financial benefits" received by Mr Gill would amount to $417,902.73.
3. However, the question is not what the "financial benefits" cost Dr Garrett but whether a benefit was conferred upon Mr Gill. Mr Gill had the benefit of rent-free accommodation for many years and the free use of Dr Garrett's motor vehicle. He also had the benefit of interest free loans until the death of Dr Garrett. Even if the value of those benefits was to be ignored, the sum of $417,903, in addition to the legacy of $200,000, is not an insignificant total.
4. The third matter relied upon by Mr Gill is that the analysis of the primary judge ignores the contribution made by Mr Gill by providing care to him in the period from 2011 to 2015, which was a significant benefit for Dr Garrett and a significant detriment suffered by Mr Gill. Given Dr Garrett's strong desire to live in the Paddington Property until his death, it is clear that that could only have happened if Mr Gill continued to live in Paddington Property and care for Dr Garrett to the extent that he did, with the assistance of other care providers.
5. However, the primary judge did not ignore the care provided by Mr Gill to Dr Garrett. His Honour found that, whatever might be the continuing inadequacies of Mr Gill's care for Dr Garrett, he continued to provide companionship, care and assistance to Dr Garrett to the limited standard of which he was capable. His Honour accepted the Dr Gill did so continuously until August 2015, when Dr Garrett's family took over his day-to-day care. His Honour found that Mr Gill stayed in the Paddington Property and continued to provide companionship, which was a benefit to Dr Garrett because, as his cognitive capacities declined, Mr Gill was a familiar face and personality among all of the various carers who looked after him in his later years. Further, his Honour found, although Mr Gill continued to spend Dr Garrett's money, more controls over the spending were introduced than had existed before 2008 and loans by Dr Garrett to Mr Gill ceased after December 2009. While Dr Garrett's alcohol consumption increased to unacceptable levels, Mr Gill participated in watering down his wine following urging from Dr Garrett's family.

• there was no factual basis for finding that Dr Garrett was in a relationship of special disadvantage with Mr Gill in the period 2009 to 2010 or that Mr Gill "consciously misused" Dr Garrett's position of special disadvantage; and
• there was no factual basis for finding that Mr Gill had misused his position by engaging a "scheme" to acquire the Paddington Property by suggesting that outcome to "a weakening Dr Garrett". Mr Gill contends that his Honour's finding overlooks the fact that Mr Gill provided care and companionship to Dr Garrett in his final years, particularly in the period 2011 to 2015. Thus, there was evidence from the Paddington witnesses that Mr Gill was very caring and attentive to Dr Garrett in his declining years and Dr Garrett's children made comments to the effect that Mr Gill was doing a good job in caring for Dr Garrett.

1. The Executors point to several evidentiary factors that they say underpin the findings by the primary judge that Dr Garrett had a mentally weakened state by early 2009. Thus, Professor Brennan considered that Dr Garrett was suffering from cognitive impairment and impaired decision-making capacity in 2009. He also considered that Dr Garrett would have failed the legal test of testamentary capacity had it been performed in February 2009.
2. Further, Professor Brennan was of the opinion that medication prescribed for Dr Garrett from July 2009 onwards may have impaired or diminished his cognitive function, processing and reasoning. He considered that the effect of excessive alcohol that Dr Garrett consumed throughout the period was of great concern and said that alcohol was much more likely to have significantly impaired Dr Garrett's cognitive function, processing and reasoning more than any other medication that had been administered to him.
3. Finally, Professor Brennan expressed the opinion that Dr Garrett had a history of cerebrovascular disease, possibly Parkinson's disease, Sjogren's syndrome, hypertension and permanent pacemaker, hearing impairment, cervical myelopathy and a gait disturbance. Dr Garrett had a history of heavy alcohol intake resulting in numerous falls and multiple presentations to hospital. He also suffered from long standing insomnia and chronic neck pain as well as being troubled by dizziness and vertigo for many years.
4. The evidence of Professor Brennan, which was accepted in its entirety by the primary judge, coupled with the dependence of Dr Garrett on Mr Gill, amply supports the finding by the primary judge that Dr Garrett was in a position of special disadvantage with respect to Mr Gill. Coupled with the other matters referred to above, that consideration is relevant to the question of whether there were factors warranting the making of an application for a family provision order by Mr Gill.
5. Mr Gill also complains that the finding by the primary judge that he would not be a natural object of Dr Garrett's testamentary recognition at the date of his death overlooks all of the statements made by Dr Garrett, to the Paddington witnesses, that he wanted to leave the Paddington Property to Mr Gill because of the "agreement" they had made. Mr Gill asserts that such statements are compelling evidence, assuming that Dr Garrett was mentally competent at the time of making them, that Dr Garrett considered Mr Gill to be an object of testamentary recognition. For the reasons indicated above, that evidence, of itself, coupled with the conclusion reached above that there was no reliance upon any statement made by Dr Garrett, suggests that the "agreement" was not a factor warranting the application by Mr Gill.
6. The primary judge made no error in concluding that there were no factors warranting the application for a family provision order by Mr Gill. Accordingly, it is not necessary to consider whether provision ought to be made out of Dr Garrett's estate for the maintenance, education and advancement in life of Mr Gill or, if so, the quantum or nature of such provision. However, the matters relied upon by the primary judge, as set out above, concerning the receipt of "financial benefits" by Mr Gill from Dr Garrett indicate that, even if there were factors warranting the making of an application, the case for the making of further provision for Mr Gill must fail.

The Storage Fees

1. It was common ground that Mr Gill had been incurring storage fees since 12 February 2004 until 23 February 2015, when he removed his possessions from the storage unit. The total amount incurred over that period was $69,349.64. The Executors sought relief in respect of the storage fees by way of equitable compensation. They alleged that, by continuing to incur the storage fees after 17 November 2008, when Dr Garrett was admitted at St Vincent's Hospital, Mr Gill breached fiduciary duties that he owed to Dr Garrett, or alternatively, Mr Gill took unconscionable advantage of Dr Garrett's special vulnerability. Thus, in the cross-claim, the Executors claimed only $43,155.64, being the amount incurred in the period of 17 November 2008 to 23 February 2015, as opposed to the full amount of $69,349.64. However, Mr Gill accepted before the primary judge that, if he was liable to indemnify the Executors in respect of storage fees, the appropriate amount was $69,349.64.
2. The primary judge considered that there was no breach of fiduciary duty and that the storage fees constituted the continuation of an existing liability created when Dr Garrett was fully mentally competent. There was no specific withdrawal of cash under a special delegation of a task or authority to Mr Gill to handle Dr Garrett's money or to undertake something on his behalf. For that reason, his Honour considered it difficult to characterise Mr Gill's relationship with Dr Garrett in relation to the storage charges as a fiduciary one. However, his Honour held that Mr Gill was liable to repay the storage fees charged to Dr Garrett's credit card during the relevant period on the ground that Mr Gill took unconscientious advantage of Dr Garrett and that the amount was recoverable by from Mr Gill as equitable compensation.
3. Mr Gill challenges the primary judge's conclusion that the storage fees were charged because Mr Gill took unconscientious advantage of Dr Garrett's weakness. Further, in the course of the hearing of the appeal, Mr Gill appeared to abandon his earlier concession that he was liable to repay the storage fees and submitted that the arrangement was not treated as a loan, but rather as a gift. Thus, the Will, which was made in 2008, did not refer to storage fees as a loan, in contrast to the other amounts identified as loans.
4. Mr Gill contends that the fees were incurred in circumstances where Dr Garrett and Jemima had full knowledge that the fees were being charged but did nothing to stop them from being charged and failed to notify Mr Gill that he would be liable for continuing fees. In those circumstances, he contends, the Executors' claim for equitable compensation should have been dismissed since the fees were incurred with the assent of Dr Garrett and Jemima. However, Mr Gill's submission did not identify any specific error in the primary judge's reasoning or finding.
5. The failure of Dr Garrett or Jemima to prevent the storage fees being incurred has limited bearing on the finding that Mr Gill's conduct was unconscionable. Thus, Dr Garrett and Jemima did attempt to stop the fees being charged by asking Mr Gill to remove his possessions from the storage unit. Shortly after discovering the recurring monthly liability in 2007, Jemima, Dr Garrett and Mr Gill had a conversation in the following terms: "Jemima: Dad and I were just looking at your storage. Dad didn't know the cost of this was on his credit card. Dad would like you to move it. Dr Garrett: Yes I would like you to move it. Mr Gill: Yes, ok." Yet Mr Gill took no action. In the following years, further requests were made of Mr Gill to move his goods out of storage and save Dr Garrett the burden of the storage charges. At various times, Jemima and Thomas each requested removal of the items to eliminate the storage charges but Mr Gill was not moved to remove his possessions out of storage.
6. In addition, there were multiple evidentiary factors underpinning the primary judge's finding. Dr Garrett was dissatisfied about the storage fees and did not consider them a gift. The "short narrative" prepared by Dr Garrett while in California states that Mr Gill's "furniture storage fees were put on my Visa card and this has continued over the years". Later, a file note made by Dr Garrett's solicitor in a conference around the time of preparing the Will contains the instructions "Debt to include storage fees on credit card". Mr Gill accepted that Dr Garrett asked him to remove his possessions from the storage unit in 2007, to which Mr Gill simply replied "[y]es, OK".
7. Mr Gill admitted that he disregarded Dr Garrett's instructions to remove his possessions and allowed the expense to continue to be charged to Dr Garrett's credit card. It was put to Mr Gill in cross-examination that the fact was that he considered that he would move the items from storage when it suited him. Mr Gill responded, "[t]hat would seem to be the case, yes". Further, Mr Gill agreed that, if he were paying for the storage charges himself, he would have taken steps in 2007 and potentially well before then to have sorted the items in storage and have removed them from storage.
8. Mr Gill's reliance on an alleged failure to notify him of a liability for continuing fees is at odds with his earlier concession that he was liable to restore the entire amount of storage fees to the estate. However, whether he was specifically told he would be liable for further fees is, in the light of the surrounding evidence, immaterial. He was aware that Dr Garrett did not want the fees charged, he knew Dr Garrett was in a position of special vulnerability, and he continued to incur the charges anyway.
9. The primary judge made no error in concluding that Mr Gill's conduct in continuing to derive a benefit from Dr Garrett' recurring payments in respect of his storage fees after 17 November 2008 was unconscionable.

The Cash Withdrawals

1. The Executors sought recovery by way of equitable compensation of $142,100 withdrawn from Dr Garrett's bank accounts by Mr Gill by use of automatic teller machines from 17 November 2008 up to Dr Garrett's death on 5 August 2015, as well as withdrawal fees. The figure of $142,100 represents $58 per day that Mr Gill conceded he retained each day for his personal use in excess of household expenses, over the course of 2,450 days, across three different bank accounts. The Executors alleged that during that period, Dr Garrett placed trust and confidence in Mr Gill to carry out daily financial transactions on his behalf including cash withdrawals and was in a position of great vulnerability with respect to the functions reposed in Jason Gill, as would constitute a fiduciary relationship between them. They alleged that there was a breach of the fiduciary duty thereby owed by Mr Gill to Dr Garrett.
2. The primary judge found that the excess expenditure occurred only because Dr Garrett entrusted the withdrawal of cash to Mr Gill because he was incapable of doing it himself due to his vulnerable state. His Honour concluded that, in performing that specific task of cash withdrawal, Mr Gill was Dr Garrett's fiduciary. No challenge has been made to the finding of a fiduciary relationship.
3. Mr Gill contends that primary judge erred in finding that Mr Gill was liable in respect of the money he withdrew in cash and "allegedly spent on his 'personal expenses'". However, it is clear that Mr Gill did apply a portion of the withdrawals toward his own purposes.
4. There was incontrovertible evidence of the spending from Dr Garrett's bank accounts. Thus, Mr Gill accepted that he withdrew large sums from the three accounts during the period from 17 November 2008 to 5 August 2015. The cross-examination of Mr Gill concluded with the following question and answer: "Q. And I put it to you that during the period of time in which you were charged with and authorised to access these three bank accounts for the purposes of paying the household expenses, that you took it upon yourself, without any authorisation, to retain a total figure of $142,100 for your own personal benefit? A. It would seem to be the case, wouldn't it?"
5. The uncontroversial summaries of banking details provided to this Court, which were based on the primary documents, indicate something of the nature of the withdrawals. They include the following:

• 17 August 2009 "WITHDRAWAL AT ATM COURT HOUSE DARLINGHU[RST] NSW 160809 06:59" $400,
• 31 August 2009 "WITHDRAWAL AT ATM COLOMBIAN H SYDNEY NSW 290809 03:17" $500,
• 26 August 2010 "WITHDRAWAL AT BBLSATM PYRMONT 8124156D038651 260810" $500,
• 26 August 2010 "WITHDRAWAL AT ATM STAR CITY M PYRMONT NSW 260810 11:00" $500,
• 22 August 2011 "WITHDRAWAL AT ATM GOLDEN SHEAF DOUBLE BA[Y] NSW 210811 00:13" $300, and
• 19 September 2011 "WITHDRAWAL AT ATM COLOMBIAN H SYDNEY NSW 170911 04:24" $100. In short, there were cash withdrawals in the early hours of the morning at automatic teller machines inside hotels, and at automatic teller machines near the Sydney casino.

1. In the month of July 2011, when Dr Garrett was in hospital, there were 10 withdrawals, in amounts of $200, $500, $600 x 2, $250, $300, $500 x 4. The timing and locations and amounts of those withdrawals bear squarely upon the factual challenge presented by Mr Gill in the appeal.
2. No challenge was made to the findings made by the primary judge as to Mr Gill's use of cocaine. That too was put to him in cross-examination (although the inferences of large withdrawals from automatic teller machines close to a casino were not) and it was supported by contemporaneous accounts from Dr Garrett's children, written at a time when they were seeking to reach an accommodation with Mr Gill, before the litigation had commenced.
3. In light of those observations, there is little doubt that Mr Gill was applying portions of Dr Garrett's money toward his own personal benefit. However, Mr Gill further submits that Dr Garrett and Jemima were aware of his withdrawing cash and using it to pay Dr Garrett's living expenses and his own personal spending.
4. The Executors point out that Mr Gill did not tell Jemima that he was accessing Dr Garrett's accounts and withdrawing cash. Mr Gill conceded in cross-examination that he did not tell Jemima that he was withdrawing money from one of the accounts, although he said he assumed that she knew what transactions were being made on Dr Garrett's accounts. In relation to the other two accounts, he conceded that he retained cash that he withdrew for his own purposes and that he was not authorised to do so. He further conceded that he did not seek Jemima's consent or authorisation to retain part of the money for his own purposes and did not inform her that he was doing so.
5. In the absence of a challenge to the primary judge's finding that Mr Gill was in a fiduciary relationship with Dr Garrett, it is difficult to see any error in the primary judge's reasoning and conclusion. Mr Gill was entrusted with access to Dr Garrett's bank accounts and he used that access to obtain personal benefits without informing Dr Garrett's attorney. There was no error on the part of the primary judge's conclusions concerning the cash withdrawals.

Conclusion

1. The primary judge did not err in concluding that Mr Gill failed to establish that Dr Garrett made a promise or representation upon which Mr Gill relied in acting to his detriment so as to give rise to a proprietary estoppel. Further, Mr Gill has not established that the primary judge erred in concluding that there were not factors warranting an application for a family provision order by Mr Gill. Finally, his Honour made no error with respect to the storage fees and the cash withdrawals sought under the cross-claim. It follows that the appeal must be dismissed with costs.

Endnotes

1. See Succession Act 2006 (NSW), s 59(1)(b).
2. See Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 252; Sassoon v Rose [2013] NSWCA 220 at [15]. 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: 04 June 2021