DEEDS - What Amounts to a Deed - Whether document in question Agreement or Deed - No extrinsic evidence of intention of parties - Construction of document required - Document in question is a Deed

DEEDS - Claim Deed should be set aside on the ground of non est factum - Alternative claim that Deed should be set aside due to undue influence exerted on the Applicant - Applicant not prevented from seeking independent legal advice - Applicant freely signed Deed - Applicant capable of understanding the Deed - No undue influence exerted on the Applicant - Claim dismissed

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - Applicant former domestic partner of deceased - Whether domestic partnership had ended at the time of the death of the deceased - Whether Applicant cared for the deceased during last illness - Applicant not adequately provided for

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Claim for chattels alleged to be jointly owned with the deceased - Chattels divided under Deed - Claim dismissed

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - Claim that half the proceeds of a property sale held on constructive trust for the Applicant - Title in name of deceased only - Property purchased with funds of deceased - No significant financial contribution by the Applicant - No constructive trust exists

Domestic Relationships Act 1994 (ACT), s 3

Legislation Act 2001 (ACT), s 169

Rules of the Supreme Court 1965 (UK), Order 62 Rule 28

400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302

Abela v Public Trustee [1983] 1 NSWLR 308

Allcard v Skinner (1887) 36 Ch D 145

ANZ Banking Group Ltd v Alirezai [2004] QCA 6

Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Barrett v Hartley (1866) LR 2 Eq 789

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137

Blore v Lang [1960] HCA 73; (1960) 104 CLR 124

Burgess v Rawnsley [1975] Ch 429

Burton v Camden London Borough Council [2000] UKHL 8; [2000] 2 AC 399

Calabrese v Miuccio (No 2) [1985] 1 Qd R 17

Churton v Christian (1988) 13 NSWLR 241

Coldunell Ltd v Gallon [1986] 1 All ER 429

Corin v Patton [1990] HCA 12; (1989) 169 CLR 540

Delaney v Molloy (1993) NSW Conv R 55-664

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Green v Green (1989) 17 NSWLR 343

Greer v Kettle [1938] AC 156

Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997)

Hibberson v George (1989) 12 Fam LR 725

Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122

Hillman v Box & Ors as executors of the will of Box (No 2) [2011] ACTSC 10

Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24

Hohol v Hohol [1981] VicRp 24; [1981] VR 221

Hughes v National Trustees Executors and Agency Co Ltd [1979] HCA 2; (1979) 143 CLR 134

In Re Grimthorpe (deceased) [1958] Ch 615

In Re Robertson [1943] NSWStRp 52; (1944) 44 SR(NSW) 103

In Re Whitley (deceased) [1962] 1 WLR 922

In re Wilks; Child v Bulmer [1896] 3 Ch 59

In the Estate of Guthrie (1983) 32 SASR 86

Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Krause v Sinclair [1983] VicRp 7; [1983] VR 73

Luciano v Rosenblum (1985) 2 NSWLR 65

Magill v Magill (1993) NSW ConvR 55-663

McNab v Earle [1981] 2 NSWLR 673

Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242

Meredith Projects Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493

Mischel (as executor of the Estate of Mischel) v Mischel Holdings Pty Ltd [2012] VSC 292

Muschiuski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Muskham Finance Ltd v Howard [1963] 1 QB 904

National Westminster Bank plc v Morgan [1985] UKHL 2; [1985] AC 686

On v On [2002] NTSC 18

Ormes v Beadel [1860] EngR 646; (1860) 66 ER 70

Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355

Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9

Public Trustee v Pfeiffle [1991] VicRp 3; [1991] VR 19

Re Adamow (deceased) (1989) 97 FLR 410

Re Adams (deceased) [1967] VicRp 115; [1967] VR 881

Re Blood [1983] 1 Qd R 104

Re Cutts (deceased) [1969] VicRp 31; [1969] VR 254

Reeves v Berge Phillips (1982) 7 Fam LR 940

Re Fullard [1981] 2 All ER 796

Re Fulop (deceased) (1987) 8 NSWLR 679

Re Salathial [1971] QWN 18

Robertson v Robertson [1930] QWN 41

Russell v Scott (1936) 55 CLR 440

Saunders v Anglia Building Society [1970] UKHL 5; [1971] AC 1004

Slater v Slater (1987) 12 Fam LR 1

Starceavich v Swart & Associates Pty Ltd (2006) 12 BPR 98,204

Stivactas v Michaletos (No 2) [1993] NSW Conv R 55-683

Stroughill v Buck [1850] EngR 295; (1850) 14 QB 781

Swift v Roberts [1764] EngR 50; (1764) 97 ER 941

Takemura v National Australia Bank Ltd [2003] NSWSC 339; (2003) 11 BPR 21,185

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Tulloch (Dec'd) v Braybon (No 2) [2010] NSWSC 650

Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56

Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180

West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62

Williams v Hensman [1861] EngR 701; (1861) 70 ER 862

Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646

Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313

Xenos v Wickham (1867) LR 2 HL 296

Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649

AND: LYNDA BOX, DEBRAH BOX AND SKYE BOX AS EXECUTORS OF THE ESTATE OF GRAEME WILLIAM BOX

1. The plaintiff receive by way of provision out of the estate of the late Graeme William Box the sum of $50,000, such sum to be paid forthwith to the plaintiff's solicitors, Capital Lawyers;

2. Otherwise, there be judgment for the defendants on each other claim by the plaintiff.

3. The costs of the defendants of the proceedings be paid on a trustee basis from the estate of the late Graeme William Box.

4. The parties be heard as to the costs of the plaintiff.

Ms Hillman's contribution to the maintenance of the bought properties [121]

Relationship between Mr Box and Ms Hillman after 2006 [166]

APPLICABILITY OF JOINT TENANCY AND THE LAW OF SURVIVORSHIP [266]

THE CLAIM UNDER THE FAMILY PROVISION ACT [340]

Jurisdiction and powers of the Court under the Family Provision Act [341]

1. On 15 April 2009, Graeme William Box made a simple will of three paragraphs and all contained on one page. The simplicity of the will, unfortunately, belies the complexity of litigation that it has spawned.

2. Mr Box was born on 8 February 1948 and died on 23 November 2009. Mr Box married twice; he first married Sarah Dobel in 1968 and three children were born during that marriage, Lynda Box, Debrah Box and Skye Box. They are the defendants in these proceedings.

3. I do not have any details of how that marriage ended nor of his second marriage to Helen Hewitt or how that marriage also ended. In any event, Mr Box entered into a domestic relationship in 1998 with Noelle Elizabeth Hillman, the plaintiff.

4. That relationship is said to have ended in 2006. I shall deal with that later.

5. During the relationship, Mr Box and Ms Hillman together purchased a number of properties for investment.

6. Mr Box's will, of which probate was granted on 2 March 2010, appointed his daughters, to whom I will refer for ease of reference and with no disrespect intended, as Lynda, Debrah and Skye, as his executors and left them the whole of his estate in equal shares as tenants in common. Ms Hillman was not mentioned in the will at all.

7. Ms Hillman commenced proceedings on 26 August 2010, originally under the Family Provisions Act 1969 (ACT), seeking that provision be made out of Mr Box's estate for Ms Hillman and certain declarations concerning dealings and property to which I will later refer.

8. The proceedings came on for hearing on 17 December 2012. On 20 December 2012, I granted leave to the defendants to file an experts report on or before 8 January 2013, but otherwise reserved my decision.

9. In order to understand the proceedings, it is necessary to set out in more detail the circumstances of the relationship between Mr Box and Ms Hillman and their various property dealings.

10. The evidence was that, in 1998, Mr Box and Ms Hillman were introduced by a mutual friend. Ms Hillman said that, about six weeks later, Mr Box asked her to marry him and bought some rings. She declined, but they lived together until 2006. The nature of their relationship after that will need to be considered in detail later.

11. During this time, Ms Hillman said that they "shared [their] lives and gave each other assistance and support".

12. Mr Box and Ms Hillman initially lived in a property at Latham, owned by Ms Hillman and which she had purchased in about 1994. It was then unencumbered. They later lived in some of the homes they purchased together.

13. Mr Box was a qualified builder and was said to be self-employed and continuously working during their relationship. It appears, in fact, that he earned the bulk of his income from work he did for a company, GMC Pty Ltd trading as Capital Shopfitting. From 3 October 2002 to 23 November 2009, he seems to have earned $430,673.40 from that company. Although there was a suggestion that for a period Mr Box was unemployed, I do not accept that. The evidence satisfies me that he was employed at least during the period of his relationship with Ms Hillman. From time to time, he was paid for his work in cash. Lynda said that he worked until about six months before his death.

14. Mr Box and Ms Hillman were involved together in purchasing properties and renovating them with a view to selling them at a profit. I shall have to deal with that in more detail later.

15. In 2006 they "separated" (Ms Hillman's word) and Mr Box went to live in a factory in Queanbeyan ("the Queanbeyan factory") that he had purchased and which included a three-bedroom self-contained unit. Lynda put the date of separation as August 2006.

16. Ms Hillman said that, nevertheless, they "continued to relate", though Ms Hillman then lived at her property at Latham.

17. Ms Hillman stated that Mr Box moved to the Queanbeyan factory as "it was closer to his work at that time". She said that they were renovating it. Ms Hillman said that the relationship, however, did not alter, and they would spend weekends and other times together, staying at either Latham or Queanbeyan to each of which properties they both had keys.

18. She described her relationship with Mr Box as "a very loving and caring relationship" from the beginning to the end.

19. In about May 2009, Mr Box was diagnosed with cancer and required treatment. Ms Hillman stated in her affidavit

I looked after the deceased at the end. I talked to his doctors. I bathed him. I drove him to outings to make his last days better.

20. She later particularised some of this assistance as follows:

(a) The Plaintiff supported and cared for the Deceased throughout the parties' said domestic relationship;

(b) The Plaintiff cared for the Deceased after the deceased was diagnosed with cancer (in or about May 2009);

(c) The Plaintiff accompanied the Deceased to his medical appointments and treatments from May 2009 and allowed him to visit the Plaintiff's home from when he could no longer care for himself. Oxygen was delivered to the Plaintiff's home for the Deceased's use. Also the Plaintiff visited the Deceased at his home frequently to care for him.

21. She later added that initially she was Mr Box's sole carer and went with him to all his appointments with his oncologist and radiation specialist. She said she would shower, shave and dress him and wash his clothes as well as cook for him, though this seems likely to have only occurred after the progress of the cancer rendered him disabled and unable to care for himself, a point at which other evidence not entirely consistent with this evidence suggested other arrangements for such assistance had actually been made.

22. Ms Hillman explained that her mother was ill with cancer at this time as well, which required her to travel to Sydney and to leave her part-time job to care for both of them. She referred to other activities, such as attendance at theatre performances and concerts, to which she took Mr Box until he was too ill to attend.

23. Lynda gave evidence about this period also, however, which was very different to that of Ms Hillman. She said that after Mr Box was diagnosed with cancer, she and her sisters set up a roster to ensure one of them saw him every day and, as his condition deteriorated, one of them was with him at all times.

24. Debrah lived in Townsville but came to Canberra to live with Mr Box and to take care of him. In an affidavit, Debrah gave the dates when she was in Canberra from her home in Townsville as 19 June to late September 2009, when she returned to Townsville for two weeks. She returned to Canberra in early October 2009 until 11 November 2009, and then again from 19 November to 8 December 2009, a total of about five months, or a little over four months to the date of Mr Box's death on 23 November 2009.

25. Prior to that, Lynda made arrangements with her employer to work out of the office from about midday, when she would go to Mr Box's residence to be with him. She would also be with him for one day at the weekend and Skye would be with him on the other day.

26. From the last six weeks of his life, Mr Box lived in Lynda's main bedroom to have easy access to the ensuite. He moved into Claire Holland House for the last week and a half of his life.

27. Lynda said that Ms Hillman did not visit Mr Box once in the last month of his life.

28. As to the matters to which Ms Hillman referred and which I have set out above (at [20]), Lynda stated in one of her affidavits

Dad was happy for the plaintiff to him to some appointments and we did not want to argue with Dad. My sisters and I were more than able to and had made arrangements to take him. I regularly drove Dad to Sydney for specialist appointments. The oxygen was delivered to the plaintiff's house because no one was at home at my house to sign for it as we were always at Dad's side taking care of him. The plaintiff was not visiting to care for him as one of us was always looking after him. As far as we were concerned the plaintiff was visiting as a friend like all his other family, work mates and friends did.

29. This was in context to the evidence of Ms Hillman about caring for Mr Box until his death, as set out above (at [19]).

30. Debrah deposed in her affidavit that while she was looking after Mr Box, Ms Hillman spent one night at the house where she was staying. She added that Ms Hillman made Mr Box sleep on the floor while she slept on the lounge where he had been sleeping because he was unable to climb the step between the living room and the bedroom.

31. I turn then to the period from when Ms Hillman and Mr Box commenced their relationship and the operation of buying and selling houses.

32. From 1999, Mr Box and Ms Hillman purchased a number of properties. The first property was a residential property in Spence, purchased on 19 February 1999 for $75,000 in the names of both as joint tenants. I refer to this as the Spence property.

33. The funding for that purchase came about in this way. On 21 January 1999, Mr Box deposited into his IMB account the sum of $297,406.21 which was the net proceeds of the sale of a property he had owned at Bingie, New South Wales since before he met Ms Hillman.

34. Ms Hillman said that she was a signatory on that account but there was no evidence to show that she otherwise had any legal entitlement to the funds in that account. It does not seem to me that this made the account a joint account of the kind described in Russell v Scott (1936) 55 CLR 440. While Ms Hillman had authority to operate on the account, the chose in action represented by the account was a debt the bank owed to Mr Box alone.

35. The purchase price for the Spence property came directly from that account. Ms Hillman, in her affidavit of 21 December 2010 (her fourth affidavit) deposed that she paid $10,000 in cash borrowed from her sister as the deposit for the purchase of the property. In her oral evidence, however, she said that she had contributed $10,000, not for the deposit, but for the purchase of paint, curtains, a new screen door, electrical work including a stove and of air conditioning for the property. It was clear to me that it was not a deposit, as Ms Hillman had claimed, in the ordinary conveyancing sense. Ms Hillman's evidence suggested payments for improvements to the property, but the entire funds for its purchase came from funds of Mr Box alone. The payments for improvements are, of course, a relevant matter, but not a deposit as she had claimed.

36. While Ms Hillman asserted a number of times that she and Mr Box

were a couple, we were partners and we would do everything equally and share. And what he has was mine and what I had was his

it was clear that each had separate property; each of them had separate bank accounts, Ms Hillman was at all relevant times the only registered proprietor of the property at Latham. I note, too, that Mr Box was not a signatory on Ms Hillman's bank account and had no capacity to access the funds in it.

37. In about March 1999 Mr Box and Ms Hillman opened a joint account with St George Bank. It was used for many of the transactions they made in relation to the properties they purchased, rented and sold. There may have been other such accounts, but both retained their individual accounts.

38. On 26 February 1999, Mr Box and Ms Hillman purchased a property at Deakin for $220,000. The funds for that purchase also came from the IMB account of Mr Box, utilising further of the funds received from the sale of the property at Bingie.

39. In her fourth affidavit, Ms Hillman deposed that she contributed $110,000 to the purchase price of the Deakin property. That is not supported by the evidence. Ms Hillman explained in her oral evidence that what she described as her contribution was made because of her asserted interest in the IMB account of Mr Box. She said that the funds came from the "joint account", but that is not correct either and ultimately she conceded that the funds came entirely from the proceeds Mr Box had received from the sale of his property at Bingie.

40. Ms Hillman asserted that she also provided funds to "finance, maintain, upkeep and improve" the Deakin property, amongst others. No affidavit evidence identified what amounts had been spent on these matters. In her oral evidence, Ms Hillman was unable to identify any such amounts. She conceded that she contributed no funds to finance the property as she acknowledged that all the funds came from Mr Box's IMB account.

41. The Deakin property was sold on 28 June 2000 for $320,000. The proceeds of the sale were paid into the IMB account of Mr Box.

42. On 18 March 1999, Mr Box and Ms Hillman, as joint tenants, purchased a property in Ainslie for $185,000. The deposit was paid from Mr Box's IMB account. The balance of the purchase price was provided by a loan made jointly to Mr Box and Ms Hillman by St George Bank. Ms Hillman made no mention of this property in her earlier affidavits apparently through a simple error.

43. The property was sold on 26 April 2000 for $230,000. On settlement, $196,000.27 was paid to St George Bank to discharge the loan. The balance of the funds received on sale was equally shared between Mr Box and Ms Hillman. It was asserted to be about $9,000 each and Ms Hillman appeared to accept that, though the evidence was unclear.

44. The next property they purchased was in Reid. It was purchased on 9 January 2001 for $400,000 by Mr Box and Ms Hillman as joint tenants. Mr Box provided the deposit of $40,000 and then a further amount of $210,242 from his IMB account as well as paying from that account stamp duty of $13,515. These funds are traceable to the original funds received by Mr Box from the sale of his property at Bingie. The balance was provided by a joint loan to Mr Box and Ms Hillman from St George Bank of $140,000. There was no evidence of Ms Hillman providing $200,000 as she asserted in her affidavit. At best, she provided $70,000, being half of the joint loan required for the balance of the purchase price for which she was jointly responsible.

45. This property was sold on 26 September 2003 for $835,000. The amount to discharge the mortgage was $168,175.66, suggesting that little of the principal had been discharged, thus making Ms Hillman's actual contribution of finance very limited. The evidence was a little unclear but Ms Hillman acknowledged receiving $230,000 from the sale proceeds and that accorded with contemporaneous notes on their lawyer's conveyancing file. In any event, the net proceeds were paid equally, one half to each of Mr Box and Ms Hillman.

46. On 7 October 2003, Mr Box and Ms Hillman purchased a property in Campbell as joint tenants. The purchase price was $600,000. The source of the funds to purchase the property was somewhat obscure on the evidence. A loan of $400,000 from Westpac Banking Corporation contributed the bulk of the purchase price. Ms Hillman initially suggested in her December affidavit that she contributed $300,000. That includes her joint liability for the loan. She suggested that she also used some of the proceeds of the sale of the Reid property, though she used $100,000 of that money for another purpose to which I refer below (at [51]). That may have been so; on the other hand, in oral evidence, Ms Hillman actually stated that she and Mr Box borrowed the further $200,000 to complete the purchase, which is contrary to that.

47. The property at Campbell was sold on 15 August 2008 for $762,000.

48. Ms Hillman acknowledged receiving $99,000 from the sale. She said that she and Mr Box shared the net proceeds equally. Lynda said that her father told her that this payment was part of the settlement he made when he and Ms Hillman separated.

49. There were also property transactions by Mr Box and Ms Hillman which did not directly involve the other. I have already mentioned Ms Hillman's Latham property which she had purchased before the relationship developed and which she owned at all relevant times herself. She said that she and Mr Box lived there from time to time. At other times, when they were living elsewhere (principally, it appeared, in the Deakin and then Reid properties), it was rented and the rental received applied towards paying bank loans for the purchase of other properties.

50. In addition, in early 2002, Ms Hillman purchased a property, which was referred to at all times to as being at Kingston, though it may have actually been in Griffith. I shall refer to it as the Kingston property. She borrowed funds secured by a mortgage over the Latham property for about 18 months. The property was purchased in the name of Ms Hillman and her daughter, though there was no evidence that her daughter paid any part of the purchase price.

51. Ms Hillman said that she applied $100,000 of the proceeds she received from the sale of the Reid property to discharge the mortgage loan. She also said that she transferred the property to her daughter in 2003. Although a title search of the property on 17 December 2012 showed the property still registered in the joint names of Ms Hillman and her daughter, she tendered an account from Nelson & Co for the following work:

To our costs of and incidental to acting to acting on your behalf in relation to Deed of Trust to your daughter in relation to your share of [Redacted] Kingston ACT, including drafting and attending you on execution of Deed of Trust and Transfer to your daughter together with all other necessary documents.

52. Mr Box also purchased a property in his own name alone. This was the Queanbeyan factory. It was purchased on 15 December 2003 for $340,000. Lynda says that her father told her that he bought the Queanbeyan factory from his share of the proceeds of the sale of the Reid property. She said he was very proud of being able to do so. Mr Box would, however, have needed some additional funds to complete the purchase.

53. Ms Hillman said there was some discussion with Mr Box about the Queanbeyan factory before it was purchased. She said that the discussion was that Mr Box said that it would be "good ... to buy the factory so [they] could increase [their portfolio]". This is rather an odd conversation, given that it was the only property purchased solely in the name of Mr Box. She added that he said he intended "to buy the factory so [they] could make [their] business more profitable so [Mr Box] could work in the factory and do the renovations on the houses that [they] were going to buy and that [they] already have".

54. The summary of the conveyancing file that was admitted into evidence showed that the deposit of $34,000 was paid by a St George Bank Cheque, the stamp duty of $10,793.00 paid with a St George Bank Cheque and on settlement $260,000 was paid with a St George Bank Cheque. These funds did not come from the joint account with St George Bank. Cheques drawn on a Westpac Bank account for $42,567.22 and $1,668 were also produced on settlement. They coincided with a mortgage taken over the Spence property.

55. Ms Hillman denied that Mr Box used the proceeds he had received from the sale of the Reid property to purchase the Queanbeyan factory, though she said that she thought Mr Box used some of those proceeds to purchase machinery for the factory.

56. Ms Hillman thought that a line of credit was taken out with the Westpac Bank to finance the purchase of the Queanbeyan factory. She suggested that it was in joint names. She seemed to agree, however, that only $55,047 was drawn down on that line of credit. Her evidence was

I know that when we bought the factory, my recollection is when we bought the factory we didn't have enough funds so we had to go and borrow funds to buy the factory and those funds went towards the factory.

57. She added that they "had to mortgage Spence to buy the factory" and this was from Westpac Bank. This is supported by a recital in the Termination Agreement, but no evidence shows that anything other than the small amount I have mentioned at [56] was provided by the Westpac Bank.

58. Ms Hillman tendered no documents to support her recollection of the transaction. This was troubling as it was the only property bought in the name of Mr Box alone and at the time when she was applying proceeds of the Reid property for a purchase of a property, the Kingston property, in which Mr Box had no interest.

59. Given that there was no such documentation, I am not satisfied that Ms Hillman had any direct interest in the Queanbeyan factory apart from that which may come from her joint ownership of the Spence property over which a mortgage to secure a small loan was made. She has simply not satisfied me that she has any further interest.

60. The conveyancing file shows that all dealings on this property, unlike with the conveyancing files for the other properties, were all conducted by Mr Box alone without any evidence of dealings by Ms Hillman.

61. Her evidence about these transactions has been coloured by a view of the joint nature of the business of purchasing, renovating and selling the various properties and which she asserted in her affidavit, but which has simply not been substantiated by the documentary evidence. Indeed, much of the documented evidence is to the contrary of her view. I am, therefore, not prepared to rely on her assertions about these matters which are not corroborated by documents, especially where it appears there is no reason why such documentary evidence, such as documents from Westpac to show the position, could not have been obtained and where there has been no explanation as to why they have not been obtained.

62. There was some evidence about the funding of the various properties where Mr Box and Ms Hillman borrowed from financial institutions to purchase them, but none for the Queanbeyan factory, to disclose any interest by her.

63. So far as the joint account with St George Bank Ltd was concerned, it seems that there were three sources of funds paid into it. One was rental income of various amounts, $600 or more to more than $1,000 per month received from properties they owned, one was from Ms Hillman's wages of between $300 and $650 per fortnight and the third was from payments of between $540 and $3,000, but mostly $2,000 or more, by Mr Box from his personal IMB account.

64. It appears that the payments from the rent varied and, in the earlier years, was more than, but in the later years, was almost, sufficient to meet the loan repayments, although either of the funds from Ms Hillman or from Mr Box would have made up any difference.

65. The total amount apparently paid from Ms Hillman's wages for the period 31 January 2001 to 19 April 2006, when the amounts ceased to be paid into the account, was $70,500. The amounts paid by Mr Box from 23 September 2004 to 20 August 2008 was $60,460. In addition, there were earlier payments on an earlier date, namely at least $2,000 on 30 January 2001.

66. There were also two large cash payments made into the account. The first on 23 July 2001 was of $39,628.00. Ms Hillman had no record of that. She agreed that Mr Box did receive cash for his work but did not recall him depositing such a large amount; she thought never more than $5,000. She could not recall that sum coming from her personally. It seems more likely than not that it came from Mr Box.

67. The other amount was $10,000 deposited in cash on 3 April 2003. Ms Hillman gave evidence that this came from the sale of her daughter's car when her daughter went overseas. There was a timing discrepancy, but I am satisfied that this sum came from that transaction.

68. This analysis does not quite accord with Ms Hillman's assertion in her affidavit of 31 October 2012 (her fifth affidavit), made in reply to the affidavits of the defendants, where she says of the purchase of the Reid property for which a loan had been secured:

As I had regular work, I was paying part of my wage into the mortgage. For instance Graeme and I paid about $48,024.74 in mortgage payments on the Reid property between 12 February 2001 and 26 September 2003. I contributed about $27,300.00 from my wage. About $22,049.37 was paid from rent from the Spence property. Graeme earned about $166,541.62 gross over the period of the Reid property, but made no contribution to the mortgage. Instead Graeme paid for what was needed to be paid for, for building materials to renovate the investment property.

69. This does not take into account the cash deposit. It does acknowledge, however, that Mr Box made a contribution, in addition to his share of the rental income and the cash deposit, by way of the renovations for which he paid for the building materials.

70. In her affidavit of 25 August 2010 (her first affidavit), Ms Hillman identifies 2006 as when, to use her word, she and Mr Box "separated". I assume that she used that word deliberately. As I have noted above (at [15]), Mr Box moved into the flat at the Queanbeyan factory. Ms Hillman remained at her home in Latham, though she said that they "continued to relate".

71. In her fourth affidavit, Ms Hillman referred to what she did in the following terms:

I, during the course of my domestic relationship with [Mr Box] and afterwards, made direct and indirect contributions to the acquisition, conservation, maintenance, upkeep and improvements of property and [Mr Box's] accumulation of wealth.

72. She went on to list a number of domestic and business contributions she said she had made.

73. It is of significance that she was clearly accepting that the domestic relationship between she and Mr Box had terminated: the use of the word "afterwards" would not otherwise make any sense.

74. Nevertheless, despite these references, in her fifth affidavit, Ms Hillman asserted for the first time that this was not how these statements should be read. In that affidavit, she said

I now clarify that we continued in our domestic relationship until Graeme's death on 23 November 2009. We mostly lived under the same roof, except for the last few weeks of Graeme's life. When I used the word 'separate' in my earlier affidavit, I meant it in the sense that we no longer continuously lived under the same roof ...

In about August 2006, Graeme moved into the Queanbeyan factory on a more permanent basis, as it was closer to his work at that time. He and I were also renovating the Queanbeyan factory. I kept my permanent residence at Latham with my daughter. Except for this change, our relationship continued as before. We would spend weekends and other periods together, staying at either the Latham or Queanbeyan properties. We had keys to each of the properties. We paid costs on each of the properties. I looked after Graeme's dog 'yogi bear', when Graeme was away on work.

75. Her oral evidence was similar to this evidence. She said, "We were a loving couple right up 'til the day he died'". She was emphatic about their relationship that it was "never" over. She asserted that Mr Box told her that she "will always be looked after".

76. Ms Hillman did acknowledge that Lynda and Debrah looked after Mr Box when he became ill, though she qualified that with the word "partly".

77. Lynda said in her oral evidence that Mr Box had told her that he and Ms Hillman had separated; she said he "made it very clear". She said that dividing the properties, to which I shall shortly refer, was part of the separation.

78. Lynda also said that when Mr Box came to live with her, Ms Hillman came to visit once or twice a week but not regularly. She said that, when Ms Hillman's mother, who lived in Sydney, became sick, Ms Hillman went to Sydney and she did not then visit regularly.

79. Lynda also recounted discussions with her father about how his estate was to be managed after his death. He told her, she said, of the settlement he had reached with Ms Hillman which had resolved their separation.

80. It was not suggested to Debrah in cross-examination that, contrary to what she had in her affidavit asserted, she had not come from Townsville for over four months to look after Mr Box while living with him and to care for him.

81. Most significant to this issue is a document signed by Ms Hillman and Mr Box dated 26 February 2009. I shall refer to it by its title, the Termination Agreement. Because of its centrality in these proceedings, a copy of it is included as a schedule to these reasons.

82. It is expressed to be an agreement in its title and in the first line, but the operative part refers to it as a deed and the parties have executed it as a deed. It is expressed in the body of the document to be an agreement. There is no reference at the testamonium of the intention of the parties, such as "Executed as a Deed".

83. The question of whether a document is an agreement or a deed is not always an easy one to answer. Rolfe J gave detailed consideration to the issue in Meredith Projects Pty Ltd v Fletcher Constructions Australia Ltd [2000] NSWSC 493 at [123]- [176]. As his Honour said (at [123]):

Whether a document is a deed or some other type of contract is not determined by how the parties describe it, but by construing the document to see whether the parties intended that it should operate as such. Such construction may be aided by admissible extrinsic evidence. None was sought to be tendered in this case to explain how the Articles of Agreement were entered into or any other relevant matters relating to it. Therefore, as I understand it, the Court must interpret the document to decide its true nature.

84. See also 400 George Street (Qld) Pty Ltd v B G International Ltd [2012] 2 Qd R 302.

85. There was here no extrinsic evidence of the precise circumstances of the intention of the parties in this respect. Indeed, the issue was barely mentioned.

86. It does seem to me, however, that the document was a deed. I rely on the following.

(a) The use of the words "Now this Deed witnesses" before the operative clauses.

(b) The subject matter related to the settlement of the ownership of real property.

(c) There was no clear indication of consideration passing to or from either party but it was clearly intended, nevertheless, that the document be binding.

(d) The testamonium was clearly in the form to be expected of a deed rather than an agreement.

(e) The attestation clauses and the method of execution was that to be expected of a deed.

(f) In her affidavit, Ms Hillman refers to the document as a Deed and refers to Mr Box also describing it as a Deed.

87. In these circumstances, I find that it was a deed and so it was binding unless set aside.

88. At the same time, a Real Property Transfer of Ms Hillman's interest in the Spence property was also signed by her.

89. The circumstances of the making of these documents were the subject of some evidence, however, which I shall briefly describe.

90. The Termination Agreement was not mentioned in the earlier affidavits of Ms Hillman but was referred to first in her fourth affidavit, where she stated that she "was swayed" by Mr Box to sign the document, which she did, as well as the Transfer. She denied being involved in its drafting or in providing instructions for its drafting.

91. She said that Recital J of the Termination Agreement was untrue and incorrect as she, not Mr Box, was the "primary financial provider". I have found that not to be in accordance with the evidence.

92. She also challenged the accuracy of Recital F though that challenge cannot be sustained on the evidence I have set out above.

93. She further denied that she had been independently advised as asserted in Clause 7 nor was she given the opportunity to seek such advice.

94. The difficulty for Ms Hillman, however, is that unless the Termination Agreement can be set aside (such as for misrepresentation, mistake, undue influence or unconscionable conduct) she is bound by its terms absolutely and is precluded from proving the falsity of any provision of it. See Xenos v Wickham (1867) LR 2 HL 296 at 323-4. Further, a party to a deed will be estopped from denying the truth of a material representation in an executed deed. See Greer v Kettle [1938] AC 156 at 66-7. There is nothing in the recitals of the Termination Agreement that would not be known by both Mr Box and Ms Hillman so as to permit Ms Hillman to avoid being bound by them. See Stroughill v Buck [1850] EngR 295; (1850) 14 QB 781; 117 ER 301.

95. The circumstances under which the Termination Agreement was created and signed was the subject of some evidence. In her fourth affidavit, Ms Hillman deposed that Mr Box asked her "repeatedly" in the months immediately prior to the signing of the Termination Agreement to sign it, saying "I want you to sign papers at Alan Nelson's to fix up my affairs, don't worry you'll always be looked after" or words to that effect. She repeated such conversations in a number of forms. There was no direct suggestion in any of the conversations that Mr Box had suggested to her that she need not get advice nor that he prohibited her from doing so.

96. Ms Hillman said that, at the time, she was disadvantaged as she was in a "vulnerable state of mind and health", being distressed, unwell and suffering from depression.

97. Ms Hillman said that she was distressed because Mr Box, whom she was asserting was then her partner, was dying; indeed, she says that the Termination Agreement and associated Transfer were drawn up because of that. She also mentioned in her oral evidence, but significantly not in her affidavit, that her mother was dying, but no date was given for that.

98. The Progress Notes of Ms Hillman's General Practitioner were produced. They show notes of visits between 28 November 2007 and 7 October 2010. On only one occasion does Ms Hillman complain of depression, on 28 November 2007, and no specific treatment is provided. In the next four visits, which pre-date the execution of the Termination Agreement, there is no complaint of depression.

99. On the visit to her General Practitioner on 30 June 2009, she complains of "[s]adness due to one of her friend's terminal illness". This is significant for it would appear to refer to Mr Box. It refers to him as a "friend" and not her partner. The date is also significant.

100. The actual execution of the Termination Agreement was also the subject of evidence. Ms Hillman said that when she went to sign the Termination Agreement and Transfer, she was met by Alan Nelson, the solicitor who had acted for her and Mr Box. She said that he handed her the papers and showed her where to sign, by pointing at the relevant parts of the documents. She said that she signed and that Mr Nelson then, as she was signing, called in his secretary to be a witness and she then signed also. She agreed that Mr Box was not present.

101. Ms Hillman denied that either Mr Nelson or his secretary suggested to her that she obtain independent legal advice.

102. Ms Hillman was adamant that Mr Box had urged her to sign the document because he was terminally ill and wanted to get his affairs in order before he died.

103. Although at first Ms Hillman thought she only signed the Termination Agreement, she ultimately accepted that she also signed the Transfer at the same time. She agreed that she knew what a Transfer was and what she was signing and had seen the words on the document when she signed it. She denied, however, that she turned her mind "even for a second" to what property she was transferring.

104. She agreed that she was used to giving Mr Nelson instructions in connection with the conveyancing work of the business of buying and selling houses in which she and Mr Box were engaged.

105. Mr Nelson gave evidence about the Deed. He had acted for Mr Box and Ms Hillman for about ten years.

106. He said that Mr Box instructed him to prepare the Termination Agreement. He said that his understanding was that it was to finalise arrangements between them and, as a property settlement, to enable the transfer of the Spence property with nominal stamp duty. He gave legal advice to Mr Box about the arrangement, but gave none to Ms Hillman.

107. He said that he told his secretary that, when Ms Hillman came to sign the Termination Agreement, she was to tell Ms Hillman that she had the right to get independent legal advice if she wished. Mr Nelson denied that he saw Ms Hillman when she came and signed the documents. He confirmed that his secretary was the witness to the document.

108. He said that he had, in all his dealings with Ms Hillman, no concerns about her ability to comprehend the nature and effect of the transactions in which he was acting and that she had no difficulty in giving instructions to him, which she did most of the time.

109. He agreed that he did not personally tell Ms Hillman at any stage that she should obtain independent legal advice and he did not explain the effect of the Termination Agreement or Transfer to her, because he was not present when she signed the document He denied that he said to Ms Hillman "I shouldn't be doing this. I could get into trouble for this", as she had asserted.

110. Finally, I note that the copy of the Termination Agreement annexed to Ms Hillman's first affidavit was only signed by Ms Hillman. The copy tendered was, however, also signed by Mr Box, suggesting that he signed it after she did. No-one gave any evidence to the contrary of that inference.

111. Further the copy signed by Ms Hillman alone is undated, while the copy signed by both is dated 26 February 2009, suggesting that this is when Mr Box signed. Whether Ms Hillman signed on that date or earlier, the evidence does not allow me to say, but it would have been one or the other.

112. Ms Hillman gave evidence of her circumstances. She is now 64 years old. She is the registered proprietor of her home at Latham, which is unencumbered. She estimated its value in August 2010 as $350,000. She lives alone. She assists her daughter financially.

113. She stated that her health is poor. She has consulted Dr Sree at Campbell for depression. Her mother was, at August 2010, in very poor health and she visited her regularly in Sydney.

114. She says that the only gift she received from Mr Box was a set of reference books valued at $150.00.

115. Ms Hillman estimated her monthly expenditure at $1,564. She owns a Volvo sedan which she values at $15,000 and has savings of $59,000. She receives a fortnightly superannuation from the Public Sector Superannuation Scheme of approximately $600 per fortnight. It is an indexed pension. She also receives remuneration from her employment.

116. I note that, as at 17 November 2009, the St George Bank Ltd joint account had a balance of $7,490.08 which, on Mr Box's death, would and did become Ms Hillman's personal property by virtue of the right of survivorship. Half of the sum was a contribution to Ms Hillman from Mr Box's assets.

117. I have referred earlier (at [50]) to Ms Hillman's purchase of the Kingston property with her daughter. I did not, however, have any evidence of the value of the property from either party, a regrettable omission. Ms Hillman provided the funds for the property and paid off the mortgage in 2003. She says that she gifted her interest in the property to her daughter in 2003, as noted above (at [51]). It appears that Ms Hillman received the rent from the property for quite some time, though for some or all of that period - the evidence did not enable me to say how long - the rent appears to have been applied to the payments under the mortgage loan.

118. It also appears from her bank records that, from mid 2006 into 2007, Ms Hillman performed work for a medical clinic, the remuneration for which was paid into her personal account. She deposed in her affidavit that she continued such work into early 2010. Later, however, she referred to employment as a carer with Domiciliary Nursing for about twenty-two hours a week. Her income from this was not clearly stated, but seemed to be of the order of $632 net per week.

119. An account in Ms Hillman's name with IMB Ltd showed that she made a deposit of $80,000 on 24 December 2008, presumably from the proceeds of the sale of the Campbell property, which she had received shortly before. The funds were re-invested from time to time but relatively small amounts of capital were also withdrawn at the time of each re-investment, leaving the balance invested. It appears that a substantial part was used for legal fees and the balance of $14,223.68 withdrawn by her on 8 February 2011. The use of those funds was not explained.

120. I also note that, despite her employment with a number of private employers over time, there was no evidence in Ms Hillman's financial statements of what superannuation she had from her employment, though it was not likely to be very large.

Ms Hillman's contribution to the maintenance of the bought properties

121. Ms Hillman's evidence was that she did most of the bookwork for the property transactions in which she and Mr Box were engaged, as well as giving the majority of the instructions to Mr Nelson who acted for them.

122. She also provided domestic services to Mr Box which she described as cooking, cleaning and other housekeeping, making contributions to loan expenses and renovations, banking and attending to the payment of accounts, arranging and facilitating visits to Mr Box's factory by tradespeople, and arranging for the electricity provider to inspect and read the electrical meter.

123. She said that Mr Box provided limited contributions of this kind, occasionally sharing household tasks such as preparing meals and also occasionally taking her out to dine in restaurants.

124. While I did not form the impression that Ms Hillman was lying in her evidence, a number of matters led me to consider that her evidence should be scrutinised very carefully and I generally considered that it should not be accepted unless there was some corroboration.

125. Thus, her description of the financial contribution she made to the purchase of the properties she and Mr Box bought was misleading at best. It proceeded from an assumption that she and Mr Box pooled their resources when that was not so and that, once the resources were re-used, she became a contributor of one half of the funds which had become hers. This failed to recognise the reality of her undoubted but limited contribution, especially financially.

126. She made statements, such as that she and Mr Box separated in 2006, which she then sought to re-interpret in an ultimately inconsistent way.

127. She suggested in her affidavits, without any justification, that while her salary went to the creation of joint assets, Mr Box's earnings were all kept separate, leading to an impression of her financial contribution to the purchase of the properties which I find significantly inflated her actual contribution.

128. She produced an incomplete picture of her financial position, which required careful reading of her affidavits to correct.

129. She insisted that the Kingston property was owned by her daughter, despite the fact that she had paid, so far as I can tell, all the purchase price, apart from the mortgage repayments that were made from the rent, and that, at the date of the hearing, her name still appeared on the title.

130. Her description of the period leading up to the death of Mr Box was again inconsistent with other direct facts and was inconsistent with evidence of Lynda, Debrah and Skye, much of whose evidence was unchallenged.

131. The state of her health, which she described as poor, was not supported by the medical evidence, though I accept that she had a number of medical problems, including serious ones, but in 2002. The medical evidence suggested that she had fully recovered.

132. Those matters led me to conclude that I should require corroboration and not simply accept her evidence uncritically.

133. Lynda gave evidence about her personal and financial situation. She was, at the time of the trial, forty two years old and married. She received no direct financial support from her husband as they keep their financial affairs separate, though they each contributed to their joint household.

134. Between she and her husband, Lynda pays her electricity, Foxtel subscription, water and gas expenses for their home, while her husband pays general rates, insurances, internet and house phone expenses. They share the cost of the mortgage payments, house cleaning and food.

135. She is a contracts supervisor with a monthly income of $6,588 after tax. Her husband earns $2,342 per fortnight after tax. Her employment is a contract position which ended in early 2014 and the contract will not be extended or renewed so she may thereafter be unemployed.

136. Lynda has one son who lives with them full-time. She owns a motor vehicle with him worth $800.

137. She also owns her own motor vehicle worth $9,300 and has superannuation of about $90,000. She owns the family home and the household contents jointly with her husband. The equity in the home at 2010 was about $94,000. The household goods were worth approximately $60,000.

138. Her husband has assets of about $30,000. She has liabilities of about $43,000 and debt and other repayments of $609 per fortnight; her husband has liabilities of $27,000 and debt and other repayments of approximately $437 per fortnight. They have a joint liability for a mortgage loan of $286,064 and weekly expenses of $290.

139. Lynda owns no shares, other than some IAG shares she received from her father under his will. She received about $650 worth of shares. She owns no jewellery worth more than $5,000, no antiques and, apart from one painting worth about $4,000, no significantly valuable household items. She has received no legacies in the last five years, apart from what she is to receive from Mr Box's estate.

140. She previously worked full-time in the hospitality industry.

141. Debrah also gave evidence of her circumstances. She is forty-one years old and self-employed. She has been married but was, in 2012, in the process of applying for the dissolution of her marriage.

142. She owns her home which has a net equity of about $70,000 and a mortgage debt of $240,000. She owns a car worth about $18,000 and household furniture worth about $17,000.

143. Her weekly income is about $350 from her business and tenants in her home. She has debts of approximately $38,000 and insurance payments of $180 per month.

144. Her only shares are those received from her father as did Lynda, as I have earlier noted (at [139]), and those in her own private company. Her wedding ring is insured for $8,000 but she has no other jewellery valued at more than $5,000. She has, apart from the legacy from her father, received no other assets from deceased estates.

145. Skye also gave evidence of her situation. She is thirty-seven years old and in a de facto relationship with her partner of over three years.

146. Her gross weekly income is about $826 and she receives a Family Payment of about $69 per fortnight. She receives further income of about $53 a week.

147. Her partner receives approximately $630 per week.

148. Skye has a superannuation balance of approximately $23,000. She owes about $10,000 for her car and $8,300 on another lease. She has debts of approximately $19,333 and her partner also has a debt. The weekly household expenditure is $1,118.

149. Skye has a child, thirteen, for whom she receives no child support from the child's father. The child lives with her full-time apart from the weekends, which are spent with the child's father.

150. Skye's employment is uncertain. She completed Year 12 at school but did not pursue further studies. The only shares she owns are those received from her father's estate, as did Lynda and Skye, as noted above (at [139]-[144]).

151. Regrettably, the list of her assets said to be annexed to her affidavit was not in fact annexed, so I did not have details of them. It does not appear, however, that she owns her own home, as she owes rent to ACT Housing.

152. Ms Hillman brought these proceedings against the defendants on 26 August 2010. The grounds on which Ms Hillman relied were not immediately clear from the Originating Claim, which appeared to contain significant breaches of the rules of pleading: Hillman v Box & Ors as executors of the will of Box (2010) 5 ACTLR 122 as 128; [30] (Hillman v Box (No 1)).

153. After some substantial case management (see Hillman v Box & Ors (No 1) at 124-5; [10]-[11]; 128; [30]-[34]), I ordered that both the Queanbeyan factory and the Spence property should be sold, subject to certain protections for Ms Hillman, so that costs associated with the properties (such as loan costs secured by mortgage for with the plaintiff was continuing to be liable) would cease accruing: Hillman v Box & Ors as executors of the will of Box (No 1) at 133-4; [76].

154. This approach had certain difficulties due to the issue of joint tenancy and the law of survivorship with respect to the house in Spence: Hillman v Box & Ors as executors of the will of Box (No 2) [2011] ACTSC 10 at [7]- [24] (Hillman v Box (No 2)). Accordingly, on 31 January 2011, I substituted orders with regard to both properties for an order allowing for the sale by the defendants of the Queanbeyan factory, which is to discharge the mortgage over the Spence property. I then ordered the Spence property to be sold, with certain conditions: Hillman v Box (No 2) at [79].

155. Following submissions of the parties, I made further amended orders on 18 February 2011: Hillman v Box & Ors as executors of the will of Box (No 3) [2011] ACTSC 24 (Hillman v Box (No 3)).

156. The Spence property and Queanbeyan factory have now been sold, as have the chattels from the Spence house. The proceeds of these sales, less the sale costs and the outstanding amount of the Spence property mortgage, are currently held on trust by the defendants' solicitors.

157. As finally amended, the Originating Application sought a variety of orders and declarations. These were:

(a) An order that the Plaintiff be awarded provision, (in such amount or such proportion of the Deceased's estate, as may be determined by this Honourable Court as an appropriate award to the Plaintiff under the provisions of the Family Provisions 1969 (ACT) (the "Act") for the Plaintiff's proper maintenance, education and advancement in life, out of the Estate of the Deceased nett after payment of all just debts, funeral and testamentary expenses and the lawful and proper expenses of Executorship and the Defendants as Executors shall upon the making of such order proceed with all deliberate speed to realize the said estate and to pay the Plaintiff such award;

(b) A declaration that the Plaintiff was and is an eligible person to make this application under the Act;

(c) A declaration that the documents (the purported Deed and the purported Transfer) are null and void upon the ground that neither of them was the knowing or true deed of the Plaintiff (non est factum);

(d) Further, or in the alternative, an order that the documents (the purported Deed and the purported Transfer) be set aside upon the ground that the Plaintiff was induced to sign the documents by undue influence exerted on the Plaintiff by the Deceased;

(e) Declarations that: the Plaintiff is entitled to the whole of the real property situate at [Redacted] Spence in the Australian Capital Territory ('the Spence property') as the surviving joint tenant thereof upon the death of the Deceased; and that the Plaintiff is entitled to the whole of the real property situate at [Redacted] Queanbeyan in the State of New South Wales ('the Factory') as the surviving joint beneficial owner thereof in equity, upon the death of the Deceased.

(f) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan NSW Queanbeyan and any interest held by the Deceased in the said property at [Redacted] Spence ACT are held by the Defendants as the Deceased's Executors upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to the whole of the property and equity in the said properties (or their proceeds) and as the surviving joint tenant thereof (or beneficial owner in equity thereof) upon the death of the Deceased.

(g) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan, NSW and any interest held by the Deceased in said property at [Redacted] Spence, ACT were held by the Deceased on a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to an equal one-half share or equity in each of those properties (or their proceeds); or alternatively, a declaration that the said Factory commercial property and any interest held by the Defendants as the Deceased's Executors in the said property at [Redacted] Spence ACT are so held by the Defendants upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to an equal one-half share (or equity) in each of the said properties (or their proceeds);

(h) Further or in the alternative, a declaration that the said Factory commercial property at [Redacted] Queanbeyan NSW and any interest held by the Deceased in the said property at [Redacted] Spence ACT were held by the Deceased upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled, as a joint tenant, to an equal one-half share in each of those properties (or their proceeds); or alternatively, a declaration that the said Factory commercial property and any interest held by the Defendants as the Deceased's Executors in the said property at [Redacted] Spence ACT are so held by the Defendants upon a resulting, implied or constructive trust for the benefit of the Plaintiff as beneficiary entitled to the whole property and equity in those properties (or their proceeds) as being the surviving joint tenant (or joint beneficial owner in equity) thereof upon the death of the Deceased;

(i) An order, such as this Honourable Court may think fit to make, that the Plaintiff's costs of and incidental to these proceedings, (as agreed, or as assessed or taxed), be paid by the Executors personally (and not out of the Deceased's estate); or in the alternative, be paid out of the said Estate to the extent that the said Estate is capable of meeting those costs and, to the extent that it is not, then by the Defendants personally and further in that event also that the Defendants personally be ordered to reimburse to the estate any such costs herein that are paid out of the estate;

(j) An order permanently restraining the Defendants, by themselves, or by any servant, agent, nominee, assign or instrument of theirs, from registering or seeking to register, the purported Transfer, or any other transfer in favour of the Deceased or the Deceased's estate, which the Defendants may hold in respect of the property at [Redacted] Spence, ACT or otherwise dealing with that property;

(k) A declaration that the Plaintiff is wholly entitled to the ownership of the following chattels acquired jointly by the Plaintiff and the Deceased (or to the proceeds of the said chattels) and that they do not form any part of the estate of the Deceased:

(a) machinery and tools including rare and antique tools, paintings and antique furniture;

(b) rare timber planks for furniture making; and

(c) wine collection

(l) An order that the Defendants, at their expense, shall forthwith deliver up to the Plaintiff the said chattels in good order and in good condition;

(m) Alternatively, a declaration that the Plaintiff is entitled to one half of the chattels referred to in sub-section (1)(i) above, (or to one half of the proceeds of the said chattels);

(n) An order that the Defendants shall provide to this Honourable Court and to the Plaintiff through her Solicitors, a written accounting as to what, if anything, the Defendants have done with, or with respect to, the said chattels, including full details of any sale or other disposal of the same;

(o) An order that the Defendants shall provide to this Honourable Court and to the Plaintiff through her Solicitors, an accounting in writing as to the Defendants' administration of the Deceased's estate, including full details of the expenditure of any monies and in particular, of the present whereabouts of all items of property owned by the Deceased at his death; and

(p) An order that the Defendants pay the Plaintiff damages or compensation, and interest, for the Plaintiff's loss of rental income from the Spence property consequent upon the actions of the Defendants in preventing the Plaintiff from renting out the Spence property.

158. The actual issues in the proceedings, however, were essentially five.

159. The first related to whether the Termination Agreement should be set aside. Ms Hillman submitted that it should be set aside because she did not "bring a consenting mind" to its execution and that it should be set aside as non est factum or, alternatively, that equity should set it aside because of undue influence exerted on Ms Hillman to execute it such that it was unconscionable to give effect to it.

160. The second issue related to the Spence property (now its proceeds) which was registered as a joint tenancy between Ms Hillman and Mr Box and which Ms Hillman submitted should become her property by virtue of her right of survivorship.

161. The third issue was that Ms Hillman submitted that she should have an order under the Family Provisions Act 1969 (ACT) (a family provisions order) because proper provision should have been, but was not, made for her in Mr Box's will.

162. The fourth issue was that Ms Hillman submitted that she was entitled to an interest in the Queanbeyan factory (now its proceeds) under a constructive trust in her favour.

163. The fifth and final issue was that Ms Hillman submitted that she was entitled to certain chattels or their value which she said were joint property.

164. It is convenient to consider each of these in turn. It seems appropriate to consider first the question of the validity of the Termination Agreement, a decision on which will set the scene for the other issues to a lesser or greater extent.

165. Before considering these issues, however, it is convenient to deal with one matter that is relevant to a number of these issues, namely whether in fact Ms Hillman and Mr Box had separated in 2006. Ms Hillman denied it. The Termination Agreement asserted it and Lynda, Debrah and Skye each said that they had separated.

Relationship between Mr Box and Ms Hillman after 2006

166. Ms Hillman first mentioned the separation between Mr Box and herself in her first affidavit filed in support of the Originating Claim. She deposed:

I lived in a domestic relationship with the deceased for 8 years continuously from 1998 to 2006. In that period, we cohabited and shared out lives and gave each other assistance and support. We separated ... He went to live in the factory at [Redacted], Queanbeyan referred to in paragraph 17 below where there is a three bedroom self-contained unit but we continued to relate.

167. This is consistent with the affidavit evidence of Lynda of 7 July 2011 (the July affidavit), which states:

I say the plaintiff and my dad were in a defacto relationship from approximately late 1998. That relationship had ended in August 2006. Dad moved into the Queanbeyan factory and the plaintiff returned to live at her Latham property.

168. This, however, conflicts with the oral evidence of Ms Hillman as she gave it. In particular, the following exchange took place:

MR HASSALL: Could you tell the court how you understood your relationship with Mr Box was at that time [August 2008]?---Our relationship was a very loving relationship. It was the same as always from the beginning 'til the end. It was a very loving and caring relationship.

In particular, are you saying that at the time the Campbell property was sold, that is to say August 2008, that was the case?---Yes, that's right.

MR WARD: ... The factory, what you describe as the factory at Queanbeyan, is where Mr Box lived, isn't it?---At the later date, yes, he did live there.

When do you say he moved into Queanbeyan?---Well, we were both living in Queanbeyan and we were both living at Latham so that was his residence and my residence. We were living in both places.

For how long were you living in a factory, Ms Hillman?---Sorry?

For how long were you living in a factory?---I didn't actually move there entirely but we had - - -

You never moved there did you, Ms Hillman?---No, no.

You just said to His Honour a moment ago that you both lived there, that was false, wasn't it?---We both lived there because I used to sleep there and spend like days there, weeks. So that's living there, so I did.

You never changed your address to Queanbeyan, did you?---No, I never changed my address but I did live there with him. We both lived together.

You spent some nights there?---We spent many many nights there, yes, because that was our home and he spent many nights at Latham.

Was that your home as well?---Yes, we had both homes.

I want to suggest to you, Ms Hillman, that in fact certainly by 2006 Mr Box had made it very clear that he didn't want to live with you anymore?---That's not true, not at all.

Mr Box was seeing other women, wasn't he?---No, never.

Mr Box did not want to live with you at Latham?---That's not true. He did live with me. He did live in Latham. He slept in Latham. He came to Latham. I went to the factory.

I suggest to you, Ms Hillman, that in fact your relationship was well and truly over by 2006?---No, that's not true, not true at all.

You say that you were still in a loving caring relationship by February 2009---Yes, yes.

Can you explain to His Honour if that was the case, why Mr Box would have thought it necessary to prepare, or have prepared, the deed of termination?---Well, he was getting his paperwork - all his - all his paperwork in order before he died.

Part of putting his paperwork in order was finalising the financial dealings between you and Mr Box, wasn't it?---Not at all, not at all. He said he wanted to get his life - paperwork in order before he died and he said to me, 'You will always be looked after, Noelle'.

170. Ms Hillman made no mention in her first affidavit of any relationship with Mr Box between 2006 and Mr Box's death. The first mention she made of it was in her fourth affidavit, in which she deposed:

22. I made contributions to the Deceased's welfare particularly as follows:

(b) I cared for the Deceased after he was diagnosed with cancer (in or about May 2009);

(c) I accompanied the Deceased to his medical appointments and treatments from May 2009 and allowed him to visit my home from when he could no longer care for himself. Oxygen was delivered to my home for the Deceased's use. Also I visited the Deceased at his home frequently to care for him.

171. In response to this, Lynda deposed in her July affidavit:

30. In relation to paragraph 22, I say that once Dad was diagnosed with cancer Debrah, Skye and myself set up a roster to ensure someone saw him every day. As Dad got sicker, we made sure that someone was with him at all times. Debrah came from Townsville and lived with Dad for four months to take care of him. Before then I had made an arrangement with my workplace to work out of the office every afternoon and I would go to Dad's house at around midday every day and one day on the weekend. Skye would visit the other day on the weekends. In the last six weeks of his life Dad moved into my main bedroom with the ensuite as he was unable to walk distances. The last week and a half of his life was spent at Claire Holland house. The plaintiff did not visit Dad once in the last month of his life.

31. In relation to paragraph 22 (c) I say that the only reason the plaintiff took him to some medical appointments was because she insisted so. Dad was happy for the plaintiff to him [sic] to some appointments and we did not want to argue with Dad. My sisters and I were more than able to and had made arrangements to take him. I regularly drove Dad to Sydney for specialist appointments. The oxygen was delivered to the plaintiffs house [sic] because no one was at home at my house to sign for it as we were always at Dad's side taking care of him. The plaintiff was not visiting to care for him as one of us was always looking after him. As far as we were concerned the plaintiff was visiting as a friend like all his other family, work mates and friends did.

172. In Ms Hillman's fifth affidavit, which was made in reply to Lynda's July affidavit, there was, then, further evidence about the relationship immediately prior to Mr Box's death:

30. ... Ms Box's statements are not consistent with my recollection. It was only in the last few weeks of Graeme's live [sic] that he moved into Ms Box's home ... My strong recollection is that Graeme hadn't told his daughters about his illness until much closer to his eventual demise. Regardless, I say that:

30.1 I was not aware of the alleged roster set up by the defendants

30.2 My recollection is that Graeme's daughter, Debrah, came to Canberra from time-to-time, and was not here permanently. Debrah had initially come to Canberra for Ms Box's wedding. Debrah stayed at the Queanbeyan factory, but I was also there almost every day and night. M[y] recollection is that during Debrah's stays I showered, shaved and dressed Graeme. Debrah was mostly on her computer.

30.3 I visited Graeme everyday in about the two weeks before his death. I was in Sydney when he died. This was made harder in the last about 4 weeks, when Graeme moved into Ms Box's property.

30.4 I was recall [sic] that Ms Box would arrive at the Queanbeyan factory, at approximately 3 PM with a laptop and stay until about 5 PM.

31. I refer to her paragraph 31 and say that her words are harsh and wrong.

173. In an affidavit of 17 December 2012, Debrah deposed that:

2. ... In response to [paragraph 30] I say as follows:-

(a) There was at least one of myself, my sister Lynda or my sister Skye with the deceased during this period

(b) I am aware that my sister Lynda gave the Plaintiff a key to her house to enable her to come and go from the house as she pleased

(c) While I was staying with my father at the house in Queanbeyan and Ngnunnawal, the Plaintiff visited:-

i. the Queanbeyan house on approximately 5 occasions; and

ii. the Ngunnawal house on approximately 2 occasions.

The Plaintiff was not there as she alleges "almost every day and night". I was living in the house for extensive periods of time flying down from my home in North Queensland and running my business from the house via mobile internet.

174. As I have noted above, Debrah also provided a schedule of her trips to Canberra spending nearly five months of her time in Canberra. She was not challenged on this evidence in cross-examination.

175. It was put to Lynda in cross-examination that Mr Box did not tell her that the receipt of the half proceeds of the sale of the Campbell property in 2008 was part of the settlement on separation. She denied that what she had said was untrue and affirmed that Mr Box "made it very clear [Ms Hillman] and him [sic] had separated ... [a]nd dividing the properties was part of that separation".

176. Lynda was also challenged in cross-examination about her statement that Mr Box had told her that he had "bought the Queanbeyan factory from [his] share of the sale of Reid", but again she maintained that it was true, adding that Mr Box "was very proud" of the fact that "he was able to pay cash for a property". She said she was of the understanding that he still owned the Campbell property at the time.

177. Lynda also denied that Ms Hillman visited Mr Box regularly in his last illness, saying that she was in Sydney because her mother, who lived there, was sick, though "she did visit up to a point before she went to Sydney". She said that when Mr Box moved into her house, they saw Ms Hillman once or twice a week "but not regularly, as on a daily, all day sort of occasion".

178. Neither Skye, who gave no evidence about this issue, or Debrah, were asked any questions about this issue, either in chief or, significantly, in cross-examination.

179. The only other relevant evidence is that in his evidence, Mr Nelson said, as set out above at [106], that the Termination Agreement was prepared, he understood, "to finalise arrangements between" Mr Box and Ms Hillman and "to enable the transfer of the [Campbell] property ... with nominal stamp duty under the property settlement".

180. That evidence is quite significant, for it would have been fraudulent for Mr Nelson to have prepared such a document in those circumstances unless he was satisfied on his instructions that there was a property settlement consequent upon the termination of the relationship so as to attract a concessional stamp duty. It was never suggested to her otherwise

181. In cross-examination, Mr Nelson agreed that Mr Box had instructed him to prepare the Termination Agreement but he was not asked any questions in either examination-in-chief or cross-examination about the separation. It was certainly not suggested to him that he did not have the proper instructions to prepare the Termination Agreement in the relevant circumstances.

182. I find it odd that Ms Hillman initially deposed that she and Mr Box separated, identifying the domestic relationship as lasting from 1998 to 2006, if the relationship had continued as she described in her oral evidence.

183. This is, perhaps, reinforced by her comment to her general practitioner which I noted above (at [99]), where she describes Mr Box simply as "friend" with a terminal illness.

184. It is also curious that, in contradistinction to her oral evidence, she deposed in her fourth affidavit that she "allowed [Mr Box] to visit my home when he could no longer care for himself".

185. That seems difficult to reconcile with the description she gave in her oral evidence of Mr Box being taken into Lynda's home during the last six weeks of his life. While I can understand the challenge that Ms Hillman may have faced with her ill mother in Sydney, I would have at least expected that there would have been some agreement between Ms Hillman and Lynda that this would be the arrangement if her description of her care for Mr Box was accurate. If the domestic relationship had continued the same, as Ms Hillman said, it is difficult to understand why she would not have had the primary responsibility for his care and, if she could not do so, why she would not have had to discuss the options with his daughters, but there was no such evidence.

186. I note, too, that Ms Hillman expressed herself not to be aware of the roster set up by Lynda, Skye and Debrah, despite asserting that she visited every day. That Debrah was in Canberra for about five months is also inconsistent with her suggestion that she came "from time to time".

187. Ms Hillman also sought to minimise the evidentiary value of the Termination Agreement to this issue by stating that it was prepared because Mr Box had been diagnosed with cancer and wanted to get his affairs in order. That was not correct; the Termination Agreement was signed in February 2009 but Mr Box was not diagnosed with cancer until May or June of 2009.

188. At face value, it is a little odd that, if the relationship was over in 2006, Mr Box waited until 2009 to effect the property settlement with the Termination Agreement. Part of that may be that the Campbell property was not sold until August 2008 as I have noted (at [47]). That is consistent with Lynda's evidence that the equal distribution of the proceeds was part of the settlement. Certainly the chronology supports that.

189. Without the evidence of Mr Box, it is not easy to come to a final view on this matter.

190. Doing the best I can, however, I am left with uncertainty about the relationship between 2006 and 2009, though I have a grave suspicion that the domestic relationship was over in 2006. Certainly, the evidence other than Ms Hillman's oral evidence seems to point quite sharply that way.

191. I am, however, quite satisfied that by late 2008, when the Campbell property proceeds were divided equally, it had ended. This is consistent with the terms of the Termination Agreement.

192. Ms Hillman submitted that the Termination Agreement was invalid on the grounds that she did not bring a consenting mind to its execution or, alternatively, that there was undue influence.

193. The defendants, relying on the position and circumstances of Ms Hillman, rejected this.

194. The claim that Ms Hillman did not bring a consenting mind to the execution of the Termination Agreement is described in law as a claim of non est factum; that is an allegation that the deed was not, in truth, the deed of the party making the allegation, in this case, Ms Hillman.

195. Though ordinarily a matter of defence, the claim is here made in and on an application for an order that the Termination Agreement be set aside. In the circumstances, I do not have to decide whether it can only be relied on as a matter of defence.

196. In this case, Ms Hillman submitted that the Termination Agreement should be set aside because she did not bring a consenting mind to the signing of it. This was not pressed in oral submissions.

197. It was said that Ms Hillman was disadvantaged, in a "vulnerable state of mind and health", distressed, unwell, and suffering from depression.

198. The plea of non est factum is one to which the courts have often given very limited operation, suggesting that it should be available in the rarest of cases. See, for example, Muskham Finance Ltd v Howard [1963] 1 QB 904 at 912; Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 at 268; Saunders v Anglia Building Society [1970] UKHL 5; [1971] AC 1004 at 1016, 1019.

199. The defendants referred to Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 on this point There, the High Court unanimously held at 359-60:

The class of persons who can avail themselves of the defence [of non est factum] is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he [or she] signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his [or her] failure to read and understand it was not due to carelessness on his [or her] part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society (Gallie v Lee) [1970] UKHL 5; (1971) AC 1004, esp at p 1019.

It is now settled beyond any shadow of doubt that when we speak of negligence or carelessness in connexion with non est factum we are not referring to the tort of negligence but to a mere failure to take reasonable precautions in ascertaining the character of a document before signing it. The insistence that such precautions should be taken as a condition of making out the defence is of fundamental importance when the defence is asserted against an innocent person, whether a third party to the transaction or not, who relies on the document and the signature which it bears and who is unaware of the circumstances in which it came to be executed. It is otherwise when the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character. In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated - no innocent person has placed reliance on the signature without reason to doubt its validity.

On this analysis the element of carelessness has no relevance for the present case. As the learned judge found, the appellant's belief that the document was a receipt was inspired by the agent's representation that the document acknowledged the payment of the sum of $50. It is scarcely to be conceived that the respondent was unaware of what his agent said and did; but even if he was not informed by the agent he must take responsibility for his action. Consequently as against the appellant, the respondent is not to be considered as an innocent person without knowledge or reason to doubt the validity of the appellant's signature.

200. The facts in that case were that an unscrupulous agent, Mr Clements, represented to the non-English speaking Mr Petelin that a document he was to sign was a receipt for $50 which he was given, when, in fact, it was a form proposing the extension of an option over his land in New South Wales. This is significantly different from the current circumstances.

201. That a person may not avoid a contract simply by electing not to read it was confirmed unanimously by the High Court later in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. There, the Court held (at 185; [57]):

If there is a claim of misrepresentation, or non est factum, or if there is an issue as to whether a document was intended to affect legal relations or whether, on the other hand, it was tendered as a mere memorandum of a pre-existing contract, or a receipt, or if there is a claim for equitable or statutory relief, then even in the case of a signed document it may be material to know whether a person who has signed it was given sufficient notice of its contents. The general rule, which applies in the present case, is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document.

202. The defendants submitted, and I accept, that Ms Hillman had no difficulty in understanding the Termination Agreement or the Transfer, a fact to which she attested in the witness box. The documents were in plain English and she had had many dealings with conveyancing documents before, including in Mr Nelson's office.

203. There was no allegation that Ms Hillman was led to believe that the document was of one kind when it was of another. She knew from what she said Mr Box told her that it was a document relating to his "affairs" and that he would "always be looked after".

204. Indeed, that she signed a real property Transfer at the same time is strongly corroborative of Ms Hillman being aware of the nature of the document and that it contained contractual terms relating to dealings in land. That she did not read it does not, in the circumstances, assist her in this claim.

205. Ms Hillman submitted that the absence of independent legal advice was significant in demonstrating non est factum.

206. That Ms Hillman was not given independent legal advice when she signed the Termination Agreement was not disputed.

207. Given the authoritative formulations of the High Court above (at [198]), the proposition that the absence of independent legal advice is significant is not supportable. Nowhere is independent legal advice required or mandated. As the defendants submitted, should such a requirement be imported, ordinary commercial and property transactions would be significantly hindered.

208. It is unsurprising that this claim was faintly made and barely argued in oral submissions. The Termination Agreement is Ms Hillman's document and she is bound by its contractual terms unless it can be set aside in some other way.

209. Ms Hillman also claimed that the Termination Agreement should be set aside as she was induced to sign it by actual undue influence exerted by Mr Box on her.

210. "[F]olly, imprudence or want of foresight" is insufficient to allow equity's intervention in the transfer of property on the grounds of undue influence: Allcard v Skinner (1887) 36 Ch D 145 at 182-3. Rather, the circumstances must demonstrate some improper dominion or "psychological ascendancy" as put in Quek v Beggs (1990) 5 BPR 11,761. The doctrine is aimed at preventing transfers of property which are inexplicable with regard to "friendship, relationship, charity, or other ordinary motives" on which people ordinarily act. See National Westminster Bank plc v Morgan [1985] UKHL 2; [1985] AC 686 at 708.

211. As Brereton J summarised the position in Tulloch (Dec'd) v Braybon (No 2) [2010] NSWSC 650 at [38], undue influence may arise in one of two ways. His Honour said

Undue influence may be established by proof that the disponor's assent was in fact procured by undue influence ("actual undue influence"), or by an unrebutted presumption arising from the existence of a relationship of influence between the parties where the quantum or improvidence of the transaction is such that it cannot be explained on grounds of friendship, relationship, charity, or other ordinary motives ("presumed undue influence") [Whereat v Duff [1972] 2 NSWLR 147 at 168; Quek v Beggs (1990) 5 BPR 11,761; Allcard v Skinner (1887) 36 Ch D 145 at 185; Goldsworthy v Brickell [1987] Ch 378 at 400-1].

212. I will address whether there was actual undue influence or presumed undue influence sequentially.

213. Ms Hillman submitted that there was actual undue influence, as opposed to presumed undue influence, relying on the existence of factors analogous to those before the Queensland Supreme Court in Robertson v Robertson [1930] QWN 41; that is, there was an inducement to transfer property which was grossly undervalued, and the absence of independent legal advice. That, it was submitted, sufficient to set aside the Termination Agreement in equity.

[T]he plaintiff was not mistress of herself nor in a state of mind to weigh what she was doing. I find that in consequence she was induced to consent to a transfer of her real estate into the names of herself and her husband at a gross undervalue. At all relevant times she was to the knowledge of the defendant without independent advice of any helpful kind.

215. This passage does not appear in the report of the case, but apparently the learned author of [35.8.420] in Laws of Australia, from which this quote comes, has inspected the transcript of the proceedings and repeated it in the paragraph.

216. It does not seem to me, however, that his Honour was laying down any principles, but rather applying them to the particular facts. In any event, I am not satisfied that this case is on all fours.

217. In the first place, there is no evidence that could show that Ms Hillman was not in a state of mind "to weigh what she was doing". Her evidence was that she was very distressed about Mr Box's terminal cancer. That cannot be so, however, as she signed the Termination Agreement on or about 26 February 2009 and Mr Box was only diagnosed with terminal cancer in May or June 2009.

218. Secondly, there was no evidence that, in the circumstances, the arrangements would result in Ms Hillman consenting to a transfer of property at a gross undervalue. As is clear from the evidence, the Spence property was purchased entirely from funds provided by Mr Box and, even if Ms Hillman made contributions to its renovations, she had been handsomely repaid by an equal share of the proceeds from the sale of the various properties, especially the Reid property, to which she had made little contribution or at the very least, very substantially less than had Mr Box.

219. Thirdly, Mr Box had no knowledge of whether she had obtained independent legal advice. Indeed, the fact that Mr Nelson gave evidence of his instruction to his secretary to suggest to Ms Hillman that she might wish to obtain such advice suggests that Mr Box, who had given the instructions to Mr Nelson to prepare the Termination Agreement, would be aware that this is what Mr Nelson would advise Ms Hillman, directly or indirectly, to do.

220. Ms Hillman, relying on Ormes v Beadel [1860] EngR 646; (1860) 66 ER 70, placed heavy reliance on the inducement to sign the Termination Agreement on terms "[s]uch as no-one would have willingly adopted".

221. Ormes v Beadel is substantially different on its facts, however. In that case, an architect had induced a contractor to abandon a building contract on unfavourable terms due to knowledge that the contractor was unable to pay his employees for the work they had performed and that "the workmen complained that they were starving". Additionally, the architect knew that the contractor was under considerable pressure, to the point where the contractor's unruly employees had specifically prevented the contractor from signing the unfavourable document. No such analogous duress exists here.

222. Ms Hillman further relied on the following statement made in Barrett v Hartley (1866) LR 2 Eq 789 at 795 that:

If the assent to the agreement is not an assent given under such circumstances as that both parties are on an equal footing, and the agreement [is] one perfectly free from any influence or pressure, in the eye of this Court, it is not an assent sufficient to constitute an agreement.

[The] Court will not allow anything to be taken from a man [or woman] against his [or her] will, in the settlement of an account or in any other way, unless he [or she] be a reasonably free agent and in a situation to enable him [or her] fairly to make a bargain for himself [or herself].

224. This was in the context of a mortgagee, who had sought and obtained a substantial security in return for a loan, sought to exact a further "bonus" in addition to the principal sum plus interest originally agreed, through using that substantial security.

225. Barrett v Hartley has been relied on in Australia only in the context of usurious transactions, such as in Starceavich v Swart & Associates Pty Ltd (2006) 12 BPR 98,204 at [54] and Takemura v National Australia Bank Ltd [2003] NSWSC 339; (2003) 11 BPR 21,185 at [21]- [24].

226. Ms Hillman submitted that this actual undue influence arose from repeated requests, urging her to sign the document.

227. The defendants submitted that undue influence cannot be supported here on the facts. In particular, the defendants submitted that all the persuasion exercised by Mr Box "at its highest is that Mr Box on a few occasions - [Ms Hillman] doesn't identify how many, but on a few occasions - said t[o] her, 'Can you please go and sign the papers with Alan Nelson.'" The absence of coercive threats, the defendants submitted, is significant. It was also noted that Mr Box did not attend at Mr Nelson's office with her, also a significant matter.

228. The defendants thus further submitted that the fact that Ms Hillman has been previously employed in accountancy-related positions is relevant, as it demonstrates her financial literacy. She regularly dealt with solicitors, on the evidence of both Mr Nelson and herself, more than Mr Box. The defendants also submitted that the absence of any language disability, a common element in cases of undue influence, is significant and that no improper pressure was applied at all.

229. Actual undue influence requires one party to have the capacity to improperly influence another, that this occurred and that the relevant transaction, here the signing of the Termination Agreement and Transfer, resulted from this influence. See Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113 at 134. This is more than mere influence, and requires the use of a position to obtain an unfair advantage. See Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180 at 194.

230. In Johnson v Buttress at 134-6, it was held that the adequacy of consideration is an important factor to take into account where the transaction is "not one of gift but of purchase or other contract".

231. The Court must consider a number of factors in determining whether to set aside a transaction for actual undue influence. These include, as noted in Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573 at 577; [10]:

(a) The standard of intelligence and education, and the character and personality of the donor, are relevant matters. Age, state of health, blood relationship, experience, or lack of it, in business affairs of the donor, length of friendship or acquaintanceship between the donor and donee and the intricacy of their business affairs may be factors to influence a donor to depend upon the donee. Equally, the relative strength of character and personality of the donee, the period and closeness of the relationship and the opportunity afforded the donee to influence the donor in his business affairs are correlative considerations to the foregoing: see Clark v Malpas (1862) 4 De G F and J 401; [1862] EngR 876; 45 ER 1238.

232. See also Johnson v Buttress at 136; Stivactas v Michaletos (No 2) [1993] NSW Conv R 55-683; Cf Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646 per Rich J, where the donee was "dull-witted", deaf and uneducated, with "no education, small intelligence and a history of curious conduct", placing him in a wholly unequal position to his wife.

233. However, the existence of an imbalance in one of these factors by itself is not either necessary or sufficient to demonstrate undue influence: Stivactas v Michaletos (No 2).

234. Ms Hillman also relied on an English decision, Coldunell Ltd v Gallon [1986] 1 All ER 429. That case is again quite distinct from the present circumstances, as there, an adult son of about fifty years of age was held to have used undue influence over his mother and father, aged eighty-six and ninety-one respectively. The circumstances were described (at 431) as:

... one of elderly parents being persuaded to charge their home to secure money raised for the benefit of a son who was much better educated and versed in business than they were, who undertook to discharge what was intended to be a purely temporary accommodation and who let them down almost immediately by failing to make interest payments.

235. Significantly, in that case the defendant had experience in insurance broking, was involved in various business activities (including some internationally) and was educated: Coldunell Ltd v Gallon at 436. This was in stark contrast to his parents.

236. In Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42, it was held by the High Court that business experience, in addition to strong reliance on another, is also significant for such a claim. In that case, an intelligent woman relied unquestioningly on the advice of her uncle in matters of business, having no business experience of her own.

237. It appears from the circumstances that Mr Box did not have the capacity to and did not influence Ms Hillman improperly.

238. There was no significant age differential here; Ms Hillman was sixty and Mr Box was sixty-two.

239. Mr Box was experienced in conducting business, having successfully invested in several properties over a number of years. Equally, it appears Ms Hillman was also experienced in business. Before signing the Termination Agreement and Transfer, she had previously signed many transfers during her involvement in real estate transactions for up to 10 years before the date. She, by her own evidence, did "the majority" of the bookwork for each of the property transactions.

240. However, even if Mr Box had the capacity to improperly influence Ms Hillman, it is also clear that Mr Box did not actually unduly influence Ms Hillman.

241. On the evidence of Ms Hillman, Mr Box was not present when the Termination Agreement was signed by her. Ms Hillman was not under any time constraint when the document was signed. On her evidence, Mr Box was not standing over her shoulder saying "sign this". It appears Mr Box's only attempted persuasion was to state "I need you to sign some papers to sort out our affairs" a number of times.

242. No actual undue influence can be demonstrated in this circumstance.

243. While but faintly advanced by the plaintiff, I will, for completeness, briefly address the existence of presumed undue influence, as it appears that many of the authorities that were relied on by Ms Hillman actually addressed this issue.

244. I refer again to what Brereton J said in Tulloch (Dec'd) v Braybon (No 2) at [38]:

Some relationships - such as parent and child, guardian and ward, solicitor and client, doctor and patient, (probably) spiritual adviser and follower, and (arguably) fiancé and fiancée - are presumed to be relationships of influence. In addition, a relationship of influence can be established by showing that it is one which involves ascendancy and influence on the part of the dominant party, or dependence, reliance, trust and confidence on the part of the weaker party [Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113 at 134-5; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683, 59-908] ...

245. See also Union Fidelity Trustee Co Aust Ltd v Gibson at 575-6; [4]-[5].

246. The categories of relationship which give rise to a presumption of influence is not closed. Where two people are in a relationship of ascendency or influence by one and dependence, reliance, trust or confidence of the other, there may be a presumption of a relationship of influence as noted in Johnson v Buttress and Stivactas v Michaletos (No 2).

247. If such a relationship exists, the question becomes whether it has been rebutted. As stated in Tulloch (Dec'd) v Braybon (No 2) at [39]-[40]:

A presumption of undue influence may be rebutted by showing that the disposition was the independent, well-understood act of a person exercising free judgment [Johnson v Buttress; Zamet v Hyman [1961] 1 WLR 1442; 3 All ER 933 (CA)]. In Whereat v Duff [1972] 2 NSWLR 147, Asprey JA explained (at 168) that whereas the onus was on the party seeking to set aside the gift to establish the facts from which the court would infer that a situation exists where undue influence may have been exerted, which situations would naturally vary from case to case, once those facts have been established, the presumption arises and the onus is then cast upon the donee to rebut it.

This requires establishing both that the disponor knew and understood what he or she was doing, and that he or she was acting independently of the influence of the dominant party [Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180; Quek v Beggs; Whereat v Duff, 168, 169]. It does not necessarily suffice, to prove that a gift was made free of undue influence, that the proposal came from the donor [Spong v Spong [1914] HCA 52; (1914) 18 CLR 544 at 549; Whereat v Duff; Quek v Beggs, 11,765].

248. To address the issue of rebutting such a presumption, Ms Hillman referred to Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 (Garcia). In that case, the High Court, affirming the reasoning in Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649 at 685-6 per Dixon J, held that where a husband procures his wife to become his surety by an exertion of undue influence, the creditor may not rely on that transaction unless independent advice or relief has been obtained by the wife (at 405; [24]). The High Court explicitly left open the application of these principles to long term and publically declared relationships short of marriage (at 404; [22]). The Supreme Court of Queensland appeared to interpret this broadly in ANZ Banking Group Ltd v Alirezai [2004] QCA 6 at [39], as applying to relationships outside of "marriage or marriage-like relationships".

249. In Garcia, the Court, however, expressly held (at 409; [33]) that the case was not concerned with a presumption of undue influence. The case depended upon the wife, who entered into the guarantee, being a volunteer, being mistaken about the purpose and effect of the transaction and the creditor being taken to have appreciated that because of the trust and confidence between surety (wife) and debtor (husband), there was undue influence.

250. It does not seem to me that the reference to Garcia was particularly helpful to the case put by Ms Hillman.

251. She could not, in my view, bring herself within the principles enunciated in the case. There was no presumption of influence. It is true, however, as stated by Dixon J in Yerkey v Jones at 675, that the relationship of husband and wife "has never been divested completely of what may be called equitable presumptions of an invalidating tendency".

252. In this case, there is little that can properly be relied on to show that there was such unconscionability in Mr Box's behaviour that would undermine the Deed.

253. I have rejected the submission that the evidence shows that Ms Hillman was in a distressed state of mind. The date of the execution of the Termination Agreement shows that Ms Hillman's assertion that the source of her alleged distress, at the time she signed it, namely Mr Box's diagnosis with terminal cancer, was not operative as it had not then occurred. There was no real evidence, either, of distress at Ms Hillman's mother's condition, though she made the merest passing reference to it. I can find, after a careful review of her medical records, no evidence of depression.

254. Ms Hillman knew that the Termination Agreement was intended to "fix up" Mr Box's affairs. That she signed a Transfer in respect of the Spence property at the same time must have meant, for this woman accustomed to doing the conveyancing transactions for Mr Box and herself in the past, that she understood what she was doing.

255. Ms Hillman submitted that, as Mr Nelson's secretary had not been called to give evidence on behalf of the defendants, I should draw an inference, relying on the principles set out in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, that any evidence she could give would not assist the defendants and that I could find more confidently that she had not been advised to seek independent legal advice.

256. I reject that contention. When it became clear from Mr Nelson's evidence that, contrary to Ms Hillman's evidence, he was not present at her execution of the Termination Agreement and his secretary has been present, attempts were made to locate her and they were successful but she has what was described as "limited, if any, recollection" of the execution of the Termination Agreement. This seems to me to be a reasonable explanation to negate the inference sought that I draw.

257. I am aware that, in West v Government Insurance Office of New South Wales [1981] HCA 38; (1981) 148 CLR 62 at 70, Murphy J said

If unavailability of witnesses or absence of recollection is the explanation for failure to call the witnesses this should be given by evidence. It is not to be presumed from passage of some years.

258. In this case, however, no objection was taken to the statement of Mr C Ward, counsel for the defendants, to the effect stated above (at [259]). The event would very likely be an unremarkable one for the prospective witness and the event was nearly four years earlier. It is, of course, possible that, if she had been called, questions may have prompted some recollection, but it seems to me that her absence has been explained satisfactorily.

259. I am also satisfied that Mr Nelson was not present when Ms Hillman executed the Termination Agreement. There is no reason why he would not have witnessed her signature were he to be present and none was suggested. Mr Box's signature was witnessed by a lawyer.

260. Mr Nelson did not deny preparing the Termination Agreement and there seems to me no reason justifying the allegation, which he denied, that he told Ms Hillman that he should not have prepared it. There is no reason why his secretary would not have followed the instructions he gave her and suggested to Ms Hillman that she obtain independent legal advice.

261. I do not consider that I can positively find that Ms Hillman was given such a suggestion, but Ms Hillman has not persuaded me that she was not given it.

262. I do not find that there is presumed undue influence nor that the principles set out in Garcia assist Ms Hillman. I find that there was no reliance by Ms Hillman on Mr Box of such a kind that undue influence of the kind referred to by Dixon J in Yerkey v Jones existed.

263. Having concluded that there is no reason in equity to invalidate the Termination Agreement on the grounds of actual or presumed undue influence, or to do so on the basis of the doctrine of non est factum, I conclude that it is binding in its effects.

264. As a result, it is appropriate to deal with the issues that flow directly from the validity of the Termination Agreement - the question of the interest, if any, that Ms Hillman has in the Spence property, the interest she has in any chattels she claims and whether there is any interest she has enforceable under a constructive trust in the Queanbeyan factory.

265. I turn then to the first of these, the Spence property.

APPLICABILITY OF JOINT TENANCY AND THE LAW OF SURVIVORSHIP

266. Ms Hillman submitted that she and Mr Box were joint tenants of the Spence property. She then submitted that, upon Mr Box's death, the operation of the law of survivorship meant the Spence property reverted to her.

267. She relied on a Land Titles Office search of the Spence title, the 1999 transfer on acquisition form and the death certificate of Mr Box.

268. The title search of the Spence property does disclose Ms Hillman and Mr Box as registered proprietors and joint tenants. This is confirmed in Recital E of the Termination Agreement. The original purchase document, showing the date of settlement as 19 February 1999, lists the purchasers as Ms Hillman and Mr Box.

Noelle shall transfer all her right title and interest in the Spence property to Graeme and Graeme shall indemnify Noelle against any claims against her in relation to the Westpac Mortgage and shall assume sole responsibility for any moneys owing in respect to the Spence property and shall ensure Noelle is released from any liability to the Westpac Banking Corporation before the Transfer of the property to his name is registered.

270. The Spence property was purchased by Mr Box and Ms Hillman as joint tenants. Clause 4 of the Termination Agreement required Ms Hillman to transfer all her right, title and interest in the Spence property to Mr Box and he indemnify her against all claims by the mortgagee, Westpac Banking Corporation, as well as taking on an obligation to ensure that she was released from any liability to that bank prior to registration of a real property transfer also executed by Ms Hillman. That is, of course, the mortgage taken out to purchase the Queanbeyan factory using the Spence property as security.

271. The Transfer, however, was not registered before Mr Box died. The question, then, was whether the execution of the Termination Agreement and the transfer was sufficient to sever the joint tenancy.

272. A joint tenant is, unlike a tenant-in-common, an owner of the whole of the subject land, entitled to the use, possession and enjoyment of the whole, subject to the rights of the other joint tenant: Burton v Camden London Borough Council [2000] UKHL 8; [2000] 2 AC 399 at 408. A joint tenancy has another significant feature in that, on the death of a joint tenant, the interest of the deceased joint tenant is extinguished and the interest of the remaining joint tenants or joint tenant is correspondingly enlarged as described by Latham CJ in Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313 at 323. This right of survivorship (jus accrescendi) is a key attribute of a joint tenancy.

273. A joint tenancy may, however, be severed and, on severance, becomes a tenancy-in-common, if there are still co-owners. Such a severance cannot, however, take effect after the death of a joint tenant, for it is then too late to convert the joint tenancy into a tenancy-in-common: Swift v Roberts [1764] EngR 50; (1764) 97 ER 941 at 946. This right of survivorship was described by Roper J in In Re Robertson [1943] NSWStRp 52; (1944) 44 SR(NSW) 103 at 105 as "the most important incident of a joint tenancy and, unless the right of survivorship exists, the tenancy is not joint".

274. In this case, then, the question arises as to what effect, if any, the execution of the Termination Agreement and the signing of the Transfer had on the joint tenancy. I note, as will become important below, that the Transfer was drawn to show Ms Hillman transferring the whole of her interest in the Spence property to Mr Box. The consideration was expressed to be "Termination Agreement dated 26 February 2009". Ms Hillman signed it as transferor and Mr Box as transferee.

275. The question for decision is whether the execution of the Termination Agreement and of the Transfer, notwithstanding the failure to have the transfer registered, was adequate to effect a transfer of the whole of the estate in the Spence property to Mr Box before his death for, if it did not do so, then, as Ms Hillman contended, the whole of the Spence property becomes her property by virtue of the right of survivorship.

276. Since the Certificate of Title shows that the Spence property was held by Ms Box and Mr Hillman as joint tenants, this would be conclusive that the joint tenancy has not been severed in law. See s 58 of the Land Title Act 1925 (ACT). The question then is whether this joint tenancy has been severed in equity.

277. Ms Hillman submitted that the joint tenancy had not been severed because the Transfer had not been registered. Reference was made to McNab v Earle [1981] 2 NSWLR 673 at 676-7 where Needham J relied on what Sterling J said in In re Wilks; Child v Bulmer [1896] 3 Ch 59 at 62, namely

if the act of a joint tenant amounts to a severance it must be such as to preclude him from claiming by survivorship an interest in the subject-matter of the joint tenancy.

278. That is to say, the act must be finally effective to prevent the joint tenant from being able to assert the continued subsistence of the joint tenancy.

279. Thus, his Honour held that the execution of a transfer of the interest of a joint tenant in the tenancy was not effective to sever the joint tenancy until the transfer was actually registered.

280. Here, as Ms Hillman submitted, the Transfer had never been registered and so, the submission went, the joint tenancy was not severed.

281. That, however, related only to one of the three methods of severing a joint tenancy.

282. In Corin v Patton [1990] HCA 12; (1989) 169 CLR 540, Mason CJ and McHugh JJ considered the ways joint tenancy could be severed at 546-7:

It is convenient to begin by considering the various ways in which a joint tenancy can be severed. The starting point is inevitably the judgment of Page Wood V.C. in Williams v Hensman, in which his Lordship said:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.

283. The defendants submitted that they would only rely on the first method, namely unilateral severance as an alternative, were the Termination Agreement to be held to be inoperative. It is not and I have not so held. Having concluded the Termination Agreement is valid, I do not need to examine the plaintiff's submission that Mr Box's actions may constitute unilateral severance

284. Thus the defendants submitted that joint tenancy of the Spence property was severed under one of the latter two methods, namely, either by mutual agreement or by the course of dealings by the parties.

285. An agreement to hold property as tenants in common will, in equity, sever joint tenancy: Williams v Hensman [1861] EngR 701; (1861) 70 ER 862 at 866-7; Wright v Gibbons at 322.

286. Where such an agreement had been made and one party dies before the legal title is altered to reflect this changed status, equity requires that the interest be held on trust for the deceased's estate: De Dominicus v Spano (1998) 9 BPR 16,279.

287. There is disagreement as to whether the agreement must be specifically enforceable. In Burgess v Rawnsley [1975] Ch 429 at 446-7, Sir John Pennycuick noted that an unenforceable agreement may allow the court to draw an inference of a common intention to sever, even where no concluded agreement was made. This principle seems to have survived the disapproval of part of what the court had held in that case by the High Court in Corin v Patton. In Magill v Magill (1993) NSW ConvR 55-663 at 59-795, Young J referred to "a consensus which may not amount to an agreement specifically enforceable or even binding as a contract at law".

288. On the other hand, McInerney AJ took the view in Lyons v Lyons [1967] VR 169 at 171 that "unless there is a note or memorandum in writing sufficient to satisfy the Statute of Frauds or circumstances giving rise to the doctrine of part performance" the joint tenancy of land will not be severed and (at 172) that there had to be an enforceable contract. This decision was, however, overruled on this aspect in Public Trustee v Pfeiffle [1991] VicRp 3; [1991] VR 19 at 27. See also On v On [2002] NTSC 18 at [24] and Mischel (as executor of the Estate of Mischel) v Mischel Holdings Pty Ltd [2012] VSC 292 at [67].

289. In any event, I am satisfied that the Termination Agreement is enforceable and so the issue does not arise.

290. It is said, however, that the Termination Agreement must be one by which all the joint tenants agree henceforth to hold as tenants in common. In Wright v Gibbons, at 322, Latham CJ said

It has always been the law that a joint tenancy may be severed and converted to a tenancy in common by an agreement.

291. It does not seem to me, however, that the agreement must be couched in such specific terms. In Gould v Kemp (1834) 2 Mg 1 K 304; [1834] EngR 656; 39 ER 959, the agreement, which the court held severed the joint tenancy, was in the following terms

Dear Sir─I hereby engage, should Providence see fit that I should outlive you, to secure to your family, in any way you may desire by your will, the moiety of any stock or security now standing in the name of the late Mrs Sarah Ward, and which she has bequeathed to us under her will either contingently or in reversion, namely, [the stock was then listed] should we be enabled to establish our claim that that sum or, if not, a moiety of such sum as we shall be enabled to recover; the whole, nevertheless, to be subject to such charges and expenses I may be put to in carrying the will of the late Mrs Ward into execution and effect, should I be your survivor. With sincere wishes for your restoration to your family,─I remain, yours sincerely, James Kemp.

292. Similarly, in Delaney v Molloy (1993) NSW Conv R 55-664, there was an agreement for the defendant to give up her interest in the joint tenancy in return for the other joint tenant providing her with assistance to purchase another property and also undertaking to pay the outgoings, including the balance of the mortgage. Hodgson J held that this was sufficient to sever the joint tenancy.

293. Unlike Slater v Slater (1987) 12 Fam LR 1, it seems to me clear that the agreement was one of immediate effect and not contingent on future actions. The registration of the Transfer signed by Ms Hillman was not a condition precedent and severance is the immediate indemnity at least showed.

294. See also Calabrese v Miuccio [1984] 1 Qd R 430 (affirmed on appeal in Calabrese v Miuccio (No 2) [1985] 1 Qd R 17).

295. It is clear that the Termination Agreement gave rise to the necessary inference that Ms Hillman and Mr Box would thereafter consider that their interests were distinct and separate and therefore inconsistent with any continued right of survivorship.

296. I also rely on the fact that Recital E refers to the joint tenancy, making it clear that the intention was to divide their property and transfer Ms Hillman's interest to Mr Box. While the operative clauses, especially Clause 4, use the word "shall", I take that not to refer to futurity or conditionality but to a mandate, that is to the assertion of the now and hereafter position. This is reinforced by the reference in that Clause to Mr Box ensuring that Ms Hillman is released from the liability to the mortgagee, Westpac Banking Corporation pending registration of the Transfer.

297. In any event, it was not suggested by Ms Hillman that the Termination Agreement, if effective at all, was not effective upon execution but that its terms were conditional or provided what was to be effected in the future.

298. In these circumstances, it is clear that the Termination Agreement has severed the joint tenancy and has in equity conveyed Ms Hillman's interest to Mr Box, the Transfer being the means to effect that.

299. If, however, I am wrong about the effect of the Termination Agreement as an agreement of severance, I consider that the conduct of the parties has clearly evinced an intention to sever the joint tenancy. Severance by conduct is sometimes considered a sub-set of severance by agreement. This is the third method identified by Page-Wood VC in Williams v Hensman.

300. As Rath J said in Abela v Public Trustee [1983] 1 NSWLR 308 at 315

Severance may also be effected by conduct of the joint tenants not evidencing an agreement to sever but showing a common intention that the joint tenancy shall be severed.

301. Where a course of conduct is adopted by all joint tenants from which a commonly held belief or assumption can be inferred that their interests are held in undivided shares, without a right of survivorship, a joint tenancy is severed: Mischel (as Executor of the Estate of Mischel) v Mischel Holdings Pty Ltd (in liq) at [69].

302. It is clear that, in this case, signing the Termination Agreement and Mr Box paying the mortgage on the Spence property constitutes a course of such conduct sufficient to a sever the joint tenancy.

303. I conclude that the joint tenancy over the Spence property was severed by 26 February 2009 and that, after that date, the property was held by the deceased and Ms Hillman as tenants-in-common.

304. I also find that Ms Hillman now holds any interest she has in trust for Mr Box as a result of the terms of the Termination Agreement pending completion of the Transfer as provided for in the Termination Agreement and by the executed Transfer.

305. The Transfer having now been registered and the Spence property having been sold, the interests are now all in the net proceeds of the sale. As Ms Hillman holds her interest in trust for the estate of Mr Box, I determine that the net proceeds of the sale of the Spence property are the property of Mr Box's estate and should be released to the defendants as the executors.

306. Ms Hillman also made a claim for an interest in the Queanbeyan factory because, she asserted, Mr Box held an interest as to one half of the property for her on a constructive trust.

307. This claim was barely argued and the evidence was very thin.

308. The claim was based on the approach that was articulated by Deane J in Muschiuski v Dodds [1985] HCA 78; (1985) 160 CLR 583 that where a party has paid money on the basis and for the purpose of a joint venture that they had planned and the substratum of that joint venture is removed without either party being to blame and there is no intention of the parties that assets and liabilities should, at the time of the failure, remain where they happen to be, then the parties to the venture will be precluded by equity from retaining assets or asserting other rights to the extent that it would be unconscionable for them to do so.

309. In Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 the High Court endorsed and applied these principles. From what Mason CJ, Wilson and Deane JJ stated, at 149, the essential principle may be summarised as follows: where parties have pooled their resources for the purposes of their joint relationship and, in doing so have made contributions, financial and otherwise, to the acquisition of land, the building of a house on that land, the purchase of furniture and other fittings and the making of their home, and there is no evidence of any agreement between the parties to the contrary, then it would be inequitable of one to deny that the other was entitled to a beneficial interest in the property acquired and improved by their joint efforts.

310. Mr Hassall referred to the contribution he submitted that Ms Hillman had made and submitted that this fell within the relevant principle.

311. Thus, it was submitted that there was some evidence that the purchase of the Queanbeyan factory was the culmination of a course of mutual investments made by Mr Box and Ms Hillman. It was further submitted that there was evidence of financial contributions made by Ms Hillman towards the purchase of the property. This, it was said, was from the regular salary paid into the joint account from Ms Hillman's employment. It was further submitted that there were non-financial contributions.

312. Mr Hassall also referred to Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101. He submitted that it stood for the proposition that

the constructive trust, where it's found, obliges the holder of the legal title to surrender the property in question thereby bringing about a determination of the rights and titles of the parties.

313. I do not agree. The court there referred to the way in which the Full Court from which the appeal was taken had approached the issue as follows (at 111; [2]):

Professor Scott has pointed out:

It is sometimes said that when there are sufficient ground for imposing a constructive trust, the court 'constructs a trust.' The expression is, of course, absurd. The word 'constructive' is derived from the verb 'construe,' not from the verb 'construct'. ... The court construes the circumstances in the sense that it explains or interprets them; it does not construct them.

The relief granted by the Full Court involved a trust that was 'constructive' in that way. The Full Court so interpreted the circumstances as obliging the appellants, in good conscience, not to retain their beneficial interest in the whole of the Dwellingup property and as requiring them to answer the respondent's equity by bringing about a subdivision of the Promised Lot and conveying the title to it. The equity of the respondent was seen by the Full Court as sufficiently strong as not only to prevent the appellants from insisting upon their strict legal rights but also, in respect of the Promised Lot, to convey it to the respondent.

(Citation omitted).

314. The High Court did not accept that approach. Thus, it held (at 125, [51]):

While the holding of the Full Court with respect to the third promise should be upheld, the Full Court erred in the measure of relief which it granted in respect of the promised lot. This is a case for the fixing of a money sum to represent the value of the equitable claim of the respondent to the promised lot. ... The amount so ascertained, with interest, should be charged upon the whole of the Dwellingup property. There will be no requirement of a subdivision of the promised lot as part of the remedy.

315. Mr Hassall also referred to Hohol v Hohol [1981] VicRp 24; [1981] VR 221. In that decision, O'Bryan J referred to some helpful principles. His Honour said, at 225, of the kind of constructive trust relied on by Ms Hillman

From the cases I have referred to it can be said that the essential elements of the trust are, first, that the parties formed a common intention as to the ownership of the beneficial interest. This will usually be formed at the time of the transaction and may be inferred as a matter of fact from the words or conduct of the parties. Secondly, that the party claiming a beneficial interest must show that he, or she, has acted to his, or her detriment. Thirdly, that it would be a fraud on the claimant for the other party to assert that the claimant had no beneficial interest in the property: see also Ogilvie v Ryan [1976] 2 NSWLR 504; Kardynal v Dodek (unreported, 12 December 1977) Brooking J.

The onus of proving that the parties had a common intention lies upon the plaintiff as claimant. It must also be established that the plaintiff has suffered some detriment and it would be a fraud on the plaintiff for the defendant to deny her beneficial interest in the property.

317. His Honour, when considering the facts, held that two matters were sufficient to satisfy him that there was a common intention to purchase the disputed property in a common ownership. His Honour explained as 226-7

When Lot 180 was purchased I am satisfied that the plaintiff and the defendant intended to and did acquire it as jointly owned property. To arrive at that conclusion it is necessary to have regard to two matters in particular. First, the Hohol family was now living in rented accommodation and the defendant proposed to the plaintiff that another property should be purchased for the family. He had involved her in the project. That is the reason why the whole family went out to test the soil. Secondly, the plaintiff told me of a conversation which she had with the defendant about the title. Her answer arose out of a question which I asked her in these terms: 'When it was decided to buy Lot 180 did you have any conversation with John Hohol about how the property should be purchased and in whose name the title should be taken?'

She answered this way: 'Before we purchased the property he said, "It's for all of us, it's for you and for me."'

The defendant in his evidence never denied those words were used by him at the time of the purchase.

318. See also Green v Green (1989) 17 NSWLR 343.

319. In Hibberson v George (1989) 12 Fam LR 725 at 742, McHugh JA, with whom Hope JA agreed, explained the principles, by reference to Baumgartner v Baumgartner as follows:

If the legal title to a home is vested in a party to a de facto relationship and the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of which is to secure the home as accommodation for themselves, it will be unconscionable for the legal owner to assert that the home is his property beneficially to the exclusion of any interest of his partner if the purchase of the home has been financed partly or wholly through their pooled earnings: Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 149; [1987] HCA 59; 11 Fam LR 915 at 923. In such a case equity will intervene and will impose a constructive trust as a remedy to circumvent the unconscionable conduct of the legal owner: Baumgartner at CLR 147; Fam LR 922. However, as Mr Jackson QC for the respondent conceded, pooling of resources is not 'an absolute requirement in every case'. Indeed it is not necessary that there should be a physical pooling. It is probably enough that by mutual arrangement the parties have each spent moneys for the purpose of their joint relationship knowing that part of it was to be spent in financing the purchase of the home.

320. It is in the light of these principles that the evidence must be assessed.

321. The first reference to the Queanbeyan factory by Ms Hillman is in her first affidavit, the relevant paragraph of which is set out above at [166].

322. On 5 October 2010, Ms Hillman lodged a caveat over the property. The caveat claimed the following interest

equitable estate or interest as beneficiary of a trust claimed in current equity proceedings SC 564 of 2010 in the Supreme Court of the Australian Capital Territory.

323. The claim was said to be supported by the following grounds:

The pleadings in the suit allege the caveator contributed financially and otherwise to the purchase of the land that was in the name of Graeme William Box deceased and held in trust for her and the deceased as joint tenants. The caveator claims the land by survivorship that is now held in the names of the executors of the will of the deceased. Also the caveator seeks relief under the Family Provisions Act 1969 (ACT).

1. The sequence of joint investments in real property made by the Deceased and me ... was as follows:

...

(v) [Redacted] Queanbeyan (NSW) ('the factory') was purchased in 2003 for about $350,000 in the name of the Deceased, but not sold.

...

1. The factory was acquired in the name of the Deceased, but with funds contributed ... by the Deceased and me as set out in paragraph 7 below.
2. The funds contributed referred to in paragraph 6 above included loan funds of about $150,000 obtained jointly by the Deceased and me from Westpac Banking Corporation secured by a mortgage to Westpac Banking Corporation over the property at [Redacted] Spence ACT.

1. In respect of the real properties referred to in paragraphs 5(ii), 5(iii), 5(iv) and 5(v), the Deceased and I made ... financial contributions to the purchases of those properties by way of contributions to the purchase prices of those properties as follows:

...

(d) as to [Redacted] Queanbeyan NSW: the Deceased and I contributed jointly about $350,000 (that is, about $175,000 each).

1. The Deceased and I made our financial contributions as in paragraph 10 above from (a) monies held in or upon our joint account; and (b) monies borrowed by us jointly.

1. Subject to paragraph 12 above, in the case of each of the real properties referred to in paragraph 5 above the Deceased and I contributed the funds required to finance, maintain, upkeep and improve the same. The Deceased and I paid for loan interest, and for works for maintenance, upkeep and improvements with respect to the properties from moneys held in or upon our joint account.
2. In the case of each of the real properties referred to in paragraph 5 above the Deceased and me each made equal non-financial contributions to the maintenance, upkeep and improvement of those properties. The Deceased and I performed works, in equal measure, to maintain, upkeep and improve the properties.
3. At or about the times each of the properties in paragraph 5 above were acquired, the Deceased and I spoke words to each other to the effect that they were to be join investments by the Deceased and I for our equal benefit and they would be held us by us as joint tenants. After finding a property in the newspaper we would discuss the investment and use words to the effect of, 'We want the worst house in the best street or suburb that will make the most money for us together. All properties will be in joint names and if one of us dies then the surviving person will own it.'

1. The nett proceeds of the sales of the real properties referred to in sub-paragraphs 5(ii), 5(iii) and 5(iv) of paragraph 5 above were successively re-invested ... by the Deceased and me in the succeeding pieces of real estate referred to in sub-paragraphs 5(iii), 5(iv) and 5(v) above, respectively, in the manner as indicated in paragraph 19 below.

325. Ms Hillman referred to non-financial contributions also in some detail and to which I do not need to refer.

326. In her oral evidence, Ms Hillman referred to a discussion with Mr Box about the purchase of the Queanbeyan factory in which she said he told her that "it would be good for us to buy the factory so we could increase our portfolio and buy more properties". She added:

His intentions were for us to buy the factory so we could make our business more profitable so he can work in the factory to do the renovations of the houses that we were going to buy and that we already have.

327. When asked if she could remember the words that he used she said

Well, he was - we were both very excited. He was very excited to buy the factory because, you know, in actual fact it was going to benefit both of us and the work we were doing - was a major thing in the work we were doing with renovating the properties that we were buying.

328. In cross-examination, Ms Hillman agreed that the only borrowings in respect of the purchase of the Queanbeyan factory was through a line of credit from Westpac, of which $55,047 was drawn down. This was not the $150,000 to which she had referred in the affidavit. She had made no direct contribution to that loan.

329. Ms Hillman agreed also that Mr Box lived in the Queanbeyan factory, though she asserted that she stayed there sometimes, including overnight and for some days at a time. She did not, however, change her address and still lived in her home at Latham. She never moved in to live at the Queanbeyan factory. She then said, curiously and somewhat inconsistently, that she and Mr Box "had both homes". She said, too, that Mr Box came to Latham and slept there from time to time.

330. Ms Hillman acknowledged that, unlike all the other properties, the Queanbeyan factory was not purchased in their joint names, but only in the name of Mr Box. This is inconsistent with paragraph 15 of her fourth affidavit set out above (at [324]). Significantly, she gave no explanation for that.

331. The property was purchased almost entirely from the proceeds of the sale of the Reid and Campbell properties received by Mr Box himself. It is of some significance in this context that Ms Hillman used part of the proceeds she received from the Reid sale to pay the mortgage of the Kingston property which was in the name of her daughter and herself; Mr Box had no interest in that property, as he had no interest in Ms Hillman's Latham property.

332. In this context, it was at least misleading, if not false, for Ms Hillman to depose, as she did, that the financial contribution to the purchase of the Queanbeyan factory was made by her. While the funds used to purchase the Queanbeyan factory "included" the loan from Westpac Banking Corporation, it was incorrect for her to assert, to put them at "approximately $150,000". She provided no funds herself, other than through the joint loan and she pointed to no evidence in any bank statement to show this.

333. Her evidence is also contradicted by what Lynda said she was told by Mr Box.

334. It was clear, too, that Ms Hillman considered that funds in Mr Box's own account were hers because she was a signatory to the account. She emphasised that she and Mr Box agreed that everything would be joint and they would share. That, of course, is not correct, for Ms Hillman never put her Latham property in joint names and never used it for security for loans to fund the purchase of the various properties. The property in Kingston, also, was another of her properties (with her daughter), despite her assertion that "we never ever separated anything" and "because everything we bought was joint". That simply was not the case. Both had separate bank accounts, though Ms Hillman could operate on that of Mr Box, though he could not operate on hers.

335. Ms Hillman did not particularise any financial or non-financial contribution she made to the purchase or maintenance of the Queanbeyan factory or produce any documents to show such contributions. She did not live there, at least in any sensible sense. Thus, her contribution to domestic services must be held to be limited.

336. I do not accept her evidence on the issue of the Queanbeyan factory. Accordingly, I am unable to accept that there was any joint intention that the property was to be owned jointly. It simply flies in the face of the evidence.

337. That finding is sufficient to dispose of the claim for a constructive trust. I am prepared, however, to go further and find that Ms Hillman has suffered no detriment. Insofar as moneys were paid into the joint account by her she has not satisfied me that they were paid out to Westpac in respect of the line of credit. Even if they were, I am not satisfied that Mr Box did not make substantial contributions to the living expenses of both parties and thus to meet any payments she may have made to Westpac.

338. I have tried, without the assistance of either counsel, to understand the various bank accounts and I am unable to conclude that Ms Hillman made any significant contribution to the Queanbeyan factory other than to permit the Westpac line of credit to be secured over the jointly owned Spence property. That involved her suffering no detriment to which she pointed in evidence or submissions.

339. The claim for a constructive trust must be dismissed.

THE CLAIM UNDER THE FAMILY PROVISION ACT

340. Ms Hillman submitted that no adequate provision had been made by Mr Box for her under his will of 15 April 2009. Indeed, no provision at all was made for Ms Hillman in Mr Box's will. She submitted that the failure to make such provision warranted the court making an order, a family provision order, under s 8(1) of the Family Provision Act 1969 (ACT) that provision be made for her out of the estate.

Jurisdiction and powers of the Court under the Family Provision Act

341. This Court has jurisdiction to make provision by a family provision order for an applicant if they are an eligible applicant. Section 7 of the Family Provision Act, states who is an eligible applicant and relevantly provides:

(1) Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person:

(b) a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;

domestic relationship - see the Domestic Relationships Act 1994, section 3.

partner, of a deceased person, means someone who -

(a) was the domestic partner of the person at any time; and

(i) was the person's spouse, civil union partner or civil partner at any time; or

(ii) was the person's domestic partner continuously for 2 or more years at any time; or

342. Section 3 of the Domestic Relationships Act 1994 (ACT) provides a definition of "domestic relationship" as follows

(1) In this Act:

domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.

Note For the meaning of domestic partnership, see the Legislation Act, s 169. It includes a civil union and a civil partnership.

(2) For subsection (1) -

(a) a personal relationship may exist between people although they are not members of the same household; and

(b) a personal relationship is not taken to exist between people only because one of them provides a service for the other -

(i) for fee or reward; or

(ii) on behalf of another person (including a government or body corporate); or

(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.

343. Section 169 of the Legislation Act 2001 (ACT) defines a person's domestic partner as someone who lives with the person in a domestic relationship.

344. Thus, Ms Hillman qualifies to make an application for provision under both of these limbs, either as a partner of Mr Box within the definition of s 9(a) and 9(b)(ii) thereby qualifying under s 7(1)(a), or as a person who was in a domestic relationship with Mr Box under s 7(1)(b), even though, as I have found, they separated, at the latest by early 2009. She is an eligible applicant.

345. I note that, until 1996, a former wife or husband could not make application under the Act unless the person "was maintained by the deceased person immediately before his or her death": s 7(2) of the Act. That provision, however, was amended by the Family Provision (Amendment) Act 1996 (ACT) which widened eligibility under the Act to include domestic partners but removed former wives or husbands from, and did not subject former domestic partners to, that limitation. There is now no such limitation on former spouses or domestic partners.

346. Eligible persons, such as Ms Hillman, are entitled to apply to this Court for an order that provision be made for them and the Court may make any order which the Court thinks fit under s 8(1). However, such orders may only be made in accordance with s 8(2)-(3), which require:

(2) The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available -

(b) if the deceased died intestate - under the law applicable to that intestacy; or

(3) The criteria for the Supreme Court's decision under subsection (2) in relation to the deceased and the applicant are as follows:

(b) the nature and duration of the relationship between the applicant and the deceased;

(c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

(d) any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

(e) the income, property and financial resources of the applicant and the deceased;

(f) the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

(g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

(h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

(i) the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;

(j) any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;

(k) any other matter the court considers relevant.

347. Thus, whether any provision should be made depends heavily on the particular circumstances of an eligible applicant.

348. In Hillman v Box (No 3) at [3]-[7], I noted the following with regards to the Family Provision Act:

[3] The Family Provision Act is the successor to the legislation which enables certain persons who consider that a will has not made adequate provision for them out of an estate to seek redress from the courts. Such legislation was first enacted in the early part of the last century, first in New Zealand (1900) and then in Tasmania (1912), Queensland (1914) and New South Wales (1916).

[4] The law of wills and succession was originally the province of the ecclesiastical courts in England. Australia had no such ecclesiastical courts. On the making of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) proceedings under it were conducted in the Equity Division of the Supreme Court. The practice in respect of such applications followed the practice of that Court. This approach has been adopted elsewhere.

[5] The focus of the law is on whether the deceased has made adequate provision for the proper maintenance and support of the applicant: Bondelmonte v Blanckensee [1989] WAR 305 (at 307). This, of course, involves a wide-ranging consideration of all the circumstances of the estate and the relationship between the claimant and the deceased: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd [1979] HCA 2; (1978-1979) 143 CLR 134.

[6] This remains the position in this Territory where s 8(1) of the Family Provision Act gives this Court power to order for "the provision as the court thinks fit be made for the applicant out of the [estate of a deceased person]". The criteria for the Court's decision are set out in s 8(3) but as they include "the character and conduct of the applicant: (s 8(3)(a)) and "any other matter the court considers relevant" (s 8(3)(k)), there is, inevitably, likely to be a wide ranging inquiry into events and incidents great and small in the life of the applicant and his or her relationship with the deceased.

[7] There are, of course, some formal criteria for an application, such as, the identities of the relevant people, the deceased (including date of death) and the executor, and that the applicant falls within a defined eligible category set out in s 7 of the Act. Those are, however, rarely in dispute.

349. After identifying the need for this matter to proceed by affidavit, I then held (at [8]):

[T]he High Court said in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210-211, [that] the question of whether adequate provision has or has not been made is the essential jurisdictional fact. It is a question of objective fact, proof of which requires a wide range of evidence encompassing the 11 criteria in s 8(3), including s 8(3)(k), in itself, wide-ranging. Thus, there is, in reality, only one fact in issue in the proceedings and that is always in issue.

350. Neither party disagreed with that broad approach.

351. While various formulations have been set out in the many cases dealing with such a provision, it is useful to set out what Higgins J said in Hackett v Public Trustee for the Australian Capital Territory (Unreported, ACTSC, Higgins J, 2 May 1997) at 29-30

Whilst that Act enables the court to modify the effect of a testator's disposition, it permits that modification only to the extent necessary to achieve, so far as it can or should, the proper maintenance etc of the person for whom provision should be made. It requires a balance between the established claims of named beneficiaries, the needs of the applicant, the size of the estate and, of course, the benefits provided otherwise to the applicant and others with legitimate claims on the testator's bounty.

As Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, 6 it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's role to achieve some kind of equity between the various claimants, see also Re Hodgson [1955] VicLawRp 77; (1955) VLR 481. The Court's role goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance etc of an eligible applicant.

352. There is no doubt that there was no provision for Ms Hillman in Mr Box's will. That is, however, not determinative of the application, despite the submissions of her counsel. Of course, the fact that no provision has been made would enable the court the more readily to find that no adequate provision has been made, as Gray J noted in Turner v Perpetual Trustees Australia Ltd [2001] ACTSC 56 at [8]. As his Honour went on to say, however, this depends on the totality of the relationship between an applicant and the deceased.

353. The proper approach seems to me to as be set out in what Dixon CJ said in Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19

It has often been pointed out that very important words in the statute are 'adequate provision for the proper maintenance and support' and that each of these words must be given its value. 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.

354. Despite some efforts to discourage courts from referring to a moral duty or moral obligation in determining this question (eg Hughes v National Trustees Executors and Agency Co Ltd [1979] HCA 2; (1979) 143 CLR 134 at 158, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at 218; [73]) the majority in Vigolo v Bostin, Gleeson CJ at 202; [21], 204-5; [25], Callinan and Heydon JJ at 230; [121] have found such terms still to have relevance, though, as Gleeson CJ pointed out, such terms are not to be used as a substitute for the text.

355. Ms Hillman's situation has been broadly set out above (at [112]-[116]).

356. In summary, she has her own home which is unencumbered, she has savings of $59,000 and owns a car worth $15,000. She receives an indexed pension which was, at the time of the hearing, $600 per fortnight and estimates her expenses as $1564 per month.

357. This raises a concern for me as her income is exceeded by her expenditure quite significantly, by about $364 per month. No explanation was given of how that was funded. There would, of course, be some interest earned from her lump sum investment, but it would not equate to that amount.

358. In her fifth affidavit, however, Ms Hillman refers for the first time to her employment as a carer with Domicilary Nursing. She deposed that "[t]his employment continues today". She works "reduced hours most shifts, averaging twenty-two hours per week". The evidence was not entirely clear, but it appears that she earns net $632 per week from this employment which would then well exceed the shortfall in her expenses, allowing her savings of $1128 per month.

359. She says her health is poor but I did not have details of that. As I have said, there were extensive medical notes of her various medical practitioners, but neither counsel took me to any part of them. In my view, it is not the function of a court to trawl through such material trying to take in what might be made of that. So far as I have done so, the notes do not support her assertion.

360. I simply note that she had significant surgery in 2002. The last report of her specialist seemed to be on 22 July 2003 when he reported "[s]he is well" and that she remained on hormone replacement therapy. He did not make a further formal appointment.

361. The most recent notes from a general practitioner seemed to be those dated 20 April 2011 which referred to her problems of 2002 and noted that her only current medication was a progestogen supplement. The prior consultation appeared to be on 26 July 2006, when an antibiotic was prescribed.

362. In those circumstances, it is difficult to see that, apart from the inevitable likelihood that the problems of health that are ordinarily associated with advancing age will have to be met by her, there is any particular medical need that requires addressing in this context.

363. Most significant, perhaps, is the fact that Ms Hillman received equal shares of the proceeds of the various properties that she and Mr Box purchased, developed and sold. That she purchased a property with her daughter and paid for part of it with the proceeds she had received but then has sought to give it to her seems to me also to be relevant.

364. Such a substantial gift cannot be used to create a need that would not exist without it. That, instead of following that course, Mr Box used the same proceeds he received for a purchase of the Queanbeyan factory, which he kept instead of gifting to his daughters, should not increase Ms Hillman's claim on his estate.

365. It is also relevant that it was Mr Box's initial funds that gave him and Ms Hillman the capital to start their business of purchasing, developing and selling houses, yet he was happy to share the ultimate proceeds with her.

366. I have no doubt that she contributed to that business, both in personal exertion and by providing funds from time to time. Mr Box, however, as a builder, provided a significant personal contribution as well as the majority of the funds. I reject Ms Hillman's assertions that she made an equal financial contribution.

367. While Ms Hillman's income is modest, her income well exceeds her expenses, which allows her to build up a capital sum for relevant contingencies. While a significant part of her income is not backed by a capital sum, it is in many ways more secure because it is a government, indexed pension not subject to the fluctuations of the market in the same way that an income from capital would be.

368. Ms Hillman has a home and a car without any encumbrances.

369. Her position seems to me to be similar to that of the plaintiff in Singer v Berghouse, as there set out at 213 in the description given by the learned Master in the court below, which the Court held his Honour was entitled to conclude.

370. It is also relevant that Ms Hillman is in the nature of a divorced wife. In that position, the courts have, in cases such as Re Adams (deceased) [1967] VicRp 115; [1967] VR 881 at 888 and Re Cutts (deceased) [1969] VicRp 31; [1969] VR 254 at 256, identified a range of relevant factors.

371. In this context, it is relevant that Ms Hillman was not the mother of any of Mr Box's children and has neither brought up his children nor has she dependent children. The separation was not a long one, but it was one in which a settlement provided for her.

372. The length of their life together is relevant and was neither insubstantial nor inconsequential. There is nothing remarkable about the course which their lives took after separation, save perhaps to say that Ms Hillman was able to make some but, on the facts that I have found, by no means the major contribution to caring for Mr Box during his illness.

373. I accept that Ms Hillman is currently employed and is supported by a pension. I accept, too, that she has limited prospects of remarriage.

374. In view of the Termination Agreement and the payment from the Campbell property proceeds, it does seem to me that the separation was intended to end their shared life and this should be reflected in my consideration. See Re Blood [1983] 1 Qd R 104 at 106. See also Re Fullard [1981] 2 All ER 796.

375. This is supported by the fact that there is no evidence of any contribution that Mr Box made to Ms Hillman between 2006 and the date of his death nor vice versa. The separation of residences was, of course, significant, despite Ms Hillman seeking to minimise it.

376. I consider, also that I should put Ms Hillman's moral claim in the context that she brought the Latham property into the relationship and left with the Latham property intact together with payments of at least $330,000 made directly to her from the sale of the various properties over the period of the relationship and that she and Mr Box purchased from the moneys he introduced from the sale of his pre-existing property. There is no doubt that these payments are relevant when considering her claim as noted by Bollen J in In the Estate of Guthrie (1983) 32 SASR 86 at 96.

377. I should not, and do not, ignore the fact that she initially provided Mr Box with a home for which he paid no rent, she contributed ordinary domestic services to the household and she made financial contributions to both the household and the purchase and improvement of the properties. There is no doubt, however, that Mr Box also made substantial contributions. His income was substantial and was paid into a personal account in his name but then a large number of significant amounts paid into the joint account. Ms Hillman had not, in her calculations, taken a large number of these into account in her calculations.

378. Against this is the situation of the defendants as the adult daughters of Mr Box. As can be seen from the descriptions I have given above of their personal circumstances, none of them are in necessitous circumstances but none are in the stable and secure circumstances of Ms Hillman.

379. Relevant is that Lynda is married but receives no financial support from her husband as they keep their finances separate, but clearly each contributes to the household costs, including mortgage payments. Her financial circumstances are comfortable and do not disclose significant need, save for the likelihood that her contract employment will end and cannot be extended or renewed.

380. Debrah is in the process of divorcing her husband. She owns her own home, subject to a substantial mortgage, but has a very modest income from her own business and from some rent. She receives no financial support from her spouse.

381. Skye is in a de facto relationship but she and her partner earn modest incomes with significant child support commitments. Her employment is also uncertain.

382. Were the defendants to have not received a benefit from Mr Box's estate, there is no doubt that, in the present state of the law, they would have been entitled to a significant provision. See, for example, Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 135. That their fortunes are uncertain is certainly relevant, as noted in Re Salathial [1971] QWN 18.

383. Having carefully considered the position of Ms Hillman, I do not consider that I should reject Ms Hillman's claims altogether. While I am satisfied that the domestic relationship ended by or at the latest late 2008 or early 2009, and likely earlier, I cannot and do not find that they did not maintain a connection and even Lynda's evidence showed that Ms Hillman provided some services to Mr Box while he was ill. As is made clear in Churton v Christian (1988) 13 NSWLR 241 at 253, this is relevant.

384. I also note that the period of the relationship was a significant one and it appears to have had mutual benefits and there can be no doubt that Ms Hillman made a financial as well as non-financial contribution to it. Its demise was relatively recent.

385. Given that I have found that she exaggerated her financial contribution it is entirely open to conclude that she has also exaggerated her non-financial contribution. I do not consider that I need to make a final decision about that, though I note that the Termination Agreement, which as I have noted, binds the parties, accepted that the non-financial contribution of each was equal.

386. Mr Hassall drew my attention to a number of cases which he submitted supported the making of a provision for Ms Hillman. A myriad of single instances is of no more assistance in this area that in the area of sentencing; principles are what matters, as the High Court noted in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 at 332; [41], though comparable cases can assist in helping to identify these relevant principles.

387. Both parties drew my attention to the ACT Court of Appeal decision in Chapman v Yang [2005] ASCTCA 37. While of assistance, it does not seem to me that the case is quite in point.

388. There, an equal distribution of the proceeds of the sale of the matrimonial home was made inter vivos as was a payment of a proportion of the deceased's retirement lump sum benefit. This provided the plaintiff with what was described (at [15]) as "a secure income backed by a large capital sum". Here, Ms Hillman certainly had a secure income through her superannuation pension but it was less than her expenses which I cannot describe as excessive or extravagant.

389. Nevertheless, she is presently able to accumulate funds from her earnings and has a capital sum to address those needs at least in part.

390. The Court was unpersuaded that the contingent wishes of the plaintiff should be met; the Court agreeing (at [24]) with the primary judge that the contingent wishes fell well short of need.

391. Given the age and circumstances of Ms Hillman, some provision for a contingency is not in the same category.

392. While the Termination Agreement must assume great significance in this matter, I do note that Ms Hillman received little from it. She gave up her interest in the Spence property in which, whatever the source of the funds to purchase it, she had an undivided half interest and a right of survivorship. All she received was to be relieved of the risk of being a mortgagor and debtor.

393. That property also secured a modest loan which Mr Box undertook to purchase the Queanbeyan factory; thereby Ms Hillman provided through her interest a security for the purchase of that property.

394. While Ms Hillman has been employed in the circumstances I have described above, that will not continue indefinitely.

395. I consider that some modest provision should be made for contingencies that she is likely to encounter in the future.

396. The corpus of the estate after costs is difficult to determine and the parties have not been helpful in providing me with details about that. A document entitled "Estate Assets" was tendered by consent. It showed assets, as at 20 December 2012, totalling $963,057.42.

397. It was noted, however, that there would be liabilities that needed to be taken into account. The costs of the defendants who, as executors, would ordinarily have their costs paid on a full basis.

398. There is a difference of opinion about the various descriptions of the basis for such costs - indemnity basis, solicitor-client basis (Krause v Sinclair [1983] VicRp 7; [1983] VR 73 at 78), solicitor-own client basis or trustee basis (Reeves v Berge Phillips (1982) 7 Fam LR 940 at 944).

399. The trustee basis is the basis which requires a trustee to be indemnified against all costs and expenses properly incurred (In Re Grimthorpe (deceased) [1958] Ch 615) and which are only to be disallowed if, in paying them, the trustee would have committed a breach of trust (In Re Whitley (deceased) [1962] 1 WLR 922). This seems an appropriate basis for payment of the defendants' costs out of the estate.

400. The costs allowed to date have been $100,000.

401. At the conclusion of the proceedings, however, the defendants counsel sought leave to have further costs paid. I agreed that a further affidavit could be filed which would quantify the further costs claimed. No such affidavit has been filed. Nevertheless, it seems to me that the additional costs, which would include the costs of the hearing, would not likely to be less than $50,000.

402. In addition, it was pointed out to me that there was likely to be a capital gains tax liability on the sale of the Spence and Queanbeyan properties. I permitted a report on that to be prepared and tendered. Again, I have not seen such a report.

403. It seems to me, however, that taking all these matters into account, the net value of the estate is likely to be approximately $700,000 to $800,000. It is, thus, neither a large nor a modest estate.

404. It is against this that I assess the needs of Ms Hillman and also the defendants as beneficiaries.

405. Doing the best I can, I consider that a provision of $50,000 is appropriate for Ms Hillman's circumstances.

406. This issued played very little part in the proceedings. There were no particulars of the furniture claimed and little evidence.

407. The Termination Agreement provided that the furniture and other chattels had been divided up. That is a full answer to the claim.

409. Each of Ms Hillman's claims must be dismissed, save that I am prepared to make provision to the extent of $50,000 to her under the Family Provisions Act.

410. Ordinarily, a successful plaintiff in proceedings such as these will receive costs on a common fund basis in this jurisdiction. See Re Adamow (deceased) (1989) 97 FLR 410 at 416. This is the usual basis of such orders in New South Wales as in, for example, Luciano v Rosenblum (1985) 2 NSWLR 65 at 72 and Re Fulop (deceased) (1987) 8 NSWLR 679 at 684. Such a basis, as referred to in the Rules of the Supreme Court 1965 (UK) in Order 62 Rule 28, is said to be assessed on a more generous basis than a party and party basis, applying the ordinary rule applicable to a solicitor client taxation, allowing a reasonable amount in respect of all costs reasonably incurred. Those costs are to be payable out of the estate.

411. I do not consider, however, that Ms Hillman should receive all her costs. I am mindful that she has had some success and had to take the proceedings in order to obtain that success. Nevertheless, she had made a large number of claims which occupied the majority part of the proceedings on which she has failed.

412. I would propose, subject to any contrary submissions, to allow her out of the estate one-fifth of her costs on a common fund basis.

413. As I have noted above (at [399]) the defendants are to have their costs on a trustee basis out of the estate.

415. It is a matter of great regret to me that the business of the court has delayed delivery of this judgment. Nevertheless, I have read carefully the entire transcript and the exhibits as well as the initial written submissions made by counsel and my substantial contemporaneous notes. These have resulted in a good recall of the proceedings and of the witnesses giving their evidence, despite the delay.

I certify that the preceding four hundred and fifteen (415) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the defendant: Dr G Ward and Mr G Theakston

Solicitor for the defendant: Tetlow Tigwell Watch Lawyers