Gill v Garrett & Ors

Gill v Garrett & Ors - [2020] NSWSC 795 - NSWSC 2019 case summary — Zoe

SUCCESSION - Family provision - Claim by alleged member of household and dependant of the deceased for provision from the deceased's estate under Succession Act 2006, Ch 3 - plaintiff lives in the deceased's household and is dependent upon him - the plaintiff is an "eligible person" under Succession Act 2006, s 57 and able to bring a family provision claim against the deceased's estate - plaintiff receives a legacy of $200,000 under the deceased's 2008 will - legacy under 2008 will calibrated to cover the repayment of some $98,000 in debts then owing by the plaintiff to the deceased - since the making of the 2008 will the plaintiff's debts to the deceased have increased - whether adequate provision made for the plaintiff out of the deceased's estate for the plaintiff's maintenance, education and advancement in life - if not, what additional provision should be made for the plaintiff out of the deceased's estate. EQUITY - Fiduciary duties - Breach - The executors seek by way of cross-claim a declaration that the plaintiff and the deceased were in a fiduciary relationship - executors seek equitable compensation for breach of fiduciary duties by the plaintiff - where the plaintiff denies the existence of a fiduciary relationship - where the deceased was in a position of special disadvantage in relation to the plaintiff and not capable of understanding his financial affairs and assets - if a fiduciary relationship exists, whether the plaintiff gained monies for his own personal advantage by profiting from and misusing his fiduciary position beyond any authorised remuneration from which he was legitimately entitled - unconscionable conduct - whether in the alternative the plaintiff/cross defendant engaged in unconscionable conduct by taking advantage of the deceased's position of special disadvantage. Legislation Cited: Bankruptcy Act 1966, s 153A Contracts Review Act 1980 Conveyancing Act 1919, s 54 Succession Act 2006, ss 57, 57(1)(e), 57(1)(f), 59, 59(1)(b), 59(1)(c), 60(2)(i), 60(2)(m) Cases Cited: Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; [1989] ANZ ConvR 621 Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 368 ALR 1 Chan v Zacharia (1984) 154 CLR 178 Churton v Christian (1988) 13 NSWLR 241 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Dable v Peisley [2009] NSWSC 772 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Diver v Neal (2009) 2 ASTLR 89 Drury v Smith [2012] NSWSC 1067 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Evans v Levy [2011] NSWCA 125 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Gibbons v Wright (1954) 91 CLR 423 Giumelli v Giumelli (1999) 196 CLR 101 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 Maguire & Tansey v Makaronis (1997) 188 CLR 449 Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1 Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 Re Fulop (deceased) (1987) 8 NSWLR 679 Regent v Millett (1976) 133 CLR 679 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Sassoon v Rose [2013] NSWCA 220 Sidhu v Van Dyke (2014) 251 CLR 505 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Ultra Tune Australia Pty Ltd v McCann (1999) 30 ACSR 651 Van Dyke v Sidhu (2013) 301 ALR 769 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Ye v Fung (No 3) [2006] NSWSC 635 Category: Principal judgment Parties: Plaintiff: Jason Adrian Francis Gill First Defendant: Alice Jemima Mary Garrett Second Defendant: Catherine Sarah Jane Garrett Third Defendant: Thomas Peter John Garrett Representation: Counsel: Plaintiff/Cross Defendant: S. Galitsky Defendants/Cross Claimants: E. Glover

[5]

Judgment

Decorum mattered to the late Dr William ("Bill") Garrett. To encounter life's ugly moments he adopted a courtly motto, which he enjoyed repeating in its richly expressive French form, toujours la politesse (politeness always). This part of Dr Garrett's character assists in understanding some curious puzzles at the heart of this unusual case.
Dr Garrett was a brilliant Australian medical scientist, who in the 1960s pioneered the worldwide development of diagnostic ultrasound to monitor pregnancies. He died in November 2015.
From late 2003, the plaintiff, Mr Jason Gill, lived in Dr Garrett's Paddington terrace house situated near Five Ways ("the Paddington property"). Jason Gill claims in these proceedings that in 2009 Dr Garrett promised him the title to the Paddington property after Dr Garrett's death, provided Mr Gill cared for Dr Garrett until then. Mr Gill says he fulfilled that promise and is now entitled to the Paddington property either in contract or pursuant to doctrines of equitable estoppel.
Dr Garrett's executors, his three children, Jemima, Cathy and Tom Garrett the defendants to these proceedings, deny any such promise was made. Alternatively, they contend that if such a promise was made to Mr Gill, that it was not contractual or that Mr Gill either did not rely on it or did not suffer any detriment as a result. The defendants contend further in the alternative that, by reason of Dr Garrett's declining capacities at the time of the alleged promise, the Court should set aside any contract Mr Gill may be found to have made with Dr Garrett in 2009 that was based on these promises, either due to Mr Gill's alleged unconscionable conduct, undue influence or in the exercise of the Court's Contracts Review Act 1980 jurisdiction.
Mr Gill brings two other claims in the alternative. First, he alleges that if the claimed promise to him is not established that, he should be given restitution for the value of the care services he provided to Dr Garrett in his declining years. In answer to this the defendants contend that the benefits Mr Gill derived from his living arrangements at the Paddington property, together with advances and other benefits in kind that Dr Garrett conferred on Mr Gill, well exceed the market value of any casual care services that Mr Gill provided to Dr Garrett.
Finally, and further in the alternative, Mr Gill claims an order for further provision out of Dr Garrett's estate under Succession Act 2006, s 59. It is not in issue that Mr Gill is an "eligible person" entitled to make a claim under the Succession Act on the basis that he lived in the same household as Dr Garrett and was dependent upon him. Dr Garrett made a will in 2008 that gave a legacy of $200,000 to Mr Gill. At the time Dr Garrett executed his 2008 will, this legacy would have allowed Mr Gill to repay $98,000 in loans, which Mr Gill then owed to Dr Garrett. In answer to the Succession Act claim the defendants say that Dr Garrett's 2008 will made adequate provision for Mr Gill and that no further order for provision for him from the estate is now warranted.
The executors obtained a grant of probate of the deceased's 2008 will on 25 February 2016. After a number of bequests, including that to Jason Gill, the defendants take the residue of Dr Garrett's estate in equal shares. The gross distributable estate after deducting estimated unpaid expenses and liabilities is said to be approximately $4,571,300.91. The Paddington property is the primary remaining asset in the estate and is part of the residue. It has been conveyed into the names of the executors. At the time of trial the market value of the Paddington property was estimated to be approximately $2 million. Jason Gill has continued to live in the Paddington property since Dr Garrett's death whilst this litigation was unresolved. Tom Garrett has also lived there during this period.
The executors have filed a cross-claim. In the event that the plaintiff's claim to an interest in the Paddington property is unsuccessful, the executors cross-claim against Jason Gill for possession of the property. In the alternative, if Jason Gill is successful in his claim for the Paddington property, they claim restitution for various expenditures upon and improvements that they made to the property in the belief that the property was theirs.
The hearing of these proceedings was conducted over 10 days: 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29 March 2019. After written submissions, a further date was allocated for oral submissions on 14 May 2019. Mr S. Galitsky of counsel, instructed by Kirk Stewart McKenzie of Haylen McKenzie Solicitors appeared for the plaintiff/cross defendant. Ms E. Glover of counsel, instructed by Michael Paul Carroll of LHD Lawyers appeared for the defendants/cross claimants.
The parties and witnesses in these proceedings generally referred to one another by their first names. The Court will occasionally do the same in these reasons without intending any disrespected to the parties. But these reasons mostly refer to witnesses and parties by their full names, or collectively in the case of the defendants by reference to their role as executors.
A narrative of general facts relevant to the issues follows. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected. The evidence in this case was detailed and the narrative is therefore quite lengthy. But it is still a selection of the more important evidence of greatest relevance to the issues.
Later in these reasons, when the executors' cross-claim is considered, a separate narrative of the financial arrangements between Mr Gill and Dr Garrett appears. These financial arrangements are best understood when analysed together.
But before the narrative commences, a brief overview of the credibility of each of the parties is sketched. Credibility analysis of non-party witnesses appears in the course of the narrative, when the evidence of those witnesses is considered.

[6]

Credibility of Parties

Jason Gill. The plaintiff, Jason Gill, was an unreliable witness. Multiple examples of that unreliability are included in the narrative below. The Court has rejected his evidence, or preferred that of other witnesses often in these reasons. On essential questions Jason Gill took refuge in vagueness and obfuscation to avoid difficulties that confronted his case. But despite Mr Gill's unreliability about important parts of the contested history, he did provide care for Dr Garrett in his own way and in a manner that created support and comfort to Dr Garrett in his declining years.
Jemima Garrett. The first defendant, Ms Jemima Garrett, is a journalist with the Australian Broadcasting Corporation ("ABC"). Ms Jemima Garrett acted as her father's attorney. She was first appointed to that role under an enduring power of attorney in 2003. She was an excellent witness. Her careful journalistic skills were on full display in these proceedings. She records in her affidavits a highly detailed account of events concerning her father, including complete conversations in which she was involved with him and with other parties. She could do this because she had documented meticulous, reliable and detailed file or emailed notes of her conversations and interactions with others in the unfolding events relevant to the issues in these proceedings. She was able to draw upon these file notes and emails to aid her recollections. She was not discredited in cross-examination. The Court almost universally accepts her accounts of these conversations and of other events that she witnessed.
Catherine Garrett. The second defendant, Ms Cathy Garrett, lives in California. She came out to Australia especially for the trial. She exhibited striking characteristics of candidness, precision, directness and mastery of detail. She attended closely to the questions asked of her and gave honest answers. She was a wholly reliable witness.
Tom Garrett. The third defendant, Dr Tom Garrett, is a retired scientist. He thought deeply about all aspects of the proceedings and had done so for many years. He was a witness of truth. He produced affidavits that carefully analysed his father's financial affairs and which included graphs showing trends in Jason Gill's spending over the years. Tom Garrett answered questions with detailed responses. The length of his answers was not an attempt to obfuscate the questioner. Rather, he wished ensure that the Court was fully apprised of all his reasons for taking the actions that he did in his father's declining years.
These reasons more often refer to the evidence of Jemima Garrett than Cathy Garrett or Tom Garrett, principally because her observations of their father were almost continuous. But the Court fully accepts the evidence of Cathy Garrett and Tom Garrett about the events in which they were involved. The evidence of all three siblings is generally preferred to that of Jason Gill.
Eight witnesses were called in Mr Gill's case to give evidence of Dr Garrett talking about giving the Paddington property to Jason Gill. These witnesses were mostly from the local area, so for convenience they are described collectively in these reasons as "the Paddington witnesses".
The Court's observations in thee reason upon the credit of the parties and the other witnesses were recorded on the days that they each gave evidence.

[8]

Dr Bill Garrett and His Family - Before 1996

Dr Bill Garrett was born in November 1927. In 1951, he graduated second in his year in medicine and surgery from the University of Sydney. Thereafter he worked as a ship's doctor to pay for his passage to Britain where he undertook further study and gained a Doctorate in Philosophy in Medicine from the University of Oxford in 1955. He also received a Doctorate in Medicine from the University of Sydney in 1962.
In 1957, Dr Garrett met and married his wife Nancy, whilst he was studying in England. Born in Yorkshire, she too graduated in medicine. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, Jemima, Tom and Cathy were born.
In 1959, Dr Garrett joined a small interdisciplinary team of research scientists and doctors investigating whether high frequency sound waves could be applied to image the pregnant uterus. By 1965, Dr Garrett, and the members of the team, 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, ultrasound technology was in widespread use throughout the international medical world to assist in monitoring pregnancy. Dr Garrett was made a member of the Order of Australia in 1985 for services to medicine, particularly the science of obstetrics ultrasound. During his career, Dr Garrett was Director of Medical Imaging at the Royal Hospital for Women and served on international and national committees. Dr Garrett published over 100 scientific papers and was a fellow of the Royal Australasian College of Surgeons, a fellow of the Royal Australian College of Obstetrics and Gynaecology and an honorary fellow of the Royal College of Radiologists.
Dr Garrett was a person of enormous energy and enthusiasm and was closely involved in the activities of all his children. He and his wife Nancy had a very happy marriage.
Tom Garrett and Cathy Garrett moved away from Sydney to pursue their careers. But Jemima Garrett remained in Sydney and consequently her interactions with her father and with Jason Gill were more frequent than were her siblings. Jemima Garrett saw it as her responsibility to keep her siblings fully informed about their father. Her regular emails to them, Tom Garrett in Melbourne and Cathy Garrett in California, are a valuable source of accurate real time historical information about the well-being and progress of Dr Garrett in his declining years.
Bill and Nancy Garrett, and their three children lived on the north shore of Sydney, in Lindfield until 1981. That year the family moved to a terrace house in Goodhope Street, Paddington. The family owned a holiday house at MacMasters Beach on the Central Coast and after the family moved to Paddington they acquired an investment property there but it was sold in 2006. In addition, Dr Nancy Garrett was entitled to an income earning leasehold property in West Yorkshire ("the West Yorkshire property"). In July 1994 she transferred a half share in the West Yorkshire property to Dr Garrett.
In December 1994, Dr Nancy Garrett died suddenly and unexpectedly. Her death affected Dr Garrett profoundly. He saw little point in continuing to work and he retired from medical practice in 1995. He was then still living in the terrace house in Goodhope Street, Paddington. But in 1998, Dr Garrett decided to move from Goodhope Street to the Paddington property, in Ormond Street, Paddington.
Upon Dr Nancy Garrett's death, the three children 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 them all.

[10]

Dr Garrett Meets Mr Gill - 1996

Jason Gill and Dr Garrett first met in 1996. There are suggestions on the evidence that they may not have met until 1998. But Dr Garrett's own account in a letter he wrote to his solicitors when making his June 2008 will puts their first meeting in 1996. Jason Gill's marriage was breaking down, when he and Dr Garrett met.
Dr Garrett was naturally gregarious and interested in people. He had many long-standing family friends with whom he could go to the opera, to musical recitals and with whom he could converse at the intellectual level he enjoyed. After his wife's death, he developed a circle of friends in the Paddington area Mr Gill was part of this local scene.
Mr Gill invited Dr Garrett to join a team by the name of "dot.com" that competed in a trivia night competition on Tuesday evenings at the Royal Hotel at Five Ways in Paddington. It was not long before Dr Garrett and Jason Gill were meeting with a circle of friends for a drink most nights at the Royal Hotel. Jason Gill's evidence is that Dr Garrett referred to these new friendships that he acquired at the Royal Hotel, as having "lifted his spirits". The Court accepts that Dr Garrett was looking for more convivial company. Joining Mr Gill's circle of friends at the Royal Hotel did buoy his spirits but at a price. It is quite evident that from the very first, Dr Garrett was generous in supporting social activities at the Royal Hotel, often buying drinks and dinner for Jason Gill and others.
But what started as a casual acquaintance with a common interest in visiting the Royal Hotel and competing in trivia nights developed into a relationship of greater mutual dependence. That this relationship ever developed is itself surprising. Dr Garrett and Jason Gill were very different people. Dr Garrett and his late wife had broad intellectual interests and a wide circle of friends consistent with their high achieving careers. Mr Gill was a man of little demonstrable ambition.
But Dr Garrett was plainly lonely after his wife's death. His children were at the most demanding stages of their own busy and successful professional lives. But he was in need of day-to-day companionship beyond catching up with his and his late wife's friends in this period. Mr Gill was quick to fill this gap in Dr Garrett's life. But in the Court's view, from Jason Gill's side this was not the spontaneous flowering of a generous, mutually supportive and altruistic friendship. From the very first, Jason Gill accurately sized up Dr Garrett as a potential source of financial support. Mr Gill had obtained financial advantages from Dr Garrett soon after their friendship commenced.
The first clear documentary record of Dr Garrett loaning money, some $1,800, to Mr Gill is dated 15 December 1999. More and more loans followed over the next ten years, up until 17 December 2009. The loans were recorded informally on chits, pieces of paper, tallies, ledgers, ATM receipts, cheque butts and notes. Dr Garrett kept them in drawers and boxes in his bedroom.
One of the disputes in the case concerns the quantum of these loans. The defendants say that the balance of the loans recorded in the chits amounts to $166,015.80. This is disputed by Mr Gill: he asserts that the loans recorded in the chits totalled $146,306.80.
These loans would not have commenced without Mr Gill revealing to Dr Garrett his need for money. Mr Gill was a shrewd student of human personality. He read Dr Garrett very well. And Dr Garrett was not difficult to read: he was spontaneously generous, high minded and cared about the people around him. He was not driven by the acquisition of material wealth. Friendship was more important to him than money. Mr Gill understood all of this. So when Mr Gill revealed to Dr Garrett that he needed money, Dr Garrett responded by offering to lend it to Mr Gill.
But Dr Garrett was not someone who would give large sums of money away. He had been careful with money all through his life. Importantly, he did not make gifts of large sums to Mr Gill. All the sums of money Dr Garrett advanced to Jason Gill he characterised as loans.
It should be inferred from Dr Garrett keeping these receipts that the clear understanding between both men was that Mr Gill would repay the loans. Mr Gill is not a reliable witness and Dr Garrett is deceased. The Court has very little to go on to infer what exactly induced Dr Garrett to make these loans. But they started when Dr Garrett was in full possession of his faculties. And it can be inferred by the way they were recorded and from his June 2008 will that Dr Garrett made these advances in the expectation, presumably from what Mr Gill said to him, that Mr Gill would repay him.
But he did not. Jason Gill was unreliable in almost every part of his life. His failure over 10 years to repay more than a very small part of these substantial loans is one marker of that unreliability.

[13]

Jason Gill Moves in to the Paddington Property - November 2003 to March 2004

There is a minor conflict in the evidence as to when Mr Gill moved into the Paddington property permanently. Jemima Garrett says that he moved in about 2000 or early 2001. But Jason Gill dates the move at 2003. The precise date is not material to the issues in these proceedings and the dispute does not need to be resolved. On this particular issue, Jason Gill's chronology is more likely to be correct. He was in a better position to detail his own movements at this time than was Jemima Garrett. This is a rare example of Mr Gill's evidence being preferred over Jemima Garrett's.
In 2001, Mr Gill commenced renting an apartment in Glenmore Road, Paddington. When the apartment was sold he was required to vacate, so he was temporarily left without accommodation. At Dr Garrett's invitation he moved into the Paddington property for a month, to tide him over whilst he looked for other accommodation. But eventually he moved back into his former premises which he rented from the new owners.
But Jason Gill was given notice to vacate again at the expiry of the lease in late 2003. It looked like he would soon be without accommodation. By then Dr Garrett and Mr Gill had been acquaintances for five years. Their companionship suited Dr Garrett. And it had worked well for Mr Gill financially: he had borrowed regularly from Dr Garrett, who had been very generous in entertaining and maintaining the lifestyle of his friend.
Jason Gill took up the offer and moved into Dr Garrett's Paddington property in November 2003. In one sense it was logical because they were spending considerable time with one another almost every day, probably more so than with either of their families of friends. Mr Gill did not have an active business at this time from which he earned a regular income, so he had free time during the day. His way of life was already being funded by Dr Garrett. From his point of view, moving in with Dr Garrett made his future more financially secure, at least in the short to medium term.
In October 2003, independently of Jason Gill's looming lease expiry, he and Dr Garrett were making plans to take a holiday together in January 2004 with a number of friends, cruising in the Whitsunday Islands. Mr Gill appeared to have nowhere to go after they returned from holiday. The Court accepts Mr Gill's evidence that Dr Garrett made him an offer, "why don't you stay with me after the Whitsunday Islands trip next year?" And that is what happened. At the conclusion of the trip to the Whitsunday Islands, Jason Gill moved back into the Paddington property.
From the first, Dr Garrett treated Mr Gill generously as a guest of the house, where he provided all food, alcohol, accommodation and facilities without charge. Mr Gill's own income from his computer broking business was no more than $5,000 per annum in these years so he soon became dependent on Dr Garrett's generosity. Mr Gill concedes that he and Dr Garrett never discussed Mr Gill paying rent or board at any stage that he resided in the Paddington property. No tenancy agreement was ever made between them. Indeed when the executors later sought to evict Jason Gill from the Paddington property by bringing the proceedings in the NSW Civil and Administrative Tribunal ("NCAT") it found it had no jurisdiction because there was no tenancy agreement between Dr Garrett and Jason Gill. Importantly, there is no evidence of any accounting between Dr Garrett and Mr Gill about expenditure on food, alcohol and social outings. There was no formal financial offsetting of the value of the free accommodation Jason Gill received against any services that he provided, such as cooking and driving Dr Garrett.
One of the most intriguing puzzles in this case is how Jason Gill became a long-term occupant at the Paddington property. Even his own case suggests that Dr Garrett's original invitation to him was only short term, "until after the Whitsunday Islands holiday next year". It is to be inferred from that language that Dr Garrett had in mind that when the Whitsunday Islands holiday was over, Jason Gill would move into the Paddington property but he would later be expected to be looking for his own accommodation.
That is consistent with Jemima Garrett's evidence. She says, and the Court accepts, that in her discussions with her father until about mid-2005 he conveyed to her his belief that Mr Gill would be moving out soon.
But that did not happen. In about March 2004, after Dr Garrett suffered a medical episode, Jason Gill says that Dr Garrett invited him to stay on and he accepted. But that was not a request for him to stay indefinitely. Dr Garrett still thought until about mid-2005 that Jason Gill would be leaving soon.
Mr Gill's continuation at the property is to be explained by the very different personalities of Dr Garrett and Mr Gill and by Dr Garrett's declining mental competence. The Court was able to observe Mr Gill's personality closely. Mr Gill has very little sense of the separate interests of other people. His own comfort and security is what matters to him. 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 own evidence betrays this. Absent from his account of this period is any spontaneous offer on his part to Dr Garrett that he should move out and find other accommodation and a refusal by Dr Garrett. Nor is there any evidence that he actively looked for any other accommodation. He was quite content where he was because it suited him.
The counterpart here was Dr Garrett's personality. Jemima Garrett explains that her father, and indeed her mother, espoused and maintained a strong ethical framework for themselves and their family. Dr Garrett's philosophy was one of financial independence, generosity, honour and keeping one's word. With all of that Dr Garrett also had a gentlemanly "old school formality" and was always well groomed. Above all, whatever the situation his outlook was toujours politesse. Dr Garrett regarded talking about money as generally unseemly. But if someone he respected asked for help he would treat them honourably and respectfully. He would assume that they had good reason to request financial assistance and he would assist without intruding on the privacy of the petitioner.
But Dr Garrett's assessment of Mr Gill was too generous. The first priority in Mr Gill's life was to look after himself and to secure such advantages as he could from the people around him. The weakness in Dr Garrett's outlook was that he did not comprehend that Mr Gill could be exploiting his relationship with him.
Cathy Garrett was an occasional visitor to Australia during her father's last years, although she and Tom Garrett gathered to be there for the last few months of his life. But she was constantly in touch by email with Jemima and Tom Garrett. But distance can be an advantage. During her visits she made very perceptive observations about Jason Gill's unusual personality. She made some early intuitive judgments about Jason Gill, with which, having seen him in the witness box for some days, the Court entirely agrees. She records them in her principal affidavit: "39. Sometime around the early to mid 2000s I began to realise that Jason had an ability to ingratiate himself. He would do things for you when you did not ask them to be done. It was my opinion from my observations that he liked to have people in his debt. I think he also liked to be appreciated and made great efforts to ensure that he was. Sometimes the things he did were kind, other times they were irrelevant. I constantly saw or heard of Jason doing these sorts of things for Dad and even for me when I was visiting. The behaviour sometimes made me suspicious and wary of his motives. 40. Jason, in my presence, would unctuously praise Dad and would sometimes intimate 'tongue in cheek' style that he was something like Dad's 'valet'. He made a big deal about Dad having been a gynaecologist and often called him "gyno-boy" including starting an email address for Dad with that name. I observed that Dad did not take to the phrase but graciously put up with frequent use of it. Dad seemed to focus more on Jason's buoyant energy and social nature. 41. Overtime and from my observations I considered that Jason had a bragster quality to him, he liked to tell tales of him 'playing the system' conveying a bit of a 'bad boy' attitude. He did not want to limelight but liked to set things up to benefit himself. Jason has lived in Australia for decades but to my knowledge has never become a citizen. Around the time of the NSW State elections held in March 2015, I asked him about where he was going to vote and he, rather proudly, said words to the following effect, "I do not vote I'm not a citizen. I don't like to be registered with the government" which lead me to believe that he sought to avoid having a public paper trail in Australia. He smiled and seemed pleased about that. From my observations, he lived completely under the radar."
Superficially Jason 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. But throughout this judgment the Court draws inferences that he was of a more calculating bent. Very occasionally that side of him was revealed to others. The clearest example of this also comes from the evidence of Cathy Garrett. During a visit that she made to Australia in 2013, in a conversation after dinner, Jason Gill said to her late in the evening words to the effect, "I could manipulate anyone. Sometimes I try not to, but I can." This was not said in relation to any subject matter in particular. But was an indication by Jason Gill that he thought he had the skills to control the behaviour of others without their realising it. In the Court's view such qualities are evident at times in his relationship with Dr Garrett.
Jemima Garrett also observed that when she saw Jason Gill with her father in the Royal Hotel it was clear that Jason Gill used her father as something of a "mascot". He "would often invite people to come and join the circle at the pub or elsewhere by telling them what a great man Dr Bill is…" And then Jason Gill would use "Dr Bill" to "ask for special treatment from service people or restaurants" but mainly for things that Jason Gill himself really wanted. Although Dr Garrett did enjoy "the sociable buzz that Jason created around him".
This special combination of personalities led to Jason Gill staying on. Jason Gill would have stayed at the Paddington property until he was asked to leave. He could survive there comfortably enough without trying to get a job. Staying was in his financial interest. But Dr Garrett was not the kind of person who would ask a friend to leave. He assumed an honourable person would leave without being asked, unless they had a real need to stay.
In the Court's view, this peculiar combination of personalities substantially but not wholly explains why Mr Gill continued to stay in the Paddington property in the first few years despite Dr Garrett's belief that he would be moving out. The other factor which explains why Dr Garrett continued to accommodate Mr Gill at the Paddington property is the slow early weakening of Dr Garrett's mental competence. This was evident to other family members by 2006. It takes significant mental resources to ask someone to move out of a property and Dr Garrett's mental resources were weakened by 2006.

[14]

Dr Garrett's Physical Health - 2004 to 2005

Jason Gill's move into the Paddington property coincided with a number of episodes that indicated Dr Garrett was beginning to suffer from physical infirmities. Although at this early stage his cognition appeared to be largely unaffected.
In December 2003, Jemima Garrett recalls her father suffering from a series of dizzy spells, when she was with him. These caused him almost to collapse.
Not long afterwards, Dr Garrett became unwell when swimming on the planned Whitsunday Islands holiday in early January 2004. He consulted a local doctor and returned to Sydney a few days later to see a cardiologist. Later in January 2004, Dr Garrett was found lying unconscious on the kitchen floor of the Paddington property. Jason Gill was not home at the time. After this episode, Jemima Garrett took her father to the neurologist who referred him immediately to a cardiologist. It was recommended he have a heart operation a few weeks later, which he did. The operation to implant a pacemaker took place in late January to early February 2004. After Dr Garrett was discharged from hospital, Mr Gill undertook more of the cooking for him and Dr Garrett.
Dr Garrett's post-operative weakness became the occasion in March 2004 for the following conversation to take place between Mr Gill and Dr Garrett, according to Mr Gill: "Dr Garrett: Jason, there is no hurry for you to move out. Do not take the first available place. Wait until you find the place you like. Mr Gill: Thanks Bill, I appreciate that."
This conversation is likely to have taken place. It is consistent with Dr Garrett's belief that Mr Gill's sojourn at the Paddington property would only be temporary. In its terms the invitation was: for Mr Gill just to wait "until you find the place you like".
But Dr Garrett's heart condition had slowed him down, so Mr Gill stayed on longer. Later in 2004, Mr Gill says that Dr Garrett again broached the subject of him staying on, resulting in the following conversation between them: "Dr Garrett: Jason, I enjoy having you around and appreciate you helping me with the daily chores, it gives my family peace of mind to know you are here. If you want to stay, I am happy for you to do so. Mr Gill: It suits me too. If you are happy, I will do so".
The Court does not accept this conversation took place. It is not consistent with the understanding Dr Garrett conveyed to Jemima Garrett that Jason Gill would be moving out. It is unlikely that he would have issued an open-ended invitation for Mr Gill to stay at the Paddington property indefinitely. The better explanation for Mr Gill staying at the Paddington property is the passing of time and the combined dynamic of Dr Garrett's and Mr Gill's personalities and Dr Garrett's mental decline that the Court has identified earlier in these reasons.
In mid-2005, Dr Garrett met up with Jemima Garrett in London. Dr Garrett was undertaking a trip to Germany and the UK for social reasons and to attend a conference. During this trip, Jemima observed him having difficulty with organisational and administrative matters and that he was drinking heavily. Throughout his life, and until about this time, Dr Garrett was someone who enjoyed his food and wine but did not drink to excess. But Dr Garrett's fellow householder, Mr Gill, drank daily at the Royal Hotel from early each evening and he encouraged Dr Garrett to accompany him, not least because Dr Garrett was likely to fund their outings together.
In what became a regular pattern, by 2005 Dr Garrett would finish at the Royal Hotel and go home and Mr Gill would continue, going out to clubs and bars often until the early hours of the morning. The Court accepts Jemima Garrett's evidence that Mr Gill often said to her that he had been out until the early hours of the morning. Indeed, as will be seen, evidence of his financial transactions confirms this is exactly what happened. And when family members, including Jemima Garrett, saw him late at night at the Paddington property through this period he was often smelling of alcohol and sometimes slurring his words.
Dr Garrett was continuing to have neck problems. In October 2005, Dr Garrett underwent a second laminectomy and was hospitalised for a period of ten days, as a result. Tom Garrett and Cathy Garrett arrived from interstate and overseas respectively to be with him and they visited him in hospital every day. During this time, Mr Gill also visited Dr Garrett in hospital. The Court accepts Jemima Garrett's evidence that Mr Gill brought wine with him to the hospital for Dr Garrett to consume.

[15]

Dr Garrett's Health - 2006 to 2008

In 2006 and 2007, Dr Garrett's physical decline continued. Jemima Garrett observed this decline in her father, describing him as "becoming less steady on his feet", wearing a neck brace, using a walking stick and continuing to drink heavily with Mr Gill. The increase in her father's drinking worried Jemima Garrett. When she dropped into the Royal Hotel from time to time to find her father, she could see that both her father and Mr Gill were re-ordering drinks frequently. Moreover, mostly instigated by Mr Gill, they were by then having people from the Royal Hotel back to the property for a further drinks session.
Mr Gill claims that, as Dr Garrett's health declined, he assisted more with daily tasks. Mr Gill contends that his role developed from companion into carer. Mr Gill says that this was in "the full knowledge" of Dr Garrett's family. It was, but none of them were comfortable about the relationship of dependence that was developing. But they did not intervene. They all respected their father's independence. And at this time he appeared to welcome Mr Gill's involvement in his life.
But what they did not fully appreciate is that by 2006 the easy alcohol-based daily companionship Mr Gill was providing had started to create a relationship in which Dr Garrett was highly dependent on Mr Gill. This dependent relationship started to displace some of the stimulation of other friendships and relationships in Dr Garrett's life.
None of Dr Garrett's children were in a position to move in with their father and displace Mr Gill at this time. Tom Garrett was in Melbourne. Cathy Garrett was in California. Jemima Garrett was going through a particularly challenging time with medical issues in her family. The result was that in these years Dr Garrett became more and more dependent not only on Jason Gill's assistance, but his daily companionship. The quality of that assistance was questionable.
Throughout this period, Dr Garrett had a number of falls leading to admissions to St Vincent's Hospital. On 26 February 2007, Dr Garrett fell on the way home from the Royal Hotel, breaking his elbow. On 15 March 2007, Dr Garrett slipped at the Paddington property, breaking his ribs and resulting in his admission to St Vincent's Hospital. And on 26 June 2007, he had another fall, and was again admitted to St Vincent's Hospital.
To look ahead from 2007 for a moment, the evidence of falls and instability related to alcohol on several occasions between early 2007 and early 2010 is strong. The frequency of falls and the damage they were doing to Dr Garrett suggests his capacities were declining by this time but his drinking was playing its part as well. Most of the admissions were to the emergency department at St Vincent's Hospital. He was admitted on 26 February 2007 with a fractured elbow and again on 16 March 2007 with fractured ribs at which time the hospital notes indicate he was encouraged to reduce his alcohol consumption. On 26 June 2007, he sustained a head injury from a fall whilst intoxicated although he was sent home from the emergency department.
On 18 March 2008, Dr Garrett attended upon Dr Hardy complaining of chronic tiredness "everyday". In July 2008, he was admitted to hospital overnight with central chest pain but his consumption of ten standard drinks per day was noted. On 1 May 2009 he re-attended the emergency department following a further fall whilst walking, with a possible explanation of taking a double dose of sleeping tablets. St Vincent's Hospital progress notes show that Dr Garrett suffered a further fall six months later on 6 November 2009. On 11 January 2010 he represented to the emergency department following a further fall whilst intoxicated.
Jason Gill tended to discount the seriousness of Dr Garrett's alcohol consumption. But this short history shows that although not implicated in every one of his falls, his consumption of alcohol was a risk factor that contributed to enough of them to be regarded as a serious health hazard, apart from its direct effect on his cognition and other bodily functions. To this criticism Mr Gill countered rather blithely that Dr Garrett was "someone who 'liked a drink'".
Mr Gill did nothing to curtail his and Dr Garrett's drinking episodes. He enjoyed them immensely and was happy for them to continue. This case is remarkable in that it was not until a serious episode in 2011 that there is any credible evidence from Mr Gill that he was attempting to constrain Dr Garrett's alcohol consumption and even that was after strong intervention by the family. Mr Gill was happy for Dr Garrett to drink and keep drinking both at the Royal Hotel and at home, so that Mr Gill could join him in doing the same. Mr Gill was providing basic domestic services to Dr Garrett but his encouraging of Dr Garrett's drinking was harmful. Dr Garrett's family were slowly becoming conscious that his companionship with Mr Gill was endangering their father's health.

[16]

The Sydney Morning Herald Article - July 2006

Mr Gill was ever-conscious of his need for financial security. The subject was of considerable interest to him. This was revealed in an incident in July 2006. On 9 July 2006, Jemima Garrett attended the Paddington property to take Dr Garrett out to lunch. She says that a Sydney Morning Herald newspaper was left on the kitchen table, folded open at an article entitled "Not in the will but the boarder in the spare room wins $450,000". Jemima Garrett says that Mr Gill saw that she had noticed the article and he commented facetiously to her that the article was "interesting". This interaction worried her. A few weeks later she showed the article to her father and she sent a copy to her siblings.
This article referred to a decision of this Court, in the family provision proceedings, Ye v Fung (No 3) [2006] NSWSC 635, in which Gzell J awarded a boarder, who had no familial or romantic relationship to the deceased, $425,000 and ordered the forgiveness of debt he owed the deceased in the amount of $22,000.
Jemima Garrett thought that Jason Gill had left the article deliberately out for her to see. He disputes that contention. The better analysis is that the article was left on the table by accident and Jemima Garrett happened to see it.
Jemima subsequently showed the article to her father and her siblings. This precipitated a conversation with her father: "Dr Garrett: I had a look at the "Herald" article you gave me. It looks as if it has implications for my Will. Jemima Garrett: I suggest we make an appointment with Lane & Lane so you can get some advice. How about we do this before Christmas? Dr Garrett: I haven't decided how to recognise Jason in my Will or if I need to do this, but I am keen to get this sorted out as he owes me a substantial sum of money. I am documenting the loans so I can keep track of how much they have got to. Jason said he will pay back some of the money in February [2007] when he receives the proceeds from a block of land that he is selling in Auckland. I'm particularly concerned that I may have expenses in the future if I were to become a quadriplegic because of my neck issues. Jemima Garrett: Maybe you need to come up with a formula, something like you leave $100,000 to Jason but if, in the meantime you have substantial medical expenses, that figure could be reduced by the formula to recognise that. Dr Garrett: $100,000 is too much, much more than I have been considering, especially as I have been providing Jason with food and board as well as lending him money".
This was the first time that Jemima Garrett had heard that her father had been making loans to Jason Gill on top of providing him with free accommodation and sustenance. She thought this was very out of character for her father. And it was: he had started life with little, had lived through the depression and had a frugal financial outlook, as had his late wife, Nancy. She was quite shocked at this news. At her urging, he and she resolved together to go and see Dr Garrett's solicitors, Lane & Lane, to discuss the implications of the case that had been reported in the Sydney Morning Herald.
Conversations like this also confirm what the Court has found based on the oral evidence: that Dr Garrett was substantially funding Mr Gill's lifestyle, his food, and his accommodation, topped up with financial advances from time to time.

[17]

Help for Dr Garrett's Financial Affairs - 2007 to Early 2008

From the beginning of 2007, Dr Garrett began to shed responsibility for managing the family's and his own financial affairs. This was done step-by-step and it was well underway by the end of 2007.
Although she lived in California, Cathy Garrett kept closely in touch with her family in Australia. But by the first half of 2007 she noticed that Dr Garrett was becoming irregular with reporting on the quarterly rent payments the family received from the West Yorkshire property. Previously he had been meticulous about following up changes of address, bank details or querying any discrepancy in the rent payments. Perceiving in April 2007 that Dr Garrett was slowing down, when he failed to follow up a double payment of rent, Cathy Garrett offered to him to take over management of the West Yorkshire property. With Dr Garrett's consent, she became the point of contact with the solicitors, the bank, the commercial property manager and the accountant for the West Yorkshire property.
In the second half of 2007, Dr Garrett asked Jemima Garrett to take over the preparation of his tax returns for the last two financial years. That Dr Garrett even made this request was significant. He was proud of his independence. But he needed help. Jemima observed that he was no longer up to the details of collating and sorting through the paperwork necessary to do his tax returns. She attended the Paddington property to complete her father's paperwork every Friday, her day off from the ABC.
Jemima Garrett had been alerted in July 2006 to Dr Garrett's loans to Mr Gill. But it was only during the preparation of these tax returns that she became fully aware, to her further surprise, of the extent of these loans. She discovered that her father had kept records of the loans on odd pieces of paper, which he kept in drawers and boxes in his bedroom. As she was gathering up the chits recording these loans, her father said to her: "Those [referring to various small pieces of paper with records of dates and figures on them] are the records of my loans to Jason. They are mounting up and I am getting bit concerned about it. But Jason has told me he will pay back a substantial sum soon when he has sold that block of land of his in Auckland, so I am not too worried."
Jemima Garrett estimated from these materials that she collected that Dr Garrett's loans to Mr Gill were likely to add up to a large sum. Her father expressed embarrassment to her about these loans. One day when she was working at the Paddington property a short conversation about repaying the loans took place between herself, Dr Garrett and Mr Gill as follows: "Jemima Garrett: I'm collecting the papers documenting your loans from Dad. Dr Garrett [to Mr Gill]: You said your block of land in Auckland will be sold soon and then you'll pay me back. Mr Gill: Yes but it has not gone on the market yet."
Dr Garrett had been asking Mr Gill, apparently without success, for some time for the loans to be repaid. But this response is typical of Mr Gill, putting off anything which was difficult. But Mr Gill had not taken steps to sell the property in Auckland and never repaid all but a fraction of these loans.
Later in 2007, whilst continuing to work on Dr Garrett's finances, Jemima Garrett 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. Jemima asked her father what he wanted done and her father clearly instructed her, "I want Jason to clear the storage facility".
Shortly afterwards, in a three way conversation between Dr Garrett, Mr Gill and Jemima the subject of the storage charges was broached: "Jemima Garrett: 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."
This conversation shows Dr Garrett's mental capability was diminished by this time. He was not able to work out for himself that Jason Gill's storage charges were accruing on his credit card. He needed Jemima Garrett's help to discover this.
But Mr Gill did not move his stored goods and the charges continued to accumulate for some years after this. Jemima Garrett did not seem to realise at the time just for how long these storage charges had been incurred. It is not in issue in these proceedings on the presently available evidence that Jason Gill had been incurring storage charges for the storage of his goods from 12 February 2004, shortly after he moved into the Paddington property. The storage fees were paid from Dr Garrett's accounts or credit facilities to two organisations, Rent a Space and or Montroy Pty Ltd. These charges continued to be incurred until 23 February 2015, when Jemima Garrett was finally able to force Jason Gill to move his goods (mostly into the Paddington property) and eliminate this expense for Dr Garrett. These payments were considered a loan. The total amount paid by Dr Garrett for storage and associated costs was $69,349.64.
Remarkable as it may seem, despite Jemima Garrett's conversation with him in late 2007, Jason Gill was not ready to apply himself to arrange to relocate these goods to save Dr Garrett approximately $500 per month. Over the years Jason Gill was met with chorus of requests from all directions to move his goods out of storage and save Dr Garrett the burden of these storage charges. Dr Garrett asked that his items be removed. Jemima Garrett asked for the items to be removed. Tom Garrett continually requested removal of these items to eliminate the storage charges. But none of this moved Jason Gill to move his chattels and personal effects out of storage.
His years of inertia on this subject are a signpost towards his personality. He was prepared to ignore the continuing financial burden being suffered by Dr Garrett, so he could avoid the relatively minor inconvenience of taking a few days to relocate his goods. If this was Jason Gill's attitude to conserving Dr Garrett's money, conserving Dr Garrett's health was hardly likely to have been a very high priority when competing with Jason Gill's convenience. And that too is the pattern which the evidence demonstrates.

[18]

Dr Garrett Makes a Will - May/June 2008

Dr Garrett enjoyed seeing his children. On 3 May 2008, he travelled to the USA to visit his daughter, Cathy in California. In one respect it was a working holiday. He took with him the chits and other paperwork that he and Jemima had collected, recording Dr Garrett's loans to Jason Gill, to try to make sense of them.
During this trip, Cathy helped Dr Garrett prepare a summary table of the loans made to Mr Gill in the calendar years between 2002 and 2008. The pattern that emerges from these loans tells its own story. Broken down by year, the loans advanced were in the following amounts in the following years: 2002 - $4,149, 2003 - $2,755, 2004 - $22,138, 2005 - $29,674, 2006 - $22,911, 2007 - $17,084 and 2008 - $4,455. The total for all years was $103,166, less Mr Gill's repayments of $5,135, leaving a balance owing of $98,031.
These loans escalated rapidly until 2005. They declined slightly in 2006 and fell away rapidly in 2007 and 2008. The Court infers that the rapid turnaround of the loan trajectory was attributable to Jemima Garrett's closer supervision of Dr Garrett's financial affairs. But the pattern of loans in 2004, 2005 and 2006 before Jemima Garrett started reining them in, shows Dr Garrett lending each month, and month after month, amounts of between $1,500 and $2,500 with no evidence of repayment after October 2005. These records are accurate. They show that Mr Gill's attempts at repayment were sporadic and perfunctory. Mr Gill twice in 2002 wrote out cheques to Dr Garrett to repay him, but at the same time asked him not to bank them. This lending pattern is a firm indication of an uncontrolled and one-sided financial relationship that was not in Dr Garrett's interests. It is an indicator in itself that by no later than 2005, the peak of the loans, he was already in a relationship of disadvantage with Jason Gill.
The other notable feature of the loan trajectory is that the overall quantum of the loans was low until 2004, the year that Mr Gill moved into the Paddington property. The Court infers that Mr Gill's daily access to Dr Garrett in the Paddington property household gave him far greater opportunities than before to ask for loans that Dr Garrett seemed unable to resist making.
Whilst in California, Dr Garrett composed a letter to his solicitors, Lane & Lane in Sydney, outlining his relationship with Jason Gill and his testamentary intentions in general terms. Dr Garrett wrote: "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".
Here in mid-2008 is direct evidence from Dr Garrett that their "mutually agreed understanding" was that "he could continue living in my home rent free". There is no indication there that there was any more to their "temporary arrangement"
This letter included a summary of Dr Garrett's testamentary intentions, well organised into a spreadsheet entitled "Intent of Will". It stipulated that the Paddington property would be left to Jemima, Tom and Cathy Garrett in equal shares, as would the MacMasters Beach property and the Paddington investment property. Dr Garrett also indicated in this document that he intended to leave his car and a painting by Jonathon Conlon entitled "In the Studio" to Jason Gill. And with respect to Jason Gill he also noted "1. Forgive loans. 2. Cash amount___?", probably indicating that he was looking to receive advice from Lane & Lane on whether he should forgive the existing loans to Jason Gill and what the proper cash amount of a legacy for Jason Gill should be.
Dr Garrett made a will on 20 June 2008 that reflected these instructions. In it he gave bequests to his grandchildren and step-grandchildren (clause 3). In clause 4 he made a bequest of $200,000 to Mr Gill. He made a number of specific gifts which included the John Conlon painting "In the Studio" to Jason Gill. Then he gave the rest and residue of his estate equally to his three children, Jemima, Cathy and Thomas.
He explained his reasoning for his bequest to Jason Gill in clause 8 of the will: "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."
The "short narrative" that Dr Garrett said in his letter to Lane & Lane that he attached, was a statement in his own handwriting headed "Confidential - Jason Gill". This was later left with his will. The statement together with the will is also direct evidence from Dr Garrett about his relationship with Mr Gill. The short narrative recounts some of Mr Gill's background and personal misfortune that led to him renting a flat in Glenmore Road, Paddington near Five Ways. Then it goes into Dr Garrett's relationship and financial interdependence with Mr Gill: "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."
The statement is a useful insight into Dr Garrett's then views about Mr Gill. There is no mention in the statement of any promise to Mr Gill that he could have the Paddington property. Quite the contrary, the statement is reasonably formal, honourably demonstrating gracious friendship towards Mr Gill but it does not give any intimation of a profound depth of obligation to him beyond the somewhat transactional calculation that ultimately appeared in the 20 June 2008 will.
The Court is confident Dr Garrett was of sound mind when he made the will in 2008. This is not a probate suit and his capacity to make the will has not been put in issue. But his solicitor at Lane & Lane, Mr Anthony Roberts says on affidavit that he had "absolutely no concerns" that Dr Garrett was "anything other than capable and of sound mind to make the will", and the Court accepts that.
Mr Anthony Roberts recalls Dr Garrett as being "assiduous and diligent in the conduct of his legal affairs. Mr Roberts is sure that to the best of his knowledge no one at Lane & Lane was approached or instructed by Dr Garrett to give legal form to the promise alleged by Jason Gill. The handwritten note of Dr Garrett which is headed "Confidential - Jason Gill" was not on Mr Robert's file at Lane & Lane. Mr Roberts does recall that he requested Dr Garrett to write a note regarding his relationship with Mr Gill to provide evidence of the consideration given in making the will. The handwritten note was kept in Lane & Lane's safe custody room with the original will, following its execution.
The structure of Dr Garrett's testamentary intentions in June 2008, as expressed to his solicitors, and as perfected into his will, contains no suggestion that the Paddington property would be given to Jason Gill. Yet Jason Gill's case in these proceedings is that by February 2009, about eight months later, Dr Garrett made an agreement with him to give him the Paddington property in exchange for Jason caring for him the rest of his life. For Jason Gill's case to fit into a narrative capable of ready acceptance, some explanation for Dr Garrett's change of heart in that eight month period is required. But it is not obvious that there is one. All that happened in that eight month period is that Dr Garrett's physical and mental health declined.

[19]

Dr Garrett's Stroke - Late 2008 to Early 2009

On 17 November 2008, Dr Garrett suffered a Transient Ischemic Attack ("TIA"). As a result he developed expressive dysphasia (difficulty in speech) and was admitted to the Stroke Unit at St Vincent's Hospital. At the time of this TIA he was expected to make a full recovery. Through rehabilitation and medical care he did track well after this event but his speech never fully returned to its previous level.
This TIA occurred in a period when Dr Garrett was continuing to drink heavily with Jason Gill. The St Vincent's Hospital progress notes record Dr Garrett's alcohol intake as more than five standard drinks per day. Jemima Garrett observed, and the Court accepts, that there were often empty wine and whisky bottles around the house and in the recycling bin, when she visited at this time. This represented a continuing pattern. Both Dr Garrett and Mr Gill were continuing to go to the Royal Hotel each day and to drink at home afterwards, often with friends from the Royal Hotel. This was convenient to Jason Gill and Dr Garrett paid for these outings. But the amount of alcohol being consumed was not good for a man of 80 like Dr Garrett.
The Court accepts Jemima Garrett's contemporaneous observation that this TIA had disabled her father further. For example, from this time on she needed to shop with her father to buy his clothes and to buy the birthday and Christmas presents he wanted to give others. He could no longer undertake such expeditions alone. By late 2010, she was doing all such shopping without her father, as it confused and exhausted him too much. Mr Gill did not accompany Dr Garrett on any of these shopping trips with Jemima. In one of the informal functional boundaries that developed around care for Dr Garrett, Jason Gill generally left this kind of supportive activity for Dr Garrett to his family.
Dr Garrett's family were heavily pre-occupied with his immediate post stroke recovery after November 2008. Mr Gill was an important element of stability in the overall support for Dr Garrett during this recovery phase. The family members each had their doubts about the quality of Mr Gill's care but these doubts were temporarily put to one side whilst Dr Garrett was supported back to better health. Removal of Mr Gill would have upset their father, and thrust difficult adjustments upon him at a sensitive time. But doing nothing meant the continuation of Mr Gill's less than satisfactory care.
Mr Gill's case is that the Garrett family leaving him undisturbed at the house is a basis to infer that they regarded his care for Dr Garrett as satisfactory. That is not the correct inference. The accurate inference is that of the alternatives presented to them, the continuation of Mr Gill's less than satisfactory care was accepted, because the immediate distress and uncertainty consequent upon removing Mr Gill was more unpalatable.
The Garretts' beach house at MacMasters Beach was an important centre of family activity and family reunions. Dr Garrett spent Christmas 2008 there with extended family. By Christmas 2008, his mental state was declining and his standards of attire and personal appearance had deteriorated. This was evident to Jemima Garrett and to Tom Garrett. Moreover, it is demonstrable from photographs taken at a New Year's Eve party to which Dr Garrett was taken that year. These photographs show a somewhat lost figure, far removed from the careful scientist he had been, and far removed from the man who had once taken great pride in his appearance. Jemima Garrett described Dr Garrett at this time as, "often staring off into space, which was very unusual" and not interacting with people.
The party on New Year's Eve in 2008 is important at another level. Little more than two months after this evening, Mr Gill alleges Dr Garrett promised the Paddington property to him. Jemima's account of her father's conduct that New Year's Eve night is a cameo of his decline and his weaknesses by that point. On New Year's Eve 2008, Jemima Garrett was picking her father up from one party to take him to another party with her work colleagues. He was aware where he was going. But she observed that her father had dressed himself in an Hawaiian shirt and some old polyester shorts, the kind that he had used for odd jobs around the house. The photographs confirm her evidence. She confessed she could not say "Dad, go home and change your clothes. You're not up to scratch", because as she observed, equally disturbingly, "he was quite happy in that dress". A fully competent Dr Garrett would never have dressed like this.
By early 2009, Dr Garrett had lost the capacity to manage the MacMasters Beach property. So Jemima Garrett began to manage it entirely herself, paying some of the outgoings on the property from her own resources and collecting contributions from family and friends who used the house, whilst she and her husband also contributed their own labour as maintenance.
Jemima Garrett's preparation of Dr Garrett's 2006 to 2008 tax returns continued into early 2009. But by that time, the dynamic of Jemima's involvement had changed. She no longer had to explain everything to him and submit to his directions, as she sorted out and filed papers and opened the correspondence that she discovered in wine boxes and drawers at the Paddington property. By late 2008, she was preparing all his cheques for signature and paying his bills using his credit card herself. Now, unlike before, without putting up active opposition, he ceded control of all his tax affairs to his daughter. This is something which would have been unthinkable to him 12 to 18 months before. The Court accepts Jemima Garrett's assessment that by early 2009 Dr Garrett was taking a minimal interest in the preparation of his tax returns.
Jason Gill's case criticises Jemima Garrett's execution of the task of lodging the FY2006 to FY2008 tax returns. His case is that the delay in filing the returns from mid-2007 was not to be attributed to Dr Garrett's mental state, because Jemima Garrett had taken over the task. But that is too simplistic an analysis. Dr Garrett's poor mental state still meant that Jemima Garrett could not seek clear answers from him about his financial affairs. In the end she had to go to Mr Wayne Tilley, his accountant, and Mr Simon Icely, his financial adviser for assistance. Moreover, it is difficult to understand the relevance of this criticism. But it is wrong. Jemima Garrett describes a lengthy process of putting order into the chaos of her father's financial papers, whilst juggling the priorities of her own family. In the Court's view, no criticism of her is warranted on the grounds of delay in completion of her father's tax returns.
In the first quarter of 2009, Jemima Garrett started to use her power of attorney to take over the operation of any of her father's accounts, including utility bills and the like. Dr Garrett's memory of his own financial affairs was not good enough for Jemima Garrett to rely upon, so by April 2009 she turned directly Mr Tilley to guide her more about her father's affairs. And she also started to liaise with Dr Garrett's lawyers, Lane & Lane about his outstanding tax obligations. The Court accepts Mr Tilley's evidence, who describes Dr Garrett at a meeting with him on 17 April 2009 as being, "clearly not on top of things…. Whilst formerly sharp, this was not now the case, but we talked and had a reasonable conversation. He had in my view not lost it but clearly, he was relying on and needing Jemima's assistance." But by 2009 he was a far cry from the Dr Garrett that Mr Tilley remembers as his highly organised client of many years past: "My interactions with Bill confirmed him to be a man of great intellect, humble, astute, sharp and engaged in all aspects of his life." In March 2009, Jemima Garrett also became a signatory to Dr Garrett's Westpac Bank accounts.
These assessments show that by the first quarter of 2009, Dr Garrett had lost the motivation to be involved in his own financial affairs, partly because he had lost the capacity to absorb and master their detail. In the Court's view, by the first quarter of 2009 he no longer had a sound and realistic appreciation of his own financial affairs.
By mid-2009, Dr Garrett's tax returns for the FY2006, FY2007 and FY2008 had been lodged and he was facing an outstanding tax bill of over $100,000. This tax liability had been incurred as capital gains tax that should have been paid in 2006 on the sale of the investment property in Paddington plus an associated bill for penalty interest. At Jemima Garrett's request, Dr Garrett's general practitioner, Dr Andrew Hardy, provided a medical certificate which was then forwarded to the Deputy Commissioner for Taxation. It provides a contemporaneous account of Dr Garrett's mental state at this time. Under Dr Hardy's signature it said: "23/07/2009 Deputy Commissioner for Taxation Sydney

[20]

Dear Commissioner Re: Dr William Garrett [address and D.O.B omitted] Dr William Garrett, age 81 yrs, has been a patient of this Practice since 1996. His general health began to deteriorate in 2004, when he required a Pacemaker, and has subsequently been affected by multiple ailments culminating in a stroke in 2008. His mental as well as physical abilities, formerly acute, have deteriorated though he has not been fully aware of this. I hope that it may be possible to take this into account when assessing his liabilities to your Department. Full details can be supplied, with his permission, should you require them. Yours faithfully"

Dr Hardy gave evidence and supported his observations made here that Dr Garrett did not have full insight into his own mental deterioration. The Court accepts that this was the position. Dr Hardy's evidence is examined in more detail below.
In 2009, Dr Garrett had occasional periods of greater capacity to superintend his affairs. But he also had growing periods of confusion. During this time he was progressively less and less able to draw upon his memory of his own financial affairs, marshal facts and documents and make judgments with insight about the present, the future and about what was in his best financial interests. Because he trusted her, the growth of Jemima Garrett's role in the more formal areas of Dr Garrett's financial affairs compensated in those areas for the decline in his overall executive functions. But Jemima Garrett could not be there all the time to oversee his day-to-day transactions with Jason Gill.
Dr Garrett also trusted Jason Gill. But Jason Gill failed to recognise the difference between his and Dr Garrett's financial and welfare interests. He could not be relied upon to draw financial boundaries to protect Dr Garrett, who in turn was unable to resist suggestions made to him by Jason Gill. The uncontrolled loans he made to Jason Gill demonstrate this. Jason Gill was ever-attracted to seizing easy financial opportunities that came his way. This was particularly evident through his use of Dr Garrett's credit cards which will be discussed later in these reasons. He viewed these opportunities as his to grasp when he could and any associated obligations would be left to look after themselves.

[21]

Dr Garrett Gives a Revised Power of Attorney to Jemima Garrett - 2009

Jemima Garrett discharged her duties under her father's power of attorney to a high standard. She respected his independence. She only took control of his affairs in a gradual way over time. And she did so in a way with which he was comfortable, that did not patronise him and that did not generate resistance on his part in the early stages of her involvement.
She was able to take over his tax affairs by slow steps through to October 2009, when the process was complete. Each step represented her growing control over Dr Garrett's financial affairs with his acquiescence and each step also measures Dr Garrett's declining capacity.
When fully alert and in control of his faculties, Dr Garrett was not one to allow anyone to take control of his financial affairs. He was rightly proud of his intellect and fiercely guarded his mastery over his own finances, which he regarded as his own private business. When fully competent he treated his income and property as an important element of his independence.
But by October 2009, Jemima Garrett found that when lodging her power of attorney to deal with financial institutions on her father's behalf that the document was often rejected because it did not contain her full name. So another powerless executed on 26 October 2009, organised by Lane & Lane. The fact that a new power of attorney was required by October 2009 itself further confirms Jemima Garrett's account that she was fully superintending Dr Garrett's taxation and financial affairs by that time.
Other signs of Dr Garrett's growing incapacity from mid-2009 began to appear. He rarely went out with other people and his social life was becoming more restricted. And Dr Garrett began to misplace his wallet and keys. This happened so regularly that a chain was attached to run between his wallet and the belt loops on his trousers. And then on 10 September 2009 together with Jemima and Cathy, Dr Garrett consulted with his financial adviser Mr Icely. Mr Icely gave evidence and was cross examined. The Court accepts his evidence. He said that at this consultation Dr Garrett "would just nod and say things in response when questioned by me as to what he thought". Mr Icely said that "he was not his normal self, he appeared to me to be very vague and disinterested. He was clearly struggling to keep interested and engaged".
By mid-2009 Jemima Garrett thought it would be more appropriate to regularise Jason Gill's caring arrangements for Dr Garrett. At that stage she was not fully aware of the extent of Jason Gill spending of her father's money. So in mid-2009 she asked Jason Gill if he would like to be paid as a carer for Dr Garrett. Jason Gill replied, "No, that is just what friends do." She now thinks that Jason Gill was planning his present claim at that time. In the Court's view he was certainly conscious by this time that such a claim was possible.
This conversation is important for another reason. Jason Gill now brings an alternative claim in restitution for the provision of caring services to Dr Garrett. But in this conversation he characterises his provision of those same services as being without the expectation of payment, because they were provided between friends.

[22]

Dr Garrett's General Practitioner, Dr Andrew Hardy - 2009 to 2011

Before considering the evidence that Jason Gill adduces about his conversations with Dr Garrett in relation to the Paddington property in February 2009, it is worthwhile to examine the medical evidence bearing upon Dr Garrett's health and mental capability at the time of those conversations. This evidence covers a period as far ahead as 2011, because some of the medical examinations of Dr Garrett at that time give insight as to his condition back in 2009.
Dr Andrew Holt Hardy was Dr Garrett's general practitioner. Dr Hardy had known Dr Garrett since 1995 and was an excellent witness: precise, measured, careful and displaying a very good memory of his patient. Dr Garrett consulted Dr Hardy regularly through the important years under observation here from 2009 to 2011.
Dr Hardy ultimately referred Dr Garrett to Professor Brennan on 18 April 2011. Shortly prior to that referral, Dr Hardy had seen Dr Garrett on 2, 7 and 14 March 2011. Dr Hardy's overall conclusion from that series of clinical examinations was, as was expressed in his own handwriting, "over the past year or two his condition had deteriorated."
Dr Hardy's decision to refer Dr Garrett to a specialist was the result of an accumulation of observations. Dr Hardy had observed that Dr Garrett had been deteriorating over two years. Jemima Garrett had advised Dr Hardy that her father had been drinking. Dr Hardy's referral to Dr Brennan on 18 April 2011 confirmed in his oral evidence, what was in his clinical notes, that "over the past two years his condition has deteriorated but he still manages at home".
Dr Hardy was asked what, in his notes or his experience of Dr Garrett, caused him to come to the opinion that over the two-year period prior to April 2011 that Dr Garrett's condition "has deteriorated". Dr Hardy's response indicated "nothing specific" arising from the notes but he then added "but I think the reason for my comment was simply a judgment of my observations of him over the preceding two years. When a man [who is] previously intellectually superior was not performing or conversing as well as I expected him to in his previous state". Dr Hardy judged that Dr Garrett was not able to interact with him during their consultations, as well as he had been able to before 2009. Dr Hardy could make that judgment by reference to his long term clinical knowledge of his patient. As Dr Hardy said, it was "a personal impression if you like", but one closely informed by Dr Hardy's long medical experience of Dr Garrett.
Dr Hardy had already observed Dr Garrett's loss of sharpness by 23 July 2009, when he wrote his letter to the Commissioner of Taxation. To write this letter Dr Hardy did not organise a consultation with Dr Garrett in his rooms; rather he based it on his 15 years' prior knowledge of Dr Garrett.
Dr Hardy provisionally diagnosed Dr Garrett as having had dementia by July 2009. But the letter to the Commissioner does not say that. Dr Hardy explained that he did not mention the word "dementia" partly because he regards it as "a pejorative term". Dr Hardy was reluctant "to apply that [term] to somebody of eminence…and whom I'd known for a long time". Dr Hardy was reluctant to use such a term about Dr Garrett "unless it was fairly obvious and gross". In the letter Dr Hardy uses more subtle language: he seeks to excuse the default in filing tax returns by saying, "his mental status as well as physical abilities, formerly acute have deteriorated, although he has not been fully aware of this." Dr Hardy referred Dr Garrett to Professor Brennan, in part because he wanted someone else more expert than he was to confirm the ultimate diagnosis of dementia. He thought Professor Brennan was best qualified to offer this opinion.
Dr Hardy's evidence is an important key to understanding that someone with his medical expertise may have been able to pick up Dr Garrett's loss of mental capability, but this was an insight not necessarily available to everyone. Dr Hardy explained, "well I guess [Dr Garrett] being an eminent practitioner, I would tend to discuss his problems and his management with him if you like in medical terms". But by July 2009 this had changed, as Dr Hardy made clear: "I think the impression I got was that he was superficially aware and able to discuss these things but perhaps was not quite as perceptive as he had been. So he was still understanding; but I didn't think he was understanding them as well as he used to and that clearly he wasn't aware of this".
This evidence is quite significant in showing that Dr Garrett was still engaging with a fellow professional in a way that Dr Garrett thought continued to demonstrate mastery of his subject. But to the qualified and perceptive observer his medical knowledge had much reduced.
Dr Hardy and Jemima Garrett have a privileged perspective on Dr Garrett in this case. They both had knowledge of subjects with which Dr Garrett was very familiar, when he was at his best. They noticed Dr Garrett's loss of grasp over those subjects and they noticed when it happened. They had the opportunity to draw upon and use shared knowledge of complex ideas: in the case of Dr Hardy, that was shared medical knowledge in the case of Jemima Garrett that was shared knowledge of Dr Garrett's taxation affairs. These two witnesses followed closely by Tom and Cathy Garrett, with their lifelong knowledge of their father, could assess whether Dr Garrett was still master of the subjects that had interested him.

[23]

Associate Professor Brennan's Opinion - 2009 to 2011

Associate Professor Nicholas Brennan first saw Dr Garrett on 11 July 2011 and diagnosed him with dementia. But in a report for these proceedings dated 14 November 2017, and in his oral evidence, he offered opinions about the course of Dr Garrett's dementia in the previous several years. Professor Brennan was an excellent witness whose evidence the Court accepts in its entirety. Professor Brennan's evidence was heavily criticised in Jason Gill's case. These criticisms are considered here with the analysis of Professor Brennan's opinions.
Dr Hardy's referral of Dr Garrett to Professor Brennan was accompanied by a letter dated 29 June 2011 from Jemima Garrett addressed to Professor Brennan. Her letter to Professor Brennan was an accurate history of her father's mental competence up to that time. It is a contemporaneous record showing how far Dr Garrett had declined by 2011. It records two startling stories: "At the moment Dad's lucidity comes and goes. Sometimes he is on the ball and like his old self but other times he is not. His memory and thinking is now so compromised that he sometimes thinks I am Mum. …. Recently when I was at an alumni night event with dad at Sydney Uni, the brother of a close long-time ultrasound colleague came up to greet him. It was very sad to see dad could not remember his colleague at all, and his brother withdrew upset by the interaction."
Professor Brennan's opinion, based upon his July 2011 consultation, and the history given to him, was that Dr Garrett then suffered from a mixed form of dementia, being a combination of Alzheimer's disease and vascular dementia exacerbated by heavy alcohol use. In Professor Brennan's opinion it is not possible pre-mortem to tell with reliability whether or not a person has Alzheimer's disease or vascular disease, or one of the other pathologies that can cause a dementing illness. But Professor Brennan was of the opinion from his clinical observations that Dr Garrett had a mixture of these conditions.
Professor Brennan noted that Dr Garrett had significant cardiovascular risk factors associated for example with the pacemaker implantation in 2004, a neurosurgical procedure to relieve neck pain in 2005 and a stroke in 2008. Professor Brennan further noted that Dr Garrett had a previously documented history of cerebrovascular events (in the form of minor strokes). As a result, Professor Brennan thought that the overall pattern of Dr Garrett's decline over time was probably more consistent with vascular dementia damaging the frontal lobes of his brain, rather than Alzheimer's disease. He said Alzheimer's disease is characterised by severe changes at the onset of the disease, with patients becoming extremely forgetful and getting lost and wandering. Dr Brennan observed that type of cognitive change only occurred much later with Dr Garrett, around 2013 to 2014.
Professor Brennan explained that frontal lobe executive functions in the area damaged relate to decisions and choices made in preparing and planning lives, managing financial affairs and higher level thinking process, rather than just remembering day-to-day things. These functions are susceptible to damage by diseases that affect the frontal parts of the brain, where this decision making capacity lies. Tests tailored to assess the loss of executive function include trail making, maze tests, tests involving dual tasking and tests involving the recall of a wide range of data.
Professor Brennan explained the loss of frontal lobe executive function, or dysexecutive syndrome, also "gets people into trouble or makes people dependent on their families, carers and loved ones". He warned of the risk of under estimating these potential deficits, unless a detailed collateral or corroborative history has been taken from a family member or other witness.
Professor Brennan pointed out that impairment in the function of the frontal lobes, the source of executive decision making in the brain, means that a person would struggle to understand the intricacies of evaluating moral claims upon a testamentary estate and the choice that must be made in evaluating those claims by relatives or friends. Professor Brennan said that with someone suffering such frontal lobe diseases, "the inability to concentrate on more than one thing at a time" is also a factor, "so any more complex decisions are often affected by diseases of the brain in that area".
Professor Brennan concluded that there was no evidence that Dr Garrett was suffering from delusional disorders in 2009 but there were good indicators that he was unable to manage his financial affairs because of the existence of a cognitive disorder at that time. So much so that Professor Brennan thought that Dr Garrett would due to his dementia have failed the legal test of testamentary capacity in February 2009.
Professor Brennan's opinion is to be contrasted with that of Mr Roberts at the time Dr Garrett made his will in June 2008. But the evidence of Mr Roberts and Professor Brennan can be reconciled. The best explanation for these two different opinions about Dr Garrett's testamentary capacity, only eight months apart, is that the stroke from which Dr Garrett suffered in November 2008 resulted in a significant step downward in his overall cognition.
Professor Brennan noted that Dr Garrett was continuing to receive speech therapy consequent upon his stroke with the last recorded session being on 13 January 2009. The outcome of this session is of particular relevance because it is only a few weeks before the earliest time that Jason Gill alleges Dr Garrett made the promise to him. Professor Brennan noted that Dr Garrett's then speech therapy results in relation to higher language capacity were that he had "deficits in association naming, absurdities/idioms, construction, sequencing, auditory memory, auditory comprehension and problem solving". Although Professor Brennan said that the interpretation of these results was beyond his expertise, he said they represent "a moderate higher-level language deficit".
Dr Garrett continued to receive medical care during 2009 to 2011 from his neurologist, Dr Garrick. Jason Gill's submissions rely upon some of Dr Garrick's findings which contain a more positive outlook on Dr Garrett's mental state. Dr Garrick saw Dr Garrett on 16 June 2009 for review. Dr Garrick recorded in his notes that Dr Garrett was "articulate and fairly sharp", although complaining that he was drowsy during the day. But this clinical observation does not neutralize Professor Brennan's opinion for two reasons. First, it is consistent with the evidence of many witnesses that Dr Garrett's condition did fluctuate and he may well have appeared "sharp" on occasions. And second, Professor Brennan said that it is commonplace in clinical practice for dementia patients to appear "outwardly well" but unless the right questions are asked, and the wider evidence examined, the dementia can be missed. Professor Brennan thought it a significant omission, for example, that Dr Garrick had not been prompted by circumstances to ask questions about Dr Garrett's alcohol intake.
In his medico-legal report of 14 November 2017 Professor Brennan was asked more detailed questions on several subjects relating to the inferences that could be drawn about Dr Garrett's mental capability in 2009 and 2010 and the characteristics of his dementia. His answers to those questions were challenged in Jason Gill's case. Five main issues arose.
First, Professor Brennan pointed out that no specific medical documentation of Dr Garrett's dementia was completed around 2009 and that caution was warranted in respect of the cognitive screening test results that were available. But he said his own clinical observations of Dr Garrett in 2011, together with the history provided, allowed him to form clear views as to the course of Dr Garrett's dementia.
Dr Garrett was only ever given basic cognitive screening, the mini mental state examination ("the MMSE"), which showed results within normal limits. But Professor Brennan distinguished basic MMSE cognitive screening from formal assessments of capacity to understand major financial decisions. To test for dementia, Professor Brennan said that to test for dementia he would do much more in depth testing than was available from a MMSE screening test. He would include tests of executive or frontal lobe function, tests of problem solving and other tests of different parts of the brain, which would be missed by a simple MMSE test.
Mr Gill's case emphasised the various MMSE results, which mostly projected acceptable scores apart from just after Dr Garrett's admission to hospital in July 2011. But the Court accepts Professor Brennan's evidence that there is limited value to these tests and more in depth testing is required to avoid underestimating the presence of dementia.
In the absence of tests of executive or frontal lobe function, Professor Brennan said that Jemima Garrett's observations to him in her letter of 27 June 2011, usefully described Dr Garrett's progressive impairment of the management of his financial affairs and the handover of his taxation affairs to her, together with the increasing amounts of assistance Dr Garrett required over time to manage general domestic activities. In Professor Brennan's opinion this history pointed to Dr Garrett suffering from cognitive deficits and impaired decision making capacity by 2009. Professor Brennan drew support for this conclusion from Dr Hardy's letter to the Commissioner of Taxation of 23 July 2009. The Court accepts all these sources of Dr Garrett's history as accurate.
Second, Professor Brennan analysed the potential contribution of drugs and alcohol to Dr Garrett's condition. He explained that the various drugs that had been prescribed for Dr Garrett from July 2008 onwards may well have impaired his cognitive functions. Professor Brennan identified that Dr Garrett was prescribed Olanzapine an antipsychotic medication, as a sleeping tablet. Olanzapine is commonly used with dementia to reduce delusions and to moderate patient behaviour but it can cause drowsiness and confusion. Temazepam, a benzodiazepine, may in Professor Brennan's opinion have contributed to Dr Garrett's worsening cognition. Added to this Neurontin commonly prescribed for chronic pain, can also exacerbate confusion. Although Professor Brennan noted that Dr Garrett only took this erratically.
Beyond these prescription drugs, Professor Brennan was far more concerned about the deep effects of Dr Garrett's excessive consumption of alcohol, in exacerbating his pre-existing dementia. His opinion was that patients with alcohol related dementia often display frontal dysexecutive syndrome (rather than severe amnesic syndrome such as that seen in Alzheimer's disease). Patients with alcohol related dementia may score highly in tests of cognitive functioning but may still have significant functional impairment, according to Professor Brennan. He pointed out that significant improvements in cognitive function can occur when alcoholics stopped drinking alcohol.
Mr Gill's case emphasised that Dr Garrett may have been suffering merely from alcohol related dementia and nothing more. Such a diagnosis would imply the dementia was reversible once alcohol intake levels were reduced, and would allow significant periods of lucidity. But this hypothesis does not assist Mr Gill's case for two reasons: (1) there was little reduction in Dr Garrett's alcohol intake before his July 2011 hospital admission; and (2) the Court accepts Professor Brennan's view that Dr Garrett's dementia was not just alcohol-related but was a mixed vascular dementia.
Mr Gill's case also relied upon the fact that Dr Shahrzad Jahromi used the term "alcohol related dementia" as descriptive of Dr Garrett's condition upon his admission to St Vincent's Hospital in July 2011. Professor Brennan explained the term is controversial: some doctors hold the opinion that "alcohol related dementia" does not exist in isolation. But the Court accepts Professor Brennan's opinion that Dr Garrett's history indicates that was not the condition from which he was suffering. Rather, he had vascular dementia albeit aggravated by his alcohol intake.
Third, according to Professor Brennan, the course of Dr Garrett's symptoms up to 2009, were closely consistent with progressive vascular dementia. Professor Brennan said that forgetting to pay bills, utility payments and tax payments is a very common early symptom of dementing illnesses and is often how dementia is first brought to light. Professor Brennan finds that the fact that Dr Hardy had noticed Dr Garrett's cognitive functions were diminished and had fallen behind in his taxes is "a very important statement as to what was probably happening back at that time".
According to Professor Brennan, dementia is a condition that usually deteriorates gradually and with vascular type dementia through a step-wise deterioration. There can be sudden drop-offs in capacity and then capacity can even out a little, followed by another drop-off. Professor Brennan believes that the stroke which Dr Garrett had in 2008 was but one significant example of several steps down in Dr Garrett's capacity.
Professor Brennan explained that the course of dementia is often approximately ten years from diagnosis to death. But sometimes it is unclear how long a person has been suffering from cognitive problems before the first diagnosis is made. So it may be legitimate to expand that general time estimate. Professor Brennan said that because Dr Garrett died in 2015 it is not unreasonable to infer that his vascular dementia commenced in about 2005.
Professor Brennan indeed found strong evidence for such a long progressive disease process in Dr Garrett. Professor Brennan noted that Dr Garrett had "a very nasty episode in 2005" (in fact this is 2004), where he collapsed and had to have a permanent pace maker inserted. Jemima Garrett observed that her father was not quite the same since then. Professor Brennan's theory is that Dr Garrett may well have had an hypoxic brain injury back then when his heart stopped, or was beating only very slowly, causing him to collapse.
Professor Brennan's account of Dr Garrett's slow stepped decline of vascular dementia well explains an aspect of the sequence of events in 2005-2008 that the executors recall. Within the first two years after Mr Gill came into the house, Dr Garrett said to them that Mr Gill would be leaving. But he never did and Dr Garrett's conviction that Mr Gill would be leaving seemed to melt away. That is consistent with Dr Garrett commencing his gradual intellectual decline between 2005 and 2008, as Professor Brennan infers.
Fourth, Professor Brennan explained that another apparently anomalous feature of Garrett's behaviour was still consistent with dysexecutive syndrome. Until 2011-2012, Dr Garrett was participating in trivia nights as a member of the Dot.com team, contributing to answers and drawing upon his general knowledge. This might be thought to imply he was not suffering mental impairment. But Professor Brennan explained that trivia contests draw upon semantic memory, or the long term memory of facts. These memories which are typically laid down early and hard wired and are one of the last things to deteriorate in neurodegenerative illnesses. The Court accepts Professor Brennan's opinion that dementia can be quite well advanced and yet the sufferer can still do crosswords, play chess and participate in trivial pursuit, because these functions are preserved until quite late. This observation is quite important in weighing the evidence of the Paddington witnesses, some of whom were impressed by Dr Garrett's capacity to participate in trivia nights in 2009 and 2010.
Fifth, for Professor Brennan particular parts of Dr Garrett's history are strongly indicative of the progressive vascular dementia with which he is diagnosed. Professor Brennan notes that Dr Garrett's prior sophistication, being house proud, being an antique collector, wearing designer clothes, meant that his personality changes may be become evident through changes in behaviour. A previously sophisticated person such as Dr Garrett would show this by becoming withdrawn, avoiding complex social activities and becoming more housebound and losing judgment about appropriate dress. The evidence in this case strongly points to a marked decline in Dr Garrett's presentation and deportment by no later than the end of 2008, a startling example of this being on New Year's Eve 2008. According to Professor Brennan, such changes are themselves clear signs of disease in the frontal lobe area, a disease process that is also consistent with dysexecutive syndrome.
Finally, Jason Gill's case attacked Professor Brennan's evidence on several grounds related to the way Professor Brennan was briefed with material to examine Dr Garrett in July 2011 and later to give evidence. The brief to Professor Brennan was criticised on the basis that Jemima Garrett's initial letter of 27 June 2011 to Professor Brennan only gave Jemima Garrett's history of Dr Garrett's mental capability, contained factual errors and excluded other relevant evidence. His preparation for hearing was criticised on the basis that he was only given a selection of the affidavit evidence to read.
But these attacks overlook the fact that Professor Brennan was not wholly dependent on the information he was given. He had examined Dr Garrett himself in July 2011 and had made a detailed analysis of the medical and nursing progress notes of Dr Garrett's admission to St Vincent's Hospital. As Dr Brennan himself said, "But bear in mind at the same time we had the patient in hospital. A patient that absolutely matched what was said in the letter, it seemed to ring very true. So I did not question its veracity as far as I remember."
Jemima Garrett's history letter to Professor Brennan of 27 June 2011 was criticised on several grounds. It was said to omit her responsibility for Dr Garrett's failure to lodge tax returns and to falsely attribute lodgement delay to Dr Garrett's lack of mental competence. But the letter was accurate in this respect. It was said to contain material critical of Jason Gill's reliability with money. But this material was accurate. It was said to omit Dr Garrett's remarks that he wanted to change his will and leave the Paddington property to Jason Gill. But it was clear that Dr Garrett made these remarks to Jemima Garrett completely forgetting he had already provided for Jason Gill in his will. It was said to omit Dr Garrett's competent moments where he was dealing with lawyers, accountants and financial institutions between 2008 and 2010. But Professor Brennan understood Dr Garrett had made a will and he accepted that Dr Garrett may have periods of greater lucidity. It was said to omit the competing testimony of the various Paddington witnesses, who speak to Dr Garrett's mental competence in 2009 and 2010. But in findings below, the Court concludes the capacity of these Paddington witnesses to observe Dr Garrett's mental competence was inferior to that of Jemima Garrett, Dr Hardy and Tom and Cathy Garrett. It was said to be wrong and exaggerated in attributing to Jason Gill $800,000 in losses from Dr Garrett's estate. But properly read, the letter does not exaggerate and the Court has found Jemima Garrett's history to be accurate and, on issues of Dr Garrett's mental capability, has preferred her evidence over that of the Paddington witnesses, or of Jason Gill, so this criticism falls away.
The briefing of Professor Brennan before trial was also criticised, because a selection of affidavits, excluding the affidavits of the Paddington witnesses, was only provided to Professor Brennan shortly before he was to give evidence. But there was nothing improper in this course. A wide ranging cross-examination of Professor Brennan took place on issues relating to his being briefed. The Court could not discern that the quality and integrity of Professor Brennan's evidence was in any way compromised by this.

[24]

Dr Garrett's Alleged Promise to Mr Gill in 2009

The centrepiece of Jason Gill's contract and estoppel case is an alleged conversation between Dr Garrett and himself sometime after February 2009. In earlier conversations with Dr Garrett, Mr Gill had set the scene, reminding Dr Garrett about what he claimed he was sacrificing to be Dr Garrett's companion. Mr Gill says that from time to time before 2009 he said to Dr Garrett words to the 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."
Jason Gill probably did say something like this to Dr Garrett. Mr Gill says that at a 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 Bill. 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 Court is not persuaded that a conversation took place between Dr Garrett and Jason Gill in these terms. As will be seen, because of what Dr Garrett said to other witnesses in 2009 and 2010, the general topic of Dr Garrett giving the Paddington property to Jason Gill in his will must have been discussed between Dr Garrett and Mr Gill. But the Court rejects Jason Gill's evidence that this conversation is what was said between them. There are many reasons to reject Jason Gill's evidence even whilst accepting the evidence of these other witnesses.
First, Jason Gill is an unreliable witness. The Court does not believe him on this subject. Jason Gill could give little context to his alleged conversation with Dr Garrett in or after February 2009. This is strange, after all this is probably one of the most financially significant conversations in Jason Gill's life. There are no direct witnesses to this occasion in which Dr Garrett is said to have made the original promise to Jason Gill. No contemporaneous email, note or other record exists confirming any part of the conversation, even if only generated by Jason Gill himself. There are many judicial warnings about the frailties of human memory when operating in such circumstances: Watson v Foxman (1995) 49 NSWLR 315, at 319.
The executors submit that there is no reliable corroborating evidence of the February 2009 promise. They point to the judicial warnings about the strong scrutiny that is required of uncorroborated evidence against deceased estates: see for example Dable v Peisley [2009] NSWSC 772 at [130] and Weeks v Hrubala [2008] NSWSC 162. But Jason Gill's case is not uncorroborated. He advanced the evidence of the Paddington witnesses who speak of the promise being repeated in their presence. But the issue is what can be inferred from their evidence, which will be dealt with below.
Secondly, given the medical evidence the Court has analysed above, the Court does not accept that Dr Garrett had the capacity or the inclination to spontaneously raise this topic and on his own initiative to decide to offer the Paddington property to Mr Gill. Given his declining capacities by February 2009, the Court concludes he was incapable of coming up with an idea like this and explaining it in these terms.
If these conversations had been held genuinely on Dr Garrett's initiative at a time when he was in full possession of his faculties, it is logical that he would have first consulted Jemima Garrett about such a matter. He had fully entrusted his financial affairs to her. Through Jemima he had access to legal advice. He had already taken legal advice at her suggestion on a number of occasions throughout 2008. Had Dr Garrett been in full control of his executive functions and exercising sound judgment he would have raised the idea first with his family to whom he owed, the greater moral obligation. Had that occurred, the Court infers that Jemima Garrett's constant expressions of willingness to take her father into her house, rather than for him to go into a nursing home, would have been actively considered as an alternative, if Jason Gill really had to leave the Paddington property. Jemima Garrett was quite prepared to take Dr Garrett in and her siblings were ready to support her in doing so.
Thirdly, such a promise is inconsistent with Dr Garrett's strong sense of family obligation and affection for his own children. Dr Garrett had recently reaffirmed this central bond in his life when he made his will as little as eight months earlier. The Garrett family were a highly cohesive, loving and respectful family. Their mutual support to their father was outstanding. Dr Garrett and his three children were very close. In all his lucid moments he must have realised he owed them much.
The Paddington property represented about half the value of Dr Garrett's estate and was the single largest asset in that estate. Its gift to Mr Gill was in direct tension with Dr Garrett's moral obligations to his own children. And a man in his position, in full possession of his faculties, would have realised that if there was any competing moral obligation to Mr Gill to be recognised that a single man such as Mr Gill did not need a classic two storey 19th century terrace house in Paddington to secure his future: more modest accommodation would have been suitable.
Fourthly, if the promise had been made in these terms, the statement attributed to Dr Garrett, "I will take care of the legalities", implies that Dr Garrett would follow-up the promise by engaging solicitors to formalise the underlying arrangements. Mr Anthony Roberts, a partner at Dr Garrett's long-standing solicitors, Lane & Lane, confirms he never took care of any relevant "legalities" after February 2009. If Dr Garrett was the moving party and author of such a promise, it is to be expected that Jason Gill would be very keen to see it securely formalised as promised.
Nor did Dr Garrett communicate to his accountant, Mr Wayne Tilley that he had made this alleged promise. The Court fully accepts Mr Tilley's evidence. Meetings took place between Dr Garrett and Mr Tilley in April and July 2009. Dr Garrett had retained Mr Tilley as his accountant for more than 35 years. According to Mr Tilley, Dr Garrett was meticulous in the conduct of his financial affairs. If Dr Garrett did make the promise about this time to Jason Gill, its financial effect on his estate is not unlikely to have been discussed with Mr Tilley by a competent Dr Garrett. But it was not, which further undermines the conclusion that Dr Garrett made the promise alleged. Thus in summary, Dr Garrett did not mention the alleged promise to any one of the five most likely people he would have discussed it with, his three children, his accountant and his solicitor.
Fifthly, that Dr Garrett had an underlying fear of going into an aged care facility that Jason Gill's version attributes to Dr Garrett does not sit well with the evidence of Dr Garrett's children. None of them were suggesting he go into a nursing home. Quite the contrary, as the later history shows, in 2015 they did their very best to gather around him and ensure that he was cared for in his own home until he died. None of the conversations between Dr Garrett and his children gave Dr Garrett any basis to hold such a fear. And Jemima was ready to take him into her own home if that was required. But the Court accepts that he did articulate such a fear to third parties, such as the Paddington witnesses, at times. The probable explanation for this is that Jason Gill either raised this fear with Dr Garrett, or did not reassure Dr Garrett about his children's commitment to keeping him out of a nursing home when he expressed this fear from time to time.
Sixthly, if Dr Garrett had made this promise and meant it, Jason Gill had little to fear from raising the issue with Dr Garrett's family soon afterwards. They might not have liked news of this arrangement very much. But if Jason Gill is to be believed, that Dr Garrett was sufficiently determined to put this proposal forward, there is no reason why the family could not be told. But Jason Gill did not mention this to any family member until about six years later in August 2015, when Dr Garrett was in no condition to contradict him. The Court accepts the evidence of Jemima Garrett, Cathy Garrett and Tom Garrett that Dr Garrett did not tell any of them that he had an arrangement with Jason Gill to leave him the house in exchange for his care. The Court is confident that if it had been mentioned to any of them they would have remembered it and would have sought to have Dr Garrett immediately legally advised about it.
Seventhly, a strange feature of the promise Dr Garrett is alleged to have made is that it was only ever discussed one-to-one between Dr Garrett and Mr Gill on a single occasion. Third party witnesses were present on other occasions when it, or something like it, is said to have been repeated. If it occurred, the conversation was highly significant to Jason Gill's financial future. It is surprising therefore that it would only have been mentioned between the pair once. Jason Gill and Dr Garrett were together a substantial part of each other's day for years after this. It is difficult to accept that if this topic was discussed once that it was not discussed between them several times. Jason Gill had strong motives for returning to the topic to follow up whether or not Dr Garrett had addressed "the legalities" that he had promised to do. Jason Gill must have appreciated that the security of his tenure in the property depended on those "legalities".
Jason Gill says he did not make further enquiries of Dr Garrett between 2009 and 2015 as to whether or not he had changed his will in accordance with the promise that he made to "attend to the legalities". Jason Gill's unconvincing answer to that was, "No, I took it for granted that he had done it". But Jason Gill lived with Dr Garrett, drove him around and would probably have had a reasonable idea of whether or not Dr Garrett had been to see a solicitor after the promise.
And Dr Garrett's well established character is itself a key basis for inference here. When in full possession of his faculties, Dr Garrett was a very ethical person who would have tried to honour any obligation he consciously undertook. The fact that Dr Garrett did not give instructions for a new will, given his character, is best explained by Dr Garrett not making the alleged promise and his executive capability being dysfunctional by 2009/2010.
Moreover, on Jason Gill's version, the generous promise of the Paddington property came out of the blue. Mr Gill says he responded saying, "That offer is very generous Bill. Thank you very much. You are a great friend and I agree to your proposal". The surprising generosity of the alleged offer makes it even more remarkable that the offer was not discussed between them privately over the ensuing years.
Eighthly, the timing of the alleged promise in relation to the will is a significant factor in deciding whether or not it is credible. A promise made at or before the June 2008 will would be almost impossible to accept, because of the direct inconsistency between the promise and the will. Yet Jason Gill was at one time uncertain about the time at which Dr Garrett made the promise to him. By the time he got to Court, his principal affidavit put the time as being no earlier than February 2009. Jason Gill apparently remembers this on the basis that Dr Garrett and he went to New Zealand that month to attend Jason Gill's brother's wedding. Jason Gill puts the timing of the critical conversation as "later the same year". That principal affidavit was sworn on 3 February 2016, about a year after Dr Garrett's death.
But in pre-trial correspondence, on 19 August 2015, three months before Dr Garrett died, and closer to the time of the alleged promise, Jason Gill's solicitors, Haylen Mackenzie, alleged that the promise and agreement were made "by about 2008". Jason Gill agreed that he gave instructions to his lawyers to nominate this date in their letter. But to explain the "by about 2008" he said that, "I was panicking because I had promised to have something for - I think it was three weeks after to the day after Tom [Garrett] was taking over [Dr Garrett's] care". He said that he told his own solicitors the conversation was "2008-2009, something like that" and that he "haven't really clarified it in my head. But I have subsequently clarified it and it was 2009." But the Court does not accept that he instructed his solicitors that the conversation took place in "2008 or 2009": if he had, it would probably have appeared this way in their letter. Jason Gill's shifting account of the timing of the conversation weakens his account. The change is perhaps better explained by the fact that Jason Gill obtained a copy of Dr Garrett's will after 19 August 2015 and before his principal affidavit.
Ninthly, Jason Gill was aware from what Dr Garrett had told him that under the 2008 will he was going to receive $200,000. It can be accepted that Dr Garrett told him this. He gave the impression in his oral evidence that he would be receiving the Paddington property in substitution for that $200,000. But that is odd in itself because nothing in the conversations to which he deposed indicates that the $200,000 legacy would not be renewed when the June 2008 will was revoked. Mr Gill insisted in evidence that the gift of the Paddington property would be "instead of" the $200,000 legacy. But nowhere in Mr Gill's affidavit account of the conversations does that substitution of the house for the $200,000 legacy appear. Mr Gill baulked at claiming that the promise was in addition to the legacy: that outcome was obviously improvident. Mr Gill confessed that he just "took it for granted the existing will would be revoked and that [Mr Gill] would get [the Paddington property] instead".
If Dr Garrett had had this conversation and was in full possession of his faculties, one would expect him, thorough as he was, to have attended to this not so minor detail and explained to Jason Gill that he would not be getting the $200,000 bequest as well as the Paddington property. The fact that this subject matter is not in the conversation, either indicates the conversation did not take place, or that if it did Dr Garrett was not in full possession of his faculties.
But despite Jason Gill's unreliability and the improbability of his account, his evidence cannot be wholly rejected without considering the evidence of the Paddington witnesses, the evidence of a number of whom the Court accepts. They say they heard Dr Garrett say that he would give Mr Gill the Paddington property in his will, and some remember this was in exchange for Mr Gill continuing to care for him.

[25]

The Paddington Witnesses - 2009 to 2010

The Paddington witnesses who gave evidence of Dr Garrett talking about giving the Paddington property to Jason Gill are generally to be believed as to what they saw and heard, as the analysis below shows. But given the nature of their casual acquaintance with Dr Garrett and Mr Gill, and the circumstances in which they witnessed what Dr Garrett was saying, their perception of the underlying dynamic between the pair was limited. Particularly because of the uniquely thorough way she was involved in Dr Garrett's life, the Court prefers Jemima Garrett's continuous assessment of Dr Garrett's mental state in 2009 to 2010 to any of these witnesses. It also prefers the regular assessments of Dr Garrett made by Tom and Cathy Garrett and Dr Hardy to these witnesses.
But the first intriguing question about all these casual acquaintances is how Dr Garrett ever came to discuss the essentially private subject of his testamentary intentions openly with them? When fully competent, Dr Garrett closely guarded the privacy of his finances and personal affairs and would have regarded this subject as none of their business. How a man once jealous of his financial privacy came to be discussing the gift of his largest single asset in the public bar of the Royal Hotel at Five Ways, Paddington requires explanation. The fact that this was even happening shows some of the decorum for which Dr Garrett was renowned had already deserted him.
By the time he was having these conversations, he had lost his capacity to diplomatically avoid being put in a situation that would have affronted his dignity when in full possession of his faculties. It suited Mr Gill well for this matter to be discussed openly. Mr Gill wanted witnesses to these conversations. This sceptical judgment of Jason Gill is warranted: he anticipated that their evidence would be useful at some time in the future. Some of Mr Gill's witnesses say that Mr Gill initiated these conversations about the promise of the Paddington property. In the Court's view, whether or not the witnesses remember it that is what generally happened.
The eight Paddington witnesses were Mr Michael Greenwood, Mr John Davies, Ms Patricia Byrne, Mr John Duncan, Mr Bruce Stephens, Ms Catherine Cook, Mr Andrew Connolly and Ms Jennifer Filson. A strong challenge was mounted against their accounts. They were all cross-examined to suggest that these conversations did not take place. All the witnesses put the conversations as having taken place between 2009 and 2011. This evidence will be briefly surveyed.
Jason Gill read the affidavit evidence of a ninth witness, Ms Janet Greenwood, the widow of the late Mr Bob Greenwood QC. But her evidence does not support any alleged statement that the Paddington property would go to Jason Gill in Dr Garrett's will. Mrs Greenwood was not cross-examined. As a result, her affidavit was given limited weight.
The executors claim the evidence of the eight Paddington witnesses is tainted because Jason Gill approached them all, saying to them something like, "Do you remember telling me that Bill was going to promise me the house?" Jason Gill was certainly prepared to prompt the memory of some of them on significant matters. But the chief problem with the evidence of most of them is that they were not alert to the underlying dynamic of Dr Garrett's mental weakness and that Jason Gill was actively utilising them as witnesses to assist him.
It is a strange contrast that from 2009 as many as eight people are said to have witnessed these conversations about this alleged arrangement and Jason Gill was present at many of them. Yet Jason Gill did not mention the arrangement once to Jemima Garrett before August 2015. In the Court's view, Jason Gill was keeping his discussions with Dr Garrett about this topic from Dr Garrett's family.
The evidence of each witness is slightly different. The first witness, Mr John Davies was a retired banker and an essentially credible historian. He says that he, Jason Gill and Dr Garrett were "regular drinkers of an evening" at the Royal Hotel from the late 1990s onwards. His initial impression of Dr Garrett when he first started coming to the Royal Hotel for evening drinks was "he was in need of company and friendship". This would have been shortly after Nancy Garrett's death and is accurate. Mr Davies was on occasions invited back to the Paddington property for dinner or a drink. He observed Jason Gill take more and more care of Dr Garrett over time.
Mr Davies observed that after his stroke in late 2008 that Dr Garrett's "mental capacities remained strong and after his recovery he continued to attend our evening drinks at the Royal Hotel for some years after that time". But in the Court's view, Mr Davies was mistaken about the overall quality of Dr Garrett's mental capability.
Mr Davies says the conversation occurred "in about 2009 or 2010". Like many of the other Paddington witnesses he is not able to be any more precise than this. He says that he witnessed Jason Gill introducing the subject and saying to both Dr Garrett and him: "Bill has indicated to me that he proposes to leave me his house at [the Paddington property] in his will. Of course that is in return for me continuing to live as his companion and to look after him and care for him on a permanent basis, so he does not have to go into a nursing home when the time comes".
Mr Davies cannot recall Dr Garrett "saying anything in response". The best Mr Davies can recall is that Dr Garrett "did not dissent from the statement either by words or conduct". He concluded from the situation perhaps not unreasonably for a bystander without real insight into the dynamic between Dr Garrett and Mr Gill, "I was left with the impression that Bill agreed with the substance of Jason's statement". The Court would not infer about a man as cognitively compromised as was Dr Garrett by early 2009 that his silence did represent consent. But Mr Davies did not know that.
Mr Davies recalls Jason Gill making statements to a similar effect in Dr Garrett's company at the Paddington property over the ensuing months. Once again his assessment of Dr Garrett's response is significant. He said, "there was never any dissent by Bill from their substance" and he was left with the same impression; that Dr Garrett agreed.
Mr Davies says that Dr Garrett "appeared to be in full control of his mental faculties". But a busy, loud hotel environment is not the place to undertake a fine assessment of whether a person's judgment and executive capability have declined.
Mr Davies also made positive observations about Jason Gill's care for Dr Garrett: that it was "beyond reproach" and that his "actual physical care [was] very dedicated". But like all such witnesses Mr Davies' observations about Jason Gill's care were limited to social occasions.
The bedrock of Dr Garrett's character, toujours politesse, comes into play here. Dr Garrett was not likely to disagree with Jason Gill in front of others. Jason Gill knew this and exploited this character trait in Dr Garrett by raising this subject in a public place. Not all the other witnesses remember these conversations exactly the same way. But the Court infers that with many of them Jason Gill manoeuvred the topic of his claimed arrangement with Dr Garrett into the conversation that they now remember.
The next witness, Mr Bruce Stephens, remembers at least two, and probably more, conversations with Dr Garrett in which Dr Garrett described his "agreement with Jason" that Jason "will continue caring for me until the end and in return I will leave him [the Paddington property] in my will. That is the least I can do for Jason, because he has been so good to me and I do not know what I would have done without him over the last few years". These conversations were said to be at the Royal Hotel. The Court accepts Mr Stephens' evidence that it was rare for him to encounter Dr Garrett and Jason Gill other than when they were together.
Although his evidence was honestly given, Mr Stephens is not a witness upon whose evidence the Court places great weight. Too many aspects of it are troubling. He did not notice any mental weakness in Dr Garrett in 2009, when such weakness did exist. In his affidavit he has Dr Garrett saying that he will leave the Paddington property "in my will" to Mr Gill. But in cross examination he denied Dr Garrett made any reference to his will in the conversations.
Prior to Bruce Stephens providing his affidavit in 2017, he had loaned Jason Gill $35,000. But Jason Gill had repaid him $40,000, the extra $5,000 being, as was described, by way of a "thank you" on or about 30 March 2017. At the time Jason Gill paid Bruce Stephens the $5,000, the affidavit must have been in the course of preparation or had recently been completed, in terms that supported Jason Gill's case. Despite this Mr Stephens did not strike the Court as an individual likely deliberately to tailor his evidence to suit Mr Gill's case because of these financial dealings.
Jason Gill prompted significant aspects of Mr Stephens' evidence. Initially he said he had not had any conversations with Jason Gill about what evidence he was prepared to give in the proceedings. But Mr Stephens did agree that Jason Gill had reminded him that the conversations about the Paddington property had occurred in 2009/2010 (and not for example in 2008) and that very important range of dates became his evidence.
Mr John Duncan described himself as part of a regular lunch group that included Dr Garrett and Jason Gill that gathered for lunch first at the Sebel Townhouse, and in later years, at the Quay Grand. They often adjourned after lunch for drinks at the Royal Hotel. He said that Dr Garrett said to him when he was in Dr Garrett's company that he did "not know what I would have done without [Jason Gill]. I am going to change my will and leave my house at [the Paddington property] to Jason in return for his continuing care and companionship into the future". Mr Duncan put the conversation succinctly during his oral evidence "because I can't remember his exact words". He said Dr Garrett explained "Jason was looking after him really well and that he would look after Jason when he'd gone; that he'd made sure Jason had the house, so he had somewhere to live".
Although Mr Duncan spoke in a straightforward manner and appeared to have a good memory, the Court approaches his evidence cautiously. His testimony was based in part upon a mixture of what he described as "common knowledge" in this lunching and drinking group. And to the extent that he does recall Dr Garrett's statements, they were made to him whilst drinking in a large group that generally included Jason Gill. Once again Jason Gill's presence makes saying anything else difficult for Dr Garrett. And as everyone was drinking, Mr Duncan is unlikely to have appreciated the subtle pressure on Dr Garrett to repeat what Mr Gill wanted to hear. It is not clear on Mr Duncan's evidence whether these conversations were directly prompted by Jason Gill, but that would be consistent with the pattern the Court saw, for example with Mr Davies.
Mr Duncan said that Dr Garrett was "very lucid", would discuss the current political scene, music, opera and books and that he was a good conversationalist with strong opinions. Mr Duncan's opinion was that "he was definitely of sound mind" and was not "really affected by alcohol or memory loss or anything like that". This evidence of Mr Duncan, suggesting that Dr Garrett was very lucid at the time of these conversations, is doubtful. First, Mr Duncan made observations about Dr Garrett over a long period commencing in the 1990s. In contrast to Jemima Garrett, who had close involvement in Dr Garrett's financial affairs, Mr Duncan's evidence about Dr Garrett's lucidity in 2009 and 2010 was not well distinguished from his observations about the more alert Dr Garrett of earlier times. He tended to make an overall judgment about Dr Garrett based in part on his earlier engaging personality. He was a less reliable observer of just the years 2009-2010. And Mr Duncan was observing Dr Garrett in a heady and noisy social environment.
And just what Mr Duncan really remembered Dr Garrett thought he owed Jason Gill is questionable. At one stage Mr Duncan also said, "it had been common knowledge in the group that Bill was going to - had always said he was going to - look after Jason after he passed". A general statement that he was going to "look after Jason after he passed" is consistent with the contents of the existing June 2008 will and does not necessarily imply any further change to that will.
Jason Gill asked Mr Duncan to be a witness. When he did, Jason Gill appeared to provide a misleading impression to Mr Duncan. According to Mr Duncan, to get him to swear an affidavit, Jason Gill said to him "that Bill hadn't changed the will like he - he'd indicated he was going to, and that he had problems with the family who were trying to basically kick him out of the house and deny him any - any rights with - with the estate." But the family had not denied Jason Gill "any rights" to the estate. His existing $200,000 legacy is not under challenge.
Moreover Mr Duncan's oral evidence about what Dr Garrett actually said to him is in tension with the contents of his affidavit. Mr Duncan stated that, "I can't recall him ever mentioning the words, "Will", but it was basically implied you know what I mean, it was - he was going to make sure Jason was looked after." In summary, Mr Duncan's evidence does not advance Mr Gill's case very far on the issue of the Paddington property.
Mr Duncan also had the opportunity to observe Mr Gill in action looking after Dr Garrett. Mr Duncan summed the position up by saying that it was "no exaggeration to say that Jason bent over backwards to assist Bill". He doubted that "any carer could have been as attentive" and emphasised their obviously close friendship. But once again these were all observations limited to a social context. And Jason Gill was very conscious of how his relationship with Dr Garrett appeared in front of the Paddington witnesses.
Mr Andrew Connolly was a credible witness. He had had a long career as an air traffic controller and gave careful evidence as might be expected from someone of that professional background. Mr Connolly was a frequent attender at the trivia nights held at the Royal Hotel on a Tuesday evening but he also drank there on other nights. He left Australia in April 2010 to work as an air traffic controller in Dubai for seven years, returning in May 2017. He came back to Australia for a visit in 2012, when he noticed that Dr Garrett was in what Mr Connolly described as a "reduced state" compared to what he had been in 2010.
Mr Connolly said that Dr Garrett said to him before he left for Dubai that "I have decided to leave the Paddington property to Jason in my will". He says that Dr Garrett went on: "In consideration Jason has agreed to live with me permanently and look after me as my health declines. I am slowing down and I find his care companionship and assistance very helpful. He is such a good friend and I know he will keep it to his side of the bargain, including looking after me so I can avoid going into a nursing home".
The Court accepts the testimony of Mr Connolly that Dr Garrett said these words. But Mr Connolly was sure that this was not said on a trivia night when he would have been separated from Dr Garrett and Mr Gill in different teams. Rather, they were all drinking at the same table together when the discussion took place. It is unclear from Mr Connolly's evidence how the conversation started but in the Court's view it was probably prompted by Mr Gill. But given Mr Gill was present, the same kind of pressure existed for Dr Garrett not to disagree with Mr Gill, as the Court has found existed with Mr Davies, as it did anytime Mr Gill was present.
Mr Connolly thought that at the time of these conversations Dr Garrett was "his usual highly intelligent, mentally very acute self". In the Court's view, though acting honestly and as carefully as possible in his account, in the atmosphere of a hotel bar Mr Connolly has understandably missed the fact that Dr Garrett had already lost some of his judgment and higher level mental functions. And for Mr Connolly identifying Dr Gill's mental capability in 2009 and 2010 compared with earlier years would have been very difficult. Jemima Garrett and her siblings were better able to judge their father's mental acuteness at that particular time.
Mr Connolly's evidence refers to another very common theme among these witnesses: Dr Garrett's fear of going into a nursing home. The threat of Dr Garrett going into a nursing home is at the heart of the expressed reasons for the agreement. This is completely contrary to the family's intentions at that time and indeed their later actions. Dr Garrett does seem to have been fearful of going into a nursing home. But the Court infers that Jason Gill let Dr Garrett ruminate on this fear because it suited him, rather than communicate with Dr Garrett's family and reassure him that he was not going to be left in a nursing home. This fear is repeated again and again in the testimony of these witnesses, in evidence the Court accepts.
Commencing in 2004, Ms Catherine Cook worked as a young bartender at the Royal Hotel for a period of about 2 ½ years. She became friendly with two of the regular customers at the hotel, Dr Garrett and Jason Gill. She described "Bill and Jason" as drinking at the hotel "on most evenings" during that period. From 2007, she 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 Jason Gill. At Jason Gill's invitation, she accompanied them both on a trip to New Zealand in February 2009 for Jason Gill's brother's wedding.
She recalls the conversation between Dr Garrett and Jason Gill later in 2009 in which Dr Garrett addressed Jason Gill: "You have very kindly agreed to continue living with me as my companion and to look after me permanently, and to make sure that I do not have to go into a nursing home. I will need your additional assistance as I get older of course. It is only fair in return I have agreed to leave you my house at [the Paddington property] in my will."
She recalls Jason Gill said in reply, "this agreement suits us both" and then he stated his intention to care for Dr Garrett on a permanent basis to avoid him "having to go into some soulless nursing home". Here the empty threat of Dr Garrett going into a nursing home is once again a central part of the conversation.
Parts of Ms Cook's oral evidence differ from her affidavit. But under cross-examination she reaffirmed her core recollections and she was able to add spontaneous detail about the occasions she remembered. The Court accepts her recall of these conversations. She was challenged about Jason Gill approaching her to give evidence, but she was not the kind of witness who would have been influenced by him. Jason Gill does not recall being present at this conversation but the Court is satisfied that it took place as Ms Cook says.
But Ms Cook's assessment of Dr Garrett's mental state is less reliable. She thought that although his speech was "a little affected", the 2008 stroke "had not affected his mental capacities and he seemed his usual intelligent mentally capable self". But Dr Garrett could still present quite well. Jemima Garrett was a far more insightful judge of Dr Garrett's real mental capability at this time. Jason Gill was present during the conversations Ms Cook remembers and she was oblivious to the underlying decline in Dr Garrett's executive functions and that Jason Gill was pushing this subject onto Dr Garrett.
Ms Cook occasionally stayed over at the Paddington property, so she could get to work more quickly the next day. She therefore was able to observe and assess positively some of Mr Gill's general care for Dr Garrett, for example getting his breakfast ready before Dr Garrett woke up.
Mr Michael Greenwood is a landscape gardener. He witnessed a conversation with Dr Garrett which arose in quite a different context from that of most of the other Paddington witnesses. Mr Greenwood is the son of the late Mr Bob Greenwood QC and Mrs Janet Greenwood, who were both regular social acquaintances of Dr Garrett in Paddington. They were both regulars at the Royal Hotel. Through his parents, Mr Greenwood also became close to both Dr Garrett and Mr Gill. In the late 1990s he was a bartender at the Royal Hotel for a period. Later he became a member of Mr Gill and Dr Garrett's trivial pursuit team, "Dot.com". In 2007-2008, Mr Greenwood established a gardening and landscaping business and Dr Garrett engaged him regularly to attend to the garden at the Paddington property.
When gardening for Dr Garrett, on one occasion in 2010, Dr Garrett and Mr Greenwood drove together to Dural. On the journey they had a conversation about the Paddington property. The trip was to buy a cherry blossom tree ready to blossom in the front garden of the Paddington property. Mr Greenwood said this would place the conversation in August. Mr Greenwood also had a strong recollection that the journey occurred on the day of the election in a Federal election year. The Court accepts that evidence. There was no Federal election in 2009 or 2011. The conversation must have taken place on Saturday, 21 August 2010, the date of that year's Federal election.
The Court found Mr Greenwood to be an honest and reliable witness, who was only prepared to say to the Court what he actually remembered. He had a good relationship with Dr Garrett. That is in part why he remembered the conversation so well. His efforts in trying to recall detail from the conversation were successful.
Mr Greenwood's spontaneous account of the conversation in his oral evidence is the most reliable statement of what passed between the two of them on this occasion, rather than what is in his affidavit, although there is not a great difference between the two accounts. Mr Gill said in oral evidence that Dr Garrett said to him that: "…I can't remember the details of the hours or, of everything he said, but he said that, you know, he [Dr Garrett] was approaching the age that his parents were and he was thinking about the future and he was thinking about his family and Jason's future and he had said that he'd been good to him, Jason had been a good companion and - and that he would leave him the house and that was the conversation and I didn't take it any further than that and [I] didn't think it was any of my business…. So that was the gist of it all."
This evidence is consistent with but does not fully corroborate the pleaded agreement between Dr Garrett and Mr Gill. Here, Dr Garrett talks about changing his will to benefit Jason Gill by gifting him the Paddington property. But he does not attribute that proposed gift to an agreement between himself and Mr Gill.
Mr Greenwood was challenged by the executors about his minor borrowings of money from Mr Gill. Mr Greenwood had received small cash advances in the bar of the Royal Hotel and had repaid the money into Mr Gill's bank account. These loans were not substantial and did not obviously influence Mr Greenwood's evidence, which was spontaneously volunteered and represented a genuinely recollected conversation between himself and Dr Garrett.
Mr Greenwood's assessment was that Dr Garrett deemed him to be "quite well" at the time. But the Court does not accept this particular assessment of an otherwise reliable witness. This was the second half of 2010, when Dr Garrett's executive capacity and judgment were already well in decline. Mr Greenwood was here conversing over a few hours with a much older man who was perhaps spontaneously oversharing personal information with him, information that Mr Greenwood really did not need to know. And Mr Greenwood reacted quite naturally to this, as one might expect, saying "I didn't think it was any of my business". This oversharing is an indicator that Dr Garrett's judgment was already faulty at the time of this conversation, something Mr Greenwood could not be expected to pick up but which by this time Jemima Garrett could see clearly.
Mr Greenwood added one other significant observation. As well as attending trivia nights, he would occasionally go back to the Paddington property with Dr Garrett and Mr Gill. He does recall these group meetings at the Paddington property and his impression was that although Dr Garrett would go to bed much of the time, he would also come out and enjoy the convivial visiting company and would have a glass of wine with the visitors, depending upon how he was feeling.
Ms Jennifer Filson was a Paddington resident, who lived only five minutes' walk away from the Paddington property. She often visited the Paddington property for dinner. There she witnessed Mr Gill cooking the meals. She also recalls Mr Gill and Dr Garrett visiting her home in Paddington on many occasions as well. She was a good witness, describing with colour and animation the large dinner parties held at the Paddington property for up to 20 people, with plenty of good wine and food being enjoyed by all.
Ms Filson recalls at least two conversations at the Paddington property with Dr Garrett that she places in 2009 or 2010. These were most probably over dinner and a glass of wine. She recalls he said to her: "My agreement with Jason is that he will live with me on a permanent basis and care for me and in return I will leave him [the Paddington property] in my will. I do not ever want to go into a nursing home and to avoid that I really need Jason to stay". However I should not expect him to do that and look after and care for me as my health declines, without me doing the right thing by him. That is why he will get [the Paddington property]."
The Court accepts that this was said. But it was said in the middle of a large and noisy dinner party. Ms Filson commented that she thought Dr Garrett appeared "sharp mentally" to her. The Court does not accept this judgment as reliable. A dinner party for 20 people was not an environment that gave Ms Filson any advantage in assessing the then 82 year old Dr Garrett's mental state, judgment or alertness. Certainly it was not an environment in any way comparable to the opportunities that Jemima Garrett had to assess her father's capacities. And the fact that Dr Garrett did not appear to resist his testamentary intentions being bounced around as a topic of conversation in the midst of a large dinner party shows that Dr Garrett had already regrettably lost his sense of decorum by the time Ms Byrne made these observations.
Ms Filson's account of what Dr Garrett said reveals the narrow choices that Dr Garrett apparently thought were available to him: either Jason stays at the Paddington property or he goes to a nursing home. The Court infers that is how Jason either must have framed the topic for Dr Garrett or failed to alleviate his fears. But the Court accepts Jemima Garrett's evidence that living with her was a realistic choice for Dr Garrett, if Jason Gill was not available. But because Dr Garrett did not consult a lawyer or speak to Jemima Garrett about this issue he was never in a position to weigh the value of that additional choice.
Ms Filson had a less detailed recollection than some of the other Paddington witnesses. She did not declare one way or the other whether Jason was present at the time of these conversations but in the Court's view he was probably nearby. But like a number of the Paddington witnesses who observed Mr Gill's and Dr Garrett's interactions, her view was, "Jason would do anything Bill asked and was almost constantly assisting him with physical tasks". She observed Mr Gill did most of the cooking in the household.
Ms Patricia Byrne, a retired economics teacher, gave evidence by audio-link. She lives in a retirement home in Queensland and could not readily travel to Sydney to give evidence. Whilst it is difficult to assess the demeanour of a witness giving audio-link evidence, she came across as an astute and reliable person, who spoke frankly and directly. She was attempting to assist the Court as best she could. She was approached by Mr Gill to see if she could give evidence but that did not cause her to alter her evidence favourably to Jason Gill.
She recalls, and the Court accepts that, in the last decade when she lived in Potts Point she attended dinner parties at Dr Garrett's home and held return parties at Potts Point. She described Mr Gill as a "good friend" of Dr Garrett. She was among those who in January 2004 enjoyed a holiday in the Whitsunday Islands with Dr Garrett, Mr Gill, herself and a wider group of mutual friends.
She stayed in contact with Dr Garrett up until he died in 2015. She describes Mr Gill as looking after Dr Garrett in his advancing years competently and that he contributed to the full the range of domestic duties in their household.
She recalls, and the Court accepts, that she had a number of conversations with Dr Garrett about the Paddington property and that Mr Gill was present at some of these. She recalls, and the Court accepts, that Dr Garrett said to her that "Jason has agreed to live in my home permanently as my companion and to do the cooking and generally looking after me". And Dr Garrett indicated that in exchange, "I propose to leave him my home [the Paddington property] in my will". She recalls Dr Garrett concluding the conversation with a statement of Dr Garrett's general appreciation of Mr Gill's help, "he was a great mate and there was nothing he would not do for me".
Like a number of the other Paddington witnesses, Ms Byrne's capacity to accurately judge Dr Garrett's mental capability was quite limited. She said she judged Dr Garrett to be "lucid" and "of sound mind" at the time of these conversations. But once again, in the Court's judgment, as her encounters with Dr Garrett were often in a party environment she was not in the best position to judge such matters. In the Court's view, and as Dr Hardy experienced, Dr Garrett's sophisticated social skills did not all disappear all at once, as his dementia advanced. He became adept at masking some of his weaknesses and maintaining a presentable social front to many people despite the slow growth in impairment of his judgment and executive functions after his November 2008 stroke.

[26]

What was Discussed?

What was discussed between Dr Garrett and Mr Gill then? The testimony of the Paddington witnesses, Tom and Jemima Garrett's evidence, Mr Gill's character and Dr Garrett's declining mental capability all provide a basis to infer how a conversation about the Paddington property probably unfolded between Dr Garrett and Mr Gill. Dr Garrett was not mentally capable in February 2009 of planning and initiating this proposal. If he were capable he would have followed his initiative through and gone with it to his solicitor. But the Paddington witnesses' evidence shows that the topic was on Dr Garrett's mind. Jason Gill must therefore have initiated it. Jason Gill regarded his looking after Dr Garrett as an altruistic act for which he felt he was strongly entitled to be rewarded. The Court infers he pushed the proposition to Dr Garrett that he, Mr Gill, should have the house, as the fair reward for caring for Dr Garrett.
Mr Gill flatly denied in cross examination that he had ever suggested to Dr Garrett that he should have the Paddington property. But Dr Garrett said to Cathy Garrett and to Tom Garrett, in evidence the Court accepts, that "Jason wants the house". Jason Gill wanted the house. The Court infers he was pressing Dr Garrett for exactly that and Dr Garrett recalled and repeated the request to his children.
Dr Garrett may ultimately have given indications of some form of verbal assent to the idea that Mr Gill was pressing forward upon him. But what happened between them was nothing like Mr Gill's account. Their exchange was far from the scene Mr Gill paints: a spontaneous act of generosity by an independent Dr Garrett in full control of his faculties. Rather, it is probable that Dr Garrett ultimately just outwardly surrendered to Mr Gill's pressed suggestions, in circumstances that the Court is not prepared to infer amounted to the formalities of a recognisable contractual offer and acceptance. And once he had surrendered, sometimes he could remember what Jason Gill had proposed to him and sometimes he could not. But in Dr Garrett's ever-weakening mind, it remained Jason Gill's idea to which he would assent from time to time when prompted especially in Jason Gill's presence.
This analysis is the best fit explanation for the anomalies the Court has highlighted in Jason Gill's case. It explains why Dr Garrett was not taking control of the proposal and advancing it through his legal advisors and communicating it to his children. It is consistent with the medical evidence that Dr Garrett had impaired mental capability by February 2009 that makes it improbable that he could have carried forward and taken responsibility for such an idea. It also accounts for the evidence of the Paddington witnesses who say that Dr Garrett did discuss this subject in front of them.
Professor Brennan's evidence also assists in understanding the underlying medical mechanisms that explain what the Court has found probably happened. Dr Garrett was already suffering significant frontal lobe disease in 2009, with accompanying dysexecutive syndrome, as Professor Brennan concluded. This 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. This meant that when Mr Gill pressed upon him the idea of giving him the Paddington property in exchange for Mr Gill's care, he 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, Dr Garrett was incapable of calling for legal advice or doing anything other than surrendering to Mr Gill. This loss of higher-level functions also explains Dr Garrett's inability to do anything about changing his will.
This analysis also shows that throughout these exchanges Dr Garrett was, in relation to Jason Gill, in a position of special disadvantage by reason of his mentally weakened state and Jason Gill well knew it. Jason Gill had effective control of most aspects of his daily life, including his feeding, his mobility and his contact with others. It is probable that Dr Garrett wanted to please Jason Gill in this matter, just as he had wanted to please him by making improvident loans to him and to others at the Royal Hotel for years before Jemima Garrett intervened. Dr Garrett had shown for years that he had little ability to resist Mr Gill's requests for money. By this time Dr Garrett had recognisable cognitive impairment and no longer had much understanding of or interest in his own financial affairs. He was therefore in no position to judge whether the idea he was giving in to was even proportionate to what Jason Gill had done for him. In the Court's view, all of these disadvantages would have been obvious to a reasonable person in Jason Gill's position and were obvious to Jason Gill.
Jason Gill directly challenges the executors' case that Dr Garrett had any significant cognitive deficit in 2008 or 2009. He does so by drawing particular attention to the following legal transactions in those years in which Dr Garrett was involved and which would require Dr Garrett's mental competence. On 20 May 2008, Dr Garrett signed a binding nomination with respect to the disposition of his superannuation. In early November 2008, and before the TIA Dr Garrett executed a Deed of Surrender, surrendering a lease over the West Yorkshire property. But these are events before the TIA on 17 November 2008 and are of potentially less significance than the events after that date.
Jason Gill further points out that 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 adviser, Simon Icely about superannuation investments. And on 26 October 2009, Dr Garrett executed in favour of Jemima Garrett the revised Enduring Power of Attorney at Lane & Lane solicitors.
But these were very different transactions from the February 2019 conversation with Jason Gill. They were in the presence of professional advisers, be they lawyers, accountants, or financial planners, all of whom were acting in his interests, 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, the alleged transaction on which Jason Gill relies was one without independent legal advice, without the support of family and involved the disposition of his single largest asset contrary to the terms of a will he had only made eight months before.

[27]

Jason Gill Claims He Relied on the Promise

The Court does not accept that Jason Gill relied upon anything Dr Garrett assented to about giving him the Paddington property. The Court does not accept that Mr Gill was induced by anything that Dr Garrett said in order for him to stay at the Paddington property and look after Dr Garrett. Jason Gill claims reliance on the alleged promise in at least two main respects: he says the promise prevented him from pursuing other economic opportunities; and he says that he refrained from applying for public housing. But the Court rejects both those claims of reliance. Moreover, Jason Gill's reliance case ignores the important factor of collecting Jason Gill's outstanding loans to Dr Garrett. Not disturbing the situation which left the loans uncollected to his advantage was a powerful financial disincentive against Mr Gill leaving the house. In the Court's view, this was a powerful factor motivating Mr Gill to stay at the Paddington property whether or not the promise was made.
First, Jason Gill says that when in 2009 Dr Garrett made the promise to him that he had little money and he had not pursued his own business opportunities for some time. He says that Dr Garrett's promise relieved him of "my fears about the future and financial problems in the long term". He says that had that promise not been made he would have had to resume his self-employed business activity in computer broking or perhaps seek other formal employment.
Mr Gill says he knew that resuming a career in computer broking would be difficult for someone of his age, in his 50s and with no recent employment history. He says that Dr Garrett's promise therefore "came as a relief to me" that he did not have to pursue these other forms of employment. This relief was not only because it gave Mr Gill immediate financial security. But Mr Gill said he also had "a huge regard for Bill and wanted to continue helping him, as his children were not in a position to care for him on a daily basis."
What work could Jason Gill have returned to? Computer broking often involves sourcing computer parts that become available from liquidated companies or obsolescent business units. A broker seeks to find a buyer anywhere in the world. This involves frequent email and telephone communication with potential buyers. The commissions earned through computer broking are a function of the size of the deal that is made. Commissions of $1,000 or $2,000 may be earned on a fairly typical transaction. Mr Gill says that he was not able to undertake this work when he was caring for Dr Garrett in the final years of his life.
But the years before 2009 give no support to an inference that Jason Gill had any interest in returning to computer broking. The Court does not accept that Mr Gill's care for Dr Garrett prevented him pursuing part-time computer broking work. If he was truly interested in resuming this kind of work, he could have done so at any time had he wished. Jason Gill had shown no willingness to restart the business in the five years from 2004 to 2009 despite it not being a very difficult exercise had he wanted to do so. He had long had the opportunity of operating the business out of the Paddington property. There were no serious obstacles to his doing this. The various reasons he gave for not taking up this opportunity are not credible.
Jason Gill readily conceded in cross-examination that he had not put much effort into resuscitating his computer broking business before or after 2009. Before 2009 he said "I didn't attack it with passion" and after 2009 he assessed his own efforts as "not with any great passion, no", but "I was still out there". Jason Gill attempted to explain his lack of serious effort to resuscitate his business on the basis that "Bill liked constant companionship". But this still involved a concession that he did not make much of an effort to resuscitate the business. He explained the choices he made this way: "GLOVER Q. This was a period of time from 2003 through to 2008, when you weren't really providing any care to Dr Garrett, were you? A. More companionship, really. Q. It's the case, isn't it, you made a choice. You preferred to go out to pub lunches, and lunches at the Sebel, and Quay Grand, and go to the pub every afternoon; rather than taking any serious steps to earn your own income through your broking business? A. It would have been very difficult to get the time to dedicate to it. Q. Because you had chosen to devote your time to going to lunch, and drinking at the pub with Dr Garrett, didn't you? A I suppose, yes. Q. That was a conscious choice that you made? Wasn't it? A Yes. Q. Even after 2009, you again could have taken steps to resuscitate your business, but you chose not to? A. It would have been difficult. HIS HONOUR Q. Sorry, it would have been difficult? A. Yes, your Honour. Q. Why? A. Because Bill was taking more time than me, in regard to smaller things around the house."
The Court returned to this subject in the following exchange: "Q. Because what, sorry? A. I would get calls from old clients occasionally, saying they want .(not transcribable)… to dispose of, or, and telephone systems, things like that. And what I would generally do is pass them onto other brokers, and get commission from them. Q. You said yesterday that you regarded Bill as your best friend? A. Yes. Q. Why couldn't you have turned to your best friend, and said to him, look, Bill, I want to try and restart this because here at home. It'll mean taking calls at odd hours, and I won't necessarily be here every minute of the day. I might have to go into my room to take the calls. Will that be okay? Did you try and approach it like that? A. No. Q. But if you really wanted to restart a business, that kind of approach was an available option, wasn't it? Given Bill's relationship with you? A. Yes, I suppose it was. Q. It might be suggested by someone that if you didn't try what was a reasonably obvious approach such as that, the reality was that perhaps you really didn't have the determination to leave, because the current situation with Bill suited you quite well? A. I wouldn't say that, no. As I said earlier, Bill liked constant companionship. He would always find things for us to do together. Things like, translating poems of Catullus from English, or [the] grads choir thing."
The Court does not accept that Jason Gill was seriously attempting to resuscitate his business. His excuse that Dr Garrett needed constant companionship is not persuasive for several reasons. He could have worked after hours. He could have done some of the work in the presence of Dr Garrett. And he could have substituted some of his eating and drinking outings with work. But he was not prepared to take up any of these options. Moreover, 2009 the middle of the global financial crisis, was a most unlikely time for Jason Gill to be thinking about starting his own business.
Jason Gill just preferred to lead the pleasant relaxed life that he did: going down to the Royal Hotel with or without Dr Garrett, when he could easily have been working. And after Dr Garrett went to bed, if Jason Gill had not been too tired from drinking, there were plenty of opportunities for him to conduct computer broking business after hours. The business often involves sourcing potential purchasers from overseas in different time zones. Working after hours was almost ideal for such a business.
Living at the Paddington property suited Mr Gill. His own evidence does not suggest he was discontented because he could not get enough time away from the Paddington property to lead his own life with his own friends or to develop his own career independently of Dr Garrett. Apart from Mr Gill's rather vague statements made just before Dr Garrett's alleged promises that he wanted to "move on", there is little tangible evidence he attempted to seek out an independent life. In the Court's view, Jason Gill would have stayed at the Paddington property because of the immediate benefits of that arrangement to him without any promise of being the Paddington property. On his own case, he had stayed from 2003 to 2008 without such a promise.
Jason Gill advances a variation on this case. He says that he was also prevented by his day-to-day commitment to Dr Garrett from taking paid employment. But this case has no substance. Jason Gill had often declared his aversion to having "a boss'. Although it was some years later, the Jason Gill the Court saw in the witness box demonstrated minimal employment prospects. Staying with Dr Garrett for longer avoided for Jason Gill what was likely to have been a depressingly difficult course in trying to secure regular employment. And Mr Gill always wanted to be his own boss, as he had declared to Jemima Garrett.
Next, Jason Gill says that Dr Garrett's promise also relieved him of the worries that he previously had about his future accommodation that he would have had to face if he was no longer able to reside with Dr Garrett in Paddington. Mr Gill says that had Dr Garrett not made the promise that he did then he would have applied for a place on a public housing waiting list "as a precaution against an uncertain future". But Mr Gill says that his reliance upon Dr Garrett's promise meant that he did not apply for public housing. As the promise was made he said he was content to rely upon it and stay at the Paddington property to look after Dr Garrett.
But this argument is not persuasive. There were considerable benefits to Mr Gill from his arrangement with Dr Garrett: subsidised travel, access to a motor vehicle, free accommodation, free entertainment, interest free loans, regular dinners out and fine wines. Mr Gill did not want to hamper his pleasant lifestyle. He never showed any willingness to do this. His visits to the hotel every day at about 5.00pm for at least two hours are one of the most regular and reliable features of his life. Leaving the Paddington property would have put all this at risk.
Mr Gill says specifically that he would have left the Paddington property and gone onto a public housing list. But this was well down his list of priorities. So far down indeed that he had not thought about the issue at all. He could not name the public housing list he was contemplating joining. The best he could manage was to describe it as "The local one" and "The government run one. I did not investigate it". When asked whether he knew "what government department runs it?" He said "No, I could have found out easily though". It is difficult to accept he had any clear plan of that kind, even as a fall back option. Whatever Dr Garrett had said, Jason Gill's natural inertia would have been the dominant force in his life. He would not have pursued such a public housing option.
But there were other obstacles to Mr Gill leaving the Paddington property in 2009. Principal among these was the outstanding loans he owed Dr Garrett. The will records the extent of those loans in 2008. The loans had not diminished by 2009, when Mr Gill says that he was considering "moving on". The last loan to Mr Gill, one of $4,000, was made as late as December 2009.
Dr Garrett did not call up these loans while Mr Gill was in the house. Despite Jemima Garrett becoming more closely involved in Dr Garrett's financial affairs, Dr Garrett left the loans uncollected. Up to the time of the will in 2008, Dr Garrett wanted to avoid any form of confrontation with Mr Gill about repayment of the loans. But by 2009, Dr Garrett had lost the capacity to make a considered decision to collect the loans. He had lost the capacity: to remember readily that loans were outstanding; to use his executive mental functions to decide that it was in his own best interest to collect them; and then to follow up that decision by speaking with Mr Gill. And Jemima was not inclined to pursue them, when her father was not pressing for their recovery and when Jason Gill was in the house.
Mr Gill was never in a position to repay these loans. He admitted he had no other income from which he could source repayment. He had no other assets. He was bankrupt. The only practical way he could repay them was to borrow money from his parents, or use his expected inheritance for that purpose. He showed no inclination for many years to borrow from his own family to repay Dr Garrett. The Court infers that he was not minded to do so: leaving the loans outstanding suited him.
Were he to move on from the Paddington property he agreed that he would have to confront how he could repay Dr Garrett's accumulated loans, then in excess of $100,000. Even if Dr Garrett were not minded to ask for this money himself, it must have been apparent to Mr Gill by 2009, when Jemima Garrett was becoming more involved in Dr Garrett's financial affairs that she was likely to follow up collecting these loans, especially if Mr Gill left the Paddington property. And he admitted that if he left the Paddington property it was likely that he would have to start repaying the loans.
Jason Gill tried to escape this logic at one stage by stating that when he borrowed money from Dr Garrett he intended to pay it back. But when tested 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 "I don't know how I'd have done that." This was an empty statement. Jason Gill has a habit of saying whatever he needs to in order to sound plausible in the moment.
In conclusion on this issue, another more subtle factor kept Mr Gill at the Paddington property. In the Court's view, 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. This sentiment helps ground the Court's inference that Mr Gill would have stayed in the Paddington property until Dr Garrett died, whether or not Dr Garrett had made the promise that is alleged. He wanted to remain associated with Dr Garrett.

[28]

Financial Issues Come to the Fore - 2010

Year's end at MacMasters Beach allowed Jemima Garrett to take stock of her father's progress during the previous year. The year 2009 ended with Dr Garrett spending Christmas at the MacMasters Beach property with Jemima Garrett and her family and Tom Garrett and his family. The Court accepts Jemima Garrett's description of her father at this time as "looking mentally at sea and drinking heavily when others were not." She saw his physical and mental capability at that time as "variable" and he was sleeping badly.
By the end of 2009 Jemima Garrett had Dr Garrett's tax returns up-to-date she was now in a position to turn to examine his current financial affairs. Her research in this area led her in 2010 to realise that Jason Gill's spending with Dr Garrett was out of control. A more detailed analysis of Dr Garrett's financial affairs appears later in these reasons when the cross-claim is analysed. But an overview of the various irregularities that she began to discover in 2010 appears here.
Jemima Garrett's work on Dr Garrett's bank accounts in April and May 2010 led her to conclude there had been, as she describes it, a "serious blow out" in expenditure from Dr Garrett's Westpac cash management account ("the CM Account"). Jason Gill had access to this account and Dr Garrett's Visa card, at least when he was with Dr Garrett. Her preliminary analysis revealed that much of the expenditure on this account was due to an unusually high number of withdrawals of cash from ATMs. She saw, for example, that in March 2020 $15,000 had been withdrawn in cash and in April $10,800 was withdrawn, and this was in addition to regular bills and groceries. The first controls she imposed were to ask Mr Icely to reduce the Visa card limit from $15,000 to $3,000 and to pay her father's superannuation pension into his accounts on a monthly basis rather than as an annual lump-sum, so that Dr Garrett's capital could not be dissipated quickly.
Jemima Garrett decided to confront this issue on 7 May 2010. She spoke to her father. He had no idea where the cash withdrawn had gone and could give no account of what happened to it in response to her questioning. The Court accepts Jemima Garrett's evidence on this and infers that Dr Garrett did not retain any awareness of these withdrawals or the reason for them. If he had participated in these transactions he had no memory of them.
Jemima Garrett suggested to her father that they speak to Jason Gill about the expenditure. The conversation that followed confirms Dr Garrett knew nothing about what was happening to his money and how reluctant Jason Gill was to account for his management of it. This led to Jemima Garrett discovering that her father was loaning money to people at the Royal Hotel: "Jemima Garrett: Can we have a chat about a blow-out in Dad's spending? In March $15,000 in cash has been taken out of Dad's cash management account at ATMs and in April $10,800 had been withdrawn. These amounts are over and above Dad's usual bills. Do you know what the money has been spent on? Jason Gill: I don't know. Jemima Garrett: That is a lot of money. Jason Gill: Bill lent some money to people in the pub. Jemima Garrett: Who were these loans made to? Jason Gill: I don't know. Jemima Garrett: How much money has been lent to people in the pub? Jason Gill: It could be in the order of $12,000 to $15,000. Jemima Garrett: Can you explain? Jason Gill: He made loans to Chris Bailey, to Shirvin, and to Bill McConnell [aka journo Bill]. The loan to Chris Bailey came to about 6,000. Jemima Garrett: This spending is well beyond what Dad can afford this HAS to stop. Dr Garrett: I won't make any more loans to friends. Jason Gill: I'll try to do what I can to get the money back."
Jason Gill gives the impression in this conversation that Dr Garrett was responsible for making these loans. But that was entirely wrong. By then Jason Gill had become a facilitator of Dr Garrett making these loans, principally to people who also frequented the Royal Hotel. Perhaps one of the most remarkable contrasts in evidence in these proceedings is that the Paddington witnesses talk about Dr Garrett's competence and sharpness in 2009 and 2010. Yet at the same time he is making loans to people in the Royal Hotel that he does not remember when Jemima Garrett asks him about cash withdrawals and the loans are improvident and in their nature, direct evidence of his loss of capacity.
Leaving Sydney on 21 May 2010, Dr Garrett took a trip to the USA to see Cathy Garrett. Jason Gill took the opportunity to travel to New Zealand while Dr Garrett was away. The division of travel money between Dr Garrett and Jason Gill reveals much about his sense of fairness in the management of Dr Garrett's money. Jemima Garrett realised in the days just before he left that Dr Garrett only had AU$300 and US$100 to take with him overseas. All he could recall was that he and Jason Gill had withdrawn money and "I gave some cash to Jason". Jemima Garrett ascertained that $2,500 had been withdrawn from his bank account in cash. The Court infers that Jason Gill appropriated for himself about $2,000 of the cash money that was withdrawn.
Cathy Garrett gives direct evidence of her father's mental capability during this trip to California between 21 May 2010 and to June 2010. She noticed that her father could hardly remember what he had done a few days before, although he was good at recounting in detail things from long ago in his past. Dr Garrett was proficient in Latin and was familiar with French, German and Italian and could converse in them and about them on this trip. But he was starting to forget the simplest of culinary conventions: that when one cuts off the rind from cheese, one eats the cheese not the rind. This of course coincides with the period of which the Paddington witnesses speak.
When both Dr Garrett and Jason Gillett returned to Australia, Jason Gill rang Jemima Garrett to say that the credit card attached to his CM Account had been declined. It turned out there was only $130 in available funds in the account. In a conversation in early June 2010, Jemima Garrett pointed out to Jason Gill, as was the fact that "More than $6,000 has been taken out of dad's account in cash and bill payments in a period of little over two weeks. That level of spending has to be cut back." Jason Gill promised to recover some of the loans made to third parties. But by then Jemima Garrett did not trust Jason Gill to give her a straight answer on what had happened to this money.
An example of the loans that Jason Gill encouraged Dr Garrett to make to third parties can be given from just after this time. The example shows Jason Gill was still making such loans after Jemima Garrett's request to Jason Gill to discontinue this practice. That example is represented by a cheque in the sum of $1,400 drawn on Dr Garrett's CM Account on 27 October 2010. The cheque is made out to "AJAX Consortium", which Mr Gill said is a broking company operated by a Mr Shervin Garash. According to Mr Gill, Mr Garash told Dr Garrett the amount that he needed to borrow and he asked Dr Garrett if Jason Gill could pick up the cheque from him. This was apparently arranged at the Royal Hotel. Jason Gill and Dr Garrett came home from the hotel that night and Jason Gill arranged for Dr Garrett to write out the cheque, which Mr Gill then gave to Mr Garash. Mr Gill's attitude to protecting Dr Garrett when these loans were being requested is no better demonstrated than in this exchange between himself and the Court: "HIS HONOUR Q. Did you ever see yourself as a person who might actually stand between Dr Bill Garrett and some of these people who were putting their hands out, to say maybe Bill this is not a good idea? A. Mostly people I think I knew to be pretty good people. Q. Well is the answer to my question it never occurred to you to counsel Bill not to do this? A. No. Q. Is no is that agreement to my question? A. Yes, sir. Q. You were not a force in any way at all, to restrain Dr Bill Garrett just giving him money in all directions to these various people who put their hands out? A. Not in all directions, sir. Q. To the people who have been identified? A. No. Q. You were not a restraining force at all? A. Not really. Bill would say do you think they're good for it, and I'd say yes or no, there were probably a few I felt were a bit, sort of, dodgy. These people I pretty much thought would be all right."
In essence, Jason Gill acted as a kind of intermediary in recommending these individuals to Dr Garrett and reassuring him that they were persons to whom loans could be made. He encouraged Dr Garrett to make the loans by giving a form of character reference for the borrowers.
This was five months after Jemima Garrett urged him that this kind of expenditure had to stop. Jason Gill acknowledged that Jemima Garrett had made a strong request of him not to make the loans. When asked to explain why, despite Jemima Garrett's request he had made the loan to AJAX Consulting, the only rationale Jason Gill could give was (referring to the principal of AJAX Consulting, Mr Garash) "he must have been desperate or something". In the Courts view, Mr Gill was quite prepared to ignore Dr Garrett's attorney, Jemima Garrett, and continue on his path of using Dr Garrett as a financial resource to lend to his friends because it suited him.
It is to be wondered why he did this, because the loans disadvantaged Dr Garrett and Jason Gill obtained no immediate financial advantage from them. The only rational inference the Court can draw in the circumstances is that he did so in part to build his own reputation as a facilitator of benefits and financial resources to people at the Royal Hotel. He was quite prepared to disobey direct instructions that he found distasteful.
At the beginning of the new financial year, Jemima Garrett began discussing a budget with Dr Garrett for the coming financial year. Her rational idea was to limit expenditure so that his expected after tax income of $77,000 was apportioned weekly at $1,480 per week, which she calculated would be quite enough to cover for Dr Garrett's and Jason Gill's reasonable anticipated expenses. Dr Garrett appeared to agree. But Jemima Garrett did not implement this allowance system immediately: there was too much on her plate with her own family at that time.
In other conversations with Jemima Garrett at this time, Dr Garrett was displaying that he could quickly forget what he had said or agreed to. For example he forgot having authorised a gift of $25,000 to Cathy Garrett, insisting that she be given the $25,000 again. He had no reliable capacity to remember from day-to-day exactly what financial transactions he had agreed or authorised to be undertaken. This was very obvious to Jemima Garrett. It must also have been equally obvious to Jason Gill. And this is not something the Paddington witnesses, who were giving evidence about the 2009/2010 period, could ever be expected to have noticed.
Once again, on 28 November 2010, Jemima Garrett discovered that Dr Garrett only had $49.09 in his CM Account and that $3,400 had been withdrawn in cash between 8 and 18 November 2010. Dr Garrett had no money to live on until his next pension payment in December. She confronted Jason Gill rang about these cash withdrawals from the CM Account. Jason said there has been a lot of expenses and further loans made to people at the pub. But essentially his answer indicated he was well aware the money had been withdrawn but he could only give speculative answers as to where it might have gone. He assured Jemima Garrett that Dr Garrett's living expenses would be covered until the next pension payment.
On 15 December 2010 Jemima saw that a further $2,500 had been withdrawn in cash from Dr Garrett's CM Account. On questioning, Jason Gill explained that $1,000 had been used to repay loans from people "in the pub" because "Bill had run out of money in the lead up to his December pension payment" and the rest was on "essential household expenses", few of which could be identified. Once again, Dr Garrett had no knowledge of the cash withdrawals. Nor is that surprising because it was seriously to be doubted by then that Dr Garrett could have operated an ATM on his own.
In late 2010, in the midst of all this, Jason Gill said to Jemima "Bill has plenty of money. Why don't you put $200,000 dollars in an account for him?" Jason Gill also said to Jemima Garrett, "Bill had plenty of money and was quite generous in spending it." This statement showed that Jason Gill had shed personal responsibility for Dr Garrett's excessive expenditure.
Jemima Garrett was determined not to accede to this request. She said to Jason Gill, "Dad has an income of around $87,000 a year; it should be possible for us to work out a way for dad to live comfortably within his means." She decided that in 2011 she would try and impose closer controls on the spending from her father's accounts.
In summary, by this time it must have been obvious to Jason Gill that, subject only to Jemima Garrett's interventions, he had for some years had complete access to the funds in Dr Garrett's CM Account and Visa credit card to use more or less as he pleased without Dr Garrett having any capacity to resist his actions or to remember later what had happened. By 2009 and 2020 Dr Garrett could not use or get to an ATM on his own. What Jemima Garrett was saying to Jason Gill must also have been obvious: that it was possible for Dr Garrett to live within his means. The experience of 2010 was enough for Jemima Garrett to resolve to bring some fiscal discipline into play in 2011.

[29]

Attempts at Fiscal Discipline - the First Half of 2011

2010 ended and 2011 began badly. In late December 2010, Jemima Garrett had transferred $7,000 additional capital from her father's BT investment account (where his superannuation money was held) into his CM Account to cover anticipated expenditure leading up to Christmas, including groceries, an ATO bill, paying off existing Visa card debt and Christmas expenditure. The payment arrived in her father's CM Account on 10 December 2010. Between 10 and 14 December 2010, ATM withdrawals of $2,550 were made. A further $2,100 was withdrawn in cash from ATMs between 17 and 23 December. Jemima Garrett did not authorise or make any of these cash withdrawals. Whatever was deposited in these accounts was being quickly cleared out in cash, leaving Dr Garrett with insufficient funds to meet his necessary outgoings. Just before Christmas, Dr Garrett asked Jemima Garrett to purchase a birthday present for Tom Garrett's wife, Sophie. But Jemima Garrett discovered there was not enough money left in Dr Garrett's account for this purchase.
Between 13 and 15 January 2011, a further $2,000 was withdrawn in cash from Dr Garrett's CM Account without authority from Jemima Garrett. Dr Garrett and Jason Gill went on a cruise leaving from New Zealand in early January 2011. In the midst of the cruise, Jason Gill rang Jemima Garrett saying, "Bill has run out of money. Could you put some money in his account please?" With a sense of frustration, Jemima Garrett had to transfer $1,000 of her own funds into her father's account to tide him over until his next superannuation pension payment.
Jemima Garrett took time away from work to review more closely her father's financial position for FY2011 up to 27 January 2011. The Court accepts her underlying workings as accurate. She calculated that her father's expected income for FY2011 was $87,015. But by 27 January 2011, he had already spent $72,152.90 and of that, some $38,787.76 was accounted for by cash withdrawals and $3,843 was for Jason Gill's storage charges. These two figures represented places where savings could obviously be undertaken. She judged the household charges for electricity and Telstra (including Foxtel) were high and were areas for potential savings as well.
Another area of saving was in avoidable bank fees. Her father's Visa account, credit card account was paid out of his CM Account. But the regular depletion of funds in the CM Account meant that there were insufficient funds to pay down his Visa card debt and he was incurring late and overdrawn fees.
These events led to Jemima Garrett realising that respecting her father's wishes and dignity by leaving him to operate the CM Account and the Visa card account was resulting in uncontrolled spending. Jason Gill's and her father's spending needed to be contained.
Jemima Garrett took decisive action in late January and early February 2011. On 28 January 2011, she attended at the Westpac Paddington branch where her father banked and opened a Westpac Choice Account ("the Choice Account") into which she planned to deposit $700 per week for Dr Garrett and Jason's use. The Choice Account did not have a credit facility. The $700 per week was calculated in accordance with a reasonable expenditure budget she had prepared and to which Jason appeared to agree. Although Jason Gill refused to effect economies such as storing his goods at the MacMaster's Beach property. On 4 February 2011, she took her father to the same branch and cancelled all existing cards on the CM Account and the Visa account. She arranged for the new cards to be sent to her address and she changed all internet banking passwords for her father's accounts, so that only she could access them. Her aim was to take full and exclusive control of her father's accounts other than the Choice Account into which the allowance would be paid. Jason Gill would have access to the Choice Account via a MasterCard debit card. On 4 February 2011, Jemima gave Jason a copy of the written budget in which she set out how the $700 per week could be spent, although the budget was flexible.
And in February 2011, Jemima Garrett asked Jason Gill to make cuts to a number of regular outgoings from the CM Account. But substantial cash withdrawals via ATMs kept coming out of the CM Account. This was possible in part due to an error on the bank's part: contrary to Jemima Garrett's request, the bank had issued a replacement MasterCard to Jason Gill that gave access to Dr Garrett's CM Account, instead of his Choice Account. The balance of the CM Account was so low in late March 2011 that Jemima Garrett had to lend her father $4,000 from her own money to ensure he had funds in his account just to pay his regular utility and other bills. Again this shows that despite knowing Jemima Garrett's purpose in setting up the Choice Account Jason Gill was quite prepared to use the CM Account because he could and it was convenient.
The cash crisis came to a head on 21 March 2011. On that day, Jemima Garrett simply paid the outstanding Telstra and Foxtel bills, reduced the level of the Foxtel package for the Paddington property, and discontinued the second phone line coming into the house. Jason Gill had not as yet followed through on his promises to attend to these economies. He was not reliable in following through on economies that did not suit him. The same day she paid Jason Gill's continuing storage bill which was also in arrears.
Jemima Garrett's decision to enforce these economies led to an angry confrontation with Jason Gill. They had a conversation to the following effect: "Jason Gill: Why did you cut off my internet access? I have been furious for 3 days. I was so angry I smashed a plate. I thought you [were] trying to force me out of the house. This is making life difficult for my business. Jemima Garrett: I had no idea the fax line had been used for anything other than the fax. I thought the internet is on the home phone like, like that of other people I know. I am not in any way trying to push you out of the house. I appreciate what [you do] he did to help Dad. If you have a problem you should call me about it rather than stew on it because it is sure to be a fuck up rather than a conspiracy. Jason Gill: With this weekly allowance, money had been so tight that I had to deal cocaine to bring money into the house and I don't like doing that. Instead of living like this why don't you put $100,000 from Dad's savings into his account to take care of expenses. Jemima Garrett: Dad does not have mortgage or car repayments and pays very little tax on his $87,000 so he is substantially better off than many people and should be able to live comfortably on his income and maybe a little extra from his savings. Our task is to balance the costs so they fit Dad's income".
Jemima Garrett understood from Jason Gill's request that the $100,000 that he wanted made available was to be put into Dr Garrett's Choice Account, to which Jason Gill had access. Jason Gill did refer in this conversation to dealing cocaine to bring money into the house. In evidence he denied that he said this but in a contest between these two witnesses the Court readily accepts Jemima Garrett over Jason Gill. Jemima Garrett did not react to this. She treated this more as a throwaway line in the midst of what was an angry tirade from Jason Gill.
This conversation between Jason Gill and Jemima Garrett on 21 March 2011 is important for another reason. In it, Jason Gill accused Jemima Garrett in these terms: "I thought you [were] trying to force me out of the house". But if Dr Garrett had actually made the agreement with him in 2009 that he claims, Jason Gill must have by then believed he had an entitlement to stay in the house. This was therefore a particularly apt occasion for Jason Gill to raise the subject of the promise some 18 months earlier with Jemima Garrett. But he did not, which further weighs against the inference that the alleged agreement had been made.

[30]

A Conversation at the Palace Verona Cinema - 4 June 2011

By April/May 2011, Jemima Garrett was becoming increasingly concerned about leaving her father on his own with Jason Gill without there being some supervision by other family members such as herself, Tom or Cathy. But she, Cathy and Tom wanted Dr Garrett to have his independence. The only other options were his living with Jemima Garrett or going to a nursing home. Avoiding those other options and maintaining continuity meant putting up with Jason Gill's failure to respond to requests about her father's finances, about laundry and dry cleaning for her father, and his facilitating of her father's abuse of alcohol. But the family accepted that for now without Jason Gill Dr Garrett would not have been able to stay in his own home.
This concern in early 2011 sprang in part from further marked decline in Dr Garrett's memory. On the trip 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. But the concern also arose from Jason Gill's habit of bringing friends home from the hotel to drink until the early hours of the morning. Jemima Garrett sometimes found Jason Gill deeply asleep on the couch after heavy drinking sessions and therefore unlikely to be able to come to Dr Garrett's aid if needed.
And so supervision began to be arranged when she was away. The fact that these arrangements had to be put in place is both an indication of Dr Garrett's further decline and of the executors growing distrust in Jason Gill's care skills. Jemima Garrett had international commitments in her career with the ABC which took her out of the country from time to time. She travelled to Papua New Guinea in May 2011 and during that period Tom Garrett came to stay at the Paddington property.
Tom Garrett recalls a conversation with Jason Gill, in what he initially thought was October 2011, but which must have been in May 2011, when Jemima Garrett went away to PNG. In that conversation he says, and the Court accepts, that Jason Gill said to him, "Bill has plenty of money. Why don't you just put $200,000 in the account, so there is ready access for all your dad's living needs?" This was similar to what Jason Gill had put to Jemima Garrett. Later he said to Tom Garrett, "When your dad goes I want the house." This stunned Tom Garrett. He bided his time and said nothing for the moment. Although this was a repetition of something similar that Cathy Garrett had heard Jason say in about 2009.
Jason Gill has a different version. He says that he believed this conversation occurred in May 2011. That much is correct. Jason Gill's recollection is that he said to Tom Garrett: "You may be aware that Bill and I have an agreement that in return for my continuing companionship and care, he will leave me his house in his will".
Tom Garrett was a precise and thoughtful witness. His detailed responses strongly contrasted with Mr Gill's vagueness. Aside from the Court's preference for Tom Garrett's evidence over Jason Gill's evidence, Mr Gill's account of this conversation is improbable. Had Mr Gill claimed to Tom Garrett there was such an agreement, Tom Garrett would have immediately done something about it. Tom Garrett would have asked Mr Gill more about the conversation. Tom Garrett is a person of high intellect and keen to engage with the detail of any issue. It would have been natural for him to follow this revelation up with Mr Gill, with his father, and possibly with lawyers. Tom Garrett's active reaction to Mr Gill's August 2015 assertions of such an agreement, and his detailed defence of these proceedings, indicates his likely response had he known about the alleged agreement at this earlier time.
Mr Gill says he did not have a conversation with Tom Garrett about putting $200,000 into an account to cover all of Dr Garrett's needs. Mr Gill says that he would not have had that conversation with Tom Garrett because Jemima Garrett "handled all the finances". But Jason Gill was persistent. He was quite prepared to ask Tom Garrett for the money. Jason Gill said that the $200,000 was "not for me" but his intention was to use it as an easily available consumable fund.
Jemima Garrett was right not to transfer the money. There was a grave risk this fund would have been dissipated in runaway spending like that which had occurred before Jemima Garrett imposed her prudential budget on Jason Gill in February 2011.
When Jemima Garrett returned to Australia, her brother Tom debriefed her about events occurring at the Paddington property in her absence. This debriefing contained the very first indication to her of Jason's interest in the Paddington property. Tom Garrett relayed his exchange with Jason Gill, saying to her, "Jason said to me that he thought he should get the house".
This also came as a shock to Jemima. Not least because she appreciated for the first time that Jason thought he deserved the house and was calculating what would happen after Dr Garrett's death. But the remark seemed to her consistent with Jason Gill's attempts to have her put a six figure sum of money into a bank account to which he, Jason Gill, would have access. Dr Garrett soon raised the same subject with her.
The Palace Verona Cinema in Oxford Street, Paddington is a prominent Sydney arthouse cinema. Dr Garrett enjoyed its films. Jemima took him to see a film there on 4 June 2011. Afterwards, they had coffee and had the following conversation: "Dr Garrett: I want to leave the [Paddington property] to Jason. Jemima Garrett: Whose idea was this? Dr Garrett: I can't remember. Jemima Garrett: Remember that in your will you have made provision for Jason for $200,000 and the car. Dr Garrett: I had forgotten that. Jemima Garrett: I will organise for you to get some independent advice from Lane & Lane who have known you for decades".
Jemima surmised that Jason Gill had groomed her father to make this request. That inference is certainly open. But Jason Gill was continuing to raise the subject with Dr Garrett and prompt him, so it was just on his mind, when he shared it with Tom Garrett and Jemima Garrett. By June 2011, Dr Garrett had lost the capacity to make considered decisions. It would be surprising that such an idea would suddenly tumble out at this time, unless Jason Gill was raising it with Dr Garrett. Jason Gill denied prompting Dr Garrett to tell Jemima Garrett that night about their arrangement but he agreed that he "had asked him previously to tell her". The Court does not find his evidence of a previous request persuasive.
This conversation, as Jemima Garrett recalls it, did not contain any reference to an agreement between Dr Garrett and Jason Gill of the kind pleaded in this case. The conversation is more consistent with Jason 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 he was somehow obliged to do so.
And Jemima Garrett's account of this occasion, which is accepted, is consistent with her denial later in 2015 that she had previously heard about any agreement between Dr Garrett and Jason Gill for him to have the Paddington property in exchange for his caring for Dr Garrett.
Jason Gill says he was aware by 4 June 2011 that Dr Garrett had not told Jemima Garrett about his leaving the Paddington property to Jason Gill, from which he was able to infer that Dr Garrett had probably not changed his will. Jason Gill said, "So I was a little concerned about that" and he wanted to enquire whether Jemima had been informed. Jason Gill's evidence was that Dr Garrett told him of this conversation with Jemima Garrett shortly after it happened. He says that Dr Garrett volunteered to him, "I told Jemima I am leaving you the house".
The Court does not find Jason Gill's evidence about being concerned that Jemima Garrett had not been told, or about Dr Garrett reporting to him about his conversation with Jemima Garrett at all credible. The alleged statement that Jason Gill recalls Dr Garrett volunteering to him after the Verona Cinema meeting is so lacking in context the Court has little confidence that it happened. According to Jason Gill, Dr Garrett made this statement at a time when Jason Gill was concerned that Dr Garrett's will had not yet been changed. Jemima Garrett's reaction to what Dr Garrett said to her would then presumably have been of critical interest to Jason Gill because he would thereby learn whether or not he would get any opposition to Dr Garrett's proposed will change. But instead he answered questions about the subject in the following way: "HIS HONOUR Q. Then what happened next? A. Nothing much. That was it. Q. Didn't you ask him what did she say? A. No. He just said I told her. Q. But did you expect a positive reaction from Jemima? A. I didn't know what to expect from Jemima frankly. Q. Well in light of the fact you didn't know what to expect, did you ask Bill what [she] said in response to being informed [by] him? A. No. Q. Weren't you curious to know? A. Me to say he told her, that was it. I would have if there'd been some sort of a response either way, or passionately, he probably would have mentioned it but I got the impression that she just took it on board. Q. You said he didn't confirm to you that he changed his will? A. No. Q. In fact he never confirmed that to you did he? A. No. Q. Did you ask him about that again? A. The will? Q. Yes? A. No."
The Court does not accept that Dr Garrett reported anything back to Jason Gill about his conversations with Jemima Garrett. Jason Gill had no reason to believe that Dr Garrett's family had been informed about his claimed arrangement with Dr Garrett about the Paddington property.
Jemima Garrett followed up her conversation on 4 June 2011 with a much more detailed discussion with her father the following day. She recorded what she proposed to talk to him about on 5 June in a document entitled "Notes for discussion with Dad 5/6/11". The document records reasonable and balanced advice and concludes with a suggestion that Dr Garrett consult his solicitors Lane & Lane. That suggestion was not carried through because it was overtaken by events in early July.
Jason Gill's case criticises Jemima Garrett for having this conversation with her father on 5 June 2011. His case characterises the conversation as trying to dissuade Dr Garrett from changing his will to give the Paddington property to Jason Gill. But this conversation was balanced: it stressed the need to treat Jason Gill generously and reminded Dr Garrett what he by then appeared to have completely forgotten, that he had already substantially benefited Jason Gill in his will.
By June 2011, Dr Garrett's memory lapses were becoming pronounced. For example in May 2011 he had a lengthy conversation with Tom Garrett about Tom Garrett's imminent retirement as a scientist. Dr Garrett had always been very proud of his son's achievements in science. But the following month Dr Garrett could not remember any of this conversation.

[31]

Dr Garrett is Hospitalised - July 2011

On 30 June 2011, Jemima Garrett was working in Melbourne when Jason Gill called her to say that Dr Garrett had been admitted to St Vincent's Hospital, after having vomited about a litre of blood. Jason Gill said he had found him on the lounge room floor. Jemima Garrett flew straight back to Sydney and went directly from the airport to the hospital. Jemima Garrett visited her father every day in hospital until his discharge over three weeks later on 25 July. She liaised with the doctors, nurses, physiotherapists, occupational therapists, the social worker and the aged care team looking after her father.
Jason Gill characterises this event as the point from when Dr Garrett's health declined markedly; where Dr Garrett: had trouble with decision-making, became physically frail over time, and required a nurse's aide for at least two hours a day to assist Mr Gill with his care. This was two years after Dr Garrett is alleged to have made the promise of the Paddington property to him. But the Court does not accept this was a marked turning point in Dr Garrett's cognition although this was a confronting physical incident. In the Court's view his mental decline had started to accelerate no later than late 2008. But at this point in mid-2011 his cognition started to be measured.
Dr Garrett's hospital admission exposed the weaknesses of Jason Gill's care for him. Dr Sarah Hungerford, a Resident Medical Officer at St Vincent's Hospital, in her medical notes stated her observations about Dr Garrett's admission, which the Court accepts as accurate: "Patient initially presented with man who claimed to be his "son" later stated that he was his live in carer. Man had prominent alcohol fetor and was particularly overbearing to medical and nursing staff. Patient was dishevelled and unkempt Had been taken to pub by "carer" yesterday…when confronted carer about calling patients daughter, he refused and said he would do it himself, he failed to do it."
Jason Gill was not compliant with the hospital's rules against bringing alcohol into the hospital to Dr Garrett. The hospital was concerned about the risk of Dr Garrett coughing and aspirating whilst intoxicated. Telephoned by the hospital Registrar and alerted to this problem, Jemima Garrett contacted Jason Gill and spoke to him about it but she received a surprising answer: "Jemima Garrett: I have just had a call from the hospital complaining that you took wine to Dad and got hot under the collar when they asked you not to do it again. Jason Gill: The registrar was uptight and aggressive. Bill should be able to have wine. Jemima Garrett: It is against hospital rules. They have specifically asked you not to do it. And they are upset about the way you spoke to them. Please don't do it again."
The fact that Jason Gill was even bringing alcohol into the hospital was an indirect indicator of the overall low quality of care he was providing to Dr Garrett. In this, as in many other parts of Jason Gill's attention to Dr Garrett, he was showing that Dr Garrett's health was not his pre-eminent priority. It is difficult to fathom why someone taking proper care of Dr Garrett would have thought bringing alcohol into a hospital, contrary to its express rules, was a good idea. The hospital's care plan and progress notes for Dr Garrett made their own judgment on Mr Gill: "ED concerned re: social situation - carer neglect (Carer intoxicated this am)"; "Social Issue - "Carer" not looking after pt properly (ED raise concern)" "ETOH abuse"
At about the time of Dr Garrett's discharge from St Vincent's Hospital, Professor Brennan in the hospital's Department of Geriatric Medicine wrote the following note about his medical condition. It was headed "Regarding Dr William Garrett". The text was the following: "I write to confirm that Dr Garrett is currently an inpatient at St Vincent's Hospital. Dr Garrett is suffering from cognitive impairment (dementia) and can no longer manage his own financial affairs, so that it is now appropriate that his daughter, Jemima Garrett, who holds his enduring power of attorney is solely responsible for his affairs, including signing cheques and banking transactions"
The gerontologist Dr Jahromi, was leading the team that looked after Dr Garrett at St Vincent's Hospital. Dr Jahromi and her other medical staff quickly raised with the family, as is recorded in Jemima Garrett's correspondence, that Dr Garrett "is too high needs to go home and that he should move to hostel accommodation". In a contemporaneous record, Jemima Garrett reported to her siblings, and the Court accepts, that she said back to Dr Jahromi, "I have stressed that dad is very keen to stay in his own home, it is the key to his social life and what he lives for and that Jason is doing a good job looking after him and that we should find ways of supporting dad and Jason to continue this situation".
She was putting the best light of Jason's care at this stage, overlooking some of its deficiencies. But her subsequent email shows that she was starting to explore other programs to provide physiotherapy and care in the home so that he could return to the home. The medical evidence and Jemima Garrett's email correspondence at the time shows that Dr Garrett was very confused when he was in hospital and did not perform well on cognitive tests.
When Dr Garrett was admitted to St Vincent's Hospital in July 2011 he was suffering from delirium and according to Professor Brennan was "clearly unable to make significant or important decisions". Professor Brennan explains that delirium is common in people with acute medical insults who have underlying impairment or diminished cognitive reserves, such as with dementia. Professor Brennan's general experience is that when people get very sick or have an accident or an acute medical problem they often become confused. His opinion, which the Court accepts, is that during this hospitalisation, Dr Garrett became much more confused than he had previously been due to his diminished cognitive reserves.
Dr Garrett's presentation at St Vincent's Hospital was in a setting of high alcohol use and the use of the anti-inflammatory drug Ibuprofen for treating arthritis. Professor Brennan confirmed that if Ibuprofen is not taken appropriately, it can cause ulceration to the stomach and bleeding from stomach ulcers. Dr Garrett's admission to St Vincent's Hospital in July 2011 was when he was drinking heavily. It is likely that he was not regulating his Ibuprofen medication appropriately with meals, leading to stomach ulceration. This was very much the province of Mr Gill's care at that time.
In Professor Brennan's judgment, because Dr Garrett was not a healthy man, consuming more than two standard drinks on a single occasion should be classed as drinking excessively. Dr Garrett was drinking well in excess of two standard drinks on a single occasion on a daily basis before his hospitalisation in July 2011. Professor Brennan saw Dr Garrett's alcohol intake as "the big problem" in Dr Garrett's dementia. So he made "strong representations" to Dr Garrett's family to reduce his alcohol intake. Some weeks or months later he noted there were "significant improvements".
The hospital admission took a heavy toll on Dr Garrett. As indicated, Dr Brennan advised Jemima Garrett that he thought Dr Garrett would probably need to go to a nursing home once he was discharged from hospital. But Jemima Garrett was determined for him to stay out of a nursing home if possible. Dr Garrett had taken pride in independent living in his own home and had expressed to her that staying in his home was what he wanted to do. This presented a dilemma for Jemima Garrett because she was aware of Jason Gill's care deficiencies and money management problems. But despite the downsides, she took the view that it would be better for Dr Garrett to live at home with him. So she organised high levels of intervention at home with regular home visits from a physiotherapist and an occupational therapist. She also arranged for a hospital style bed.
But Mr Gill behaved somewhat irrationally in the course of the discussions about Dr Garrett's discharge. At one point, as Mr Gill and Jemima Garrett were walking together towards the exit in the hospital building, Jason Gill aggressively said to her, "If you try to put Bill in a home I will kidnap him". Mr Gill denies that he said this. He alleges he said, "You know very well that the last thing Bill wants to do is to go into a nursing home. That was the deal between us. I will take him over the border if I have to." But the Court accepts Jemima Garrett's evidence. Had Jason Gill talked about "the deal between us" it would have immediately led to Jemima Garrett's asking questions about this "deal", which she did not. Jason Gill seems to have been of the view that the family wanted to put Dr Garrett into a nursing home. But everything in their conduct points in the opposite direction. The family's tolerance of the defects in Jason Gill's care is to be explained by the fact that they did not want him to go into a nursing home. Jemima Garrett put the comment to one side.
Upon Dr Garrett's discharge, Jemima Garrett arranged for Around the Clock Care ("ACC") 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. This meant that Mr Gill's role would continue to be limited to much the same as before: providing companionship, cooking meals, giving Dr Garrett his medications and helping him to get his breakfast and dinner, reporting to Jemima Garrett about medical issues, taking Dr Garrett to minor appointments and changing any soiled sheets outside the hours of the care services were present. Also, Dr Garrett had the services of a cleaner and gardener in addition to the services of a paid carer each day. Thus, the overall burden on Mr Gill of Dr Garrett's increased care requirements was reduced.
The discharge from St Vincent's Hospital was a turning point in Dr Garrett's alcohol consumption. Immediately before being discharged, Dr Brennan had stressed to Jason Gill the importance of Dr Garrett reducing his alcohol intake. Mr Gill finally began watering down the wine that he gave Dr Garrett at meal time. That, together with more regular routine and exercise, allowed Dr Garrett's sleep patterns to improve.
July 2011 marks a significant reduction in the level of responsibility Jason Gill was providing to Dr Garrett. This was just over four years before Dr Garrett's death. In those four years, Jason Gill's responsibilities were reduced by steps even further.

[32]

Dr Garrett's Health and Well-Being after July 2011

After his hospitalisation in July 2011, Dr Garrett's physical condition began to improve for a period. Jemima Garrett took him to hydrotherapy each week. With lapses, Jason Gill was generally cooperating more in reducing Dr Garrett's alcohol intake. Dr Jahromi thought Dr Garrett was progressing well at a consultation on 18 October 2011. Dr Garrett attended quite a number of family get-togethers and all the Garretts gathered at MacMasters Beach for Christmas that year.
From July 2011 onwards, Dr Garrett began to sleep more during the day. The main responsibility for his personal care duties (including showering, toileting, dressing, feeding, exercise and changing linen) were done during the day by ACC. ACC charged a total of $129,205 for paid in-home care for Dr Garrett between July 2011 and the time of his death.
Later their care was supplemented by Ms Jo Cummins, a friend of Jason Gill who was a studying nursing and who attended each day for periods of between one to five hours. Jason Gill says that he was concerned the contract carers were not qualified nurses and that Ms Cummins' services were much more appropriate. The Court did not accept that ACC was inadequate. But Ms Cummins was very satisfactory and she provided nursing and care services charging a total of $11,055 before Dr Garrett's death.
Jason Gill says that his level of care and assistance to Dr Garrett increased substantially after the period of July 2011. This is something of an exaggeration. There were more carers in the house during the day. But Jason Gill says, and the Court accepts, that from time to time he began assisting Dr Garrett more to go to the bathroom, including guiding him and lifting him onto the toilet.
From time to time, Mr Gill was required to attend to Dr Garrett's personal hygiene and to clean him, his bed, and his clothes after any period of incontinence, which did begin to worsen. But Dr Garrett's professional carers undertook the main burden of the day-to-day caring, toileting and looking after Dr Garrett from this time. But when the professional carers were present they were the ones that did this work. In the Court's view, Mr Gill generally left it to the professional carers. Mr Gill was not the kind of person who would readily relieve the paid carers of their duties. Mr Gill says that the carers who were engaged to look after Dr Garrett were fairly small women who could not safely lift him on their own. The Court accepts that ACC had the occasional benefit of Jason Gill's assistance in lifting Dr Garrett. The carers were not there at night and that is when Mr Gill was of the most practical assistance. Mr Gill also began monitoring Dr Garrett's temperature from this time by taking daily thermometer readings.
Dr Garrett visited doctors and allied medical providers more frequently from July 2011. Jemima Garrett took him to many of these appointments. It did assist Dr Garrett's medical care for Jason Gill to make some observations about his health on a day-to-day basis, which could be conveyed to his treating doctors as well. For example, as Jason Gill says he noticed a lesion on Dr Garrett's back at one stage and pointed it out to his general practitioner, Dr Hardy. It was diagnosed as a pre-cancerous lesion and it was removed surgically. Jason Gill also pointed out areas of infection on Dr Garrett's back to Dr Hardy.
Mr Gill says, and the Court accepts, in the last five years of Dr Garrett's life that Dr Garrett had medical incidents that required ambulances to be called on about half a dozen occasions. He was involved in summoning the ambulances.
Jason Gill was part of a larger organisational structure in supporting Dr Garrett from July 2011. Jemima Garrett was involved as described and was also responding to Jason Gill's calls. Jemima, Tom and Cathy Garrett were looking after Dr Garrett's other properties.

[33]

The Last Years - 2012 to 2014

The year 2012 was quite stable for Dr Garrett. He had fewer sleepless nights as a result of cutting down on his alcohol intake. His mobility and mental capacity continued their slow decline. But he did not have any health crises or falls such as he had before. He was fairly immobile by this time and mostly used a wheelchair. Tom Garrett stayed at the Paddington property twice in 2012 and in November, Tom and Jemima Garrett and their father visited Cathy Garrett in the USA.
Jason Gill continued to accompany Dr Garrett to his dental appointments and lower-level medical appointments. Carers took on some of the tasks that Jason had done, such as taking Dr Garrett to the chiropodist or for haircuts. But the carers continued to shower Dr Garrett, helping with his physiotherapy exercises and giving him his lunch. Jason Gill was food shopping and cooking for Dr Garrett, when Dr Garrett was not out with Jemima Garrett. Even when Dr Garrett was not up to going out for lunch, Jemima Garrett often cooked a hot meal for her father and for Jason Gill through this period. The $700 weekly allowance that Jason Gill managed continued to include money to pay a cleaner and that cleaner still came. Despite that, the Court accepts Jemima Garrett's judgment that the house became increasingly dirty and messy under Jason Gill's management.
But repairs at the Paddington property were a constant grating issue. Jason Gill could do minor repairs but he could not be relied upon to arrange the execution of anything major, even though he had been asked many times to do it.
By 2012, ACC were coming seven days a week, for about an hour a day plus. In 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. By November 2014, the carers were spending between two and a half and four hours per day with Dr Garrett.
From 2013, Jemima Garrett took more direct control of budgeting Jason Gill's spending on behalf of her father. Not surprisingly, this led to increased tension between them.
Dr Garrett became far less mobile by 2013. Instead of going to the Royal Hotel in the evening, Jason 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 this was as convenient to him as it was to anyone else. Other evening visitors were acquaintances from elsewhere in Paddington. As Dr Garrett's health declined, Mr Gill became the main driver of these invitations. Dr Garrett undoubtedly gained some satisfaction from interaction with all these people, something he was unlikely to have done unless Mr Gill was living in the house.
Jason Gill was criticised because these interactions often evolved into long drinking sessions. He is not to be criticised just for inviting these people around. Their presence provided company and stimulation for Dr Garrett. What he allowed when they were at the Paddington property is the problem. The frequency of these visits and the amount of alcohol still being consumed cannot have been beneficial to the then 85 year old Dr Garrett. This was a sub-optimal standard of care that undermines Mr Gill's claims to be a competent carer to Dr Garrett at this time.
Jason Gill said, and the Court accepts, that Dr Garrett had advised him that when people were sick it is often beneficial to have more than one person visiting the ill person as the guests can keep the conversation going with the ill person listening without having to try to engage. But Jason Gill took this idea to extremes. With little pre-planning, he often brought a large number of people back home from the Royal Hotel. Dr Garrett would often go to bed whilst the party continued at his expense. The option of inviting people around to the Paddington property for afternoon tea, not alcoholic drinks, was raised with Jason Gill in evidence. Some of the Paddington witnesses thought this would have been a good idea. But Jason Gill had not given it any thought.
By October 2012, Dr Garrett was often only out of bed for six hours a day. This pattern of limited waking and mobility continued until 6 August 2015. Because of this immobility, from 2012 Dr Garrett's overall needs for expenditure declined apart from the paid care services.
The same arrangements supporting Dr Garrett continued into 2013. Jason Gill was not good at keeping the house clean and tidy. When he was away in New Zealand in May that year, and Cathy Garrett was in Australia, she and Jemima undertook a major cleanup of rubbish which had accumulated at the Paddington property.
There were also periods in 2013 when Jason Gill's care for Dr Garrett was wanting because he was not in the house and was drinking at the hotel. On 17 June 2013, Jason Gill telephoned Jemima Garrett and said: "Bill is missing. I've been at the pub and arrived home and can't find him in the house or anywhere around the streets." Jemima Garrett immediately drove to Paddington and started to search. She eventually found Dr Garrett 50 metres away from the house. Dr Garrett was wearing just a T-shirt, tracksuit pants and socks and he was cold and wet down one side from having wet the bed before he got up.
Later in June and in July 2013, Jemima Garrett and her husband went overseas and Tom and Sophie Garrett came to stay to help look after Dr Garrett. This was part of the standing arrangement within the family that some family member had to be reasonably nearby Dr Garrett at all times. The explanation for this arrangement is the family's lack of confidence in Jason Gill's capacity to handle a crisis should one occur. In the Court's view, that judgment of Jason Gill was justified.
On 1 November 2013, Jemima was advised by a staff member at Westpac's Paddington Branch that in order to avoid unauthorised access to Dr Garrett's other accounts, the $700 in weekly budget money should be paid directly into the account of the person who is accessing the account, and access to Dr Garrett's Choice Account should be limited. Jemima Garrett acted on this advice, and on 1 November 2013, she terminated Jason Gill's access to the Choice Account. On 12 November 2013, until 5 August 2015, Jemima deposited the $700 weekly household budget to Jason Gill's St George Account ("the St George Account") together with additional funds when they were required. The first such payment was made on 12 November 2013. Jemima Garrett did not have access to Jason Gill's St George Account.
In 2014, Dr Garrett encountered more health problems. Dr Garrett was able to be present at the annual family gathering at Christmas 2013 but the family needed the assistance of daily care services to help look after him. He was admitted to hospital in March 2014 with septicaemia. He came home rather than going to Jemima Garrett's place or a nursing home, but the care from ACC stepped up further after this. Jemima Garrett consulted with Ms Liana Butt from ACC about making the house safer for Dr Garrett.
The family became more involved in 2014 in directly supporting Dr Garrett's care. Tom Garrett came to stay whilst Jason Gill was away in New Zealand for a week in May that year. Tom Garrett returned in July and did work on the house. Cathy Garrett came to stay for three weeks in September. Sophie and Tom Garrett looked after Dr Garrett in December 2014 and January 2015. The family were tidying up and looking after the house to make it as clean and safe as possible for Dr Garrett. They had to remove more dust and rubbish that Jason Gill had overlooked. The house was in a very dirty, cluttered and untidy state and needed to be cleaned and cleared to make it as hygienic and accessible as possible for Dr Garrett. The Court accepts the evidence of all family members, Jemima, Cathy and Tom Garrett that Jason Gill tolerated low standards of cleanliness at the Paddington property but was always prompt in cleaning up Dr Garrett when he had continence accidents.
This history shows the regular involvement of family members in and to support Dr Garrett's daily care between 2012 and 2014.

[35]

Mr Gill's Storage Charges Terminate - February 2015

Dr Garrett had told Jason Gill in 2007 that he wished to avoid the impost of the storage charges Jason Gill was incurring to store his goods. But Jason Gill continued to allow these charges to be incurred. The best explanation for this was that Jason Gill did not want to go to the inconvenience of saving Dr Garrett these charges by moving his goods to a no cost location.
The family offered Mr Gill the alternative of storing his goods at Dr Garrett's MacMasters Beach property. His explanation for not taking this offer up was that he thought the storage area there would be "open to the elements". But it is doubtful that he could have thought this. Even on his version, he seems to have simply assumed without bothering to check that the storage would be in an open lower level of the MacMasters Beach house. This demonstrates his lack of motivation to do anything about reducing these storage costs.
In the last six to eight months of the storage, the monthly storage costs were high. As at May 2014, the storage company was charging $586 per month. This increased in June 2014 to $618 a month. It reduced to $553 per month in January 2015 and was $307 per month in February 2015, when the storage finished.
Mr Gill ultimately gave in to family pressure to end the storage arrangements. He decided to throw out some of his furniture and other goods, to put the remaining clothes he wanted to keep into boxes and move some of this material into the attic and in his own room at the Paddington property. There was ultimately only modest difficulty in closing the storage facility and moving the goods into the Paddington property. Some of Mr Gill's property went into Dr Garrett's old room after his death. The Court infers the storage facility could readily have been closed with minimal effort, long before February 2015.
In the Court's view, Mr Gill did not bother to do this much earlier also because he thought he controlled his situation at the Paddington property and did not have to respond to requests to curtail storage costs, so he did not do so. This was typical of Mr Gill's character: he exhibits casual disregard for financial obligations and he was disinclined to initiate any extra work for himself if he could avoid it.

[36]

Tom Garrett Moves into the Paddington Property - July 2015

Tom Garrett's childcare and family responsibilities had lightened by March 2015, and he had retired so he proposed that he and his wife, Sophie, would move up from Melbourne into the Paddington property to take care of Dr Garrett. Jemima Garrett thought that this was the best option for her father and arrangements were made to put this into effect.
Both Tom Garrett and Cathy Garrett were in Sydney more often during 2015 and Cathy, Tom and Sophie did a substantial clean-up of the house, including creating a second dining room downstairs, as had been requested by the occupational therapist.
But with Tom Garrett and his wife Sophie moving into the Paddington property, the subject of Jason's continued occupation came up for consideration. With the Garrett family taking direct control of their father's care there was less need for Jason Gill's involvement. Tom Garrett moved into the property permanently in late July 2015. One immediate effect of Tom Garrett's assistance was that ACC averaged only two to three hours per day looking after Dr Garrett at the Paddington property.
Jemima Garrett organised a meeting with Jason Gill on 6 August 2015 to tell him of the changed care arrangements. Tom Garrett and Jemima's husband were also present at this meeting. Jemima Garrett prepared notes in advance of the meeting as to what she was going to say to Jason Gill. The Court accepts her evidence that at this meeting she covered all the points in the document that she had prepared.
This was going to be a difficult meeting for the Garrett family. Jason Gill had been in the property for 12 years. They wanted to see him treated fairly but they knew they would have to ask him to leave. In her methodical style, Jemima Garrett prepared a typed up set of notes that sought to break the news to Jason Gill gently. She explained that because of the increased workload that came with Dr Garrett's increased frailty, Tom and Sophie Garrett would be moving to Sydney and living in the house full-time to look after him and that the arrangements would start immediately.
The issue was handled sensitively but firmly. In her note for the meeting Jemima Garrett recorded the central message that she actually conveyed to Jason Gill: "The new arrangements will start now, today and obviously we want the transition to be as smooth as possible and for it not to have any kind of negative impact on Dad. We do not intend you to be left in the lurch in any way. We want you to let us know how you see the way forward and what you want. You will probably need some time to think about what this means for you. We understand this will be difficult for you on a number of fronts but we want to help. We would like to have your initial proposal on how we can help within a week. As Tom, and soon Tom and Sophie, will be living here from now on, you will need to move out - we would like you to do that within a month. Once you move out you will still be able to have contact everyday with Dad if you want, by making arrangements with Tom. So your friendship will be able to continue. There are some practical matters we should deal with straight away. The first is, that from now on Tom will be in charge of Dad's care - that means liaising and working with the carers, changing Dad, doing the shopping, cooking, cleaning etc. Until you move out, of course you can work together on this, but Tom will be in charge. Tom will also be managing the $700 housekeeping money from now on. He will buy the food and other necessities for the household which of course, you will be able to share. If you want additional money you can ask Tom for some of the $700 housekeeping."
But at the conclusion of Jemima Garrett's remarks, the conversation took what for her was a surprising turn: "Jemima Garrett: I would like a proposal from you by next Thursday. Jason Gill: You are aware of my deal with Bill, aren't you? Jemima Garrett: What deal? Jason Gill: With the house and everything. Jemima Garrett: Dad has a will. Jason Gill: I know he told you."
After further discussion, Mr Gill returned to this subject and repeated his claim. "Jason Gill: You know I had a deal with Bill. Jemima Garrett: Dad never told me about any deal. Jason Gill: He did, outside the Opera up the road. Jemima Garrett: 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. Jason Gill: I know he told you because when he came home he told me that he had told you."
The Court accepts Jemima Garrett as a witness of truth. Dr Garrett had not told her of any such "deal" in any of her conversations with him. She interpreted Jason's words "outside the opera up the road", as a reference to the conversation between her and her father on 4 June 2011 at the Verona Cinema in Oxford Street, Paddington, the conversation recounted earlier in these reasons. In that conversation, Dr Garrett had not referred to any agreement between him and Jason Gill, only a general wish to benefit him with the house. But there was no point in Jemima Garrett reiterating her denial. The conversation ended there.
Later the same day, Jason Gill telephoned Jemima Garrett and a further conversation took place between them: "Jason Gill: While I have been looking after Bill I have exhausted all my own finances. Could you put some working capital in my account so I can get ready to move out? Jemima Garrett: No, I can't put money in your account. We are willing to help but this needs to go into your proposal for us next Thursday. Jason Gill: I am broke. Jemima Garrett: If you get your proposal to us soon and we can start looking at making some money available for things like 6 months' rent in advance. Jason Gill: Come Saturday I will have no money. Could you do something in the meantime. Jemima Garrett: If you want some money talk to Tom about having some of the $700 weekly allowance".
Within a fortnight, Jason Gill had engaged solicitors, as had Jemima Garrett acting in her role as her father's attorney. Some negotiations about Jason Gill's claim commenced through solicitors but no resolution was reached before Dr Garrett's death.

[38]

Events before commencement of these Proceedings - 2015 to 2016

Sophie Garrett lived at the Property to the end of December 2015. Both Jason Gill and Tom Garrett continue to reside at the property. They were both living there at the time of the hearing. It was agreed in final submissions that, depending upon the outcome of the proceedings, three months would be a reasonable period for the unsuccessful party to vacate the Paddington property. The Court raised that issue then so that the parties would start to make plans for that eventuality.
On 7 October 2015, the executors' lawyers conducted a bankruptcy search and discovered that Jason Gill was an undischarged bankrupt. He had been made bankrupt on 11 April 2003. On 22 October, Jason Gill lodged a statement of affairs in his bankruptcy but did not record any loans due from him to Dr Garrett. On 22 December 2015, the estate lodged a proof of debt with Jason Gill's trustee in bankruptcy for all debts owed to the estate prior to 11 April 2003 and submitted another proof of debt on 6 April 2016. Jason Gill's bankruptcy was ultimately annulled on 18 August 2016 under Bankruptcy Act 1966 (Cth), s153A (on the basis that the trustee in bankruptcy is satisfied that all the bankrupt's debts have been paid). The estate received $36,300 from the trustee in bankruptcy for the part of the proof of debt admitted by the trustee.
Jason Gill said that after Dr Garrett's death he had looked at opportunities to resuscitate his computer broking career. He gives a number of examples of attempting to pursue business opportunities in the computer broking field after November 2015. He refers to an attempt to buy and resell the electronic component stock available after the liquidation of the Dick Smith Group. He refers to reselling used Cisco Systems communications equipment situated in Melbourne to American buyers. He refers to an attempt to find buyers for six Boeing 737 aircraft being retired by Thai Airways.
Mr Gill is only able to give isolated examples of attempts to revive his computer broking business, none which came to fruition after November 2015. But Jason Gill was not seriously attempting to rebuild his computer broking business at that stage of his life. And he was to a degree preoccupied with preparing for the present litigation.
Jason Gill returned to live at the Paddington property in January 2016. The estate commenced proceedings in the New South Wales Civil and Administrative Tribunal ("NCAT"), seeking to have him quit the premises. But NCAT declined jurisdiction on the basis he was not a tenant and the executors commenced proceedings for possession in this Court in October 2016.

[40]

Jason Gill's Contract Claim

Jason Gill claims that the conversation that he alleges took place with Dr Garrett after February 2009 constituted an oral contract with Dr Garrett. The constituent parts of the contract are said to be: Dr Garrett offered that if Jason Gill continued to live with him as his companion and carer for the rest of Dr Garrett's life, then he would gift Jason Gill the Paddington property in his will and Jason Gill accepted that offer. The Court does not accept that this conversation took place so as to constitute an offer and acceptance. So the principal constituent elements of the contract pleaded are not made out.
Jason Gill adduces evidence of other conversations in front of the Paddington witnesses as admissions of an existing contractual arrangement. They are not themselves said to be a source of contractual obligation. But as the Court has explained, what the Paddington witnesses heard is consistent with something less than a contract, namely Dr Garrett surrendering to Jason Gill's strong promptings.
The executors raised a number of alternative arguments in the event that the pleaded contract were to be established between Jason Gill and Dr Garrett. The Court does not have to consider all of these alternatives, because of the Court's finding of the unreliability of Jason Gill's evidence about the claimed contract. The executors argued the following matters. The alleged conversation was not an offer capable of acceptance orally, or by the conduct of Jason Gill in continuing to reside with Dr Garrett and providing him with care and companionship. The alleged statements by Dr Garrett are not sufficiently certain to be capable of acceptance to form a binding agreement. It was also argued that any statement Dr Garrett made was revocable and that Dr Garrett was at liberty to change his will again. The executors also challenged whether there was any intention to enter into a binding legal contract in what was an essentially domestic situation.
The executors challenged Dr Garrett's capacity to contract. In order to have capacity to enter a contract the contracting party must have "such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation" in the contract, or the "capacity to understand [the] transaction when it is explained": Gibbons v Wright (1954) 91 CLR 423 at 437 and 438; [1954] ALR 383. Although it is now not necessary to decide this issue, the Court infers that Dr Garrett was so lacking in mental capacity in 2009 that he could not have contracted on his own with Jason Gill. Properly explained to him with independent legal advice, he is likely to have had the capacity to understand the transaction which Jason Gill alleges in this case. There are a number of examples of him participating in transactions on legal advice in 2009 and 2010. But without independent legal advice and without family support, he is unlikely to have had the capacity to contract.
The executors point out that any contract relied upon was not in writing, even though it involved the sale of interest in land and is therefore unenforceable under Conveyancing Act 1919, s 54. The doctrine of part performance has not been pleaded in response in answer to this plea. The doctrine of part performance may save a contract in the absence of a note or memorandum in writing that is compliant with the statute. Jason Gill's existing claim in equitable estoppel could readily be re-pleaded to conform with the doctrine of part performance. But even if that were done, part performance would not be established here. In order that acts may be relied upon as part performance of an unwritten contract, they must be done under the terms and by the force of that contract and they must be unequivocally in their nature referable to some contract of the general nature of that alleged: Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7 ("Waltons Stores") at 432 per Brennan J and Regent v Millett (1976) 133 CLR 679 at 683; (1976) 10 ALR 496. Here, the conduct of Mr Gill is wholly consistent with a simple arrangement that he would receive free board and lodging and other financial benefits from Dr Garrett in exchange for continuing to provide companionship and care from Dr Garrett during his lifetime and no more.
Finally, the executors rely further in the alternative upon what they claim is Jason Gill's unconscionable conduct, undue influence and conduct that is said to attract the Contracts Review Act 1980 to found a contention that any contract that was made between Dr Garrett and Jason Gill can be set aside. Because the Court has found that no contract was formed it is not necessary to deal with these contentions. But it can safely be concluded that had the Court found any such contract existed, the Court's findings would justify a grant of relief for unconscionable conduct in equity and under the Contracts Review Act, to set aside any such contract. The Court has already found in the narrative of facts that Dr Garrett was in a position of special disadvantage in relation to Jason Gill by reason of his lack of independent advice, mentally weakened state and Jason Gill's control over most aspects of his daily life and over his contact with others. In the Court's view, this is a clear case: if a contract were to be found between Dr Garrett and Mr Gill as alleged, that contract would be set aside at general law or under the Contracts Review Act at the executors' suit on the grounds that it was procured through Jason Gill's unconscionable conduct. It is not necessary to consider whether a relationship of undue influence would have been made out so as to vitiate any such alleged contract.

[41]

Equitable Estoppel Claim

Jason Gill claims in the alternative that the conversation in February 2009 created a mutual assumption between himself and Dr Garrett upon which he acted. That assumption is said to be in conformity with Dr Garrett's alleged representation that, if Jason Gill continued to live with him as his companion and carer the rest of Dr Garrett's life, then he would gift Jason Gill the Paddington property in his will. Jason Gill contends that he relied upon this assumption and acted to his detriment by staying at the Paddington property, caring for Dr Garrett and providing him with companionship. He says that it would now be inequitable for the estate to go back on this mutual assumption upon which he and Dr Garrett acted. He says that equity should provide a remedy by giving effect to the assumption.
Once again, because the Court does not accept that this conversation as recounted by Jason Gill took place, the first constituent element of his equitable estoppel case, a representation by Dr Garrett, is not made out. But in its analysis here, the Court goes further and concludes that a number of the other elements of the equitable estoppel case are also not made out.
First it is necessary to examine the legal principles behind this claim. The most recent statement of High Court authority in relation to the doctrine of equitable estoppel is in Sidhu v Van Dyke (2014) 251 CLR 505; 308 ALR 232; [2014] HCA 19 at [1]: "In Commonwealth v Verwayen [(1990) 170 CLR 394 at 409] Mason CJ described estoppel as "a label which covers a complex array of rules spanning various categories." His Honour went on to say of "titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence" that they are all "intended to serve the same fundamental purpose [Giumelli v Giumelli (1999) 196 CLR 101 at 112-113 [7]], namely "protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted". [Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 at 419 and 404; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675] "
The formulation of these doctrines in Waltons Stores requires four principal elements to be established to make out an equitable estoppel. These elements are sometimes formulated differently into a larger number of less comprehensive requirements. The requirements are explained in Waltons Stores at 428-429 per Brennan J, Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; [1989] ANZ ConvR 621 at 601 per Priestley JA, and in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 as follows: 1. one party ("the first party") creates or encourages another party ("the second party") to adopt a particular assumption or expectation that a particular legal relationship existed or would exist between them; 2. the second party relies upon that assumption or expectation; 3. the second party's reliance is known or expected by the first party; and 4. the second party would suffer detriment if the assumption or expectation was not fulfilled by the first party.
If the first party then fails to act to avoid the detriment then equity may intervene. Here, Jason Gill has not made out the first three of these four elements. It is not necessary to consider the fourth element.
The first element is not made out. The Court does not accept that Dr Garrett made the representations alleged. All that happened was Dr Garrett gave in to what Jason Gill had prompted. Jason Gill must have realised whatever Dr Garrett said back to him was no more than the surrender of a vulnerable individual with compromised mental capacity, weakened by pressure and without legal or other independent assistance on this issue. The actions of Dr Garrett in these circumstances could never objectively qualify as conduct encouraging a particular assumption or expectation.
Nor is the second element established. Jason Gill did not rely upon any assumption or expectation. This follows from the Court's findings in the factual narrative under the heading "Jason Gill Claims He Relied on the Promise".
Jason Gill submits that it is no answer to his reliance case to say that he would have looked after Dr Garrett anyway. He says that he relied upon the promise and trusted that Dr Garrett would do whatever was necessary to fulfil it. He says that even if other factors influenced him, it does not matter. He submits that provided he was induced in any degree to act on Dr Garrett's promise, which he says he was, the fact that there were other motivations keeping him at the Paddington property does not prevent an estoppel operating in his favour. Jason Gill's contention is legally correct: the promise relied upon does not have to be the sole inducement for the conduct. It is sufficient that the promise is an inducement: Van Dyke v Sidhu (2013) 301 ALR 769; [2013] NSWCA 198 at [99]. But the Court concludes here that whatever Dr Garrett said to Jason Gill, it was not any inducement because Jason Gill had firmly decided to enjoy the advantages of life at the Paddington property for as long as he could and he well knew that anything that Dr Garrett said to him was little more than an echo of his own wishes and could not be relied upon.
Jason Gill further argues that it is false logic to assert there was no detriment to him on the basis he had no assets before the promise was made and he lived the same way of life both before and after Dr Garrett made the statement to him. He submits that the correct analysis is to examine whether he, as the promisee, changed his position in reliance upon the promise. The real detriment from which the law seeks to give protection is that which would flow from the change of position if the assumption is deserted that led to it: Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [42]. But Mr Gill did not hold the assumption for which he contends and so he suffers no detriment from conduct inconsistent with the assumption.
Jason Gill characterises the executors' case as merely being one in which "board and lodgings were a sufficient reward" for his work. Mr Gill submits that this is "simply untenable" in contemporary Australian society. But that is not an accurate summary of the executors' case. Jason Gill received much more than board and lodging. He had the use of the car, and for a long period of time, he had unlimited capacity to spend Dr Garrett's money on food, alcohol and outings, most of which were conducted with Dr Garrett but the arrangement was generous all the same.
The third element is also not made out. Dr Garrett was not aware that Jason Gill was relying upon anything that he, Dr Garrett, had said to Jason Gill. In 2009 and 2010, Dr Garrett could barely remember what he had said from one day to the next. Dr Garrett would have had no knowledge or expectation of Jason Gill acting upon anything he had said. In short, his memory and executive functioning were so poor in 2009 and 2010 that his conscience could not be bound in equity so as to attract the doctrines of equitable estoppel.
Finally, it is not necessary for the Court to consider the fourth element of equitable estoppel. This remedy is not available to Jason Gill.

[42]

The Remuneration Claim

Jason Gill claims further in the alternative that, if the contract or equitable estoppel claims for him to receive the Paddington property are not available, he should be paid remuneration based on what he says that "he saved the deceased". The claim is one for the value of services Dr Garrett accepted in the absence of contract, a claim in restitution.
It should first be said that what Jason Gill puts in his submissions that, "he saved the deceased", is not the correct measure of a claim in restitution. Rather, the correct measure is the value of any benefits that were conferred by Jason Gill upon Dr Garrett and accepted by Dr Garrett in circumstances in which it would be unjust if restitution were not given for the benefit so accepted.
The applicable law concerning unjust enrichment may be shortly stated. In Australia, the concept finds its roots in the High Court's decision of Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 ("Pavey") in which Deane J said at 256-257: "The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution. To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate. The circumstances in which the common law imposes an enforceable obligation to pay compensation for a benefit accepted under an unenforceable agreement have been explored in the reported cases and in learned writings and are unlikely to be greatly affected by the perception that the basis of such an obligation, when the common law imposes it, is preferably seen as lying in restitution rather than in the implication of a genuine agreement where in fact the unenforceable agreement left no room for one. That is not to deny the importance of the concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case (see Muschinski v Dodds (1985) 60 ALJR 52 at 67 ; 62 ALR 429 at 455; Goff & Jones, op cit, at 11 ff)"
Pavey has been cited with approval and refined by the High Court on many occasions since: Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662; [1988] HCA 17; David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 353 ("David Securities"); Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68; ("Roxborough") at 543-545 [70]-[74]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 156 [151]; Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at 665 [85] ; [2008] HCA 27; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7; 246 CLR 498 at [29]-[30]; Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1; [2019] HCA 32 at [14].
Unjust enrichment "does not of itself constitute a cause of action, it provides a "unifying legal concept" and serves to mark out the defences to claims in restitution": David Securities at 406, citing Pavey at 256 - 257. But clear signposts of analysis are evident in the Australian decisions, which are most clearly summarised by Kirby J in Roxborough at 568 fn 257: "According to the generally accepted analysis, a successful restitutory claim requires proof of (1) enrichment of the defendant; (2) gained at the plaintiff's expense; (3) as a result of an unjust factor; (4) in the absence of a recognised defence".
When determining whether the third element of "an unjust factor" is established it is "not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality": David Securities at 379; see also, Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 157 [150]; [2007] HCA 22.
Jason Gill calculates his remuneration claim as the hourly rates for market based care services multiplied by the claimed number of hours of care that he provided to Dr Garrett. He claims on the basis that from 2008 until Dr Garrett's death as Dr Garrett's live-in carer and companion he is entitled to remuneration based on the value of his services that he provided. He alleges that the value of his services would be market rates, or as provided in the Social, Community, Home Care and Disability Services Industry Award. Jason Gill seeks to measure the market rates aspect of the claim by reference to the rates paid by ACC to its personnel.
He calculates that his claim for live-in care and companionship would be from 2004 to Dr Garrett's death a total amount of $1,895,338. Broken down by year, the claim between 2004 and 2008 is based on Jason Gill giving assistance for cooking, shopping, driving, companionship and entertainment at an average hours per week commencing in 2004 of 20 hours per week and rising in 2008 to 40 hours per week. Calculated at hourly rates of between $30 and $35 per hour for 52 weeks of the year, the annual claim for 2004 is $28,800 (only 48 weeks), for 2005 is $39,000, for 2006 is $46,800, for 2007 is $54,600, and for 2008 is $72,800.
The claim increases in 2009 to 45 hours per week at $35 per hour ($81,900), in 2010 to 50 hours per week at $35 per hour ($91,000) and in 2011 the claim steps up from 50 hours per week to 120 hours per week at $40 per hour (to make a total of $176,800). And for the years between 2012 and 2015 (up to August when Tom Garrett was living full-time at the Paddington property) the claim is for full-time 24 hour care at $40 per hour rising to $42 per hour from 2013 (2012 - $349,440, 2013 - $366,912, 2014 - $366,912 and 2015 $218,736). There is a minor claim for assistance after Tom Garrett was living in the Paddington property.
Jason Gill bases his claim in part on the evidence of Ms Ann Butt, the proprietor of ACC, a witness called on behalf of the executors. Ms Butt was an excellent witness and the Court accepts her testimony. Her evidence provides a range of market remuneration for carers. She said that a live in carer would be paid in a range between $300 and $700 per week, depending on how much food, board and other live in benefits the carer received and depending on the condition of the client. But this kind of care was not a central part of ACC's business model. Her testimony was therefore a little unclear as to the required qualifications for live in carers. But her general qualification standards are set out below.
This claim cannot succeed, because Jason Gill cannot establish the main constituent elements of restitution.
Enrichment of the defendant gained at the plaintiff's expense. The Court's findings in the narrative of facts negate either of the first two elements of a claim in restitution. The Court cannot readily infer that Dr Garrett has been enriched at Jason Gill's expense for several reasons. (1) The Court cannot place a market value on Jason Gill's services because they do not resemble commercial services and because they were so often deficient in quality and in Mr Gill's qualifications. (2) What services Mr Gill actually provided, contrasted with the claim he made is very uncertain. And (3) when the whole relationship within which Jason Gill's services were provided is examined, the value of the benefits accepted by Jason Gill from Dr Garrett probably outweighed the services that he provided to Dr Garrett.
(1) Quality and Qualifications. Much of Mr Gill's care for Dr Garrett did not meet acceptable standards of care upon which a market value could be placed. Mr Gill was often delinquent in the execution of his caregiving duties. Between July 2011 and August 2015, Mr Gill showed little appreciation of the need to create a risk-free environment for Dr Garrett, who was then suffering from advancing dementia. Jason Gill often left the Paddington property at night to go to the Royal Hotel and elsewhere, leaving Dr Garrett unattended.
Abandoning Dr Garrett at night was fraught with risk. For example, Dr Garrett showed an alarming readiness to use dangerous appliances without any appreciation of their inherent risk. On one occasion in 2014, Dr Garrett was discovered attempting to dry his clothes on a red hot stove cooktop. There was a danger of him either burning himself or setting fire to the house, if he operated the stove inappropriately. Jason Gill said he assessed the risk of danger from the stove as remote, because Dr Garrett "rarely got out of bed". But that was not an adequate answer. This incident at least led to Jason Gill switching the stove off when he left the house. But did not stop him often leaving Dr Garrett on his own at night.
Jason Gill's nocturnal wanderings away from the Paddington property are well-established. He was the author of many ATM transactions between midnight and dawn, mainly at or near hotels in the Paddington/Darlinghurst area. The Court infers he was drinking and socialising with friends. He did not consult with the Garrett family members before he did this, nor did he arrange for other carers to stand in for him. He simply left Dr Garrett behind on these occasions, not classifying Dr Garrett being in the house on his own as an appreciable risk. The family did not prevent Jason Gill wandering at night, because they did not know this was happening. A contracted full-time carer could not have abandoned Dr Garrett in this way. Jason Gill tried to argue that when he was out drinking at the Royal Hotel he was not far from Dr Garrett and could easily check on him. The Paddington property was less than five minutes' walk from Five Ways. But Jason Gill did not have a habit of regularly leaving the hotel to check on Dr Garrett.
There is evidence from each of Tom, Cathy and Jemima Garrett to justify the inference that from time to time Jason Gill used cocaine. Jason Gill disputes this evidence but the Court wholly accepts it. Whilst Jason Gill indicated any cocaine usage on his part was very infrequent, the Court does not accept that evidence. All can be inferred from the evidence as a whole on this subject is that he did use cocaine and that no one wishing to engage him for care and companionship services could ever be assured that he was drug-free. This is another reason why any commercial valuation of his services is inappropriate.
The picture the Court gained from Mr Gill's evidence on this subject was that he never really expected the kind of scrutiny over his care for Dr Garrett that came through these proceedings.
That being said, Mr Gill's personal care for Dr Garrett was at times difficult, dirty and demanding. Mr Gill changed Dr Garrett when he was soiled, stripped and replaced wet bedclothes, and not only cooked for him but cleaned up the mess he made at dinner. These were all menial tasks that placed a burden on Jason Gill, tasks that many people prefer others to do. It is not surprising that he wanted to escape the house from time to time for respite. His visits to the Royal Hotel are not to be criticised on the grounds that he was not entitled to them. He needed some down time away from the house. But a commercially-hired carer would have engaged with the family and arranged someone to replace him. He could never realistically claim to be a 24-hour carer.
The care contracts signed for Dr Garrett with ACC are convenient measures of accepted standards appropriate for care giving in a commercial context. Most of their standard terms represent no more than what is common sense. They show a set of standards that Mr Gill could not meet.
In relation to commercial rates of care and companionship services the standard agreement, "Agreement for Carer Services" made between ACC and its clients (including Dr Garrett) was in evidence. In accordance with what might be expected, ACC undertook to act with skill and diligence normally exercised by a competent provider of skilled labour, to exercise reasonable care, to act honestly and conscientiously, and to provide prompt and efficient services. The prerequisites of the personnel providing the services included "all the necessary skills training and valid qualifications to carry out the duties" and to be "alcohol and drug free while performing the work". Jason Gill would not have been able to meet these standards. It is not an available inference to conclude that Jason Gill should be paid at some lesser rate because he was wanting some of these qualities, because it was not demonstrated that there was any market place for less competent carers. Anyone not meeting these contractual qualifications was unlikely to be retained to be remunerated. In the Court's view, Jason Gill came into that category.
Jason Gill's personal qualifications and qualities would not attract market rates of compensation for carers. Comparing his services to those of a commercial agency providing carers for elderly people is not appropriate. No agency would engage and then market the services of someone who was untrained and who encouraged the person in his charge to drink alcohol excessively contrary to good medical advice, who accompanied his charge to local hotels most afternoons and evenings, who allowed his charge to become so intoxicated that he fell over in the street and suffered bone fractures, so that he presented to hospital emergency departments several times in a year, who abandoned his charge at night without telling the family, who was difficult about taking and executing instructions, who encouraged his charge to make loans to third parties, who borrowed from his charge and failed to account for sums of money passing through his hands, who left the property where the care occurred in a dirty state, and who was slow to ensure that his charge was well groomed and appropriately dressed for outings.
The Court has previously observed that Jason Gill would face difficulty on the employment market. That observation is relevant on this issue as well. Jason Gill is unlikely to hold down any job in which trustworthiness and reliability were essential. Care and companionship for elderly patients involve both those qualities. Jason Gill had neither of these qualities at any relevant time.
Any live-in care or companionship provided by Jason Gill was not commensurate with the qualifications or of the standard of service applicable under the Social Community, Home Care and Disability Services Industry Award. In order to qualify under the award it is necessary to have satisfactorily completed a home care certificate, a home and community care certificate, a certificate in aged care, a first aid certificate or an equivalent certificate. Jason Gill has not undertaken any such training and has not qualified for any of these certificates.
(2) The Quantum of Services Provided. Jason Gill's claim for remuneration, as constructed is for 24 hour care from 2012. As constructed it bears no relationship to the hours that he actually committed in the role. He is asking to be compensated for care services said to have been provided 24 hours a day, seven days a week for the years 2012 to 2015. His care was demonstrably not full time. The Court is not required to try and infer some lesser claim for fewer hours per day on his behalf. His evidence was so unreliable it is difficult to know where to start in working out what his actual hours on the job were.
Jason Gill did not keep any diary or other records the hours that he claims. Thus the hours claimed are entirely dependent upon accepting Jason Gill's oral testimony. To the limited extent that of the Paddington witnesses and Garrett family members give evidence that Jason was providing companionship services none of them seek to quantify those services; so assessing the quantum of the claim falls back on his testimony which the Court finds to be unreliable. The Court has no confidence in the hourly figures that have been advanced based upon his oral testimony. Nor does his affidavit evidence go into detail to explain exactly how his care stepped up to these precise numbers of hours per week over the years for which the claim is made.
No attempt is made in the years 2012 to 2015, when 24-hour care is claimed, to make allowances for time that Jason Gill was out of the house either at the hotel or elsewhere. Indeed the claim shows broad-brush estimates that are consistent with it having been put together hastily just before trial. For example, it does not at any time make any allowance for the various times that Dr Garrett was either overseas or was being looked after by family members. Jason Gill admits that in the later years (2012 to 2015) when he claims 24 hour care that he is claiming for periods of time when he was not in the house. When asked to explain why he was including such periods in his claim, he gave the rather surprising answer, "I think that still caring. It's like, taking little bit of a break". And of course the claim includes periods when Jason Gill was asleep. There is no evidence that Jason Gill especially set up any monitor or call system with Dr Garrett, so that he, Jason Gill, could be roused from sleep if necessary if Dr Garrett woke in distress in the middle of the night.
(3) The Balance of Benefit. Whether Dr Garrett was "enriched" at Mr Gill's "expense" is doubtful when the balance of benefits is considered in their relationship.
The executors' adduced evidence from an expert accountant, Mr Simon James of HLB Mann Judd Corporate Advisory, who undertook a detailed analysis, among other tasks, of the financial benefits received by Jason Gill over the course of his relationship with Dr Garrett based on various assumptions. Mr James in part based his work on the very detailed financial analysis of Dr Garrett's records undertaken by Tom Garrett. Mr James assumed that analysis is accurate and the Court has confidence in Tom Garrett's analysis. Mr James was cross-examined but nothing in the cross examination created any doubts about the quality of his analysis of the calculation of these benefits, which the court accepts.
First, Mr James calculated the financial benefit accruing to Jason Gill as a consequence of his being in occupation of the Property without charge from November 2003 to 18 March 2019. This calculation was undertaken first from November 2003 until Dr Garrett's death, which amounted to $200,083.07. Then a further the calculation for the value of his occupation from after Dr Garrett's death until the hearing which is a further amount of $40,117.69. After that date, the ongoing daily rate of benefit to Mr Jason Gill is $54.94. But the combined value of this benefit can be taken as it least $240,200.76.
Mr James calculated the benefit on the basis of the median weekly rent of a three-bedroom property in Paddington, with one third of the for the value of the rent allocated to Jason Gill, half of all expenses on the property allocated him and included in the calculation was an allowance for electricity water Internet telephone and Foxtel but insurance and security expenses were was excluded. The Court is satisfied that calculation is realistic. The calculation was adjusted to take account of Tom Garrett living in the property from July 2015.
Second, Mr James also calculated the financial benefit derived by Jason Gill from 3 November 2003 to 6 August 2015 as a consequence of Dr Garrett funding Jason's food, alcohol, travel, transport, living and entertainment expenses. Mr James reaches a figure of $348,553.09 for this benefit. It is calculated on the basis that Jason Gill is assumed to enjoy 50% of most household expenditures on food and wine, expenditure at hotels, overseas travel and telephone expenses. Sometimes exact figures are able to be allocated to Dr Garrett or Jason Gill and they are therefore appropriately accounted for rather than being divided 50-50. But there is a large amount of cash withdrawals, and it is unknown who made these withdrawals and how the money was used. The bank statements show that this particular to figure comes to $394,355.30. Mr James appropriately assumes that 50% of these unknown withdrawals were for the benefit of Jason Gill. In the Court's view, given Jason Gill had no demonstrable income of his own, ate drank and lived with Dr Garrett continuously, and given Jason Gill's increasing control of Dr Garrett's credit cards from 2008 - 2009 as his mental capability diminished, this is a very reasonable assumption to be made in this calculation.
Third, Mr James calculates a financial benefit as a consequence of Jason Gill's having, as the Court finds that he did, unrestricted access to and use of Dr Garrett's motor vehicle in the period 2003 to 6 August 2015: $11,990.46. This calculation is based on the basis of actual expenses is related to Dr Garrett's motor vehicle to which Jason Gill had access. Whilst Jason Gill did use it to drive around Dr Garrett he was free to use it himself.
Fourth, Jason Gill stored his goods and chattels at Dr Garrett's expense from November 2003 to 23 February 2015. He derived a substantial financial benefit as a consequence of Dr Garrett continuing to pay for these storage charges for that period. Mr James calculates and Jason Gill accepts that the total for the period in question is $69,349.64. The goods stored were entirely Jason Gill's so this benefit is entirely to his account.
Fifth, Jason Gill derived a financial benefit as a consequence of the interest free loans that Dr Garrett made to him that have not been repaid. It can be accepted at the time of the June 2008 will these loans were calculated as amounting to approximately $98,000. But Mr James calculated the total of outstanding interest free loans as $152,134.80. This amount includes the $98,000 and accounts for the receipt of $36,300 repaid to the estate by Jason Gill's trustee in bankruptcy, when his bankruptcy was annulled in 2016. Jason Gill admits outstanding loan indebtedness to the estate of $146,306.80. His defence disputes a pleaded amount of $56,009.00 but it is unclear from where this figure is derived. The real difference between the parties therefore is between the amount he admits of $146,306.80 and the amount that Mr James has found of $152,134.80, a difference of $5,828. The Court is confident in Mr James's analysis and will therefore adopt his figure.
The sum of these five figures ($240,200.76 + $348,553.09 + $11,990.46 + $69,349.64 + $152,134.80) represents the total financial benefit received by Jason Gill, including the interest free loans. As at the date of hearing 18 March 2019, the total is is $822,228.75. In the Court's view this substantial sum is a realistic calculation of the benefits that Jason Gill has received throughout his relationship with Dr Garrett. It should also be noted that this calculation does not include any allowance for interest even though the benefits were received over a long period of time. And since the hearing of these proceedings, Jason Gill has received a further benefit from his occupation of the Paddington property of approximately $25,000.
Neither side in these proceedings paid close attention to whether or not limitation defences may be available either to Jason Gill's restitution claim or to any theoretical claim by the estate to recover the financial benefits received by Jason Gill, including the loans. Nor did the Court receive submissions about the effect of Jason Gill's bankruptcy on these calculations. But the figures nevertheless serve well to show that contrary to the Court's present conclusions, if Jason Gill's caring services were allowed and were valued at some theoretical discount to commercial rates of caring services, it is most unlikely that the value of the claim for those services would exceed the very substantial benefits Jason Gill has already received from his association with Dr Garrett.
It should be noted at this point that the estate's cross-claim does not include a claim for the recovery of the interest-free loans made to Jason Gill, although they are substantially admitted. The Court has accordingly not made any order in that regard in final relief. But the Court has a duty to quell the dispute between the parties and to bring all issues between them to an end. It would not be in the interests of justice for this to be determined in separate proceedings. The Court will grant liberty to apply, which will encompass the determination of this issue, if required.
Jason Gill's receipt of this calculated benefit of $822,228.75 is also of significance, when the Court addresses the Succession Act claim to which these reasons will shortly turn.
An Unjust Factor. The Court's findings in the factual narrative exclude the conclusion that any recognised vitiating factor existing here, such as mistake, duress or illegality.
Moreover, a claim of an "unjust factor" is inconsistent with the nature of the relationship that Jason Gill had with Dr Garrett. The Court has found that no promise was made by Dr Garrett to Jason Gill that he could have the Paddington property. There was only a loose understanding between them that Jason Gill could stay there whilst he cared for Dr Garrett. But Mr Gill himself often characterised the relationship he and Dr Garrett had as being "best mates". In mid-2009, when Jemima Garrett expressly offered to Jason Gill whether he would like to be paid as a carer for Dr Garrett, he replied to her, "No, that is just what friends do." Jason Gill thereby expressly disclaimed any greater expectations of financial reward. To him such remuneration was inconsistent with their mutual friendship. It is now difficult to conclude there is any injustice in him not receiving the remuneration he then declined.
As the Court has explained above, all that can be inferred from the objective circumstances here is that Dr Garrett and Jason Gill chose to continue one another's companionship for as long as it lasted. And whilst it lasted, it was a convenient arrangement based on friendship. Jason Gill provided care and support to Dr Garrett, in rough exchange for Mr Gill receiving free lodging, meals, drink and money to support his relaxed lifestyle. Mr Gill should be taken at his word at least this far: it was an informal arrangement between "best mates". This is not the territory of restitution.
It is not necessary to consider any other potential defence to Jason Gill's claim for remuneration, which fails for the reasons given.

[44]

Factors Warranting

Jason Gill qualifies as an eligible person under Succession Act, s 57(1)(e). But because he qualifies under s 57(1)(e) it is necessary for him to establish that having regard to all the circumstances of the case (whether past or present): "there are factors which warrant the making of the application": Succession Act, s 59(1)(b). And if there are no such factors, then the Court must refuse to proceed in respect of Succession Act, s 57(1)(e) eligibility.
Succession Act, s 59(1)(b) only applies to certain classes of applicants who are not generally regarded as natural objects of testamentary recognition of a deceased person. This suggests that the "factors" referred to are factors which, when added to facts which render the applicant an "eligible person", also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679, at 681 per McLelland J, and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23, at 252E. These principles have more recently been reaffirmed by the Court of Appeal in Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 at [18] and Sassoon v Rose [2013] NSWCA 220 at [15]. Where persons to whom Succession Act, s 59(1)(b) applies have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian (1988) 13 NSWLR 241, at 252E. The question is whether or not the person has a status of a person who would generally be regarded according to community standards and expectations as a natural object of testamentary recognition: Sassoon v Rose [2013] NSWCA 220.
The executors contest that in the circumstances of this case, either past or present, there are factors which would warrant the making of the application under Succession Act, s 59(1)(b).
The question of whether Jason Gill should be recognised as a proper object of Dr Garrett's testamentary intentions first directs some focus to the June 2008 will and the events between then and Dr Garrett's death. Upon advice and after due consideration, Dr Garrett decided to make Jason Gill a beneficiary of his estate in his June 2008 will. Whatever be the inadequacies of Jason Gill's care for Dr Garrett prior to 2008, and whatever be the state of outstanding loans due to Dr Garrett from Jason Gill at that time, Dr Garrett was prepared to overlook the deficiencies in his relationship with Jason Gill, of which he and his family were certainly aware, and to include him as a beneficiary in his will. This was a deliberate decision with the benefit of legal advice.
But whether there were Succession Act, s 59(1)(b) factors warranting should be determined at the time of Dr Garrett's death. These reasons show that there were major deficiencies in Jason Gill's care for Dr Garrett over the seven years between June 2008 and Dr Garrett's death in November 2015. But these deficiencies existed before June 2008 and, despite them, Dr Garrett recognised Jason Gill for his companionship as worthy of being among the objects of his testamentary intentions.
Between 2008 and 2015, whatever be the continuing inadequacies of Jason Gill's care for Dr Garrett, he did continue 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 the family took over Dr Garrett's day-to-day care.
There was no dramatic falling out between Dr Garrett and Jason Gill over this seven year period. Jason Gill stayed in the house and continued to provide companionship which was a benefit to Dr Garrett, not least of which because as Dr Garrett's cognitive capacities declined Jason Gill was a familiar face and personality among all the various carers who looked after him in his later years. Although Jason Gill was still spending Dr Garrett's money during this later period, over time more controls over that spending were introduced than had existed before 2008 and loans from Dr Garrett to Jason Gill and ceased by December 2009. In the first part of those seven years, Dr Garrett's alcohol consumption regrettably increased to unacceptable levels but finally, after urging from the family, Jason Gill did participate in watering down Dr Garrett's wine. The overall picture, in the Court's view, is one that did not change on the surface so dramatically that Jason Gill should be displaced from the objects of Dr Garrett's testamentary intentions at the time of his death.
The estate argues that Jason Gill's decision to go to lunch and to drink at the Royal Hotel with Dr Garrett rather than working, leading to dependence on Dr Garrett, does not of itself make Jason Gill the natural object of Dr Garrett's testamentary bounty. It can be accepted but it is still case that Dr Garrett decided to make Jason Gill an object of his testamentary recognition in the 2008 will.
On this limited analysis, Jason Gill might perhaps satisfy the requirements of Succession Act, s 59(1)(b) factors warranting. But as at the time of Dr Garrett's death other matters which have now come to light cannot be ignored. The first of these matters is the very substantial benefits, quantified at $822,228.75 that Jason Gill received throughout his relationship with Dr Garrett. Much of the information that went into that calculation was not available to the family at the time of the June 2008 will. Jemima Garrett only started to analyse the spending on her father's accounts after that will was made. The Court finds it hard to accept that given what is now known about the relationship between Dr Garrett and Mr Gill to community standards and expectations would require that Jason Gill, who had received so much from Dr Garrett, would still be a natural object of testamentary recognition under his will.
But there is another serious matter. In the Court's view, in light of the Court's findings in the narrative of fact of Jason Gill consciously misusing Dr Garrett's position of special disadvantage in relation to him, now to give testamentary recognition to Jason Gill in Dr Garrett's will would offend accepted community standards and expectations of who is a natural object of testamentary recognition. The misuse of Jason Gill's power over Dr Garrett applies to the occasions in the narrative where the Court has expressly found Dr Garrett was in a position of special disadvantage. It also applies to the whole scheme by which Jason Gill sought to acquire the Paddington property by suggesting that outcome to a weakening Dr Garrett. The findings made in this judgment were not available in 2008, but are clear now, as a result of the detailed evidence in these proceedings that has been made available through the Court's compulsory processes. Jason Gill's taking advantage of Dr Garrett also extends to the Court's findings on the Cross-Claim below.
Dr Garrett's characteristic toujours politesse is relevant here again. Jason Gill's conduct is more serious because had he paused for a moment, he must have appreciated he was taking advantage of the good nature and decorum of an honourable man.
For this reason, Jason Gill does not satisfy the requirements of Succession Act, s 59(1)(b) factors warranting. That conclusion means that Jason Gill's Succession Act, Chapter 3 case must fail.

[45]

If Factors Warranting Had Been Found

But it is instructive briefly to examine the kind of award the Court might have given had Succession Act, s 59(1)(b) factors warranting been found to exist. Without developing the logic too far, the process of reasoning that the Court would have had to engage in to give the plaintiff an award in this case tends to reinforce the Court's earlier conclusion that factors warranting do not exist here. It would also have been difficult to rationally justify the making of any award to Jason Gill in addition to what he has received under the 2008 will.
Jason Gill submits that adequate provision has not been made for him in the will for his proper maintenance and advancement in life. In reply, the executors submit that adequate provision has been made for him and that no further provision is required from Dr Garrett's estate.
The legal test of whether provision should be made in any case is set out in Succession Act, s 59(1)(c): "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 209; [1994] HCA 40 , the High Court of Australia said of the test under the previous legislation: "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case, which is a very clear one on the question of whether or not adequate provision has been made for Mr Gill once he has been shown to be an eligible person.
Some other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160], which relevantly provides: "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
If the Court were to decide what, if anything, is appropriate provision from the estate for Jason Gill in this case, it would first have to consider the size of Dr Garrett's estate and Jason Gill's financial position.
The gross distributable estate after deducting unpaid debt, expenses and liabilities, including legal costs, in March 2019, just before trial, was $4,571,300.91.
Mr Gill's financial position is poor. He said in his first affidavit sworn in these proceedings in April 2017 that his total assets at that time were approximately $28,000, which was the balance of the inheritance due to him from his father's estate, which was then being administered, together with his clothing and personal effects.
Jason Gill's mother died in New Zealand in October 2018. 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, he received a total of $163,600.58 (NZD) from her estate. After repayment of other debts at the commencement of the hearing in March 2019, his then current liquid assets were about $92,500 (AUD). This consisted of about $88,000 (NZD) held in his ANZ bank account, which, at the time he swore the affidavit, equated to about $84,541.39 (AUD). And he has a further amount of approximately $8,000 in his St George Account. He says that the funds in those accounts are his sole liquid assets. Although he is owed approximately $4,000 that he loaned to friends over the last two years. So his liquid assets are about $92,500 but his total assets are about $96,500. His personal effects are not of significant value.
The documents relating to the administration of both Jason Gill's parents' estates show that the distributions he would otherwise have received from those estates were reduced by satisfying various outstanding loans. Jason Gill borrowed widely from acquaintances, accepting informal loans of much the same kind that he had from Dr Garrett.
Jason Gill owes his solicitors and barrister their fees for acting for him for the last three years in these proceedings. He also owes $28,000 relating to the successful defence of the NCAT proceedings brought by the executors and in relation to the annulment of his bankruptcy. The Court accepts that Mr Gill has these significant liabilities related to these and the other proceedings.
Jason Gill has not received any income from computer broking activities since he affirmed his original affidavit in April 2017 nor has he obtained employment since that time. This was the state of his finances at the time of hearing.
The plaintiff says that he has been unable to locate a suitable home unit in Sydney's eastern suburbs for less than $800,000. There is no evidence of particular need on the part of any other beneficiary of Dr Garrett's estate competing with the claims of Jason Gill.
Jason Gill also has health issues. In his updating affidavit in March 2019, just before the hearing, Jason Gill revealed that he had a back condition and had been suffering pain, weakness and restriction of movement in his legs arising from this condition, which had been painful for a period of 12 to 18 months and had caused him to have a number of falls. He was scheduled to have an operation after the hearing. Because of delays in public hospitals, he had elected to have that surgery undertaken privately which he estimated would cost him about $20,000. This surgery had taken place by the time of final submissions.
The plaintiff's March 2019 affidavit also annexed a summary of his medical history, although the conditions listed were described as "active", which appears to indicate some of the conditions were still present. The conditions identified included spinal canal stenosis, apparently the source of his back pain. But among his active conditions, the summary refers to conditions described in the doctor's words as "alcohol excess", "fatty liver" and "mild liver impairment". This medical assessment confirms Jason Gill's drinking habits. But otherwise he has a number of conditions that are not uncommon at his age.
If the Court had found factors warranting and had ignored Jason Gill's conduct towards Dr Garrett, the Court would have embarked on consideration of what further provision would be adequate for Jason Gill. The Court would have analysed the passage of seven years from the time Dr Garrett made his last will in June 2008. It is likely that the Court would have concluded that the provision in the will for Jason Gill was out of date. His circumstances had changed in a number of directions. He was seven years older and was somewhat more likely to need health support and somewhat less likely to be able to support himself financially with the passage of time. He had provided a further seven years of companionship to Dr Garrett. At the same time he had benefited from a further seven years of free accommodation and a fully financially subsidised lifestyle including his daily sustenance.
The structure of the will in June 2008, as explained in clause 8, was for the then documented outstanding loan monies of $98,000 to be repaid to the estate by Jason Gill after he received the sum of $200,000. The bequest of $200,000 was contemplated to be the resource from which the loans up to that date would be repaid. The bequest was also expressed to be for "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 object of the bequest was to recognise Jason Gill's contribution so described by satisfying his documented loan liabilities and, on top of that, to provide him with a net financial cushion of a little over $100,000 to assist him to move on to the next stage of his life.
It should be inferred from the 2008 will that Dr Garrett knew that he had been lending some money to Mr Gill and that this money was unpaid. But he was prepared to forgive those debts to free Jason Gill from his past liabilities to him. In 2008, Dr Garrett wished that when his life with Jason Gill came to an end, that Jason Gill would have a legacy sufficient to alleviate any immediate hardship and to give him a financial cushion for the future in gratitude for Jason's care for him. But when competent at the time of that will, he did not recognise any obligation to provide for Mr Gill for life.
In June 2008, Dr Garrett was valuing Jason Gill's assistance at home and other services for a period of about 4 ½ years, from late 2003. Dr Garrett had Jason Gill's companionship for a longer period, back to 1998, another six years. Looking at the matter somewhat as the deceased did, it might perhaps be arguable for there to be a proportionate increase in Dr Garrett's legacy to Jason Gill by an additional $200,000 or perhaps as much as an additional $250,000. But Dr Garrett did not make an independent decision to promise the Paddington property to Jason Gill. Nor did he suggest that he had a moral obligation to support Jason Gill for life. So there would be no logical reason to depart very far from the structure of the 2008 will other than perhaps to have it updated slightly.
But it is difficult to justify any increase in the amount given under the 2008 will, for two main reasons. First, once the full extent of the benefits that Jason Gill has already received as a result of his association with Dr Garrett are quantified and taken into account, it can be seen he has already been well rewarded. What he was doing for Dr Garrett was of different quality but of much the same order in these additional seven years. It is true that Jason Gill's needs for financial support were greater in 2015 than they were in 2008 and his capacity to provide for himself less after the additional passage of time. But over the course of the whole relationship between 2004 and 2015 he has already received substantial additional valuable net benefits of the order of $822,228.75 from his association with Dr Garrett. The Court would see no reason to award him any more than he had already received over this period.
But once Jason Gill's unconscionable conduct towards Dr Garrett is taken into account, making any award of further provision in Jason Gill's favour is even more difficult to justify. There is no basis for the Court to give him sufficiently large further provision out of the estate so that he could receive a net $200,000-$250,000 after satisfying all his existing loan and other obligations to the estate. But Succession Act, s 60(2)(i) and (m) requires the Court to take into account Jason Gill's conduct towards Dr Garrett before his death.
Thus, had the Court not concluded that there were no factors warranting the bringing of Jason Gill's application, further provision out of Dr Garrett estate would not have been made.

[48]

Breach of Fiduciary Duty and Unconscionable Conduct

Outline of the Claim. The executors/cross-claimants seek a declaration that Dr Garrett and Jason Gill were in a fiduciary relationship and that Jason Gill as a fiduciary, acted in breach of the duties he owed to Dr Garrett. In the alternative, and by reason of the same conduct as is said to constitute a breach of fiduciary duty, the executors claim that Dr Garrett suffered loss by reason of Jason Gill's unconscionable conduct. The executors seek to recover equitable compensation for the alleged breaches of fiduciary duty and the alleged unconscionable conduct.
The executors' breach of fiduciary duty claim related to the financial transactions that followed Dr Garrett's stroke in November 2008 until Dr Garrett's death on 5 August 2015. The executors allege that during that period, Dr Garrett placed trust and confidence in Jason 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. The executors' case is that in withdrawing Dr Garrett's funds to pay what were described as "household expenses" that Jason Gill accepted office as a fiduciary to act for, on behalf of and in the interest of Dr Garrett and for his benefit in expending those funds.
Alternatively, with respect to the same transactions, it is alleged that Dr Garrett was to Jason Gill's knowledge in a position of special disadvantage by reason of factors including Dr Garrett's diminished cognition, his physical disabilities and Jason Gill's control over him, such that when Jason Gill was carrying out daily financial transactions on behalf of Dr Garrett, to the extent that he benefited himself beyond certain reasonable limits, Jason Gill engaged in unconscionable conduct.
The transactions in question mostly occurred on the three accounts, the CM Account, the Choice Account and the St George Account. All the withdrawals which are said to constitute the breach of fiduciary duty were from ATMs or were branch assisted cash withdrawals.
Jason Gill contests the executors' characterisation of his relationship with Dr Garrett. In his Amended Defence, he denies that Dr Garrett placed trust and confidence in him so as to give rise to any kind of legal or equitable duty on his part to Dr Garrett. It is not in issue that Jason Gill used Dr Garrett's funds and accessed Dr Garrett's ATM accounts. Jason Gill says that this was for their "mutual living expenses" and that Dr Garrett permitted him to use his funds in this manner. Jason Gill's case throughout denied any relationship of trust in his execution of these transactions.
The executors substantially modified and refined this claim over the course of the hearing. The present analysis is of the modified claim that the executors put in final submissions. The executors not only cross-claim for breach of fiduciary duty and for compensation for unconscionable conduct but they deploy the facts relevant to these remedies in defence of Jason Gill's claims in contract, equitable estoppel, the restitutionary claim for remuneration and his claim under Succession Act, Chapter 3.
The applicable legal principles in relation to breach of fiduciary duty and unconscionable conduct may be shortly stated.
Fiduciary Duty - Applicable Legal Principles. All fiduciary relationships contain a critical feature that Mason J identified in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 ("Hospital Products") at 96-7: "... that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position."
(1984) 53 ALR 417; [1984] HCA 36
The obligations of the fiduciary to the fiduciary's principal have often been defined. A classic statement of the essential duties of the relationship appears in Chan v Zacharia (1984) 154 CLR 178; (1984) 53 ALR 417; [1984] HCA 36 at 199 per Deane J: "[A] person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain (i) which has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between his fiduciary duty and his personal interest in the pursuit or possible receipt of such a benefit or gain or (ii) which was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it."
But the duty is best couched in negative terms, as one not to make a gain from a position where the fiduciary is in a position of conflict of interest and duty, without the informed consent of those to whom the duty is owed, as was expressed in Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 at 197-199, McHugh, Gummow, Hayne and Callinan JJ: "... [T]he fiduciary is under an obligation, without informed consent, not to promote the personal interests of the fiduciary by making or pursuing a gain in circumstances in which there is 'a conflict or a real or substantial possibility of a conflict' between personal interests of the fiduciary and those to whom the duty is owed."
The scope of a fiduciary's obligations and whether or not they have been breached are informed by the nature of the relationship and what the fiduciary is asked to do in each case.
The present case is not one of the fiduciary relationships well recognised by the Courts such as that of partners, principal and agent, director and company, master and servant and solicitor and client. But the categories of fiduciary relationships are not closed. In determining the scope of the fiduciary's obligations, and whether those obligations have been breached, the nature and terms of the relationship are critical: Hospital Products at 68; Maguire & Tansey v Makaronis (1997) 188 CLR 449 at 463; [1997] HCA 23; Ultra Tune Australia Pty Ltd v McCann (1999) 30 ACSR 651 at [80] per Hansen J.
Unconscionable Conduct - Legal Principles. The executors claim in the alternative equitable compensation for unconscionable conduct based on the well-established principles stated in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; (1983) 46 ALR 402; [1983] HCA 14 ("Amadio"), see also Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 368 ALR 1; [2019] HCA 18. In Amadio Mason J said the following (at 467) in relation to the knowledge of special disadvantage which was required to establish unconscionable conduct: "As we have seen, if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A's) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same."
In this branch of the relief, the executors claim equitable compensation on the basis that Jason Gill was at all relevant times aware of Dr Garrett's position of special disadvantage in relation to him but nevertheless he took advantage of Dr Garrett's weaknesses in effecting financial transactions on his behalf, such that it would now be unconscionable for him to retain the benefit of those transactions.
Findings in Relation to the Claim. In addition to the earlier factual narrative, more detailed findings are required about the financial arrangements between Dr Garrett and Jason Gill. Although Jemima Garrett had a power of attorney from Dr Garrett, she did not effect his day-to-day expenditure. That was left with Jason Gill who always had a degree of control over Dr Garrett's bank accounts for that purpose.
Dr Garrett had three accounts that were used for his daily expenses and from which it is alleged Jason Gill withdrew funds that the executors now say are unaccounted for. These were the CM Account; the Choice Account and the St George Account, which have been identified earlier in these reasons.
Jason Gill argues that it cannot be assumed that he conducted the cash drawings on these three accounts. But it needs to be remembered what acts are involved in the ordinary use of an ATM machine for someone like Dr Garrett in 2009. The acts include: thinking about his future needs for cash; making a decision to withdraw cash; finding a machine; remembering a PIN number or remembering where a PIN number was written down; and then operating the ATM machine. In the Court's view, by very early in 2009, Dr Garrett's memory and organisational skills were so poor that he would have needed assistance with several of these steps before he could withdraw cash. It is safe to infer that Jason Gill was involved in some aspect of all cash withdrawal transactions from no later than Dr Garrett's stroke in November 2008.
The claim for breach of fiduciary duty, or any alternative unconscionable conduct, dates only from the date of Dr Garrett's stroke up to the date of his death and consists of the following components. It is for limited amounts of ATM cash withdrawals from Dr Garrett's accounts that were regularly used by Jason Gill together with associated ATM fees. And the second component of the claim is for the storage fees that were incurred during that same period.
The executors seek an order that Jason Gill account for, or suffer an order for equitable compensation for, the following amounts in respect of the following components of the claim: 1. $142,100, being the total of the cash that Jason Gill withdrew in cash from each of the CM Account ($47,096.00), the Choice Account ($58,406.00) and the St George Account ($36,598.00) during the period from 17 November 2008 to 5 August 2015 calculated at a rate of $58.00 per day; 2. $1,175.50 in ATM fees; 3. $43,155.64 for storage costs incurred by Dr Garrett in the period 17 November 2008 to 23 February 2015 (being the date the storage ended), being part of the total storage costs of $69,349.64, a figure which Jason Gill admits.
The total value of the executors' claim for breach of fiduciary duty and any alternative unconscionable conduct is therefore $186,431.14.
It is convenient first to deal with the claim in relation to the storage costs. In the Court's view the claim for breach of fiduciary duty is not made out in respect of the storage costs. This was an existing liability which was created when Dr Garrett was fully mentally competent and continued to be incurred monthly thereafter for years. It did not involve any specific withdrawal of cash under a special delegation of a task or authority to Jason Gill to handle Dr Garrett's money or to undertake something on his behalf. Rather it was just the continuation of an existing liability. For that reason is difficult to characterise Jason Gill's relationship with Dr Garrett with respect to these storage charges as a fiduciary one. There is no breach of fiduciary duty made out with respect to these charges.
However, the storage charges represent continuous transactions between Dr Garrett and Jason Gill in which Dr Garrett is effectively advancing credit to Jason Gill every time he pays one of Jason Gill's storage charges. The Court's findings in the narrative of fact make clear that Jason Gill was well aware that Dr Garrett did not want the storage charges incurred. But one of the reasons that the storage charges were incurred was that Dr Garrett was mentally weakened from late 2008 early 2009 and was unable to insist on the storage coming to an end. The transaction is therefore continued only because Jason Gill took unconscientious advantage of Dr Garrett's weakness. Throughout the period Dr Garrett was in a position of special disadvantage. All the storage charges for that period are recoverable from Jason Gill by way of equitable compensation. The parties can bring in final calculations of the amount due on this aspect of the cross-claim inclusive of interest, pursuant to the liberty to apply granted in the orders below.
In relation to the claim arising from cash withdrawals from the three accounts, the CM account, the Choice Account and the St George account, the executors are successful on the cross-claim in respect of the withdrawals from all three accounts.
Following Dr Garrett's stroke on 17 November 2008 until 8 March 2011, Dr Garrett in his weakened state allowed Jason Gill to withdraw cash at ATM's from the CM Account using Dr Garrett's ATM Westpac Bank debit card and PIN to pay household expenses. Jason Gill must have been involved in these withdrawal transactions because the Court finds that Dr Garrett could not complete them on his own. But Jemima Garrett did not appreciate during that period that Jason Gill was taking for his own personal use, a minimum of $58.00 a day from the cash withdrawn from the CM Account totalling $47,096.00. This amount is in excess of what was required for a Jason Gill's and Dr Garrett's needs. Jason Gill did not dispute in cross examination the correctness of the calculations that led to this excess amount of $58 per day and the Court finds it is accurate. Jason Gill kept no records of his own of what he did with the cash that he kept for himself.
The total amount cash withdrawals that could not be attributed to any particular purpose during the CM Account during this period is quite large, $159,260.00. During this period substantial amounts of money were withdrawn and apparently dissipated because there is no evidence that Dr Garrett benefited from this money. For example $25,800 was withdrawn from the CM account in cash from ATMs in March and April 2010.
Between 7 February 2011 and 11 November 2013 Jemima Garrett also transferred $134,640.00 including the weekly cash budgeted amount of $700.00 from the CM Account to the Choice Account. The average dollar per week amount transferred from the CM Account to the Choice Account through this period was $935.00. Again, during this period, Jason Gill withdrew cash at ATM's from the Choice Account using Dr Garrett's MasterCard debit card to pay household expenses. And again without Jemima Garrett knowing during that period, Jason Gill was taking for his own personal use, a minimum of approximately $58.00 a day, or $406.00 per week, from the cash withdrawn from the Choice Account totalling $58,406.00. Jason Gill did not keep any records of what he did with the cash that he kept for himself.
Finally, from 12 November 2013 until 5 August 2015, Jemima transferred $71,341.00, including the weekly cash amount of $700.00, from the CM Account to the St George Account. The average dollar per week amount transferred from the CM Account to the St George Account was $791.42. During this period, Jason Gill withdrew cash at ATM's from the St George Account to pay household expenses. And again without Jemima Garrett knowing during that period, Jason Gill was taking for his own personal use, a minimum of approximately $58.00 a day, or $406.00 per week, from the cash withdrawn from the St George Account totalling $36,598.00. Jason kept no records of his own of what he did with the cash that he kept for himself during this period.
By way of an aside during the whole period 17 November 2008 to 6 August 2015, the expert, Mr James, has found that there were many ATM cash withdrawals from various locations undertaken and large amounts of Dr Garrett's funds were withdrawn from the CM Account, the Choice Account and the St George Account. Mr James's analysis concludes that the total sum of $299,219.42 (being the total amount of unknown cash withdrawals of $306,369.42, less the sum of $7,150.00 known to be cash loans to Jason Gill as evidenced by chit records) was withdrawn in cash in this period beyond identified expenditure. Where this cash went is unknown. Jason Gill cannot account for it as he has no records to show what he did with it. Jason Gill was likely to be the substantial beneficiary of this cash but it is not all the subject of this fiduciary claim which is limited to $58 per day which can be readily established. The simple reality of the life being led by Dr Garrett Mr Gill is that only the latter had a substantial need for discretionary expenditure.
This excess expenditure identified in the cross-claim only occurred because Dr Garrett entrusted the withdrawal of this cash to Jason Gill because he was incapable of doing it himself due to his vulnerable state. In the performing the role of that specific task of cash withdrawal, Jason Gill was Dr Garrett's fiduciary. The Court infers from Jason Gill's inability to produce any records or account for this money that he cannot do so and so the Court will order equitable compensation for the three amounts claimed. It makes no difference that Jemima Garrett was imposing a budget on Jason Gill he was not at liberty to pocket cash for his own benefit.
Even if a the fiduciary duty could not have been established, the amount claimed of $142,100 would also be recoverable because of Jason Gill's unconscionable conduct in undertaking transactions that took advantage of Dr Garrett's position a special disadvantage by withdrawing cash from Dr Garrett's accounts which was not restored to Dr Garrett.
The total amount of $142,100 plus interest is recoverable from Jason Gill by way of equitable compensation. The parties can bring in final calculations of the amount due on this aspect of the cross-claim inclusive of interest, pursuant to the liberty to apply granted in the orders below.

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