Grant v Grant; Grant v Grant

Grant v Grant; Grant v Grant - [2020] NSWSC 1288 - NSWSC 2020 case summary — Zoe

[7]

Judgment

Dr Alan Grant and Mrs Gwynneth Grant were a gifted and cultivated couple. He practised medicine as a radiologist and pursued a broad range of intellectual interests. She taught music, played violin in the Sydney Symphony Orchestra and had a passion for both the performing and pictorial arts. Though admired by their many friends, the Grants' family life was deeply scarred by conflicts they could not resolve.
Dr Grant was born 100 years ago, in late 1920. Mrs Grant was born in 1930. They married in 1953 and had five children, Nerez (born 1956), Seth (born 1959), Ryven (born 1960), Miles (born 1961) and Tansin (born 1963). The Grant family who participated in these proceedings referred to one another by their first names. Without intending any disrespect to any party, this Court will do the same in these reasons.
Mrs Grant died in May 2017 and Dr Grant in November 2019. Their family conflicts must now be resolved by this Court through their estates, which are parties to two sets of proceedings that are being heard together.
As the representative of the estate of Dr Grant, Seth brings proceedings (no. 2017/316190) to recover real property and money from Nerez, as the first defendant and her daughter, Kashaya Williams, as the second defendant. Seth claims Nerez transferred this property and money out of Dr Grant's estate by misusing a power of attorney from him and abusing her position as his fiduciary ("the estate recovery proceedings").
In the estate recovery proceedings, the estate contends that whilst Nerez held a power of attorney from Dr Grant and had control of his care she depleted his estate of over $4 million between 2011 and 2017. In September 2017, using her power of attorney from Dr Grant, Nerez caused the transfer of the title to the last remaining family residential property in Killcare, on the Central Coast ("the Killcare property") from Dr Grant to Kashaya for nominal consideration. The estate contends this was a breach of Nerez's power of attorney, a dishonest breach of fiduciary duty. Alternatively, the estate contends that the transfer was made for a consideration of $900,000 and that Nerez and Kashaya never intended to pay this consideration to Dr Grant and that the transaction should be set aside on the same grounds. Either way Dr Grant's estate puts its case, it alleges that the transfer of the Killcare property was liable to be set aside during Dr Grant's lifetime, and should now be set aside at the suit of his estate.
Nerez does not deny she caused the transfer of the Killcare property to Kashaya using her power of attorney. They both contend in defence of the estate recovery proceedings that the transfer of the Killcare property was merely to give effect to a gift that Dr Grant had always wanted to make to Kashaya, so she could provide a home for Nerez. Indeed Kashaya has already leased the Killcare property to Nerez for life.
The estate also claims the return of a sum of $100,000 which Nerez removed from Dr Grant's bank accounts in October 2017 under colour of her authority as her father's attorney. The estate claims she has neither accounted for, nor promised to return, this money. Nerez acknowledges receipt of this sum but claims that it was a gift to her by her father. Nerez transferred $160,000 out of her father's bank account into her own bank account after which she applied these funds for her own and her daughter Kashaya's benefit. In conformity with orders of Kunc J, Kashaya later repaid $60,000 of this sum to the estate, leaving a net $100,000 unaccounted for and outstanding. The estate's case is that Dr Grant's power of attorney did not confer on Nerez the power to make such gifts, either to herself or to other family members. Nerez disputes her lack of authority to use the power of attorney this way. The estate also alleges that this gift of money was a breach of her fiduciary duty to her father, which she denies.
Nerez also brings proceedings (no. 2018/139174) for further provision pursuant to Succession Act 2006, Chapter 3 out of the estate of her late mother ("the family provision proceedings"). Nerez received nothing in Mrs Grant's last will made in May 2012. Nerez claims she has been left without adequate provision for her proper maintenance, education and advancement in life. Seth Grant is an executor of his mother's estate and in that capacity he represents her estate in the family provision proceedings.
Mrs Grant's estate answers Nerez's claim in two ways. First, it contends Nerez treated Mrs Grant so badly she is not entitled to an order for provision out of her estate. Nerez denies she had a poor relationship with her mother. Second, Mrs Grant's estate contends Nerez received substantial gifts from Mrs Grant during her lifetime. But in reply to this Nerez claims that her other siblings received as much as she did from her mother during her mother's lifetime and that this is no basis to justify leaving her out of her mother's will.
These proceedings have a relatively complex history. After Mrs Grant died in May 2017, Dr Grant revoked his existing power of attorney to Nerez in October 2017 and appointed Seth as his attorney in her place. Once Seth had access to his father's bank accounts, he discovered evidence that he believed showed that Nerez had removed large amounts of money from his father's accounts and that in the previous month, September 2017, she had transferred the title to the Killcare property to Kashaya. He immediately commenced the estate recovery proceedings, as his father's tutor.
But Nerez objected to Seth acting as her father's tutor in the estate recovery proceedings. Orders were made for the NSW Trustee and Guardian to manage Dr Grant's financial affairs. The NSW Trustee and Guardian became his tutor and represented him in that capacity until his death in November last year. At that point the Court appointed Seth to represent his father's estate under Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.10 in these proceedings and with a view to the proceedings being heard within their originally allotted hearing dates of 4 - 7 February 2020.
Nerez sought to remove Seth as a representative of Dr Grant's estate and to stay the estate recovery proceedings. At this point it should be mentioned that in separate probate proceedings ("the probate proceedings") Seth has sought a grant of probate of Dr Grant's will made in 2018, and in the alternative, a will he made in 2011, both of which divide Dr Grant's property equally among his five children. But Nerez now propounds a 2012 will Dr Grant made, which gives her a substantial part of his estate. Seth and Tansin allege that the 2012 will was executed in suspicious circumstances. Nerez denies there were any suspicious circumstances in its execution. In November 2019, Nerez sought to stay the estate recovery proceedings until the resolution of the probate proceedings. In the interim she applied for her brother, Miles to represent Dr Grant's estate instead of Seth.
On 5 December 2019, the Court dismissed that motion in reasons which have already been published: An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747. A non-publication order was made in respect of the Court's 5 December 2019 judgment, because of Dr Grant's then grave incapacity in what were then in substance protective proceedings. But as Dr Grant is now deceased there is no reason to maintain the non-publication order. Without altering the text of that judgment, unless it is required, references to it in these reasons is sufficient to identify all the parties to it.
By motion filed with the Court's leave on the first day of the present hearing, Nerez applied once again to stay the estate recovery proceedings, as she had now filed a Summons in the probate proceedings. But the Court rejected that application which was essentially repetition of the arguments that the Court had fully dealt with in An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747.
These proceedings were conducted over six days between 4 and 7 February 2020 and on 18 February and 15 April 2020. Mr A. Hill of counsel instructed by Mr R McKessar of Braye Cragg solicitors appeared for Dr Grant's estate in the estate recovery proceedings and for Mrs Grant's estate in the family provision proceedings. On 3 August 2020, after the trial had concluded and all submissions had been received, Mr McKessar filed a Notice of Ceasing to Act. Nerez appeared for herself as a defendant in both the estate recovery proceedings and as the plaintiff in the family provision proceedings. Kashaya appeared for herself in the estate recovery proceedings. The probate proceedings will be heard and determined later by another judge, if the matters raised within them remain in issue.
Kashaya and Nerez presented their cases with confidence. They cross-examined every witness called on behalf of the two estates. And from time to time they advanced oral submissions based on the evidence. All but one of Dr and Mrs Grant's children gave evidence. Miles Grant took no part in the proceedings.
But Kashaya and Nerez did not respond to the many opportunities the Court afforded them to better advance their respective cases. Despite clear directions to the parties to do so, by the first day of the trial, neither of them had provided any objections to the estates' material. The Court admitted the other parties' evidence subject to Nerez and Kashaya's rights to object at a later time. They did not further pursue objections to this evidence.
The Court received no opening written submissions from Nerez or Kashaya prior to trial, despite pre-trial orders and directions for them to do so. The Court therefore provided them each an opportunity to develop their cases orally at the opening of the proceedings. They had not given any advance notice as to which witnesses from the estates they required cross-examination. But the Court required all witnesses to be called on behalf of the estates to be present to be cross-examined.
On 6 March 2020, Nerez filed submissions on her family provision claim. No written submissions were filed by Kashaya. On 8 March 2020, the estates' closing submissions for both proceedings were filed, though mistakenly they were not served on Nerez and Kashaya until 15 March 2020. Prompted by an email from Kashaya raising this issue of service, the Court also forwarded the estates' submissions to the parties on 16 March 2020.On 1 April 2020, the estate provided submissions in reply to Nerez's 6 March submissions.
The Court reminded Nerez and Kashaya to provide closing written submissions, and they were granted liberty to apply. On 27 March 2020, the Court advised the parties that due to COVID-19 restrictions, the balance of submissions in the matter would be dealt with in writing, as the oral evidence had been completed. This allowed Nerez and Kashaya to develop their submissions at home, which is what they wanted. And on 2 April 2020, the Court made orders extending the time for Nerez and Kashaya to file their final submissions to 1 May 2020. The Court put them on notice that if their closing submissions were not received by 1 May, the Court may proceed to give judgment in both proceedings without further hearing from them.
On 1 May 2020, the Court received final written submissions from Nerez, "on behalf of my daughter, Kashaya Williams, and myself". On 8 May 2020, Nerez also emailed my Associate an additional paragraph to her submissions. Nerez stated in these submissions that they had been written without the benefit of both transcripts of the proceedings and of the estates' submissions. She had previously told the Court that she could not afford to pay the fee for the transcript. On hearing this, the Court referred her on 4 February 2020 to the duty registrar to seek, if she chose, a waiver of the transcript fees.
The Court has taken account of Kashaya's various oral submissions and statements to the Court during the hearing as representing the substance of her defence in the estate recovery proceedings. In an email to my Associate on 1 April 2020 Kashaya foreshadowed her intention to file joint written submissions with her mother.
The Court reserved its decision on 3 July 2020, noting at the time to the parties that no separate written submissions had been received from Kashaya. The Court gave the parties approximately a week's notice that this judgment was going to be delivered. Kashaya did not make any application to be heard further before judgment was given.
The next section of these reasons is a narrative of the history relevant to both the estate recovery proceedings and the family provision proceedings. 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 include reference to versions of the facts that have been rejected. Nor does it seek to record every aspect of the history of this family or to resolve every contest of fact that has arisen among the parties. The Court is required to focus on the real issues in dispute and to that end the Court has selected what in the Court's analysis are the more important events that are directly relevant to the issues in contest.
But before that narrative commences, a general assessment of the credibility of the parties and their witnesses is useful. Specific instances of matters relevant to the credibility of these witnesses appear throughout these reasons.

[8]

Credibility of Parties and Witnesses

Seth Grant. Professor Seth Grant is a medical scientist. He was a precise and reliable witness who gave thoughtful testimony based on well-embedded memories. As his professional background might indicate, he took a careful and measured approach to the recounting of facts. But the past conduct of his sister Nerez and his niece Kashaya clearly aggravated him, no doubt because he had experienced it throughout his life in ways that had impaired the quality of family relationships, including his own relationship with his parents. His court room questioning by his sister and by his niece appeared to return him to long-standing family conflicts.
But despite that he was generally patient with his cross-examiners. Not unnaturally, he was keen to make sure that his answers gave the full historical picture of the family from his point of view. But unlike many witnesses who give lengthy answers in situations of family conflict, his replies were all responsive. He did not exaggerate the facts and was clearly attempting to remain dispassionate about his eldest sister. His evidence is wholly accepted.
Mr Benjamin Isaac. Mr Isaac and his wife Myra had been family friends of Dr and Mrs Grant for a long time. Both Mrs Grant and Mrs Isaac were accomplished musicians. A mutual love of music brought the two couples together. Mr Isaac was a most empathetic individual, who had a strong affection for both Dr and Mrs Grant which had developed over many years. It was not entirely surprising therefore that he sought out Dr Grant when Dr Grant was placed in a nursing home by Nerez in 2013. He went searching for Dr Grant to make contact with him and see how he was faring.
Although a somewhat older man, Mr Isaac's memory was not impaired by time. His recollections were sound and reliable. He was an excellent witness in whom the Court has great confidence. All his evidence is accepted.
Ms Caroline Nolan. Ms Nolan was the carer for Mrs Grant in the later years of her life. Tansin engaged her in this role to provide additional care, companionship and supervision for Mrs Grant both at Tansin's home and later in the James Milson retirement village in North Sydney.
Ms Nolan was a considered, reliable and thoughtful witness whose evidence the Court entirely accepts. She could give detailed accounts of a number of incidents that she recalls taking place between Mrs Grant and other members of the family in October 2011. Despite the passage of time, her recollection of these events was quite vivid and the Court accepts it all. The Court had all the more confidence in her testimony because of her capacity from time to time carefully to mark out areas of her recollection, which she did not think were as good as her principal memories. Her testimony was most important in understanding the Grant family dynamics.
Ms Sally Saxby. Ms Saxby was employed as a carer for Mrs Grant for many years up until 2010. She was a sound, reliable and honest witness of events. She had been engaged by Tansin to be a carer and companion for Mrs Grant. She did so with fidelity to her role and with obvious affection for Mrs Grant. Nerez and Kashaya accused her of being biased in Tansin's favour. But no bias was evident in her testimony. She had a striking recollection of aggressive statements that Nerez had made to Mrs Grant in her presence. And when giving evidence many years later she was still visibly moved by the impact she perceived this aggression had upon Mrs Grant. She rankled at both the humiliation and the injustices Nerez had occasioned to both her parents. Ms Saxby vividly described how Dr Grant had been "taken over" by Nerez. The Court accepts all Ms Saxby's evidence.
Ms Jill Shaw. Ms Shaw became a close companion and carer of Mrs Grant in her final years after Ms Saxby ceased to be Mrs Grant's carer. Ms Shaw had been a friend of Mrs Grant from the time they met at an art school on the lower North Shore. They had much in common, especially their strong interests in art and music. She had genuine admiration for Mrs Grant's broad cultural knowledge and interests.
The Court fully accepts Ms Shaw's evidence. Although she too was paid by Tansin, she had no bias by reason of that towards Tansin or towards Tansin's side of this case. She had genuine empathy for Mrs Grant and she found pleasure in her companionship with her. Ms Shaw gave compelling evidence based on sound memories. The Court accepts all her often detailed accounts of events within the Grant household. In particular the Court accepts Ms Shaw's account of the strong statements Mrs Grant made about her daughter Nerez, and about Nerez's conduct towards Mrs Grant.
Mr John Patrick Quinn. Mr Quinn, a solicitor, made a number of wills for Mrs Grant. He maintained high standards of professional practice. He became involved with the family through Tansin's partner, Warwick Miller. But despite that connection he discharged his duties with complete professional objectivity. He was reliable in all his testimony, which the Court wholly accepts.
Ms Theresa Sienkiewicz. Ms Sienkiwicz was a friend of the Grant family, but mainly of Mrs Grant. She lives in the United Kingdom and gave evidence by telephone. Her background was as an accountant. She had received an Order of the British Empire for services to the accounting and pensions professions. Ms Sienkiwicz visited Sydney from time to time to spend time with Mrs Grant. During these visits she had the opportunity of seeing Nerez interact with Mrs Grant on many occasions. Despite the fact she was giving evidence by telephone from the UK, her clear discomfort at witnessing what were not uncommon confrontations between Nerez and her mother were quite palpable. She had a good memory for detail, partly because she was shocked by some of what she saw and that made her remember it. Her evidence was always precise, considered and reliable. The Court accepts all of what she said.
Mr Warwick Miller. Mr Warwick Miller has been Tansin's partner in life for many years. The scene of some of the conflicts involving Mr and Mrs Grant took place in and outside Warwick's and Tansin's property in Carabella Street, Kirribilli (referred to in these reasons as "the Kirribilli property"). Warwick Miller was thoughtful and reasonable but often shocked by what he saw. He was a latecomer to the Grant family dynamics and was alarmed by a number of the incidents that his evidence required him to recount. His testimony about these incidents was quite compelling even though given years after the events he was describing.
His approach to the Grant family affairs was to try and bring as much order and reason as possible to the parts of them that affected him and Tansin. He was highly supportive to his partner and her family. But that support was tempered by a natural caution: he was never quite sure what was going to happen next in dealing with Nerez and Kashaya. He was a wholly reliable and honest witness and his evidence is fully accepted.
Nerez has her own perspective on Warwick Millers' introduction to the family. She says "before Warwick Miller appeared in our lives our family was happy and everyone got along well". This seems to imply that Warwick Miller was somehow the cause of the family discord. Nothing in his evidence or his demeanour in the court room gives any basis to draw such a conclusion.
Mrs Marguerite Grant. Mrs Marguerite Grant is married to Professor Seth Grant, they live in Cambridge in the United Kingdom. Marguerite Grant visited Australia from time to time with her husband on family holidays and importantly she well remembers Mrs Grant's visit in February/March 2011, when she came to stay with them in Cambridge for respite from events in Sydney.
Marguerite Grant was a direct, reliable and honest witness, who gave a faithful and accurate account of family events that she had witnessed. Her accounts of these events in her testimony at times triggered a degree of emotion in her delivery. But her emotional response to these events was not exaggerated; rather it was an indication that in her evidence she was drawing upon some deeply embedded memories about unpleasant events. The Court entirely accepts her evidence.
Tansin Leckie. Like her brother Seth, Tansin has grown up with Nerez as her eldest sibling. Years of dealing with Nerez have made Tansin cautious, cold and defensive with her oldest sister. As Nerez was not legally represented in these proceedings, Nerez's cross-examination of Tansin was probably the lengthiest re-exposure to direct communications with Nerez that Tansin had suffered for many years. This had a number of important consequences.
First, Tansin's coldness towards her cross examiners confirmed what she described in the substance of her testimony: namely, years of abusive conduct by her older sister, who Tansin regarded as manipulating her parents, particularly her father, and which she regarded as having destroyed the Grant's family life. Tansin unpicked Nerez's and Kashaya's questions, seeking clarification of their ambiguities and uncertainties, to ensure that they were comprehensible to her. This process was indicative of someone who had long dealt with a chaotic figure in Nerez who she needed to try and control by reason.
Second, Tansin's evidence was given at times with irritation about Nerez. But this was no more so than was warranted by the events that she was describing. Despite years of Nerez's aggravating conduct, Tansin did not exaggerate the various events that she described within their family history. She was accused time and again of fabricating testimony. But the Court rejects the contention that she deliberately fabricated any of her testimony. Indeed apart from Tansin's version of events, Nerez and Kashaya proffered few other explanations for the events she described.
Tansin was an honest and reliable witness in whom the Court has confidence and whose evidence the Court wholly accepts.
Nerez Grant. Nerez's evidence constantly distorted the Grant's family history. In her testimony she was prepared to say whatever she thought suited the moment, whether accurate or not. She showed no obvious preference for the truth over other convenient accounts of the past.
Her testimony was wholly unreliable. The Court does not accept it, unless it coincides with other accepted testimony or incontrovertible facts. She gave accounts of events which stretched credulity. She frequently could not give a coherent account of the context of conversations which she claimed had taken place and which she had probably invented.
Under cross-examination Ms Grant was quick to correct her questioner and was often argumentative. She was skilled in selecting a small detail in a question that was incorrect as a basis for disputing the question. At other times she gave long historical explanations for her answers that were of marginal relevance to the question.
The Court had days to observe her in the courtroom both in the witness box and as her own advocate. She generally conducted her case with self-confidence. But she could momentarily flash sharp verbal aggression at those who displeased her, a capability the evidence suggests she was also adept at deploying outside the courtroom.
Nerez's submissions are replete with disparagement of the intelligence and bodily appearance of some of her siblings and their spouses. These sort of unnecessary comments, that the Court need not repeat, show that her bitterness towards her siblings ran very deep.
Kashaya Williams. Nerez's daughter, Kashaya Williams was cross-examined and throughout she showed a confident assertiveness, similar to that of her mother. She professed to tell the truth. But the Court regards her as unreliable. She made occasional admissions against interest but sometimes this was because she probably did not understand the implications of what she was saying.
She had made some sacrifices for her grandfather and these should be recognised. She had put him up for much of the period between 2011 and 2013. But during that period she derived handsome financial rewards from giving her grandfather lodging. Large sums of money were withdrawn from his accounts during his stay with her.
The Court regards Kashaya as an unreliable witness whose evidence will only be accepted to the limited extent that it coincides with other uncontested facts or reliable testimony.
Both Nerez's and Kashaya's evidence demonstrated an acute sense of what was in their own financial interests. Neither of them showed comprehension of the separate interests of Dr Grant, Mrs Grant or their other family members.
Findings of serious misconduct have been made against some witnesses in these proceedings. In reaching those findings the Court has had regard to the gravity of the matters alleged: Evidence Act 1995, s 140(2)(c). It should be noted that both Nerez and Kashaya have contested all the adverse findings that have been made against them. But because they have been disbelieved and because there is reliable credible evidence to the contrary, the findings been made.
Where in this credibility analysis the Court has concluded that it accepts all the evidence of a particular witness, when that witness's evidence is set out in the narrative below without comment, that evidence, as recorded, represents the Court's findings on the relevant subject matter.

[10]

The Early Years in Maitland and the Central Coast - 1953 to 1979

A short time after Dr Grant and Mrs Grant were married in 1953 they moved to the lower Hunter Valley to raise their young family. They lived in East Maitland between 1958 and 1974. Later they moved to the Central Coast, where they lived from 1974 until the early 1990s, when they came to Sydney's lower North Shore. The family history of those early years reveals a profile of emerging conflicts.
Dr Grant practised as a radiologist from several Hunter Valley medical facilities including Maitland Hospital, Cessnock Hospital and Kurri Kurri Hospital. At the same time Mrs Grant taught music at primary and secondary schools and was a counsellor at several local high schools. Mrs Grant was also an assiduous property investor, purchasing and selling a number of properties in the lower Hunter region.
The children all went to local primary school at Tenambit, a suburb of East Maitland. Seth, Ryven, Miles and Tansin attended boarding schools in Sydney for their high school education. Nerez was uninterested in a private school education and attended Maitland Girls High School and Gosford High School. All the children attained their Higher School Certificate.
In 1974/1975, the family moved to the Killcare property on the Central Coast. Dr Grant established a private radiology practice in Gosford, with branch practices in Wyong and Toukley. Mrs Grant had periods away from the workforce while she looked after the children at home. And this was no small task, as significant challenges emerged in the Grants' home life.
The evidence of Seth, Tansin and Ryven, as well as written statements of Mrs Grant, indicate that difficulties with Nerez began when the children were young and became a defining feature of all their lives.
From an early age, Nerez had a troubled relationship with many forms of authority, beyond normal teenage rebellion. Nerez's conduct came to special attention even in primary school. Seth recalls Mrs Grant frequently visiting the Tenambit primary school to discuss Nerez's behaviour. Mrs Grant even described Nerez's conduct to Seth as "anti-social". And she said of her in those years, "Nerez was a bad child from an early age. Nerez had temper tantrums and was very aggressive. Nerez had few emotions other than contempt for others." But Seth, Ryven and Tansin could see that for themselves.
In her teenage years, Nerez fell in with what Mrs Grant described as "a bad lot". Nerez often truanted from high school, resulting in Mrs Grant being called in by teachers to discuss her daughter's behaviour. Nerez was increasingly involved in run-ins with the law and had poor school attendance, behaviour which distressed Dr and Mrs Grant. But her teenage behaviour can be left to one side. She is not to be judged adversely on that account in proceedings such as these. Findings about that period are included merely to show that she caused anxiety to both her parents from an early age.
Not long after leaving school, Nerez seriously injured Mrs Grant and Tansin in a motor vehicle collision on the Pacific Highway. Nerez was driving Mrs Grant and Tansin at speed when she lost control of the vehicle, crashed and both her passengers were injured. Tansin sustained a compound fracture to her femur requiring 10 weeks in traction. Mrs Grant later said to Seth of this incident, "the accident was caused by Nerez being intoxicated with drugs." There is no evidence before the Court that Nerez was charged with any drug related offences arising out of this accident. But the Court infers from Mrs Grant's statement, and other evidence from this period, that Nerez was probably using illicit drugs at this time and that Mrs Grant thought that such drug-taking had probably impaired her driving capacity.
Nerez showed some interest in higher education. In 1974 she commenced a science degree at Sydney University. Her parents supported her accommodation and living expenses in Sydney and they purchased her a new VW Golf motor vehicle. But Nerez did not attend classes and dropped out of university at the end of first year. Mrs Grant explained to Seth that Nerez's failure to complete her degree was because "Nerez was only interested in drugs".
By 1975/1976, Dr Grant and Mrs Grant had become concerned Nerez was stealing from them. Mrs Grant told Seth in these years, "I have to hide my purse and my jewellery. I am very upset that some of my own mother's precious jewellery has been stolen by Nerez". Whether this was to finance a drug habit or not, the Court accepts that Nerez was regularly stealing from her parents by this time.
After Nerez left University, Dr Grant found work for her as a secretarial assistant in his radiology practice at Gosford. She worked there in the period 1977 to 1979. But she proved unreliable. Both Dr Grant and Mrs Grant told Seth and Tansin, and Mrs Grant told her close friend Mrs Sienkiewicz, that they believed Nerez was stealing from the radiology business. The Court accepts that she was stealing petty cash and the silver residues left over from the processing of x-rays at the practice.
When Nerez was working at the Gosford practice, Dr Grant and Mrs Grant funded her accommodation in an apartment at Wamberal Beach. During this period, Nerez's VW Golf was found burnt out at Killcare. Nerez confessed to Seth, "It was an insurance scam." The Court infers that it was. Nerez received the insurance money for the vehicle. Dr and Mrs Grant purchased her a replacement vehicle.
Dr Grant's medical practice in Gosford prospered. It expanded to branches in Wyong and Toukley. Nerez became the secretary at the Toukley practice, where she was left largely unsupervised. This gave her an opportunity to take money from the practice. The Court accepts that Mrs Grant said to Seth, "Nerez destroyed the Toukley practice by taking all the money when she worked there. Nerez took the money to support her drug addiction and illegal activities." Mrs Grant told Seth that the money Nerez took amounted to about $600,000. Whether that amount is correct or not, the Court infers from what Mrs Grant said to Seth that Nerez took advantage of her unsupervised access to funds at the Toukley practice to help fund her drug habit.
Much evidence indicates that Nerez had a well-established drug habit by then. She shared the Wamberal Beach apartment with a friend. Mrs Grant complained to Seth that she often found Nerez's drug paraphernalia both at Killcare and at the Wamberal Beach apartment.

[11]

The Children as Young Adults- 1980 to 1989

By the early 1980s, all the children, by now young adults, were pursuing studies, careers and relationships of their own. Dr Grant introduced Nerez to a fellow radiologist, Dr Bruce Markell, and the pair married. Seth pursued medical science studies in Australia and the United States, where he met Marguerite, who he later married. Ryven became a farm manager and set up his own handyman business in Killcare. Miles pursued studies in law, was admitted as a solicitor and practices as a corporate lawyer. And Tansin studied ceramics and interior design.
At Wamberal Beach Nerez was close enough to her parents at Killcare to be troublesome to them on a daily basis. Nerez began to harass her parents for money in the mornings. Seth recalls his parents telling him, and the Court accepts as an accurate account of Nerez's conduct at the time, "Nerez's typical routine is to come to our house very early in the morning when she knows we would be home and then come in and verbally attack and harass us".
And Seth witnessed some of this conduct, as did other siblings. When he was at home, Seth saw Nerez verbally assaulting her parents on many occasions from this time. And Mrs Grant said to him, "Nerez constantly harassed me and your father for money and threatened us. Nerez will shout and scream and verbally abuse us with vile language." The Court accepts this is what Nerez did.
Other siblings also saw Nerez confronting their parents. Ryven recalls on one occasion being called by his parents' house as Nerez had become enraged over their particular choice of plumber for a job. On another occasion, Nerez pointed a gun at Ryven and Mrs Grant saying, "I have a gun and I will do anything I fucking want".
Nerez was quite prepared to maliciously damage property to reinforce her threats. Mrs Grant told Seth on one occasion, "Nerez deflated the tyres on my car so that I would have an accident. Your father reported this to the police."
Nerez's marriage to Dr Markell did not last long. In about 1984 she had an affair with a night porter at a Sydney hotel, a Mr Gary Lewis. Nerez and Dr Markell separated within 12 months of their marriage and divorce proceedings were commenced. Nerez stayed with Mr Lewis. Taking drugs was one of their mutual interests. Seth saw them both consume cocaine and marijuana.
In 1985, Seth moved to New York to conduct medical research after completing his internship at the Royal Prince Alfred Hospital. He stayed in regular contact with his parents after that and visited Australia annually to see the family. Nerez and Gary Lewis visited Seth in New York. They asked him to keep a bag hidden in his apartment while they went to Florida. He looked in the bag and found that it contained $70,000 in cash. Neither Nerez nor Gary Lewis ever gave Seth an explanation as to how this money could have been acquired by legitimate means. Nerez later bragged to Seth, "I know 'the snowman', one of the most important drug dealers in the USA." The "snowman" was apparently a reference to Mr Andrew Daulton Lee, a notorious US drug dealer convicted of espionage in the late 1970s.
Mrs Grant confided in Seth that Nerez was selling drugs and hiding some of them at the Killcare property. Both Dr and Mrs Grant were most anxious about this because, as they said, Nerez was "bringing strange people to the house for drug transactions". The Court accepts that Mrs Grant said to Seth, "I am paralysed with fear" about this situation, and that she said she was disgusted "Nerez would do such an immoral thing as sell drugs that are harming others."
In 1986, Nerez and Gary Lewis had a daughter, Kashaya. In 1987, Mr Lewis was sent to prison for seven years for drug-related offences. The family rallied around Nerez during this period. Dr Grant, Mrs Grant, Tansin and Ryven tried to check in on Nerez and Kashaya. They found Nerez struggling with addiction issues and having difficulty in providing adequate care for Kashaya.
Dr and Mrs Grant were very concerned about Nerez's and Kashaya's welfare. They observed Nerez addicted to drugs and neglecting Kashaya. The family attempted to improve Nerez and Kashaya's living conditions and to convince Nerez to seek help for her drug addiction. But she refused to go into rehabilitation. Dr and Mrs Grant were reluctant to involve child welfare authorities for fear that Kashaya might be removed from her mother's care. Instead, Dr Grant and Mrs Grant purchased a property for Nerez in Maitland Bay, a short distance from Killcare, so that they would be nearby to provide assistance as required. During this time they also covered Nerez's living expenses and paid for her use of a motor vehicle.
Ryven more than either siblings at that time kept a close eye on Nerez at Maitland Bay. He used to drop the milk and some cigarettes up to her every morning. The Court accepts his evidence that some mornings when he called in he found Nerez passed out in a state of stupor either in a bed or on the floor surrounded by drugs.
Nerez's move to Maitland Bay allowed Dr Grant and Mrs Grant to play an active and satisfying role in their granddaughter's life. But it meant that they came into continuous contact with Nerez in all her different moods. Some of those moods were violent and ugly. During this period a profoundly disturbing incident occurred that framed the relationship between Nerez and Dr Grant for the rest of their lives.
The incident arose from but a simple thing. Dr and Mrs Grant took Kashaya to have her hair cut one day. When they returned home Nerez noticed the haircut and thought it was far too short. She yelled at Mrs Grant. Dr Grant tried to stop her ill-treating Mrs Grant. Nerez says that Dr Grant started punching her, but the Court does not accept that Dr Grant was doing any more than passively trying to keep Nerez from attacking Mrs Grant verbally. Nerez then reacted violently, picking up a nearby dog leash and lashing Dr Grant across the side of the face again and again with the metal clip end of the leash.
The lashing caused deep welts and open bleeding cuts right across the left hand side of Dr Grant's face and upper neck. The attack must have been painful for Dr Grant. Ryven who was on the scene shortly afterwards, describes his father as "sitting in the chair crying". The severity of the injuries to his face and the fact that there must have been quite a number of violent and painful strokes are quite evident from a photograph of Dr Grant taken not long afterwards. It is difficult to comprehend how a child could continue to inflict injuries on a parent in this way.
Ryven was cross-examined about the incident by Nerez, to whom he directly addressed the following: "You came down and saw your daughter, had a haircut. You went into the house and you picked up a [dog lead] collar and you beat dad with a collar, not even the hand end, the knuckle end, and you put those welts on his face… You hit a man who'd never hit anyone in his life, who was a professional radiologist."
Nerez falsely downplayed the incident. She said she was acting in self-defence and "I just went, whipped it away to try and get away from him" and "unfortunately [he] incurred some scratches on the face". Nerez placed importance on her parents not taking out an apprehended violence order ("AVO") after this. But from the severity of the injuries in the photographs and from everything that the Court knows of Dr Grant, the Court does not accept that he attacked his own daughter, Nerez. And the lack of an AVO is simply explained: Dr and Mrs Grant would endure much to avoid bringing public shame on their family.
The suddenness and the violence of this incident had predictable consequences: it made Dr and Mrs Grant deeply wary of ever provoking Nerez. Mrs Grant witnessed this incident and had to care for Dr Grant in its aftermath. From this time, she and Dr Grant were fearful of being left alone with Nerez. Cross-examined by Nerez, Ryvan vividly described the tense atmosphere that prevailed: "I saw mum live in fear every time you'd come to the house when mum and dad were there, Kashaya go upstairs and your behaviour was abhorrent. Mum was calm. When you would turn up, she would shake and say, 'Stay, stay. Stay here. Don't go, Ryven', because I'd be going back to the coast or doing something and say, 'Stay here', and you were always up to mischief and no good. It saddens me to see your behaviour towards our loving parents".
This incident was the worst of many. Ryven witnessed many others over the years at different family addresses. He concluded, "It saddens me to see your behaviour towards our lovely parents." Court accepts Ryven's testimony that this and the other incidents ultimately resulted in Dr and Mrs Grant being "always on edge…when you [Nerez] came around."
From her earliest introduction to the Grant family in 1986, Marguerite Grant was struck by the impact Nerez had on Mrs Grant's well-being. The Court accepts her account: "I witnessed the effects Nerez had on Gwynneth. When Nerez was around, Gwynneth's whole mood and demeanour would change. She would just mumble and nod her head to Nerez. Gwynneth was very careful about what she said around Nerez. Gwynneth said, 'I'm walking on egg shells so as not to rile Nerez'".
Even when Nerez was not present, Mrs Grant was affected. Marguerite observed that when she would discuss Nerez with Mrs Grant, that Mrs Grant would become "visibly upset". Marguerite said that: "Gwynneth did not like talking about Nerez. In fact when I took my family on holidays with Gwynneth and Alan, both Gwynneth and Alan would ask that, 'Please do not discuss her, please do not say her name out loud'"
Over the years, there were many more incidents in which Dr and Mrs Grant felt threatened by Nerez. Tansin recalls her mother telling her just how much her parents were preparing to protect themselves against Nerez's violent unpredictability. She recounts after an incident involving a knife Mrs Grant saying, "your father has filed off the points of the kitchen knives so Nerez cannot stab us. When we know Nerez is coming we hide the knives from the kitchen". Mrs Grant told Seth that exactly the same precautions were being taken against Nerez in the Grant household.
Marguerite Grant's description of the family dynamic was apt: "Nerez was the family bully. Everyone in the family had to put up with her bullying and if they didn't, Nerez would attack them in a vicious way, using verbal abuse and at times, physical abuse".
Because he lived in the Killcare area, Ryven witnessed some of the daily insults that Dr and Mrs Grant suffered at the hands of Nerez. He describes Nerez as coming down regularly to the Killcare property, grabbing Mrs Grant's handbag and rifling through it for money. But Nerez's main and effective ploy to extract money from her parents was to stand outside their house and shout obscenities at Dr and Mrs Grant, saying things like, "Give me some money you pieces of shit. I've gotta live." Ryven saw that the result of this public display was, unsurprisingly, deeply upsetting for Mrs Grant, who was a result would be crying, shaking and humiliated. Ryven says that Nerez tried this not only at the Killcare property but later at the McMahon's point property as well. Court infers that Nerez kept doing this without regard to her parents dignity because she knew it was a very efficient way of extracting money from them.
The police were rarely called to these incidents. Dr and Mrs Grant did not want to escalate this conflict any further and take it outside the family if they could avoid it. Under cross-examination by Nerez, Ryven well summarised the difficult predicament his parents faced when dealing with Nerez: "Nerez: Would you be able to tell me why the police were not called? Ryven: Because you are their daughter, or one of their daughters, and mum and dad were forgiving and they didn't want scenes of police coming around to the house as they had had Federal Police and police come around on the matters relating to Gary Lewis and the offences. Old people when they live in their houses, and anyone, doesn't like scenes at their homes because neighbours look and it's, as they say, it's not a good look."
Nerez was prepared to manipulate to her advantage Dr and Mrs Grant's wishes to see their granddaughter, Kashaya. Nerez repeatedly demanded money from them, saying, "you will never see Kashaya again if you don't give me money." Dr and Mrs Grant gave in and gave her money. Dr Grant and Mrs Grant continued to step in to assist Kashaya.
In a sense, Nerez's demands for money, unreasonable and threatening that they were, were the lesser of their concerns. Their main anxiety was, as Mrs Grant explained to Seth, that "Nerez is becoming increasingly physically threatening and violent."

[14]

Nerez Moves Residences in Sydney - 2000

Nerez began to have trouble on other fronts. By 2000, she was resisting the determined efforts of her former husband, Dr Markell, to evict her from his flat in Rose Bay that she was occupying. This became a very untidy dispute resulting in breaches of the peace to which the police were called. Nerez was eventually evicted from the Rose Bay flat in approximately 2004.
When Nerez was evicted from the Rose Bay flat she moved to an isolated property in the Lower Portland District near Wiseman's Ferry on the Hawkesbury River. She took a lease or license of this property from a Mrs Hall which led to an acrimonious dispute in which Mrs Hall sought to evict her. In response, Nerez threatened an injunction in the Equity Division of this Court restraining Mrs Hall from seeking to evict her.
Is not necessary to go to the rights or wrongs of this dispute other than to observe that Nerez was prone to disputation with many people other than Dr and Mrs Grant, and in this case, with the owners of properties that she occupied. Nerez remained in this Lower Portland property until about 2013.
After Dr and Mrs Grant moved to Sydney they made the Killcare property available to their children to use from time to time. But Nerez made it difficult for Tansin to use the property on a regular basis. Mrs Grant told Seth and the Court accepts as accurate that: "Nerez vandalised our house Killcare and tried to prevent Tansin and her family from having a holiday there. Nerez smashed glass and left it on the floor so that Tansin's two young children would cut their feet. Nerez also took the mattresses out of the house and hosed them with water so that Tansin and her family had nowhere to sleep."
In 2008, Dr and Mrs Grant paid $50,000 for Kashaya's wedding to Mr Evan Williams. Dr Grant walked Kashaya down the aisle instead of her father. The significant cost of this wedding to Dr Grant and Mrs Grant was a cause of considerable friction in the family, and Mrs Grant was not pleased that Dr Grant had been quite so generous with Kashaya.

[15]

A Pattern in Nerez's Demands Emerges - 2008 to 2010

By about 2008, a clear pattern was emerging in Nerez's constant requests for money from her parents. She had divined that Dr Grant was far more amenable to these requests than Mrs Grant. Why this was so is unclear. Perhaps it was his advancing age. Perhaps it was fear of losing contact with Kashaya with whom he was very close: loss of contact with her being a threat Nerez had used in the past. Perhaps it was related to the violence that Nerez displayed towards him. Perhaps it was because he felt particularly sensitive about ensuring Kashaya was not disadvantaged because of her upbringing with Nerez.
Whatever it was, the precise reason is difficult to discern. But the Court infers that all of these factors were in play. But a ready willingness to give money to Nerez and Kashaya became a marked weakness in Dr Grant. And Nerez was ever-alert to her parents' weaknesses and ever-ready to make use of them to her advantage. And she did.
Many of the witnesses the Court accepts attest to a regular pattern of conduct in which Nerez (later accompanied by Kashaya) would come to the McMahon's point property, take Dr Grant aside into his study, lock the study door, and have Dr Grant sign cheques in their favour. Nerez (and later with Kashaya) would also take Dr Grant to ATMs to withdraw money and use his credit cards. This pattern was clearly established by 2008 - 2009.
This pattern of conduct forcibly excluded Mrs Grant from Dr Grant's financial decision-making and financial confidences. Mrs Grant was consulted less and less on her husband's financial decisions. Naturally this caused Mrs Grant anxiety, disappointment and frustration with her husband. She complained to him.
And she had good cause. Dr Grant was giving his credit cards to Nerez and Kashaya to use even when he was not present. This upset Mrs Grant and added to the friction between the couple. She complained to Seth and Tansin the Dr Grant was "being coerced and manipulated" by Nerez and Kashaya. Not surprisingly, this aggravated Dr Grant, who started to display uncharacteristic rudeness to his wife. Tansin recalls Mrs Grant saying to her that, when she questioned Dr Grant about how much money he was giving to Kashaya, Dr Grant told her in the presence of Kashaya that she should "shut up".
The result of these targeted requests for money was that Dr Grant was funding a significant portion of both Nerez and Kashaya's lifestyles. The credit card statements from this period show that payments being made on Dr Grant's account ranged from baby supplies, and car insurance payments, to large cash payments, an Audi Q5, and house renovations for Kashaya's McMasters Beach property.
All of this perplexed Mrs Grant. She felt that Dr Grant was slipping away from her. She repeatedly confided in Seth at this time, "Nerez is taking over and I don't know how to keep her away." That neatly encapsulated the problem. Mrs Grant was powerless to constrain Nerez's influence over Dr Grant, which Nerez was using to her financial advantage.
It is not at all surprising that this led to increased tension between Nerez and some of the other the Grant siblings, who perceived that Nerez and Kashaya were being treated too generously and whose own children were not receiving anything like the same financial support as Kashaya. Nerez cross-examined Tansin and suggested to her that she received financial assistance from Mrs Grant for the payment of school fees for her children. But the Court accepts Tansin's response that she received no such assistance during Mrs Grant's lifetime, only benefiting on that account in her will.
In mid-2008, this spilled over into a physical altercation between Tansin and Nerez, resulting in the police being called. Nerez says that Tansin attacked her at the McMahon's point property. Tansin says that Nerez was aggressive towards her. There are contradictory claims about AVOs being taken out as a result of this incident. It is difficult to resolve the contest about what happened with this incident other than to say that given what the Court has seen of both Nerez and Tansin, aggression on Nerez's part is far more likely. Nerez argued that Tansin was the aggressor and that she (Tansin) had abused drugs and could ill-treat Nerez. Tansin candidly and creditably conceded in evidence that she had taken drugs at one stage in her life. But the Court accepts this was a limited period and that she has been drug free for a long time. The Court does not accept that Tansin has ever done anything more than defend herself from Nerez.
Mrs Grant confided in Tansin on numerous occasions about her continuing distress and sense of helplessness in the face of Dr Grant continually giving in to Nerez and Kashaya's demands for money. For example, on a shopping trip with her mother in August 2010, Mrs Grant said to Tansin, "Nerez has been phoning your dad at all hours of the day. I can hear him whispering on the phone to her. I know she must be asking for money". And on 20 October at a dinner, Mrs Grant said to Tansin, "I cannot control your father. He is so nasty to me. Nerez has been around getting money again". The Court accepts that this is what was happening.
The evidence of several other non-family members supports the inference that Nerez and Kashaya would isolate Dr Grant from Mrs Grant and press their demands for money upon him. Ms Saxby provided cleaning services to Dr Grant and Mrs Grant once a week. Over her years of trusted service, Mrs Grant came to confide in her. Ms Saxby told the Court that Mrs Grant was "nervous" around Nerez and Kashaya. When the Court asked Ms Saxby to clarify what she meant by this, will Ms Saxby said: "She told me that she felt bullied, she felt left out of the family business, they used to lock themselves away with Alan Grant upstairs, she didn't seem to know much about what was going on, she used to say that he'd write continuous cheques for them, monetary-wise. I'm only telling you what she told me, and she was nervous. She was a different person when they were in the house."
Ms Saxby also confirmed that Nerez's pressure was sometimes accompanied by aggressive conduct that affected Mrs Grant badly. She recalled a specific incident that she had observed when Nerez came by the McMahon's Point property one day and upset Mrs Grant. Ms Saxby said: "There were doors slammed, I'm not an eavesdropper, so I wasn't listening in on the conversation. She'd go to another part of the house, shouting, screaming, doors slamming and then Gwynneth was terribly upset".
Ms Saxby was an incidental but an astute observer of family dynamics. Ms Saxby observed that family tension got to the point that Mrs Grant was a "little bit confused about what was going on with her family". At one point Kashaya put the following direct question to Ms Saxby: "Ms Saxby, can you recall one incident where my grandmother was happy when my mother was present?"
Ms Saxby gave the answer "No, not particularly". In contrast Ms Saxby attested to the good relationship between Tansin and her mother. Ms Saxby explained, that "Mrs Grant's eyes would light up when Tansin paid her regular visits for morning tea and shopping expeditions". Ms Saxby confirmed that Tansin was "always visiting" in the 12 years that she worked for the family. In contrast, Ms Saxby described Nerez's visits as "on and off for years, once a month, I really don't recall the exact amount of times".
Ms Saxby said that when Mrs Grant saw Seth, "She was delighted to see him". Ms Saxby explained that Mrs Grant "told me how much she missed him [Seth] and she valued his visits and she loved to catch up with her granddaughters and Seth and his wife". And when Seth was there Ms Saxby described his attitude to her as "extremely caring". And it was quite obvious to Ms Saxby that the relationship on his side was "very loving and caring".

[16]

Mrs Grant makes a Will - May 2010

In the last six years of her life, Mrs Grant made five wills. These wills represent a struggle between what she really wanted and the pressure to which she had at times succumbed under the influence of Nerez, or Dr Grant who was in turn pressured by Nerez.
Nerez says that it was evident by 2010 that Mrs Grant was suffering early stage dementia. The Court does not accept this. Nerez's opinion is contradicted by evidence of both Seth and Tansin and is generally incompatible with the evidence of Warwick Miller, Marguerite Grant, Ms Nolan, Ms Saxby and Ms Shaw. It is also incompatible with her being assessed by a number of solicitors up to 2012 as capable of making a will.
These five wills were made in the following months: May 2010, January 2011, February 2011, June 2011, and the final one in May 2012.
Mrs Grant made the first of these wills on 20 May 2010, in which she appointed Miles and Tansin as her executors and trustees. Mrs Grant gifted to Dr Grant all items held within their McMahon's Point property and all proceeds of any joint accounts held by the couple. She also gifted her violins to Tansin. From her residuary estate, Seth, Ryven, Miles and Tansin were to receive a 22 percent share. Nerez was to receive a 12 percent share. The reason for this lesser share for Nerez was explained by Mrs Grant in the May 2010 will in terms that are wholly consistent with the evidence, as follows: "I DECLARE that I have given my daughter NEREZ GWYNNETH GRANT a share of my estate which is less than that of her siblings because of certain sums already advanced by me and/or my husband to the said NEREZ GWYNNETH GRANT during my lifetime and the lifetime of my husband out of our matrimonial assets and/or income".
Nerez raised suspicions about Mrs Grant's 2010 will. She was suspicious that it had not been made with the family solicitor, Patrick Donnellan of Gosford, who had responsibility for previous family will making. But in the Court's view there was nothing suspicious about the change from Mr Patrick Donnellan, to Mr John Quinn, a solicitor known to Warwick Miller.
The course of events is well explained by Warwick Miller. In about May 2010 Mrs Grant's cousin, Teresa Sienkiewicz came to Australia. Mrs Grant had great confidence in Mrs Sienkiewicz in part because of her accounting and management experience. The Court accepts the evidence of Warwick Miller, who explained how influential Ms Sienkiewicz was in Mrs Grant's decision-making on the issue of making her May 2010 will: "In I think about May 2010 Gwynneth's cousin, Teresa [Sienkiewicz], who at that stage I think was the head of the superannuation board in England, is an accountant, a very fine accountant was coming to Australia and when Teresa arrived her, she and Gwynneth got together because Gwynneth wanted to make a will that expressed her wishes and not those of her husband's because she didn't agree with some of her husband's decisions and she openly talked about that to myself. When Teresa got here from England, she asked me if we could use a different solicitor because she thought that Patrick Donnellan was tied to Alan and whatever was said to Patrick would get back to Alan and she asked me did I have a solicitor and I said, 'Yes, a man of sincerity and integrity I believe' and they contacted and had a meeting with John to do this work."
In the Court's view this is a perfectly unremarkable explanation for why Mr Quinn was engaged. He was a reliable solicitor in whom Warwick Miller had confidence. None of the evidence from Tansin, from Warwick Miller or from Mr Quinn gives any support to the suggestion that Mrs Grant was receiving from Mr Quinn anything other than dispassionate, disinterested advice in her own best interests.
By the second half of 2010, Mrs Grant was complaining regularly to Tansin about Nerez coming to the McMahon's Point property and demanding money from Dr Grant. Tansin saw a lot of her mother. She kept an informal diary of her mother's growing concerns, from which she was able to give exact dates of some of her mother's statements to her.
Mrs Grant's theme to Tansin was constant. On 26 June 2010, she said, "Nerez is always asking me for cash. I know your dad is continually giving her money." On 3 August 2010 she said, "Nerez has been finding your dad at all hours of the day. I can hear him whispering on the phone to her, I know she must be asking for money." And on 20 October 2010 she said, "I cannot control your father. He is so nasty to me. Nerez has been around getting money again."
Seth and Marguerite would commonly make one or several visits back to Australia near or over the Christmas period. They returned to Australia in October/November 2010. Tansin had passed on to Seth much of what her mother had been saying to her. Seth talked to his mother about these events and family finances. He investigated and discovered that Mrs Grant was receiving speeding fines which could only apparently be explained by Nerez using Mrs Grant's driver's license as a form of identity and forging her signature. He also discovered that large sums were going out of their bank accounts in cash cheques.
Nerez was quite capable of forging her parents' signatures and using their identity. For example Ryven has seen Nerez forge Dr Grant's signature. And she has bragged to him, "Dad's signature is an easy signature to do. I can even forge your signature Ryven. I have a copy of everyone's signatures."
Mrs Grant told Seth that "Nerez has increased her abuse of me and I am very concerned that your father is vulnerable and cannot defend or protect me from Nerez." The Court infers this abuse took place as Mrs Grant described it. Mrs Grant's statement is consistent with other direct evidence and the Court's assessment of Nerez. Looked at objectively, neither Dr Grant nor Mrs Grant were in any position to withstand strong pressure from Nerez. By the end of 2010 Dr Grant was aged 90 years, and Mrs Grant was aged 80 years. They could not be expected to have the resilience and personal resources to withstand Nerez's constant badgering.
The pressure was having physical consequences for Mrs Grant. Dr Grant told Seth that Mrs Grant was suffering "mysterious collapses" and had been taken by ambulance on several occasions to North Shore Hospital. Medical investigation had not found any plausible explanation for these collapses. But the collapses had coincided with Nerez's visits to the McMahon's Point property. As will be seen from 2011, when Mrs Grant went the UK with Seth and later lived with Tansin and Warwick Miller, these collapses stopped.
Seth staying at McMahon's Point deterred Nerez from coming around. But as soon as he returned to the UK Nerez's visits resumed. Mrs Grant explained to Tansin what was happening: "As soon as Seth left the country they have been here again giving me no privacy. Tansin they really let me know when they are coming. Kashaya has been here again taking dad out. I do not know where they go, your father and to show refused to tell me."
Throughout this period, Nerez was applying pressure to Dr Grant to sell another family property, some land at Raworth.

[17]

Sale of the Raworth Property - November 2010

Dr Grant and Mrs Grant had acquired a range of property through astute investments over the years. Dr Grant had to sell capital assets to fund the making of his regular money gifts to Nerez and Kashaya. By the second half of 2010, one of the assets remaining in the family was the land at Raworth, a suburb of East Maitland adjacent to Tenambit, where the family had lived in the 1960s and 1970s. Dr and Mrs Grant jointly owned the Raworth land.
In May 2010, in the course of expressing her disquiet about the amount of money Dr Grant was giving Nerez and Kashaya, Mrs Grant had confided in her daughter, Tansin, about Dr Grant: "I felt threatened by him. So I do not know how much he is giving her [Nerez] but he keeps telling me that he wants to sell the Raworth land because we need money. I do not want to sell the Raworth land. We do not need all that money. At the moment we are okay."
Mrs Grant preferred to leave the family assets in the form of real estate so Nerez could not access them. But Nerez was applying pressure to Dr Grant to sell the Raworth land in order to realise more cash. This pressure was causing Dr Grant great distress. He felt so driven by the pressure that he turned to Tansin. In November 2010 he telephoned her from Killcare in a very anguished state, saying: "No one will support me, Tansin. Will you help me? I have accepted an offer on the Raworth land for 1.5 million dollars but another offer has come in from 1.8 million with conditions. Jane Paskin, Kashaya, and Nerez are telling me to go with the offer with conditions and I don't want to for an extra $300,000. They were so angry that I had accepted the 1.5 million offer."
Jane Paskin is married to Miles. The evidence does not support an inference that she was involved in pressurising Dr Grant in any way, although her name is mentioned in this conversation. The sale of property under pressure from Nerez would mean Dr Grant would gain access to his half share of the proceeds of sale of the Raworth property, being over $700,000 in liquid funds. It was sold in February 2011.
Nerez developed a more complex set of allegations about the sale of the Raworth property against both Seth and Tansin.
Nerez says that Tansin and Warwick Miller convinced Dr and Mrs Grant to sell the property for $1.6 million, so that each of them received the proceeds of approximately $782,000 at settlement in January 2011. Nerez infers that Tansin later used this money to develop vacant land that she purchased at Dudley in Newcastle in March 2010.
Nerez says that when the Raworth property was sold Seth was in Sydney and he asked Dr Grant to give him the $782,000 and let him "mind it" for his father. She says this based upon notes allegedly written by Dr Grant. Her case appears to be that Seth had a falling out with his father because of his father's refusal to hand over the proceeds of the sale of this property. Nerez says that following Dr Grant's refusal to hand over this money that Seth took Mrs Grant over to the home of Warwick Miller and Tansin in Kirribilli.
These allegations are speculative and are not grounded in evidence that the Court accepts. Tansin and Warwick Miller were not the moving parties for the sale of the Raworth property and there is no basis to Nerez's contention of this falling out between Seth and Dr Grant.

[18]

Disturbing Events at Killcare - January 2011

In January 2011, Dr Grant and Mrs Grant were living at the Killcare property for about four weeks. Nerez was there as well. It was by all accounts a strange month. Tansin and Seth had obstacles placed in the way of contacting their parents. When Tansin called the residence she was told to "fuck off" by Nerez. Ryven had been operating his business out of the Killcare property, but Nerez evicted him from the home during this period. Seth tried to call from the UK but found it impossible to get through.
Ryven who was residing locally, witnessed the full force of Nerez's demands on her parents in an incident that he remembers well and in detail which the Court accepts as accurate. Ryven had on numerous occasions before January 2011 seen Nerez, as he described it, "ranting, raving, screaming, being threatening and sometimes grabbing mum", after which she confessed to him, "I am scared for my life Ryven." But even among such incidents, the events he witnessed on 18 January 2011 were remarkable.
He received a telephone call that day from Steve Hanson who had been doing some plumbing work at the Killcare property. Acting on the phone call he went around to the Killcare property where he heard Nerez shouting loudly. When he arrived Mrs Grant was standing on the corner of the room crying Dr Grant was sitting down. Mr Hanson was standing in the middle of the room. Nerez was very angry with both her parents. Ryven tried to get Nerez to leave the scene but that resulted in Nerez shouting the following angry exchange with him and with her parents which the Court sets out in full, so her capacity for abusive and jarring verbal violence can be properly understood. Ryven: "Nerez, you'd better leave now." Nerez: "Why did the stupid old cunts [referring to her parents] get that fucking Hanson here?" What the fuck from with [these] fucking idiots." Nerez: [to her parents] "All I want is my 20%. You'd better fucking give it to me. I want an early inheritance." Ryven: "Nerez, stop it, just leave." Nerez: "Fuck off, settle down, I have had enough of these two fucking old cunts." Nerez: [with her face close to Mrs Grant] "Do what you were told you fucking old cunt." Ryven: "Nerez, stop what you are doing now, you are mad. I am going to call the police." Nerez: "Good call the fucking police. I don't give a fuck. Fuck you and fuck these old cunts."
At this point Steve Hanson went downstairs and Ryven telephoned the police. He made his parents a cup of tea and tried to calm them down. He took Mrs Grant for a walk but she was visibly upset for half an hour afterwards.
Ryven recounts, and the Court accepts, all his evidence that both before and after this incident Mrs Grant said to him, "Nerez destroyed my life." And again, "Nerez gets none of my estate. She has taken your dad's money and his superannuation."
Nerez's verbal violence towards her parents was matched by her threats of physical violence. Nerez had access to a shot gun. It was thought to belong to Gary Lewis. Nerez had pointed the shot gun at Ryven, who identified it as a sawn off pump action shotgun. Nerez threatened her mother, "I have a gun and I will do anything I fucking want."
The day following this incident, and possibly prompted by it, Dr Grant and Mrs Grant appointed Seth and Miles as their attorneys pursuant to General Powers of Attorney at the offices of their solicitor, Mr Donnellan. But Nerez had considerable influence over both Mrs Grant and Dr Grant throughout January 2011 as Ryven, Seth and Tansin were kept at bay.
Mrs Grant went with Dr Grant to the offices of the Grant family solicitor, Mr Donellan, on 27 January 2011. This will appointed Dr Grant as her executor and trustee, and left him the entirety of her estate. In the event that Dr Grant predeceased her, Miles was to be executor and trustee. Mrs Grant gifted her the Johnston violin to an individual not identified in these proceedings. Tansin was gifted all other violins, a grand piano and her engagement and wedding rings. Tansin and Miles were to be gifted joint possession of Dr Grant's boat, "Windermere", were she to be in possession of it at the time of her death. Kashaya was gifted a property in Elizabeth Bay. The residuary estate was then to be divided equally between Nerez, Seth, Ryven, Miles, Tansin, and her grandchildren, with the exception of Kashaya. Patrick Donnellan and (most surprisingly) Dr Grant (a beneficiary) witnessed the execution of this will.
What was the haste for Mrs Grant to make the 27 January 2011 will? Mrs Grant later explained to Tansin that Dr Grant was not happy with her May 2010 will, as he was under the impression that he would be left with nothing from her estate. He appears to have misunderstood his entitlement to their many jointly held assets, were she to predecease him. Mrs Grant confided in Tansin that she made the 27 January 2011 will just "to keep the peace".

[19]

Seth returns to Australia and Mrs Grant moves to Tansin's - February 2011

Seth returned to Australia on 31 January 2011. From the airport he travelled directly to the McMahon's Point property. His parents were not home but were later dropped off by Kashaya, who had driven them back from the Killcare property. Mrs Grant suggested that she and Seth go for a walk. As they sat on a park bench, Mrs Grant broke down in tears. The events of the last few weeks were too much for her. Mrs Grant told Seth: "Nerez held me captive for the past few weeks at the Killcare house and prevented me from returning to Sydney. Nerez shouted and screamed at me and threatened me with physical violence. Nerez threatened to kill me…Nerez has forced me to change my will. She took me in to see Mr Patrick Donnellan the solicitor to do so". She also stated, "Nerez is trying to kill me… Nerez is writing and making me change these wills and making Alan change these wills and she's been threatening us and I want to kill myself and I've got to get away from this".
Mrs Grant also asked Seth to copy documents contained in a bag that Dr Grant had brought back from the Killcare property. The material he copied was revealing. It included: several draft written instructions from Nerez to Mr Patrick Donellan on drafting wills and powers of attorney for Dr Grant; instructions on the division of estate assets to favour Kashaya; and instructions to prevent the distribution of medical records by Mrs Grant's general practitioner, among other documents.
Not surprisingly Seth was alarmed by his mother's words and the state of affairs she described. Mrs Grant's collapses were continuing; it was thought at the time that they may be exacerbated by heat. The McMahon's Point property did not have air conditioning. So it was agreed with Mrs Grant that for her health she would stay with Tansin and Warwick in their Kirribilli property. Mrs Grant would go back and forth between the Kirribilli property and the nearby McMahon's Point property each day. Seth saw this arrangement as an equally opportune way to ensure that Mrs Grant was being cared for, and that she felt safe from Nerez.
Seth also had a conversation with Tansin about their parent's finances. Seth said: "I have been looking into mum and dad's finances and I have seen large unaccountable sums going out in cash cheques. Mum and dad said to cancel them. I've cancelled them to stop Kashaya and Nerez using them. They don't know this. Dad has admitted to me that he cannot account for at least $190,000."
On 2 February, Warwick Miller and Tansin accompanied Mrs Grant to the police station, where Mrs Grant sought an AVO against Nerez. Mr Miller's evidence about the initiation of the AVO gives an important perspective of how serious it was for Mrs Grant. He recalls driving Mrs Grant with Tansin down from the Kirribilli property to the North Sydney Police station. The police took Mrs Grant into a private room away from other family members and discussed the AVO with her. Warwick Miller recalls neither he nor Tansin were permitted to be present. Warwick Miller's recollection is that when they arrived at the police station Mrs Grant was clear that she wanted an AVO, "She specifically stated what she wanted to do and they took her into a private room and took a statement from her".
The Court asked Warwick Miller what, in his view, had caused Mrs Grant to make the decision to take out the AVO. He responded: "She was threatened by Nerez to the extent that she feared for her life, and I recall sitting in the car outside Carabella Street and I said to Gwynneth, 'If we go ahead and do this', she told me she was going to seek an AVO, I said, 'If we go ahead and do this, it will be a big consequence in the family', and she said, 'I have to do it. I fear for my life'".
The Court accepts that Mrs Grant said this and it was her motivation for taking out the AVO.
Nerez suggested to Mr Miller in cross examination that the AVO was actually taken out after Mrs Grant returned from the UK. But Warwick Miller was clear that the visit to the police station took place on 2 February. The Local Court documentation indicates that the matter came before the Court after her return from the UK. It is quite likely that these differences can be reconciled by the AVO having been taken out before she left but being made returnable before the Court for hearing upon her return.
That same day, Mrs Grant asked to move in with Tansin and Warwick Miller at their Kirribilli property. The Court accepts Warwick Miller's evidence that she feared for her safety and was under increasing pressure to sign the Killcare house over to Dr Grant which she was not prepared to do. She felt that getting away from Nerez would save her from the stress that this unwanted pressure was causing her. This came at the price of no longer living with Dr Grant. But she was so distressed by her circumstances that it was a price she realised she had to pay to avoid Nerez gaining mastery over her life and her assets.
This is why she left Dr Grant in the McMahon's Point property. It was her decision, made at her request and executed for her benefit. Throughout these proceedings Nerez has consistently mischaracterised Mrs Grant's move to the Kirribilli property as a "kidnapping" by Seth and Tansin against her will. Nerez's construction of this event is completely wrong.
Nerez's case was that Dr Grant strongly argued that his wife was too ill to travel, too frail both mentally and physically but Seth ignored these warnings and took her overseas in February 2011 anyway. This significantly mischaracterised the true situation.
Nerez also says that at the time that Seth took Mrs Grant from the McMahon's Point property to Warwick Miller and Tansin's home in Kirribilli Dr Grant had constantly tried to contact her by telephone using Tansin's mobile number and that he did so hundreds of times. According to Nerez, eventually Tansin said she would collect Dr Grant and take him to visit Mrs Grant, instructing him to wait outside the McMahon's Point property for Tansin to collect him. Nerez's version was that Dr Grant stood outside the house in the midday sun for some hours but was not collected. The Court does not accepted that this happened.
Mrs Grant revealed to Seth that when she was at Killcare, "Nerez forced me to change my will. She took me in to see Mr Patrick Donnellan to do so." Mrs Grant then pleaded with Seth for him to take her away from Nerez. He offered to take her back to the UK for a holiday and she readily agreed. Seth thought that it would be in his mother's best interests to get away from all this conflict for some respite. Plans were put in place.
Word of these plans reached Nerez. She saw this as thwarting her plans to pressure Mrs Grant for money and placing her out of her reach. Nerez tried in several ways to sabotage the plans to take Mrs Grant overseas.

[20]

Another Will and an Incident at the Kirribilli Property - 7 February 2011

At about 1.00am on 4 February 2011, Seth and Tansin received multiple phone calls from ambulance officers. The ambulance officers told them that Nerez had called emergency services, saying that Mrs Grant was ill, questioning Mrs Grant's welfare and her ability to travel to the UK. That night an ambulance was dispatched to where Mrs Grant was staying with Warwick Miller and Tansin at their country property in Jamberoo on the South Coast. Tansin attests that Mrs Grant was sleeping soundly and peacefully that night and was not in need of any medical care. The Court infers that Nerez made these calls as part of a strategy to try and derail Mrs Grant's journey to the UK for respite.
Nerez attacked Mrs Grant's journey from another direction. On 6 February 2011, Marguerite Grant received threatening calls and phone messages in the UK from Nerez. Referring to Seth and Marguerite's daughters, Nerez said words to the effect that she was going to "slice them into pieces". Nerez disputed that these were the exact words that she used. Marguerite Grant adhered to her version and the Court accepts it. Nerez then used her undoubted influence over Dr Grant as a threat to Seth through Marguerite, saying, "Dad has made it very clear Marguerite, that if Seth takes Mum out of the country tonight, then he is going to go up and see the lawyer and cut Seth out of the will and the girls as well." Seth later changed his and Marguerite's UK telephone number in part to prevent this kind of contact from happening again.
Seth was not deterred. He proceeded with the plans to take Mrs Grant back to the UK for some time away from the influence of Nerez.
On 7 February 2011, Mrs Grant was at the Kirribilli house with Tansin and Warwick Miller. Preparations had been made for her to sign both a new power of attorney and a new will. Mr John Quinn, attended on the Kirribilli property to take Mrs Grant's instructions and oversee the execution of the documents. But the meeting was interrupted by Kashaya's arrival with Dr Grant. Dr Grant approached the door of the Kirribilli property, yelling names. Kashaya attempted to gain access via the side gate. Warwick Miller called the police. And four or five police officers arrived. Kashaya and Dr Grant were spoken to by officers and departed. Kashaya drove Dr Grant to Killcare.
Kashaya and Nerez have their own different account of the events of 7 February 2011. According to them, Dr Grant asked Kashaya to drive him to Warwick Miller and Tansin's home in Kirribilli so that he could visit Mrs Grant. They said that he climbed the front stairs to the property and knocked on the front door and could see Mrs Grant behind the glass door. According to them, the North Sydney Police suddenly appeared. Seth came out of the house and said to the police, "I am Professor Seth Grant of Cambridge University. I am a world expert on dementia. That man [pointing down at Dr Grant on the stairs] has dementia take him to a psychiatric institution". Nerez says that this was recounted to her by both Dr Grant and Kashaya that day. The Court does not accept this version of events.
On that day, Mrs Grant revoked her 19 January 2011 power of attorney to Seth and Miles and made a new power of attorney in favour of Seth and Tansin. She executed a new grant of enduring guardianship in favour of Seth and Tansin.
She also made a new will that day appointing Seth and Tansin as her executors and trustees. Mrs Grant gifted her husband, Dr Grant, all items held within their McMahon's Point property and all proceeds of any joint accounts held by the couple. Mrs Grant also gifted number of named chattels to various persons. Of her residuary estate, Seth, Ryven, Miles and Tansin were to receive a 22 percent share. Nerez was to receive a 12 percent share, which was specifically explained by Mrs Grant in the same terms as the May 2010 will. Mrs Grant also granted Ryven the option to purchase the Killcare Property and its furniture and furnishings. This will was witnessed by Mr Miller and Mr Quinn.
The events of 7 February 2011 were only 12 days after Mrs Grant had signed her previous will on 27 January 2011 at the offices of Mr Donnellan. But the Court is satisfied both from Mr Quinn's evidence and from the course of events that Mrs Grant was expressing what she really wanted in this 7 February 2011 will, free of pressure from Nerez.
Nerez and Kashaya sought to suggest that Mrs Grant's instructions to Mr Quinn must have been the product of Tansin's undue influence over Mrs Grant. Just as Nerez had shouted at Mrs Grant at Killcare in January, she believed she was entitled to a 20% share (and no less) of Mrs Grant's estate if Dr Grant predeceased Mrs Grant.
Nerez was puzzled that if Mrs Sienkiewicz and Mrs Grant had initiated the idea of going to an independent solicitor such as Mr Quinn, why it was that Mrs Grant went back to Mr Patrick Donnellan to make another will on 27 January 2011 with Mr Donnellan.
Warwick Miller explained what had happened. He said, from what Mrs Grant had told him later that the reason Mrs Grant went back to Patrick Donnellan was "family pressure". Mrs Grant told Warwick Miller that the family pressure was from Nerez and Miles. Mrs Grant told Warwick Miller that Miles had driven her on that day,27 January 2011, to make a will at Mr Donnellan's office.
Again, Nerez saw this as suspicious. But Warwick Miller explained that it was not. He said that, "the moment that Gwyneth got away from the pressure, in her words, of Nerez and Alan, at that stage she wanted to make the will she had originally made with Teresa [Sienkiewicz] which reflected her true intention. Not those that she had been forced into as she told me". Mrs Grant was very candid with Warwick Miller. He said, and the Court accepts, he spent a lot of time with her in the last years of her life, often up at his farm. And he said, "She regularly talked about the pressures within the family".

[21]

Mrs Grant in the UK - February to April 2011

Later on 7 February 2011, Mrs Grant left Sydney and travelled with Seth to the UK to visit his family for some nine weeks. Following her arrival in the UK to see her daughter-in-law and granddaughters, Mrs Grant made a gift to Seth of $158,000 to assist him with the payment of his daughters' school fees and associated expenses.
Events back in Sydney started to move quickly. The day after Mrs Grant left, Nerez and Kashaya moved Dr Grant out of his McMahon's Point home to live with Nerez. A few days later on 22 February 2011, Nerez took Dr Grant to see a solicitor in Singleton, Mr Peter Dunlop, at whose office Dr Grant appointed Nerez and Kashaya as his joint attorneys. Then on 24 March 2011, Dr Grant appointed Nerez as his sole enduring guardian before Mr Dunlop.
Mrs Grant's sojourn in the UK was a time to gather her strength and restore her sense of well-being. But she continued to be disturbed by thoughts of events back in Australia. Marguerite Grant said Mrs Grant had immense difficulty sleeping at times and expressed fears that Nerez would find her over there.
On 14 February, Mrs Grant authorised Tansin to change the locks and remove some of her valuable possessions from the McMahon's Point property. Nerez is strongly critical of this being part of a scheme to separate husband and wife. In her submissions she says, "it is to be noted that Seth and Tansin, with the help of Mr Miller, conspired and knowingly separated my parents for their own gain".
The Court does not accept that analysis of these events. By 14 February 2011, Dr Grant was already out of the property at Nerez's behest, so she could keep him within her power. Seth, Tansin and Warwick Miller played a part in protecting Mrs Grant from Nerez. This regrettably resulted in the separation of husband and wife. But the Court accepts that Seth, Tansin, and Warwick Miller's motivation was not one of personal gain but one of protection of Mrs Grant.
Nerez tried to contact Mrs Grant in the UK. Several threatening phone calls were received. Marguerite and Seth changed their phone numbers. But they ensured that there was a separate phone number for Dr Grant to contact Mrs Grant. Yet only one or two phone calls were made on this line. Mrs Grant told Marguerite what the problem was from her perspective, "I cannot contact Alan and Nerez is preventing me from doing so".
Later during Mrs Grant's stay in the UK, Nerez sent a letter to Mrs Grant from Dr Grant enclosing a contract for sale of the McMahon's Point property inviting her signature. Mrs Grant said to Marguerite, "Alan and I have never wanted to sell the house and we intended to stay in it for the rest of our lives. This is Nerez manipulating Alan". Mrs Grant's statements are a correct judgment consistent with what the Court infers was happening at the time between Nerez and Dr Grant.
Whilst Mrs Grant was in the UK, Seth and Tansin were unable to locate Dr Grant and were concerned for his welfare. They made numerous enquiries from the UK, and Tansin from Sydney, including of Nerez and Miles. Information about Dr Grant's whereabouts was not forthcoming. Mrs Grant wrote letters to her husband. Tansin finally filed a missing persons report with NSW Police, and upon sighting Dr Grant, the police confirmed his wellbeing, but not his location.
The Court accepts Nerez's evidence that at this time she had taken her father away on a trip to Maitland and the Hunter Valley to visit old family friends and neighbours and some of the hospitals at which he had practised. But Nerez did not tell Seth or Tansin where she was taking Dr Grant. Perhaps not surprisingly Tansin reported him missing. Nerez complains about Tansin doing this but it was the predictable result of years of lack of communication within the family and was a reasonable step on Tansin's part.
Whilst Mrs Grant was in the UK, Seth and Tansin applied to NCAT for a financial management order in respect of Dr Grant's estate. Nerez says that much of what was put in that application was untrue. It is not necessary for the purposes of these proceedings to attempt to re-decide those proceedings. But on 8 June 2011 the NCAT application was withdrawn.
On 21 February 2011, Mrs Grant made a statement in the UK in the presence of a Notary Public at St Andrews House in Cambridge. Extracts from that statement provide further direct support for the Court's conclusions about the conduct of Nerez. Mrs Grant said in the statement: "…3. I am extremely fearful for my safety and seek protection from my daughter Nerez Grant. I left my home two weeks ago and went to England with my son. I was scared of Nerez and what she might do to me. I seek police protection so that I can return to my home. 4. Nerez Grant has been subject to two previous AVOs against her (2004) protecting my husband and my daughter. In one case Nerez physically attacked my husband with a rope and in the other attacked my daughter Tansin Grant inflicting physical harm. I was not present at either of these attacks. 5. Nerez is a long time drug addict and alcoholic. I believe the drugs have distorted her mind to make her into an irrational and frightening person. She has taken a considered amount of money and possessions from me over many years. 6. Nerez is becoming increasingly abusive to me and this has been witnessed by family and non-family members. Her behaviour is getting progressively worse and she is making my life unbearable. I am currently too scared to return to my home because I am frightened for my life. 7. Nerez threatens, intimidates, bullies and harasses me. She screams at me demanding money. She continually swears at me using the F and C word along with other expletives. To stop her screaming I give her money. I am afraid to upset or argue with her because she is physically intimidating and has an explosive anger. I just have to go along with anything she says. She does the same to my husband. … 12. Nerez is always trying to get money out of my husband and me. I am concerned that she knows too much about our finances. When she is in the house she goes through our financial records and my purse. She takes money from my purse. We have reason to believe that she has withdrawn monies from our bank accounts/credit cards without our consent. 13. I have a fear for my life and have told my family, friends and acquaintances that I am concerned Nerez could murder me. When I hear a sound outside the house I am scared that it is Nerez coming into the house and I am scared that she might harm me. …"
On 14 March 2011, whilst in the UK, Mrs Grant made a codicil to her 7 March 2011 will. In that codicil she directing her trustees to allow Dr Grant to live and have the use of the contents of the McMahon's point property, as long as he paid the rates and taxes levied on the property.
In about mid-March 2011, Nerez removed all of Dr and Mrs Grant's possessions from the McMahon's Point property. These possessions included furniture, paintings, books, a Bechstein grand piano and many other items of considerable value. Their disposal has never been accounted for. Tansin filed a police report alleging their theft.
Nerez's conduct in this respect appears to have been a defensive move compatible with a conspiracy theory she advanced in the proceedings. She alleged several times that by 2011 Seth had designs to take over the McMahon's Point property for himself. Nerez's case is that Seth intended to remove Dr and Mrs Grant from their settled position in their McMahon's Point property and put them into the Lourdes Nursing Home at Lindfield, so that he and Marguerite could occupy the McMahon's Point property if he was successful in applying for a very senior research position in Sydney. The Court does not accept this conspiracy theory. It has no basis in the evidence and is an example of Nerez projecting her own desires onto others.
Mrs Grant wrote her husband a letter on 22 March 2011 during the difficulties in trying to find Dr Grant. In this letter Mrs Grant explained to her husband why she had left the McMahon's point property, "I came away because I was bullied and had no privacy in my own house. I felt as though I had no control in my own home that we had worked together to obtain." And in notes written the same day she stated, "I came away on my own free will to avoid abuse I was receiving". These writings reflected Mrs Grant's genuine reasons for leaving the McMahon's Point property and going to the UK with Seth.
Seth Grant was indeed considering applying for very senior research positions with neuroscience institutions in Australia. He had spoken to senior personnel at the Garvin Institute and at the Brain and Mind Research Institute about this possibility. Nerez had become familiar with these facts. In what appears to the Court to be an attempt to intimidate her sibling during this period, on 8 April 2011 Nerez sent to Seth a "condolences" card and the following fax: "To: Seth Grant Seth I had a most interesting day on Wednesday. I visited the Brain and Mind Research Institute at Camperdown. I met with people who know you. I even met a member of John Shine's family. I told them what you have been doing to our father and our family. I still promise I will pursue you for what you have done. Nerez"
On 9 April 2011, Mrs Grant sent from the UK a letter to the solicitor, Mr Quinn. Mrs Grant explained why she had downgraded Nerez and Kashaya in her testamentary intentions. She said the following concerning Nerez and Kashaya: "1. They have each received very large sums of money from me during my lifetime. 2. Nerez has taken and not repaid hundreds of thousands of dollars. She has also accessed my bank accounts without my permission and removed funds. 3. Kashaya has had her entire private school education paid and additional costs and fees. She has had substantial financial assistance for renovations of her personal home at McMasters Beach. She has also had private medical expenses covered and a very expensive wedding covered by me. 4. Nerez and Kashaya have received substantial sums of money in cash and purchases of goods including many appliances, cars and car expenses, clothing and food. 5. They have also benefitted from rent-free accommodation for extended periods. Nerez has caused me enormous grief and anxiety since her adolescent years with her behaviour and drug taking. She has also been a drug dealer and supplier. Her behaviour has been aggressive and abusive to me and my husband and my other children. This had lead to police action in the form of complaints and anti-violence orders taken out against her. She continues to seek out my money wherever possible and has used my credit cards and cheque books without my permission. She has also tried to instigate the sale of my various properties without asking me. She threatens and intimidates me and has made my life a misery. She has been a great embarrassment to me and my entire family. Her behaviour humiliates me and is a source of constant distress. …"
Once again, the sentiments that Mrs Grant expresses here the Court finds were her genuine thoughts and accurately reflected what had happened to her at the hands of Nerez and Kashaya.

[22]

Mrs Grant Returns to Australia

On 20 April 2011, Ryven accompanied Mrs Grant back to Australia from the UK. On 21 April 2011, the provisional AVO against Nerez came on for hearing and was prosecuted. Ultimately, Nerez consented to the AVO against her. But Nerez thought to downplay that consent as being a decision to save her mother from being cross-examined by a barrister "who deals with criminals". Nerez says that she only consented to the AVO for that reason and that if she had not done so an AVO was unlikely to have been granted.
But the Court does not accept this explanation. Nerez had shown very little tenderness towards her mother before this time. The Court treats Nerez's consent as an admission of the conduct alleged. But apart from any admission the Court has sufficient direct evidence from Seth, Tansin and Warwick of the kind of conduct that Nerez directed against Mrs Grant as would justify the grant of such an AVO.
Mrs Grant executed another will on 9 June 2011, appointing Seth and Tansin as her executors and trustees. Seth is gifted the Johnston violin and all print music. Tansin is gifted all other violins, jewellery, the Margaret Olley painting and the boat, Windermere. Of the residuary estate, Seth, Tansin and Ryven are beneficiaries in equal shares. The will is witnessed by Mr Quinn and his secretary.
From the time of her return from the UK until 2013, Mrs Grant stayed in Tansin's and Warwick Miller's residence, the Kirribilli property. Nerez alleges that Mrs Grant was put in a "granny flat" separate from the main house. But that is not correct; Tansin accommodated her in her own bedroom at the front of the house. And when Tansin and Warwick Miller were away from the Kirribilli property they arranged for Ms Nolan to look after Mrs Grant either at the Kirribilli property or to take her out, including for coffees and entertainment.
After her return from the UK, Nerez tried to make contact with Mrs Grant but this resulted in some unpleasant incidents for Mrs Grant. On 4 October 2011, when Tansin and Warwick Miller were away from the Kirribilli property, Ms Nolan took Mrs Grant out for morning coffee and with the family dog for games under the Harbour Bridge. Then after that they decided to go to lunch at Cremorne and later to see a movie. Ms Nolan was driving out of Tansin's driveway with Mrs Grant to take her to a movie. Nerez drove up, blocking their exit from the garage and waving her arms. Nerez was shouting at Mrs Grant, "it's all lies, it's all lies. They want to put you in a nursing home and take all your money". When Mrs Grant exited the vehicle to stand on the footpath at the rear of the house whilst Ms Nolan executed a parking manoeuvre, Ms Nolan observed Nerez screaming in Mrs Grant's face and waving her arms at her. Ms Nolan took Mrs Grant to her house in Mosman and there a statement was made by Mrs Grant to police.
Nerez's version of this incident was quite different. Nerez says she was driving in Kirribilli one day and saw her mother standing outside the Kirribilli property. Nerez says that her mother looked "absolutely terrible" and was thin, with her hair dishevelled and was wearing very old clothes. She says that she asked Mrs Grant if she wanted to go with Nerez to see Dr Grant and that without hesitation Mrs Grant agreed and got into her car. Nerez says that Ms Nolan then came out and sought to pull Mrs Grant out of the car but Mrs Grant refused to go. Nerez describes Ms Nolan as yelling as she pulled Mrs Grant who was screaming in pain.
Ms Nolan contradicts Nerez's account. Ms Nolan's memory of the incident is clear. The Court prefers Ms Nolan's account of the incident over that of Nerez.
Ms Nolan was adamant that Mrs Grant was properly groomed and dressed and did not get into Nerez's car. Ms Nolan says that she was parking her car with Mrs Grant in the passenger's seat. Nerez came up and was "shouting at the car". But because the car was being parked or moved Mrs Grant had to get out of the car. Ms Nolan is quite clear that Nerez did not approach Mrs Grant when she was out of the car. Ms Nolan parked the car and then she collected Mrs Grant, put her into the car and then drove off. But Ms Nolan was quite clear that Mrs Grant did not voluntarily get into Nerez's car and that she, Ms Nolan, did not pull Mrs Grant out of Nerez's car.
Nerez asked Ms Nolan in cross examination, "So did you not see me hug my mother and tell her that I loved her?" to which she received the definite answer, "No". Ms Nolan was sufficiently concerned about Nerez's shouting at Mrs Grant that she rang the police. She did this because of the existing AVO brought on behalf of Mrs Grant against Nerez.
A further incident occurred on 5 October 2011 when Ms Nolan and Mrs Grant were returning to the Kirribilli house after having had a coffee. Kashaya pulled up in a vehicle with Dr Grant. Dr Grant, using a loudhailer, was calling out to Mrs Grant. Kashaya said to Ms Nolan, "we know they are away", referring to Mr Miller and Tansin being on holidays at the time. Ms Nolan recalls Kashaya saying, "We have to get you away from here. We will all live in the eastern suburbs, we will look after you, this is what you want Gran". The police were called, and after some discussions Mrs Grant agreed to have coffee with Dr Grant.
Ms Nolan accompanied Mrs Grant to have coffee with Dr Grant and Kashaya. She recalls that Kashaya "again started her intimidating conversation with Mrs Grant. She was going over and over about getting away and coming with them". On the way back to the house, Mrs Grant said to Ms Nolan, "I don't want to live in the eastern suburbs and I really cannot look after my husband as he is now very doddery". But Mrs Grant agreed to spend a night in a hotel with Dr Grant. As Ms Nolan opened up the house, she looked back and saw that they had departed down the street. She ran after them but Kashaya said, "there is no AVO on us so we can do what we like". Kashaya called the police to check and Ms Nolan spoke to an officer, who later arrived at the Kirribilli property.
Whilst Mrs Grant decided to stay at the Kirribilli property that night, she said she would see Dr Grant and Kashaya the next morning. But Ms Nolan recalls Mrs Grant "physically shaking" and being shocked and upset by the visit. In Ms Nolan's opinion Nerez and Kashaya were watching the Kirribilli property to see when Tansin and Warwick Miler were away. The Court infers that that is likely to have been happening. Mrs Grant expressed her fears to Ms Nolan at these events, saying to her, "I can't go outside anymore, they will take me away". This is also consistent with the evidence of Ms Shaw, who recollected Mrs Grant telling her, "I think that Nerez and Kashaya will try to kidnap me. They kidnaped me before. I live in constant fear of this happening".
Quinn & Associates sent a letter to Kashaya on 19 October 2011 in relation to this incident. The letter includes the following: "… Please be advised that: That Mrs Grant has expressed to us that she has no desire to speak to you or to meet with you at any time in the future; Mrs Grant insists that you not bring Mr. Grant to the property at Kirribilli at any time in the future; If there is a repetition of the above behaviour or anything similar our client will call the Police on the next occasion and have you and/or Mr. Grant removed from the vicinity; … You should be aware that an Apprehended Violence Order was made in the Local Court at North Sydney against your mother, Nerez Grant. A copy of that Apprehended Violence Order is enclosed for your reference and draw your attention to the fact that both yourself and your mother could be in breach of that Apprehended Violence Order if you are encouraged by your mother to assault, molest, threaten, harass or otherwise intimidate Mrs. Grant. Alternatively, you are advised that if you fail to comply with the above request made by Mrs. Grant to effectively leave her in peace then Mrs, Grant will seek an Apprehended Violence Order against you. …"
This letter was written on instructions from Mrs Grant and represented her wishes at the time.

[23]

Severing the Joint Tenancies and the Supreme Court Proceedings - 2011 to 2013

On 2 March 2011, whilst she was in the UK, Mrs Grant gave instructions to Mr Quinn to make arrangements to sever the joint tenancies over the remaining real estate held by Dr and Mrs Grant. In 2012, Supreme Court proceedings were commenced in Dr Grant's name to prohibit the registration of any transfers severing joint tenancies. Following a mediation, in 2012, Dr Grant and Mrs Grant reached heads of agreement to divide their jointly held assets and to sell three properties, the McMahon's Point property, the Killcare property and their property in Elizabeth Bay.
Mrs Grant sought specific performance proceedings of these heads of agreement against a contention that they only constituted an agreement to agree and were not binding. The proceedings came on before Gzell J and a decree for specific performance was made of the heads of agreement: Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725.
Each of the jointly held properties was sold pursuant to this decree. As a result, Dr Grant and Mrs Grant each received approximately $3.4 million from the proceeds of these sales. From these proceeds, Mrs Grant in turn gifted Seth two tranches of $250,000, one on 24 June 2013 and the other on 25 July 2013. The sum of approximately $3.4 million that Dr Grant received represents the bulk of a capital sum that the estate alleges in the estate recovery proceedings was mismanaged by Nerez.
The heads of agreement and subsequent agreements provided for the immediate sale of the Killcare property for $829,000 and the proceeds split between Dr Grant and Mrs Grant. But Nerez admitted in cross-examination that she had arranged a scheme for Dr Grant to re-purchase the Killcare property without Nerez's siblings knowing he was reacquiring it. She said that the property was not selling for $829,000 so the sale price was amended by agreement to $700,000.
But instead of the property being transferred to a third party, as expected, the Killcare property was transferred to a Mr B. Pearce, a paternal cousin of Kashaya. As Nerez admitted, "it was originally bought in the name of Pearce, so they did not know we were buying it, because they would never, ever have sold it to my father at all." Mr Pearce paid nothing for the property and the stamp duty was paid out of Dr Grant's account. Then arrangements were made for Dr Grant to "re-purchase" the property for $700,000, paying stamp duty once again.
Nerez's scheme not only involved the deception of Mrs Grant, but it meant Dr Grant paid two lots of extra stamp duty so Mr Pearce could hold the property for him and Dr Grant could repurchase it. Nerez did not advance any sensible reason for this wasted expenditure. But given what occurred later, when the property was transferred to Kashaya and leased to Nerez, the most obvious inference is that Nerez had in mind using the Killcare property herself all along.
In the midst of this contest Mrs Grant made another will, her final will, on 10 May 2012 at Kirribilli. It appointed Seth and Tansin as her executors, trustees and attorneys. Mrs Grant gifted Seth her Johnston violin and all of her print music, and Tansin the remainder of her violins, all jewellery and a Margaret Olley painting. The residuary estate was to be left to Seth, Tansin and Ryven, on trust in equal shares.
And not long afterwards, on 10 July 2012, Dr Grant made a will at the offices of Dr David Lalic, a solicitor then acting for him. Miles was named as his executor and trustee. The beneficiaries were Miles, Nerez and Kashaya. At paragraph seven of this Will, it states: "I have not made provision for Seth Garran Neils Grant, Ryven Talbot Grant or Tansin Merle Leckie in this Will because of their bad treatment of me and attitude shown to me in the later years of my life. I believe I made adequate provisions for each of them during my lifetime including private boarding schools and university and college expenses".
Given Nerez's control of Dr Grant at this time the Court infers she was likely to have been part of formulating this statement and influencing Dr Grant to exclude Seth, Ryven and Tansin from this will. Nerez propounds this will in the probate proceedings.
Dr Grant as the promisor also signed a promissory note on 10 July 2012 in favour of Nerez as promisee for $400,000. The promissory note said to be payable "from the proceeds of sale of any of the promisor's properties" and was expressed to be "in consideration of the care and maintenance provided" by her as promisee to Dr Grant. This note was signed by Dr Grant and Nerez and witnessed by Mr Lalic.
But there were moments after this where Dr Grant expressed resentment at Nerez's control of his finances and spending levels. On 22 February 2014, Dr Grant wrote to Mr Peter Dunlop and included the following: "Nerez has an extremely high cost lifestyle and I have been funding fulling. I wish for her to cut down cost of living and she receives from me as I cannot afford to support it any longer at the rate of $2,600 per week. Kashaya has left bank statements with me for Nerez". In Court, Nerez did not object to this document being tendered, agreeing that the document was accurate and signed by Dr Grant. During this time, Nerez recalled arguments with Kashaya over the expenditure of money. Indeed, a power struggle appears to have emerged between Nerez and Kashaya over access to Dr Grant's money. But it appears Nerez won that struggle on this occasion. On 10 July 2014 before Mr Dunlop, Dr Grant appointed Nerez as his sole attorney.

[24]

Mrs Grant's Final Years - 2013 to 2017

Tansin was moving house and Mrs Grant's health was declining, so in 2013 Mrs Grant moved into assisted living apartments, at first to the James Milson Retirement Village in North Sydney. After Nerez tried to visit her there, Tansin and Seth moved her away to another facility, the St Pauls Retirement Village and nursing home at Northbridge, fearing for Mrs Grant's safety and security.
Finally, by 2015 she was at the Pathways Sailors Bay nursing home ("Pathways") in Northbridge. Her family and carers continued to care for her as her health declined. On 4 November 2016, Mrs Grant gave $420,000 to Seth saying, "this money is to be held in trust by you for my funeral and estate expenses and used for the care of your father".
In the final years of her life, Ms Shaw, a friend of Mrs Grant, became her carer and companion. Ms Shaw gave compelling evidence about Mrs Grant's attitude in her very last years towards Nerez and her separation from Dr Grant. Ms Shaw had a warm relationship with Mrs Grant. Before she went into the nursing home at Pathways they went out together often. Ms Shaw took her to medical appointments and kept a diary of her activities. But above all Ms Shaw said, "I was simply a companion. We did things. It was my job that she was entertained".
Ms Shaw makes clear that there was no doubt that Mrs Grant was saddened by not being able to contact her husband. Ms Shaw recounted, "She used to say to me 'He was the love of my life' and it was very sad". Ms Shaw said that "When Gwyneth [Mrs Grant] spoke of Nerez it was with disgust".
Nerez had the opportunity to cross-examine Ms Shaw and she challenged her truthfulness. But Ms Shaw was clear saying back to Nerez across the courtroom, "Unfortunately, Gwynneth did speak of you also with fear. She always said that you stole her husband that created a lot of hatred in her". There is no suggestion in the evidence that Mrs Grant was in any way upset with Seth for keeping Dr Grant separate from her.
Tansin was her mother's most regular visitor at Pathways until she died there on 6 May 2017.

[25]

Dr Grant's Accommodation and Health - 2013 to 2017

From mid-2011 until mid-2013, Dr Grant had lived with Kashaya and her husband, Evan Williams. There are a number of disputes about this period. One of them is as to Dr Grant's religious affiliation. Nerez and Kashaya say that he regularly attended Mass at St Mary's Cathedral. But according to Seth's account his father was not religiously inclined at all. This is not a matter which the Court has to decide.
From 22 February 2011 to 4 October 2017, Dr Grant lived either in Nerez or Kashaya's care, or on Nerez's authority in various nursing homes. Between February 2011 and November 2013, he lived with either Nerez or Kashaya and her husband. But from November 2013, Dr Grant moved under Nerez's direction, to the first of a number of Central Coast retirement villages and nursing homes.
An aide-memoire to the evidence concerning Dr Grant's accommodation was provided to the Court by the estate. The Court accepts it as an accurate summary of Dr Grant's accommodation during this period and it later became Exhibit "D". Dr Grant's living arrangements between February 2011 and 4 October 2017 were as follows: 8 Feb 2011 - 6 May 2012: Nerez 6 May 2011 - 31 March 2013: Kashaya and Evan Williams 2 April 2013 - 1 Nov 2013: Nerez 1 Nov 2013 - 29 Jan 2017: Tarragal Glenn 29 Jan 2017: Gosford Hospital 31 Jan 2017 - 26 Mar 2017: Aurrum Respite 27 Mar 2017 - 23 Apr 2017: Blue Wave Woy Woy 23 Apr 2017 - 23 Sep 2017: Peninsular Village, Umina 23 Sep 2017 - 4 Oct 2017: Wyong Aged Care
Tansin and Seth did not visit Dr Grant during this period, except near the end, when they came to the Peninsular Village and then on 4 October 2017 when Seth collected him from the Wyong Aged Care home. Tansin and Seth say that once Nerez took Dr Grant away from the McMahon's Point property that they had little idea where he was. A letter from Mr Quinn in mid-2015 suggests that they might have been aware of one nursing home in which he was temporarily residing. They knew that he was being accommodated under Nerez's authority.
But it is difficult for Nerez to deny that she deliberately kept Dr Grant sequestered away from Seth and Tansin, because on her own version of the events of this period her father pleaded with her not to allow Tansin and Seth to see him and she says that she acted on that plea. But the Court does not accept that Dr Grant ever said this to her. In fact the nursing notes from Peninsular Village record her instructions to prevent Tansin and Ryven visiting him. It can be said with confidence that Seth and Tansin did not have a clear idea where Dr Grant was being accommodated throughout this period until they found he was at the Peninsular Village at Umina. And they could not visit him or afford Mrs Grant any contact with him as a result.
It was not just Dr Grant's family who struggled to locate Dr Grant. Mr Isaac tried as well. He said, "when Alan was at 'Tarragal Glen' nursing home, nobody other than Nerez was allowed to visit Alan". But Mr Isaac wanted to visit his old friend and he managed to track Dr Grant down through friends in Killcare. Mr Isaac explained further in his oral testimony: "…members of the garden club and other groups, music groups and that, they talk to each other, and they - that's how I found out then, they told me. And I said, look, you're talking about this nobody allowed. I'd like to see him because I've no axe to grind and then I walked in and I said could I see him and then I was able to - who I was, and it was referred to him, and he came out and met me and took me to his room."
But Nerez soon turned up at Mr Isaac's door and told him, "I don't like anyone visiting Alan without my permission". He also described his discomfort at her challenge to him, "Her aggressive manner made it necessary for me to conclude the unpleasant discussion". Despite Nerez's warning, Mr Isaac managed to continue visiting Dr Grant, who he initially described as being "bedridden and incoherent". Mr Isaac was impressed by the family rallying around Dr Grant when he was at the Montana nursing home, where Mr Isaacs said "he recognised me and talked to me".
There was a contest in the proceedings about the quality of the care Dr Grant received during this period. But for the matters at issue in these proceedings, the Court does not need to decide that contest.
Dr Grant's cognitive capacity continued to decline throughout the years 2013 to 2017. At the age of 96, on 4 January 2017, Nerez arranged for Dr Grant to undergo an assessment by an Aged Care Assessment Team ("ACAT"). Under the sub-heading "Cognition", the ACAT report records the result of a mini mental state examination (MMSE) and states: "MMSE 20/30, orientation 4/10, recall 0/3, confusion fluctuates, lacks insight into his care needs, suffers short term memory loss and can be repetitive. Disturbed sleep due to toileting needs. Self isolates and is socially isolated, tending to stay in his unit all day." He was noted as requiring full assistance with personal hygiene, required a walker at times and that he needed supervision in the taking of medications. But despite blindness in his right eye, he was still enjoying reading, his speech was clear and while his hearing had declined, no hearing aids were being used as yet. He was found to be eligible for "high residential respite, permanent care and a Level 3-4 Home Care Package". And on 8 February 2017, Dr Grant presented to Gosford Hospital. On his discharge referral he is described as having "presented to this facility with Confusion / DEMENTIA".

[26]

Seth and Tansin Locate Their Father -July to October 2017

About a month after Mrs Grant died, Seth found out that Dr Grant was being accommodated at the Peninsular Village, Umina. He visited him there on 18 July 2017. At the time, and in subsequent phone calls, Dr Grant made it abundantly clear to Seth that he was unhappy about the way Nerez had been managing his affairs and the way that she had treated him. He said he missed Mrs Grant and expressed regret that "Nerez has isolated me from her and my children". He asked Seth to "help me and take over my care".
The staff at Peninsular Village expressed concern for Dr Grant's welfare under Nerez's care, and concern at the suspected falsehoods she was telling them. Seth had the following exchange with his father that day: Seth: "Dad, do you want me to look after your affairs, health, finance and general arrangements?" Dr Grant: "Yes." Seth: "Do you want anyone else to do it?" Dr Grant: "No."
Thereafter, Seth called his father at least twice a week from 18 July to mid-September to check in on him. Dr Grant continually affirmed his desire for Seth to be in charge of his circumstances. Tansin also visited Dr Grant on 26 July 2017.
With the assistance of the Peninsular Village staff, Seth began to make plans to relocate Dr Grant much closer to Tansin. But Seth's visit to Peninsular Village came to Nerez's attention. On one of Seth's regular telephone calls on 23 September 2017, the CEO of Peninsula Village told Seth that Nerez had moved their father to Wyong Aged Care. He was moved that day. The Court infers that Nerez had begun to realise that Seth and Tansin had plans afoot to move Dr Grant away from her control and she wanted to get ahead of those plans.
That inference is strengthened by what she did next. Six days after Dr Grant was transferred to Wyong Village, on 29 September 2017, Nerez transferred title to the Killcare property from Dr Grant to Kashaya. The transfer was registered on 10 October 2017. On the same day, Kashaya apparently granted Nerez a lifetime tenancy of the Killcare property. Though the estate argues that these documents were more likely to have been drafted on 5 October 2017, after Dr Grant was taken out of their care.
Nerez also directly revealed her intentions at this time in a 12 July 2018 letter she wrote to the NSW Trustee and Guardian. Nerez confirmed that she was concealing Dr Grant from them, albeit to "rescue him" from them: "As soon as I realised [Tansin and Seth] were lurking around Alan after Gwynneth's death I moved him on September 23 2017 to another nursing home (respite arrangement) with a plan to move him to a nursing home at Rose Bay. I transferred Killcare house to Kashaya at the end of September 2017 to keep it away from him."
Acting on information from staff at Peninsular Village on 4 October 2017, Seth found Dr Grant at Wyong Aged Care Village and had a conversation in which Dr Grant expressed his desire for Seth to take over his affairs. The same day, Dr Grant revoked the Power of Attorney in favour of Nerez and appointed Seth as his sole attorney and enduring guardian in the presence of a solicitor, Ms Fiona Wicks. Copies of the documents were provided to the staff at the nursing home. Nerez was notified by telephone that she was no longer Dr Grant's attorney. When Nerez told the facility that she was on her way, Seth contacted the police as a precautionary measure, and then drove Dr Grant back to Sydney to settle him in to Montana Aged Care Facility at Mosman.
Nerez argued that this process was done in a rough manner with rudeness to the staff at Wyong Aged Care. She relies on a handwritten "Conversation Record" of Ms Janette Reed, an RN at Wyong Aged Care which states: "I was asked by office manager, Leanne Morris to come to the office. A man who was identified as Seth Grant and a solicitor, Fiona Wicks, had obtained "a mark" as the solicitor called it, from Alan Grant (WACF - resident) on a new POA & EA. We took documents of proof that Alan Grant had a diagnosis of cognitive impairment. The solicitor said she believed he understood her. Leanne Morris and I approached resident and asked if he remembered what just happened and if he remembered what just happened and he didn't remember. Seth Grant and the two unidentified women were very rude to RN, very rough with Alan as they informed that they were taking him out of here. Leanne Morris had spoken to the police who advised us to let Mr Alan Grant go with family. Staff observed Mr Grant being roughly handled from wheelchair into the car. They then left the facility at high speed".
Seth did not want to encounter Nerez at Wyong Aged Care under any circumstances. She had a ready capacity to make a scene to keep Dr Grant under her control. So their exit was no doubt rapid and looked untidy to the staff. But a violent reaction by Nerez would probably have been worse for Dr Grant, something that the Wyong Aged Care staff probably did not appreciate.
Nerez challenges Dr Grant's capacity to execute a fresh power of attorney and his grant of enduring guardianship at this time. Nerez says that Dr Grant had collapsed at his retirement home in January 2017 and steadily declined from that time both mentally and physically. She says that he could not make any decisions, and could barely talk other than saying "yes", "no" or "thank you". She says that he did not have the capacity to sign the revocation of the power of attorney to her, the making of a new power of attorney to Seth and the document appointing Seth as his enduring guardian.
But apart from the unreliability of Nerez's evidence, the Court has the assurance that, as is required by law, these documents were executed before a solicitor, Ms Wicks, from which flows a strong inference that he was judged to be competent to understand them.
On the afternoon of 4 October, at the urging of Tansin, Seth attended at St George Bank in Hornsby to present the Enduring Power of Attorney to prevent Nerez from accessing Dr Grant's money. But he was not fast enough. Before Nerez's access was denied, four large withdrawals had been made in the amounts of: $200,000, $100,000, $60,000 and $34,700. The $34,700 was a withdrawal in favour of the Office of State Revenue for stamp duty owing from the transfer of the Killcare property. The amount of $60,000 was sent to Kashaya, which she later returned to the estate under an order made by Kunc J. The amount of $300,000 remains unaccounted for from the withdrawals made on 4 October 2017.
The stamp duty payment was a clue toward Seth's discovery of the transfer of the Killcare property to Kashaya. On 14 October 2017, Seth confirmed in conversation with Dr Grant that Dr Grant had not given permission for the transfer: Seth: "Do you think you ever gave them permission to take the Killcare house and give it to Kashaya?" Dr Grant: "No."
From 4 October 2017 to 7 November 2019, Dr Grant lived at Montana Nursing Home, Mosman (sometimes referred to as "Montana" in these reasons). But he had no funds of any consequence left in his bank accounts to pay for his care. Further analysis of his financial position at this time occurs later in these reasons. Seth, Tansin and Ryven supported their father at Montana using some of the money set aside from their mother's estate. When that was exhausted, they paid for his care out of their own funds, Seth personally paid $10,500 towards his father's nursing home fees, and $251,700 towards legal fees and expenses. Tansin personally contributed $75,000 towards her father's care.
On 19 October 2017, Montana Nursing Home produced a "Notice & Direction to immediately Leave the Premises" listing Nerez, Kashaya, Evan and Miles as individuals banned from entrance at the facility.
On 16 November 2017, Dr Alex Knopman, a neuropsychologist, examined Dr Grant at Montana Nursing Home to assist in deciding what Dr Grant's capacity was to understand the nature of the transactions involved on 4 October 2017. Dr Knopman concluded: "Dr Grant did not have the mental capacity to understand the facts involved and the choices to be made in appointing Seth Garran Neils Grant as enduring guardian as at 4 October 2017 and at any point between 4 October 2017 and the present. … Dr Grant has dementia with prominent impairments in memory and abstract reasoning. Even when provided with an explanation of the nature and effect of an enduring guardian at the current examination, he demonstrated an inability to weigh up the potential advantages and disadvantages of appointing somebody as his enduring guardian in line with his impaired idea generation and abstract reasoning skills…".
Between 4 October and Dr Grant's cognitive assessment on 16 November 2017, Seth contends that Dr Grant suffered a Transient Ischaemic Attack ("TIA") on 9 October 2017. A further expert report was requested of Dr Wayne Reid, another neuropsychologist. Dr Reid largely affirmed the report of Dr Knopman, referring to the fact that there were no medical records to confirm Dr Grant had suffered a TIA on 9 October 2017.
But Seth points out that neither of these experts is a medical practitioner and that in any event both experts noted Dr Grant had made substantial improvements at Montana before he made a will on 1 May 2018. It is not necessary for the Court to decide his mental state at this time, although it may become an issue in any contested probate proceedings.
Dr Grant's 1 May 2018 will appointed Seth and Tansin as his executors and trustees. The beneficiaries are named as Nerez, Seth, Ryven, Miles and Tansin in equal shares as joint tenants.
As Dr Grant's cognitive state was in question and as the dynamics between his children were hostile and uncooperative, the NSW Trustee and Guardian was appointed manager of his estate on 7 May 2018.
Nerez strongly questioned Dr Grant's capacity to make this 1 May 2018 will. She says that by that stage he had advanced Alzheimer's disease and was incapable of making a will. She points out that a few days later on 7 May 2018, that Lindsay J ordered that Dr Grant's affairs be managed by the NSW Trustee and Guardian because of his incapacity and based on expert reports about Dr Grant's dementia in October 2017.
Nerez's submission in this respect misapprehends the nature of these proceedings. Seth Grant has been appointed as an administrator ad litem. This Court is not deciding the probate litigation that has been commenced with respect to Dr Grant's estate. This case determines what assets are in Dr Grant's estate. The probate litigation will determine whether Dr Grant's May 2018 will is valid. The focus of the estate recovery proceedings is at an earlier time, when Nerez caused the Killcare property to be transferred to Kashaya.
On or about 2 April 2019, Tansin, Seth, Ryven, Mrs Sienkiewicz and Mr Isaac received in the mail a document entitled, "Perjury in NSW Courts". Its apparent intention was to deter these witnesses from giving the evidence to wish they had deposed. Strongly suspecting it to have been sent by Nerez, each handled the letter with care. Mrs Sienkiewicz wore gloves. Nerez admitted to sending the document to witnesses, stating that the letters were "designed to educate people". But that is a very considerable understatement of its effect.
Dr Grant made strong and early progress in recovering better health and cognitive alertness at the Montana Nursing Home during the last two years of his life. He had moved into Montana in a state of poor health with untreated skin cancers and was significantly underweight. But the evidence of quite a number of his visitors suggests that he was engaging well with them during 2018 and 2019.
Nerez says that Seth and Tansin ill-treated Dr Grant after he was taken to the Montana Nursing Home. She points to the fact that he was taken to Royal North Shore Hospital for treatment and she is critical of the care that was requested for him there. In the Court's view, none of this amounts to ill-treatment.
On 7 November 2019, Dr Grant died at the age of 98 from aspiration pneumonia.

[27]

Some Themes in the Grant Family Dynamics

Penetrating the complexity of the tensions within the Grant household is difficult. For the estate recovery proceedings, it is not an issue. But for the family provision proceedings an understanding of the relationship between Nerez and her mother is a central task for the Court. Nerez was essentially controlling aspects of her parents' lives from sometime in 2008 - 2010, if not before, so she could benefit herself and her daughter Kashaya financially. In response, Seth and Tansin offered support to their mother. This looked to Nerez like they were trying to control their mother for their own financial gain. But in reality it was purely a defensive response to protect their mother from Nerez.
At first it is difficult to comprehend why Seth or the other Grant children did not take more steps to bring their parents together in their final years. But it is not difficult to see that if the parents were reconciled, Nerez would dominate them both to everyone's disadvantage. And Mrs Grant was afraid of Nerez and wanted to be protected from her, something which would not have been easy to do had the parents lived together with one of them dominated by Nerez. Combined with that was the difficulties that Mrs Grant had in caring for her husband at her age.
Despite a long history of antisocial behaviour on Nerez's part, Seth and Tansin were slow to appreciate the depth of Nerez's depredation of her parents' assets. The figures are discussed elsewhere in these reasons. They protected their mother physically from Nerez but they did not see for some years how much Nerez was misusing the power of attorney from her father, until after they had moved him from the nursing home in Wyong.
Whilst it is true that Nerez was prepared to provide accommodation to her father for periods of time, she had a reluctance to make significant financial or personal sacrifices for either of her parents' health and well-being at critical times. For example, in the last weeks of her father's life in late 2019, when his funds to keep him at the Montana Nursing Home were about to run out, the Court asked her and Kashaya directly whether they were prepared to make the Killcare property available as security for the payment of his future medical care and his future and outstanding nursing home accommodation. Neither of them would assist. Seth and Tansin ultimately underwrote those expenses before their father's death in November 2019.
Right from the time she stood outside their house in Killcare and screamed public obscenities at them, Nerez was adept at using her parents' fear of being shamed or humiliated. Nerez carries no sense of family pride or honour, or of keeping unpleasant or embarrassing family affairs from public view. But both her parents did. Nerez knew that and used it as weakness to be exploited.
Chaos is Nerez's prime agency in controlling the world around her. She deploys it with unpredictable behaviour and sudden mood changes. The Court had an opportunity to observe her for days in the courtroom. At one moment she could be charming and at the next aggressive. Her potency is her unpredictability, which was a principal source of fear for Mrs Grant.
All of these factors caused great personal pain to Mrs Grant and prompted her decision to omit Nerez from her last will.

[29]

Relevant Legal Principles

The Court must now consider whether an order for provision should be made in Nerez's favour. As a daughter of the deceased she is an "eligible person" within Succession Act, s 57(1)(e). The test of whether provision should be made from an estate in favour of an applicant in any case is provided for 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. … (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made"
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; (1994) 123 ALR 481; (1994) 68 ALJR 653; [1994] HCA 40 at 209, 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 Leeder9, 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 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 Nerez.
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] NSWSC1067 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.""
The central issue in this case concerns the quality of the relationship between Nerez and her mother. Authorities that relate to estrangement between applicants for provision and deceased persons are relevant. These authorities have been recently and comprehensively summarised by Hallen J in Keaton v Gumulak [2020] NSWSC 943 at [230] - [234]. This summary of the law expands on that which his Honour gave in Underwood v Gaudron [2014] NSWSC 1055 at [230] - [233] ("Underwood v Gaudron") for which an appeal of the decision was dismissed with no disapproval of his Honour's statement of the law: Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269. The Underwood v Gaudron summary has been cited with approval in a number of cases since, including: Portis v Green [2017] NSWSC 1489; Toscano v Toscano [2017] NSWSC 419; Ellem v Webber [2020] NSWSC 910; Kiernan v Cranston and Purcell as Executors of will of Cranston (No 2) [2019] WASC 410.
His Honour's summary in Underwood v Gaudron at 231, (g) and (h) is of particular relevance when considering the estrangement between Mrs Grant and Nerez: "(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one 'who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility': Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed. … (g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke , per Barrett JA, at [50]. (h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis , at [102]."

[32]

Nerez's Case and the Estate's Case Contrasted

Nerez argues that she provided her mother with significant care, and that they were "very close throughout our lives until 2011". She states that she cared for her mother when she suffered breast cancer and stomach cancer, visiting her every day and shopping for her numerous times. She also says she assisted by walking Mrs Grant's dog, helping in the garden, cleaning Mrs Grant's home, cleaning cars, demoulding the pavements, driving her around and attending recitals with her.
The Court's findings stand in stark contrast to this case. The Court cannot rely upon any of Nerez's evidence and does not have a sound basis in evidence to infer Nerez did any of the things she alleges for her mother. The picture Nerez presents is so contrary to the one the Court has found that the Court does not accept any of it.
Nerez denied any mistreatment of her parents. Instead, she identifies Seth, Tansin and Mr Miller as the source of family tension and the cause of the separation between Dr Grant and Mrs Grant. She provided elaborate submissions on her siblings' "'evil' plan to separate [her] parents for their financial gain". The Court has already shown that there was no such plan. Ryven was particularly well placed to provide testimony on Nerez's treatment of both their parents, as he resided from 1978 until around 2010/2011 at the Killcare property. On the subject of Nerez's care for her mother the following direct and enlightening exchange occurred between Nerez and Ryven during his cross-examination, evidence which the Court accepts: Nerez: "Could you please tell me if our mother was ill and I ever took care of her?" Ryven: "Mum was ill, she had a few battles with cancer throughout life but the word, care, from you, Nerez, was very very maybe rare or something and I really can't remember it so I have to say no on that, in that case. No, you did not care for mum and you did not care for our father, dad either…"
Nerez advanced vague and unsubstantiated allegations against both Seth and Tansin having received large amounts of money from Mrs Grant. The Court does not accept Nerez's word about this. When Nerez pursued Tansin in cross-examination about one particular allocation that Tansin had misspent "over $144,000" from Mrs Grant's accounts, Tansin quite adequately addressed her expenditure of her mother's money.
Nerez also argues that by 2010, Mrs Grant was suffering the early stages of dementia and that Seth and Tansin took advantage of her weakness after this time. This was said to include pressure from them to sell properties, such as the Raworth Property. Nerez also argues that Warwick Miller convinced Mrs Grant to change her will after the January 2011 will, which left her estate to Dr Grant and the Elizabeth Bay property to Kashaya. The Court has already found these contentions have no basis. And there is no evidence that Mrs Grant lacked capacity either in 2010 or for quite a few years after that; the Court has found the contrary. Nerez submits that in October 2010, Mrs Grant underwent an ACAT examination organised by Seth and was found to have dementia. But at trial, when challenged to produce this report, Nerez failed to do so.
And as these reasons have already established, Mrs Grant made the January 2011 will under pressure from her husband and Nerez. The Court has accepted that Mrs Grant clearly communicated her wishes to revert back to the terms of her previous will.
In written submissions, Nerez also put forward an elaborate and false narrative about Seth's career. According to Nerez, at some point Seth had lost his job in Cambridge with plans to return to Sydney for work, to move their father into a nursing home and to take the McMahon's Property for himself. There is no evidence whatsoever to support this allegation. She further submits that Seth prevented their parents from making contact in the UK, and that he malevolently instigated Mrs Grant's AVO against her. There is no evidence to support this claim.
On behalf of the estate, Mr Hill submits that Mrs Grant was justified in not making provision for the plaintiff on account of her disqualifying conduct towards Mrs Grant, the advancement to Nerez of the Central Coast property in the 1980s and1990s, the $400,000 "IOU" from Dr Grant's estate (see below), the money Nerez took from both Dr Grant and Mrs Grant during their lifetimes, and her active concealment of Dr Grant from Mrs Grant between the years February 2011 until her death on 6 May 2017.
These contentions are well justified. It is impossible to quantify how much money Nerez took from her mother over decades. But it can safely be said that Nerez knew all of her mother's weak points and was very efficient in extracting money from her. The Court infers that she was able to glean very substantial sums from her mother over time. And this inference is further supported when a calculation can be made (in the estate recovery proceedings - see below) of the benefits that Nerez and Kashaya received after February 2011.

[33]

Conclusion - the Family Provision Proceedings

Nerez fails in her claim for provision out of her mother's estate on two principal grounds: her ill treatment of her parents, particularly her mother, over a long period disentitles her to any further relief by way of family provision under Succession Act, Chapter 3; and, she has already received very substantial benefits from her mother throughout her lifetime.
Mrs Grant was afraid of her daughter Nerez with good reason. Nerez behaved with callous brutality towards both of her parents over decades. She had seen Nerez's physical violence towards Dr Grant. She had personally been the object of Nerez's constant hectoring and harassment for money. She had seen Nerez sequester Dr Grant, dominate Dr Grant, and use his willingness to give her money as her treasury. Mrs Grant was so fearful of Nerez that she had taken up Seth and Marguerite Grant's offer of seeking respite at Cambridge in the first few months of 2011, during one of the worst periods of Nerez's harassment.
Nerez's conduct over decades was calculated to make Mrs Grant fearful and compliant with her demands and it had that effect. Nerez treated her mother as a creature to be frightened and then coerced into doing what she wanted. Any vestiges of mother-daughter affection had long disappeared between Nerez and Mrs Grant. Stung by the constant pain of Nerez's drug taking, thefts, aggression, unpredictability and the shame she brought upon the family, Mrs Grant's decision to keep her daughter at arm's length was entirely understandable.
For Nerez to be omitted from Mrs Grant's will does not offend community standards of what would be expected of a testator in her position. Children with difficult relationships with or estrangement from parents not uncommonly obtain family provision relief. But this case is in a category of its own and involves decades of actual aggression by Nerez towards her mother, who was afraid of her daughter.
And Nerez's case is missing another potentially mitigating factor. The Court has immense difficulty in finding in Nerez's conduct any reliable evidence pointing to the altruistic or selfless conferring of benefits upon her mother.
But Nerez seeks to excuse this gap in her case. She says that Seth and Tansin hid Mrs Grant away from her from 2011 and she could not provide a daughter's support to her. In one sense this is true. Mrs Grant was kept away from Nerez between 2011 and 2017. But this was at Mrs Grant's own request and was both a necessary and well justified decision taken for Mrs Grant's own protection from Nerez.
And looking at Nerez's conduct before 2011, the Court does not accept that Nerez provided any services, support, affection or security to her mother. Nerez is underserving of Mrs Grant's testamentary bounty and her Succession Act, Chapter 3 claim for family provision fails. Her Summons will be dismissed with costs.

[35]

The Transfer of the Killcare Property

The Killcare property was transferred to Kashaya on 29 September 2017. This section of these reasons sets out some of the relevant events surrounding its conveyance to Kashaya.
The Killcare property had been the family home for many years. Nerez had been living in it since about 2014 after Dr Grant first went into a nursing home. It was registered in the name of Dr Grant and Mrs Grant until it was transferred to Mr Pearce following the heads of agreement. No money was exchanged but Dr Grant paid the stamp duty. Then, the property was transferred back to Dr Grant for nil consideration with him again paying the stamp duty. It was still in his name in September 2017.
On 29 September 2017, are Nerez, acting as the attorney for Dr Grant, transferred the Killcare property from Dr Grant to Kashaya. The title transfer records "Alan Grant" as the transferor. It says against the heading 'Consideration', that "[t]he transferor acknowledges receipt of the consideration of $900,000". This transfer will be referred to as the "$900,000 transfer". Another transfer was apparently executed and dated same day for nil consideration, or "$0.00" as the document records, and it will be referred to in these reasons as the "nil consideration transfer". It is not in issue that no consideration was ever paid to Dr Grant for the transfer of Killcare property.
The $900,000 transfer was originally registered on 12 October 2017. But it was discovered that Kashaya's name was misspelt, and a corrected version was registered on 13 October 2017. The nil consideration transfer was signed but was never lodged for registration. There is some controversy between the parties concerning the provenance and execution of the two transfers.
Also on 29 September 2017 Kashaya executed a standard form residential tenancy agreement and with Nerez executing it as tenant of the Killcare property. The tenancy was recorded as starting on 29 September 2017 and ending on the "death of Nerez Grant". The rent was recorded as "nil". Occasionally throughout these reasons this residential tenancy agreement has been informally described as "a life estate" as the parties described it from time to time. The Court does not have to investigate whether or not it created a valid agreement for the life of Nerez under the Residential Tenancies Act 2010. At the time of its apparent execution Kasaya was not the registered proprietor of the property and was not registered for another two weeks.
Nerez's case is that the solicitor who conducted the conveyancing transaction mistakenly recorded $900,000 as the consideration on the transfer, when it should have been recorded as nil consideration. Her account is that the nil consideration transfer was then redrafted by the solicitors. But the solicitors were subpoenaed and no nil consideration transfer was found on their file. Their file only contains two versions of the $900,000 transfer, the former with Kashaya's name misspelt and the latter with Kashaya's name correctly spelt. Nerez and Kashaya sought to argue that the solicitors should have filed the nil consideration transfer and not the $900,000 transfer.
The estate argues that these transfer documents were more likely to have been drafted on 5 October 2017 the day after Dr Grant was taken out of Nerez's care and transferred to Montana in Mosman. The estate contends on the evidence that the $900,000 transfer was correctly filed, that it has achieved registration and that the defendants have not advanced any properly pleaded case to substitute the nil consideration transfer for it.
The Court does not have to resolve all disputes between the parties concerning the conveyance of the Killcare property. But some of them are of relevance.
Nerez filed an affidavit in the proceedings on 10 March 2019 giving her account of what happened with the conveyancing of the Killcare property. In it she deposed: "On 29 September, 2017 I signed a transfer of property…as POA with consideration of $0. I signed another property transfer as POA for Alan Grant with a consideration of $900,000.00 as I was told by the solicitor conducting the transfer that the "bottom line of transfer" was incorrect. I did not check the amount of consideration and just signed the second transfer. A true copy of the original transfer is annexed hereto and marked "B""
Annexure B to this affidavit was the nil consideration transfer that she was propounding as the correct transfer. It was also dated 29 September 2017 and Nerez's signature as Dr Grant's attorney was witnessed by a Mr Bruce Yeldham. Evan Williams witnessed Kashaya's signature.
The solicitor conducting the conveyance of the Killcare property was Ms Karen Healey, ("Ms Healy"), Solicitor of Mathews, ("Mathews"), Solicitors, of Paddington. Ms Healy was not called to give evidence. The Mathews conveyancing file does not contain a copy of annexure B, the nil consideration transfer.
Rather the Mathews file contains a version of the $900,000 transfer originally dated 29 September 2017 and incorrectly spelling Kashaya's name as "Kayasha", in typescript but which has then been corrected by hand to the correct spelling. Next to the handwritten amendments Ms Healy has signed and dated them on what looks like 4 October 2017. The solicitor Ms Healy has witnessed the signatures of the transferor (Alan Grant by his attorney) and the transferee on this $900,000 transfer. It records a payment of stamp duty of $35,990 to the OSR on 12 October 2017. This $900,000 transfer with the handwritten amendments was registered.
Another version of the $900,000 transfer was found on the Mathews file. It shows Kashaya's name correctly spelt and it has no evidence on its face of having proceeded to lodgement and registration. It is also dated 29 September 2017 and is signed for the transferor and the transferee and is witnessed by Ms Healy. In the Court's view this document was one which Ms Healy had prepared and signed for more abundant caution, if she was not able to proceed with the spelling amendments to Kashaya's name on the one which had already been lodged for registration. This version of the $900,000 transfer is not significant in the proceedings and can be ignored for present purposes.
The first instructions to Ms Healy recorded on the Mathews conveyancing file came from Kashaya in an email dated 5 October 2017 in which she arranges for her mother, Nerez, as attorney for the vendor to come and see Ms Healy. Kashaya refers to a valuation being obtained and suggests that Nerez will "come in and have you check over the documents for transfer have been completed properly". Nerez appears to have come in to see Ms Healy and sign the $900,000 transfer after this email.
There is no diary note in the Mathews file indicating any other contact from Kashaya or Nerez with Ms Healy before 5 October 2017. And the rest of the evidence on the file confirms instructions and conveyancing activity between 5 October 2017 and 12 October 2017. Among this material is a desktop valuation of the Killcare property $900,000 dated 5 October 2017. Present also is a completed OSR declaration signed by Kashaya on 6 October 2017 showing that the agreement for sale of the Killcare property was made on 29 September 2017. Also included are copies of three cheques for the OSR stamp duty including one for $34,700 from St George bank, another for $1,290 from ANZ Double Bay and the third for $138 from the ANZ Double Bay. Also included is a receipt signed by Kashaya on 12 October 2017 for a copy of the certificate of title issued in her name. There is a receipt for the payment of the Mathews account the same day.
Nerez sought to develop what was in her 10 March 2019 affidavit by claiming that Ms Healy wished to alter the transfer Nerez had first signed, which Nerez believed was the nil consideration transfer. According to Nerez, Ms Healy wanted this change because at the foot of the nil consideration transfer the words "the transferee certifies" in relation to an aspect of the storage of related conveyancing data, were said to be incorrect and that they should have said "the transferor certifies". Nerez says that she did not notice that the new transfer that she signed was the $900,000 transfer rather than the nil consideration transfer and that Ms Healy must have made the change without her or Kashaya's knowledge.
This elaborate theory was designed to avoid the estate having a claim for $900,000 on an unpaid vendor's equitable lien against Kashaya. But leaving aside that this defence case is not pleaded the Court does not accept any of Nerez or Kashaya's evidence that Ms Healy made a mistake adding the $900,000 consideration figure into the final signed $900,000 transfer. Nothing in the Mathews file indicates Ms Healy made such a mistake. Indeed the mistake Nerez says Ms Healy was so anxious to correct is not corrected in the final version of the $900,000 transfer. Nerez could not explain why she did not notice the "$900,000" in the $900,000 transfer that she was signing. And Kashaya, the party most affected, did not notice it when she signed the document. The nil consideration transfer was never in Ms Healy's possession to be considered for correction. And it is highly unlikely that a solicitor would change the consideration in a transfer from nil to $900,000 of her own initiative without seeking clear instructions.
There remains no satisfactory explanation for why it was suddenly necessary for Nerez and Kashaya to orchestrate the transfer of the Killcare property on 29 September, 2017 other than Seth's visit to his father in September to the Peninsular Village coming to Nerez's attention. Nerez had a power of attorney and enduring guardianship in respect of her father for years prior to September 2017 but she did not act until she feared that her father would be taken out of her control. This inference is strongly reinforced by the electronic funds transfers that Nerez executed on 4 October 2017 when she found Seth had picked up her father from Wyong Aged Care.
The Court infers from this timing that Nerez and Kashaya suspected that they would be unlikely to be able to legitimately justify to Seth or to a court their claim that Dr Grant was gifting the Killcare property to them, so they decided to take the asset while they had the power to do and whilst others were unaware of what they were doing. They were both involved in instructing the solicitor effecting the transaction, Ms Healy. The very secrecy with which they executed the transaction is a reason to infer that they knew that it was improvident from Dr Grant's point of view and that it would not survive scrutiny. Their imperative of secrecy was compounded when they perfected the transaction for days on and from 5 October 2017 well after Dr Grant was out of their care and when they had notice that Nerez's power of attorney had been revoked. Their decision to proceed secretly in those circumstances with the transaction that benefited both of them is a badge of their joint dishonesty in the transaction.
The power of attorney that Nerez used on this occasion was this same one executed by Dr Grant before Mr Peter Dunlop, solicitor, back on 22 February 2011, when Nerez first took control of Dr Grant's affairs. It was executed in accordance with the Powers of Attorney Act 2003. It does not authorise the additional optional powers allowing the attorney to make reasonable gifts, or to confer benefits on herself or to confer benefits upon third persons.
Curiously the acceptance of the power by the attorney, Nerez, was not until 10 July 2014. But on the page where she signs to accept her office there appears the following clause: "7. Acceptance by attorney a) I accept that I must always act in the principal's best interests. b) I accept that as attorney I must keep my own money and property separate from the principal 's money and property. c) I accept that I should keep reasonable accounts and records of the principal 's money and property; d) I accept that unless expressly authorised, I cannot gain a benefit from being an attorney; e) I accept that I must act honestly in all matters concerning the principal 's legal and financial affairs."
Immediately below this clause in bold and above Nerez's signature appear the words, "failure to do any of the above may incur civil and/or criminal penalties."
Nothing in this power of attorney authorised Nerez to make what was in substance a gift to Kashaya when she signed the $900,000 transfer. There is no evidence that Nerez or Kashaya ever discussed this consideration being paid to Dr Grant and the Court infers there was no intention for it to be paid for his benefit. No mortgage was taken for his benefit. No enquiry was made as to ascertain whether Kashaya had the means to pay the money. The $900,000 transfer was in substance a gift.
Nerez did not take the trouble to read the power of attorney at the time or to seek advice about it before going ahead with the transfer of the Killcare property to Kashaya. Because of the substantial nature of this transaction relative to Dr Grant's assets at the time and because she was gaining a substantial benefit as a result, an honest person in her position would have checked the powers conferred on her under the power of attorney and obtained advice as to whether she was authorised to use the power of attorney in these circumstances. Her failure to do so is a further badge of her dishonesty in the transaction.

[36]

Ascertaining Dr Grant's Wishes for the Killcare Property

Nerez and Kashaya's principal contention is that the transfer of the Killcare property to Kashaya, and Kashaya's granting of a lifetime tenancy to Nerez, was in accordance with Dr Grant's wishes and instructions. Given that this is an example of self-dealing between fiduciary and a principal without independent legal advice, it is extremely doubtful that Dr Grant's wishes however well proven, could ever amount to a defence against the estate's claim to set aside the transfer.
But the Court does not accept Nerez and Kashaya's oral evidence that Dr Grant expressed such an intention to them, at least of his own prompting. And the Court concludes that the written evidence that they advance in support of their contention is a fabrication.
In support of their contention, that the Killcare property was a gift from Dr Grant, in her written submissions Nerez submits as follows that Dr Grant's wishes were recorded in a letter: "After the sale of the land at Killcare my father gave me a letter saying he wanted to transfer the Killcare house to Kashaya and for me to live there. He told me he wanted to give us a "roof over our heads". I did not transfer the property at the time. I did not transfer the property until I realised that Seth and Tansin had visited my father at a nursing home in Umina Beach. Their visiting my father was extremely ominous of bad things to come."
Nerez and Kashaya tendered and rely upon a photocopy letter said to be dated 10 April 2016 and which they allege bears the signature of Dr Grant. The contents of this letter are replicated below: "10/4/2016 Dear Nerez I want to give the Killcare house to Kashaya. I want you to live there for the rest of your life. I give you a life time tenancy. I will pay for the transfer. Please transfer the property to Kashaya. Thank you for all the care of me. Love Alan [signature]"
Apart from the word "Alan" which does appear to be in Dr Grant's handwriting, the rest of the 10 April 2016 document is typed. The estate argues this is a falsely fabricated document that has been created by photocopying Dr Grant's signature from another document. The Court accepts that submission. Despite a Notice to Produce issued to Nerez and Kashaya and many requests to them, the original of this letter was never produced. The Court pointed out to them on a number of occasions the importance of the original of this document to this aspect of the case. Only a copy was ever produced and only a copy therefore was able to be analysed by Ms Melanie Jayne Holt, a handwriting expert, engaged on behalf of the estate.
Ms Holt examined the 10 April 2016 letter ("the questioned letter") against a number of other documents alleged to have been authored by Dr Grant. Among the other material Ms Holt examined was a letter from Dr Grant to Mrs Grant on 25 March 2011. She was of the opinion that the probabilities were that the questioned letter was probably created by using Dr Grant's signature from the letter of 25 March 2011 and overlaying the typescript of the letter above it. The following extract from Mrs Hill's examination-in-chief explains her opinion well: "Mr Hill: But you can do an exact overlay, can you, of the word "Alan" in [the 25 March 2011 letter] with the word "Alan" in [the 10 April 2016 letter], can you? Ms Holt: Yes, you can. Mr Hill: Is the "A" and the "I" exactly the same height, are they? Ms Holt: Yes. It's, for all intents and purposes, exactly the same, even to the point of the placement of the full stop at the end, and that would be something, you know, I would - you know, statistically the chances of getting something like a full stop in exactly the same position every time you write something, I think - Mr Hill: It's pretty low, I assume. Is it also consistent with your conclusions that [the 25 March 2011 letter] might have been a genuine letter and that what happened was that the "Alan" was copy pasted onto the document in [the 10 April 2016 letter]? Ms Holt: Yes."
Ms Holt also had regard to the degree of degradation of Dr Grant's signature over time by examining samples of his writing over several years. She concluded that "the particular way he's written 'Alan' [in the questioned letter] is much more consistent with how he used to write in 2011 than as he's getting older".
Neither Nerez nor Kashaya questioned Ms Holt's qualifications and report. No evidence to contradict her report or findings was tendered. When the defence put to Ms Holt that it might be "possible" that Dr Grant signed the document, Ms Holt replied that the possibility was "incredibly slim".
The Court accepts Ms Holt's opinion. On the evidence provided, it is highly likely that Dr Grant's signature on the 10 April 2016 letter, upon which Nerez and Kashaya relies, has been transposed from his 25 March 2011 letter to Mrs Grant and then photocopied into a single document. It is for this reason that no "original" is available, because the "original" is a composite of two documents.
Nerez is the only individual who claims to have had the original of the document. She strongly denies any manipulation of her father's signature to create a falsely fabricated document. She suggests that the original may have been "thrown out" at the start of the proceedings. But the Court does not accept her explanation. Moreover, it is strange that the original would not have been referred to by Nerez in her own letter to the Office of Trustee and Guardian on 12 July 2018 in a context where she could have been expected to rely upon it in her defence. This letter cannot be relied upon as evidence of Dr Grant's wishes or instructions.
Nerez also claims that Dr Grant was the author of further documents expressing his wishes for the Killcare property to be transferred to Kashaya and for Nerez to live in it. In outlining her defence at trial, Nerez argued her control of her father's affairs was at all times proper and appropriate: "It is what my father wanted. He had verbally said it numerous times. I even had very small notes from him written that he would - I can't find those. I found a copy of a note that he said he wanted that. So, that was his wishes: to have that property transferred to Kashaya and for me to live there. And to quote his words, 'So that you can have a roof over your heads.' And he full well knew that my other brothers and sister had a lot of property. … So my father has always been concerned and that would have been - to have a roof over your head was a great concern for my father".
But neither Nerez nor Kashaya ever produced these "small notes" and the Court does not accept that they ever existed. In summary, there is no evidentiary support for the defendants' contention that Dr Grant wished to give the Killcare property to Kashaya for the benefit of her and her mother.
Kashaya advanced another argument to justify the gift of the Killcare property to her: that she was Dr Grant's favourite grandchild, and that this was a basis upon which Dr Grant provided her significant sums of money and the Killcare property. But the Court accepts that Dr Grant and Mrs Grant were involved in all their grandchildren's lives. That Dr and Mrs Grant intervened to provide Kashaya opportunities that Mr Lewis and Nerez could not provide her, is not a firm basis to suggest Kashaya was the favoured grandchildren to whom Dr Grant would leave the Killcare property.

[37]

The Claim for the Funds Transferred

Before the particular transactions in the estate's claim are considered, Nerez and Kashaya's wider case should be noted. They both argue that cash withdrawals made by them from Dr Grant's bank accounts were consistent with his express wishes. And Nerez relies upon a promissory note for $400,000 that Dr Grant allegedly gave her, to justify some of their withdrawals. Dr Grant lived in various locations under the care of Nerez from 22 February 2011 until 4 October 2017. An analysis of the financial transactions of this particular period is possible and it assists analysis of Nerez's case.
Quite apart from the Court disbelieving Nerez's account of Dr Grant's wishing to make gifts to her, objectively speaking, it is difficult to accept that the amounts actually transferred from Dr Grant's accounts during this period, 22 February 2011 until 4 October 2017, could be justified on the grounds Nerez has stated. The probable amount of withdrawals for this period is well beyond anything that could possibly be related to Dr Grant's care and is so great that it depleted his estate to the point of placing him in penury.
This is demonstrated by an analysis of Dr Grant's bank transactions for the period, 11 February 2011 until 4 October 2017 conducted on behalf of the estate. During this period Dr Grant held bank accounts with the CBA and the St George bank. The analysis reveals that during this period, a total of $5,207,635 was received into all of Dr Grant's bank accounts, the substantial amount of these deposits being related to the sale of Dr Grant's interests in real estate with Mrs Grant.
But the analysis also shows that withdrawals (over $1,000) during this period total $5,734,029. Some allowance must be made for the re-crediting of monies taken from the accounts for the purpose of being placed on interest-bearing deposit. Even allowing for this and subtracting the amount of $1,207,635 from the total amount received into the accounts, the analysis still leaves the amount of freshly injected capital into the accounts from Dr Grant's real estate sales and other income at approximately $4 million.
Yet the total nursing home fees paid by Dr Grant during this period were only $119,823.47, being less than 3% of the withdrawals of $4 million. And on 4 October 2017, when Seth took over his care, Dr Grant at the age of 96, was left with a total of $20,769 in his two accounts and the Killcare property worth about $900,000 had just been transferred from him to Kashaya. He was unable to pay his ongoing nursing home fees from his remaining resources and had no prospect of paying a deposit at the Montana Nursing Home.
The analysis also reveals that at least $100,000 of the withdrawals were transferred directly to Nerez, and at least $373,703.38 directly to Kashaya, Kashaya and her husband, Evan Williams, or Kashaya's event management and floristry business, Kashaya & Co. While Dr Grant was in retirement homes, the bank statements indicate that multiple purchases occurred that could not possibly have been for Dr Grant's benefit. These were purchases at makeup stores, toy stores, baby stores, a resort in the Blue Mountains and grocery stores in Sydney's Eastern Suburbs and the Sydney CBD were made. And two Volkswagen Polo vehicles were also purchased on or around 15 July 2013 for $21,000 each. And while Dr Grant was in nursing homes on the Central Coast, there were many cash withdrawals made from his bank accounts from ATMs in Bondi, Bondi Beach, Rose Bay, Haymarket and Alexandria. Nerez could only give a loosely speculative account of where she had spent the money she obtained from her father. It was certainly not obvious from anything she said that she spent the money for his benefit and, given her character and her readiness to put herself first, that was quite unlikely. The analysis undertaken in Dr Grant's accounts was considerably more detailed but these examples suffice to show what it reveals.
Now the Court turns to the two particular money transactions the subject of the estate's claim. Despite the years of the first and second defendant's misuse of Dr Grant's funds, the estate took a practical course to reduce the issues for determination and decided to pursue only the claim for the sum of $100,000 transferred by electronic funds transfer to Nerez on 4 October 2017 and the sum of $34,700 paid by way of bank cheque to the Office of State Revenue ("OSR") on 4 October 2017.
Before these events, on 30 September 2017, Dr Grant had three accounts with St George Bank, which respectively contained the sum of $1,215.73, the sum of $215,125.25 and the last was in a debit (-$644.01).
The transfer of the $100,000 occurred at 12:23PM that day. Seth picked up Dr Grant from Wyong Aged Care between about 10 and 11 AM that day. Nerez has admitted she was responsible for making each of these transfers. The sum of $100,000 was transferred into a bank account and Nerez's name. The transfer occurred after Nerez discovered that her power of attorney had been revoked from personnel at Wyong Aged Care. The bank cheque was purchased by Nerez with funds debited to the same account at a transaction which probably occurred at approximately the same time, that is about 12:23PM. On the same day, Nerez also sent $60,000 to Kashaya.

[38]

Analysis - Liability for Breach of Fiduciary Duty

The estate argues that Nerez, in breach of her fiduciary duties to Dr Grant, procured the transfer of the Killcare property to Kashaya and to benefit herself through the acquisition of a life estate in the property. The estate argues that Kashaya, although not a fiduciary herself, agreed in a dishonest and fraudulent scheme with Nerez to take a transfer of the property by Nerez's misuse of the power of attorney.
Nerez and Kashaya were acting for themselves and their submissions did not really get to grips with the true legal issues behind the allegations of breach of fiduciary duty and participation in that breach. So the Court will analyse whether the estate has made out its case on the findings the Court has made on the contested issues of fact.
Nerez's Fiduciary Duty. Nerez was in a fiduciary position with respect to Dr Grant and she owed him fiduciary duties in her use of the power of attorney granted by him to her. The Court's findings in the factual narrative show that she was undoubtedly in a relationship of trust and confidence with Dr Grant. She had agreed to act for and on his behalf and in his interests in the exercise of the powers and discretions under the power of attorney granted to her and she had a special opportunity, by reason of her powers and discretions, to act to Dr Grant's detriment and he was accordingly vulnerable to abuse by her of that position: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; (1984) 55 ALR 417; (1984) 58 ALJR 587; [1984] HCA 64 at 96 - 97 per Mason J.
And Nerez also had a special opportunity to exercise her powers under the power of attorney to Dr Grant's detriment. As Dr Grant's enduring guardian, Nerez had control over his person and could make decisions about his accommodation. She utilised this power frequently in the years 2013 to 2017 to move him between nursing homes to prevent other family members having contact with him. The regularity of those moves is best explained on that basis. And apart from Mr Isaac's courageous adventure to find Dr Grant, Nerez's conduct isolating him was generally successful. Nerez had kept him away from Seth, Tansin and Ryven between 2010 and 2017. Dr Grant had nowhere to turn for legal advice or emotional support. And in his frail state in his late 90s he was in no position to find independent sources of advice himself.
And Nerez's enduring power of attorney was not just a legal construct. Nerez and Kashaya had long taken actual control of his finances, because of his special susceptibility to their influence. Nerez used both her enduring guardianship and her enduring power of attorney in tandem against her principal, her father. Once she had accommodated him away from other family members who might interfere with her control, she was free to use his bank account as she pleased, and she did. The Court infers that the money transfers the subject of these proceedings were effected without any input from him.
That this control added to his vulnerability and was not in his best interests can be inferred from a number of factors. Nerez kept him incommunicado from his other children. Nerez continued to expend his liquid assets substantially on herself and Kashaya rather than for his own benefit. Nerez did not volunteer to account to any other family member for her transactions on Dr Grant's accounts and did not disclose the transactions questioned in these proceedings to any other family member before they occurred.
On top of that, Nerez had gained complete ascendancy over her father. She did this by years of daily harassment and demands for money which pushed both Dr and Mrs Grant into a state of uncertainty. Between 2013 and 2017, Dr Grant was sufficiently enfeebled by age, and had reduced intellectual functioning that asserting his own separate interests against Nerez in this period was beyond both his capacity and his fortitude and Nerez well knew that.
Nerez's Breach of Fiduciary Duty. It was a breach on Nerez's part to use the power of attorney to execute a transfer of the Killcare property to Kashaya. Nerez knew that the Killcare property was Dr Grant's last substantial asset, the deprivation of which would leave him without any means of support for his future medical care and accommodation and that the transaction was therefore grossly improvident and could never be justified as in his interests. She knew this from her knowledge and use of Dr Grant's bank accounts and from the amount of money that she had already taken from Dr Grant over the years. She knew that Dr Grant was wholly dependent upon her and was in no position to stop her using the power of attorney and indeed that he did not know that she was using it to transfer the Killcare property (there is no accepted evidence that he had knowledge of it). She knew that as a fiduciary she was dealing with her principal, Dr Grant and he did not have independent legal advice in a transaction which was plainly for her benefit (through the lease that she would take of the Killcare property from Kashaya).
Nerez attracts liability for the transfer of the $100,000 on 4 October 2017 to herself and for her application of the $34,700 to the OSR the same day for stamp duty on the same basis. Indeed Dr Grant could not have known about these transactions because they took place when he was in transit from the Wyong aged care facility to Montana on 4 October 2017. She appears to have dissipated the $100,000. Nerez was in breach of her fiduciary duty for using her power of attorney to affect these transfers and should pay equitable compensation for her conduct.
Categorising Nerez and Kashaya's Liability. The estate argued the case on the basis that Nerez was liable to the estate under the "first limb" of Barnes v Addy (1874) LR 9 Ch App 244; (1874) 43 LJ Ch 513; (1874) 30 LT 4; (1874) 22 WR 505 as a recipient of property procured in breach of fiduciary duty and that Kashaya was liable to the estate under the "second limb" of Barnes v Addy, as a person knowingly involved in a dishonest and fraudulent scheme involving the breach of fiduciary duty.
But establishing the liability of Nerez and Kashaya is probably easier than this when their true roles are examined in light of the detailed pleadings. It is well established that for a third party who receives trust property to be liable under the "first limb" of Barnes v Addy, it is sufficient for any of the first four, but not the fifth, categories of knowledge in Baden & Ors v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1992] 4 All ER 161; [1993] 1 WLR 509 at 575-576, 582 to be made out. The fourth category is knowledge of circumstances which would indicate the facts to an honest and reasonable person: see Simmons v NSW Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405 at [90] and McFee v Reilly [2018] NSWCA 322.
The estate does not have to take on the burden of proving the second limb of Barnes v Addy to establish liability against Kashaya, as her position can readily be analysed and should properly be classified as that of a third-party recipient of trust property. She has the requisite knowledge to attract the operation of the first limb and for liability to be established against her under the second limb. But these reasons also find below that the second limb of Barnes v Addy is made out in any event, so as to establish liability in Kashaya for her participation in a dishonest and fraudulent design involving Nerez's breach of fiduciary duty.
Nerez's position is even simpler. She is Dr Grant's fiduciary and she still holds part of the property involved in her self-dealing with her principal, namely her life estate over the Killcare property. She is directly liable to the estate to give that asset up without invoking either limb of Barnes v Addy. But to the extent that the estate relies upon the second limb of Barnes v Addy, Nerez was involved in a dishonest and fraudulent design with Kashaya to take advantage of Nerez's breach of fiduciary duty.
Kashaya's Liability. Kashaya was well aware that Nerez had fiduciary obligations to Dr Grant and that she was acting in breach of those fiduciary obligations to him. Kashaya was fully aware: that Nerez held a power of attorney from Dr Grant as that is how Nerez was able to operate accounts and authorise the taking of cash from those accounts for many years for Kashaya's benefit. She also knew the other matters that Nerez knew from her close contact with Nerez and from her agreement with Nerez to lease the property to her for life. She knew of Nerez's complete ascendancy over Dr Grant. Kashaya did not have any genuine or well-grounded belief that the power of attorney authorised gifts to her such as the transfer of the Killcare property, as she had never inspected the power of attorney or sought to enquire what it authorised.
Kashaya was quite conscious that there was every chance that Dr Grant would be very substantially disadvantaged by this transaction and she did none of the things that an honest person would do satisfy themselves that the transaction was not in breach of Nerez's fiduciary duties to Dr Grant. She was in a prime position to insist Dr Grant had legal advice before this transaction proceeded and to satisfy herself that the transaction was not as improvident from Dr Grant's perspective as it looked on the surface. But she did not do so.
Kashaya was also questioned by the Court over her appreciation of Dr Grant's separate interests in taking a transfer of the Killcare property from Nerez as Dr Grant's attorney: "The Court: You appreciated that once the transfer took place, that your grandfather would have only very limited assets of maybe 20,000, maybe 60,000 to look after himself? Kashaya: I would always have looked after my grandfather. … The Court: So you were prepared to take a transfer of this property from your grandfather without knowing what he'd be left with. Is that the situation? Kashaya: Yes, I didn't think anything of it. Anything else to consider, that question. The Court: Did you care what he was left with? Kashaya: I cared that he was always looked after and had what he needed, and I would have made sure of that. At that time I didn't know what was going to happen, and that I was going to be stopped from seeing him or anything, so I didn't - at that time, I thought this is what he wanted. If there was anything that needed to happen with the property I always would have done it for him, while was in my care. The Court: That's why, if you cared, and you would always have looked after him, why didn't you agree with the suggestion from the Court in September that you mortgage the property? Kashaya: Because I thought the preferential option for that was Seth using the money that he'd been given by Granny for the care of my grandfather. That's, I thought that was number 1, and if number 2 happened, then that was what had to happen. But I, my, I said I wouldn't be agreeable to it because I believe that was the right thing. The Court: You thought someone else should pay before you? Kashaya: I thought Seth, having said there was $420,000 for my grandfather, left by my Granny, it was her wishes. I thought that should be used first before doing complicated things with a property that we're in proceedings on. But I never would have left my grandfather with nothing. The Court: It's perfectly clear though, as I understand it from your answers, that when you took the transfer of that property you did not either know or inquire how much he was going to be left with? Kashaya: That's correct."
Kashaya had years of knowledge of the money that she had enjoyed from Dr Grant's accounts. Her failure to enquire about what Dr Grant would be left with is not the conduct of an honest and reasonable person. Rather it is a basis to find, as the Court does, that she already had knowledge of sufficient facts about the transfer of the Killcare property to her by Nerez as would indicate to an honest and reasonable person the likelihood that Nerez was herself engaged in a breach of fiduciary duty.
The transfer of the Killcare property was obviously improvident for Dr Grant. That obvious improvidence sharpens the inference that both Nerez and Kashaya were also acting dishonestly in effecting the transfer of the Killcare property. The transaction left him at the risk of being put out of comfortable nursing home accommodation because he could not fund the refundable accommodation deposit for the Montana Nursing Home nor meet his ongoing medical and accommodation expenses. The more obvious this is (and it was very obvious) the more that an honest person would enquire as to whether the property was being acquired in breach of a duty to Dr Grant. This would establish liability against Kashaya under the first limb of Barnes v Addy.
But the obviousness of the improvidence of the transaction also strengthens the more demanding inference under the second limb that Kashaya and Nerez were acting in concert for their mutual financial advantage when Nerez used the power of attorney to transfer the Killcare property to Kashaya. They must have known that this was a fraud on Dr Grant because they were taking his last asset and putting him in a helpless position. This was a mutually conceived dishonest and fraudulent scheme that they were both perpetrating on Dr Grant. Kashaya was an active participant in this scheme with full knowledge of its elements and of its disadvantage to Dr Grant.
Other Matters. Kashaya cannot rely upon indefeasibility of title under Real Property Act 1900, s 42(1) to defeat the estate's claim for the return to it of the Killcare property. She was involved in a dishonest and fraudulent scheme by which the property came into her hands which attracts the actual fraud exception to Real Property Act, s 42(1): Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; (2007) 236 ALR 209; (2007) 81 ALJR 1107; [2007] HCA 22. This was not purely equitable fraud. But in any event, the circumstances of this case raise a personal equity against Kashaya to which indefeasibility is not an answer: Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; (1983) 49 ALR 229; (1983) 57 ALJR 683; [1983] HCA 30.
The Power of Attorney conferred by Dr Grant on Nerez does not provide any defence to Nerez or Kashaya in these proceedings. It did not empower Nerez to make gifts to herself or to others by use of the instrument. But in any event, the use of the power of attorney was subject to Nerez's fiduciary duty to her father, which she breached.
Conclusion. The estate seeks that the transfer from Dr Grant to Kashaya be set aside, or in the alternative, that Kashaya pay Dr Grant's estate $900,000 and interest thereon for the transfer of the Killcare property to her pursuant to an equitable vendor's lien. There is no evidence that Kashaya has the ready funds to pay $900,000 to the estate so the Court will grant the primary relief sought. If alternative orders are still sought by the estate after reading these reasons, the matter can be relisted under the grant of liberty to apply.
The Court will set aside the transfer of the Killcare property and order Nerez to pay compensation to Dr Grant's estate for the money transfers of $100,000 and $34,700 that she authorised. The estate is entitled to interest on these sums to be assessed in accordance with the principles applicable to dishonest breaches of fiduciary duty: Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400.

[39]

Conclusions and Orders

For these reasons the Court will make the following orders in each of the two proceedings. If any party believes that supplementary orders are required to deal with any other incidental issues then they should draw them to the Court's attention within 14 days.
In the orders in the estate recovery proceedings, being proceedings number 2017/316190, the "Killcare property" is the property so identified in the plaintiff's Statement of Claim filed pursuant to the orders of Kunc J on 11 March 2019 prayer for relief 2. In the estate recovery proceedings the Court declares, orders and directs as follows: 1. Declare that the first defendant, in breach of her fiduciary duty to the late Dr Alan Grant, whose estate is now represented by the plaintiff as administrator ad litem, engaged with the second defendant in a dishonest and fraudulent scheme to transfer the whole of Dr Grant's interest in the Killcare property to the second defendant in return for the first defendant receiving from the second defendant a life interest in the Killcare property; 2. Order that the second defendant transfer the Killcare property to the plaintiff for no consideration; 3. Declare that the first defendant holds the sum of $100,000, transferred from the late Dr Alan Grant's bank account number 509 on 4 October 2017, on trust for the plaintiff as administrator ad litem of the estate of the late Dr Alan Grant; 4. Declare that in breach of her fiduciary duty to Dr Alan Grant the first defendant caused to be debited the sum of $34,700 from the late Dr Alan Grant's bank account (ending in the numbers 509) on 4 October 2017 in order to procure a bank cheque payable to the Office of State Revenue for the benefit of herself and the second defendant; 5. Order that the first defendant pay the sum of $100,000 referred to in declaration (3) and the sum of $34,700 referred to in order (4) by way of equitable compensation to the plaintiff; 6. Order that the first defendant pay to the plaintiff interest up to today pursuant to Civil Procedure Act 2005, s 100 on the sums referred to in Order (5); 7. Direct the plaintiff within 14 days to provide to the defendants and to the Court a calculation of the interest up to judgment provided for in order (6) above; 8. Direct that the plaintiff within 14 days indicate to the defendants and to the Court whether an enquiry as to damages or any tracing remedies are sought in these proceedings; and 9. Grant liberty to apply.
In the family provision proceedings, being proceedings number 2018/139174, the Court makes the following orders and directions: 1. Dismiss the plaintiff's claim for provision out of the estate of the late Mrs Gwynneth Grant; 2. Order the plaintiff to pay the estate's costs of these proceedings on the ordinary basis; 3. If any party seeks a special costs order that party should do so within 14 days; and 4. Grant liberty to apply.

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Cases Cited (35)

Cited By (5)