HILLSTON v BAR-MORDECAI

Supreme Court of NSW|2002-09-30|Before: Bryson J

CITATION : HILLSTON v BAR-MORDECAI [2003] NSWSC 89 9-12, 16-19, 23-24 & 30 September 2002; HEARING DATE(S) : 1-5, 9-11, 14-18, 21-25 and 28-31 October 2002; 18-22, 25-29 November 2002. JUDGMENT DATE : 28 February 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Gifts set aside. Family Provision claim and claim to remove Administrator dismissed. see [274] - [276]

CATCHWORDS : FRAUD MISREPRESENTATION AND UNDUE INFLUENCE - Undue Influence - medical attendant - de facto relationship- F aged 72 and M aged 36 lived in shared households from about 1983 until she died in 1994 aged 83 M was medical practitioner and GP attending F throughout- treated her, referred her to Specialists and allowed access to medications- she gave him sums of money gifts, surgery, property by series of transactions including sale without payment of expressed consideration and later discharge of her mortgage, she paid purchase price of home purchased in his name as to one-third - no independent advice - no rebuttal of presumption of undue influence - M claimed (1) de facto relationship and (2) this answered the claim of undue influence. On large body of evidence of behaviour of M & F and knowledge and perceptions of relatives, friends and associates, held that there was no de facto relationship- further that relationship of H & W if it existed did not rebut presumption of undue influence. - FAMILY PROVISION - Claim by M failed- prescribed period exceeded and no cause shown to extend- not eligible person- on merits no prospect of success. - WILLS PROBATE AND ADMINISTRATION - Claim to remove administrator based on alleged false evidence relied on in proceedings in which administration granted- dismissed. Family Provision Act 1982 LEGISLATION CITED : Wills Probate and Administration Act 1898 Property (Relationships) Act 1984 Plunkett v. Bull (1915) 19 CLR 544 Johnson v. Buttress (1936) 56 CLR 113 Watkins v. Combes (1922) 30 CLR 180 Poosathurdi v. Kanappa Chettiar [1919] LR 47 IA 1 Linderstam v. Barnett (1915) 19 CLR 528 at Haskew v. Equity Trustees Executors and Agency Co. Ltd (1919) 27 CLR 231 Hartigan v. International Society for Krishna Consciousness Inc [2002] NSWSC 810 Mitchell v. Homfray (1881) 8 QBD 587 Dent v. Bennett (1839) 4 My.&Cr.269 CASES CITED : Gibson v. Russell (1843) 2 Y&CCC 104, 63 ER 46 Blackie v. Clark (1852) 15 Beav. 594 Ahearne v. Hogan (1844) Drury temp. Sug. 310 Billage v. Southee (1852) 9 Hare 532 Quek v. Beggs (1990) 5 BPR 11761 Yerkey v. Jones (1939) 63 CLR 649 Garcia v. National Australia Bank Ltd (1998) 194 CLR 395 Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113 Royal Bank of Scotland v. Etridge (No.2) [2001] 3 WLR 1021 Lewis v. Lewis [2001] NSWSC 321 PARTIES : Allan David James Hillston - Plaintiff in 3240/98 and Defendant in 1709/99 and 3039/02 Michael Jacob Bar-Mordecai - Defendant in 3240/98 and Plaintiff in 1709/99 and 3039/02 FILE NUMBER(S) : SC 3240/98; 1707/99 and 3039/02 COUNSEL : J. Whittle SC & B. Burke for A. Hillston M. Bar-Mordecai in person SOLICITORS : Shaw McDonald for A. Hillston M. Bar-Mordecai in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3240/98 - ALLAN DAVID JAMES HILLSTON V MICHAEL JACOB BAR-MORDECAI & ANOR

1707/99 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

3039/02 - MICHAEL JACOB BAR-MORDECAI V ALLAN DAVID JAMES HILLSTON

2 The litigation and the parties . 3. claims based on Undue Influence 4. eligible person 6 Probate litigation 7 claim to revoke Letters of Administration 9 her medical practitioner 10 initial contacts 12 unsupervised access to drugs 14 other payments 15 Gifts and claims of Undue Influence . Gifts of money 18 gift of surgery - sale and price 20 mortgage on surgery 21 round-robin 22 purchase of Eastbourne Avenue 24 Influence and Independent Advice . Confidence conferred on him 25 no independent advice 26 lawyers 27 Freeman, Selinger 30 Husband-and-Wife Transactions and the Law . De facto relationship as the explanation 32 Johnson v. Buttress and Undue Influence Law 37 medical attendant case law 38 benefits conferred by a wife-equitable presumptions of an invalidating tendency - Yerkey v. Jones 44 Garcia 47 the particular facts Jenyns v. Public Curator 50 statutory definitions 51 Issues, Side Issues and Credit . Antipathies and the maze. 52 Jack Hillston 53 Credit of Bar-Mordecai 55 his memory loss 57 unreliability in his behaviour 58 Eveline Hillston and lies 59 his true feelings 61 improbabilities 62 Sex, Ethics and Probabilities . Her sexual experience 63 her health and wish for euthanasia 66 diary entries 68 medical ethics 70 demeanour 71 his evidence is unreliable 72 Eveline Hillston's Ability and Property : intelligence, education and experience. 74 resources in 1983 76 resources in 1988 77 effect on income 79 Some Details of Events . 1979 to 1983 81 moving in to Mount Street 82 she purchases the surgery 84 videotape establishes sexual element in relationship 85 bedrooms at Mount Street 86 Lucy Ballin 87 selling the surgery, buying Eastbourne Avenue, financing and mortgages 90 concealing the interest rate. 91 leasing, picking up wills, moving in, discharging her surgery mortgage 92 preference for Mount Street and her need for Eastbourne Avenue 93 Commonwealth Bank mortgage over surgery 95 assurances of further benefits 97 Evidence of Hillston Family Members . Hostile stories, disposition towards her nephews 101 Jane Hillston 103 Allan Hillston 104 finding on bedrooms at Mount Street 105 bedrooms at Eastbourne Avenue 106 her mobility 108 complaint to Police about her death 109 Alexander Hillston 110 interpretation of the relationship 111 challenges to credit 112 seeing them cuddling in bed 114 Witnesses called by Allan Hillston . Professor Kraemer 118 Betty Connell 122 Lorna Cossar 123 Charles Monty 129 conflict with evidence of Tatyana Daych 130 failure to call others 135 Witnesses called by Mr Bar-Mordecai . Knowledge of personal life. 136 Dr Isaac Mordecai 138 Ruby Mordecai 141 Elias Mordecai 144 the swindle and God's reward 147 Adriana Gudas 152 Iosif Gudas 153 Elsa Clut 158 Josephine Hren 159 Veronica Marsh 162 Jitka Vilimovsky 164 Kora Nowak 167 Paula Carew 168 Fred Chemler 170 Yossi Litvin 171 Makrim Mohamed 173 Antonio Jose 174 Desmond Self 175 Kathleen McCue 176 others 177 Kenneth John 179 Evaluation of the Relationship . Viola Yakovleva 183 payments, household expenses 185 Citibank mortgage 187 ANZ and Citibank finance as personal loans 188 work on Eastbourne Avenue 189 Citibank security over surgery for $439,978.42 190 duration 191 Awareness and interpretation 192 concealment 194 displays of physical intimacy 197 display of emotion at hospital 199 assisting with mobility 200 avowal of the relationship 201 constant companions 202 at work 203 household 204 surnames 205 the age difference 207 seen sharing a bed 209 Public authorities and written records . 212 letters to relatives 214 creative writing 215 statements by him about the relationship. Bentwich 219 statements on videotape 220 do destroy it 226 not your wife or your mother 228 daughters at Mount Street and Eastbourne Avenue 230 advantages to her 231 findings on sharing bedroom 232 Family Provision Claim . 234 economic exploitation 235 he is not an eligible person 236 need for extension of prescribed period 241 Lewis v. Lewis 242 cause for not applying in prescribed period 245 solicitors' advice 249 evidence of search for will 253 telling Hallen and Lynch 259 could have applied during prescribed period - not sufficient cause 260 no prospect of an order under s.7 262 Claim to revoke Letters of Administration . No basis. 263 Claims based on Undue Influence . Gifts should be set aside 264 sale of Eastbourne Avenue realised $579,555.46 now invested 265 sale of surgery realised $2,209,186.29 now invested: Citibank was paid $439,978.42 267 rent on surgery $112,112.24. 270 rent on Eastbourne Avenue $37,382.71 271 account of dealings with assets 272 estoppel 273 costs. 274 Conclusions and Orders . 2 The Litigation and the Parties: Eveline Hillston late of 30 Eastbourne Avenue, Clovelly, New South Wales, died there on 25 June 1994 aged 83 years. On 22 October 1998 this Court granted to Allan David James Hillston letters of administration of her estate with a copy of her last will dated 31 August 1989 annexed. Mr Allan Hillston was one of many beneficiaries under the will. He is the plaintiff in proceedings 3240 of 1998, and the defendant in two other proceedings heard with them. He is one of the two sons of Simon Hillston, a brother of Jack Henry Hillston, who died on 4 August 1983 and was the husband of Eveline Hillston; hence Mr Allan Hillston and his brother Alex Hillston were and were treated by Eveline Hillston as her nephews. The will appointed Michael Jacob Bar-Mordecai as executor and trustee of the will, but this Court did not grant probate to him as he was regarded as unsuitable to exercise the office of executor. Although the grant of probate is dated 22 October 1998 Mr Allan Hillston held earlier interim grants from 21 July 1998 on. 3 In proceedings 3240 of 1998 Mr Allan Hillston sued Mr Michael Bar-Mordecai to set aside and obtain remedies against a number of gifts made by Eveline Hillston to Michael Bar-Mordecai in her lifetime on the ground that the gifts were obtained by the presumed exercise of undue influence by Mr Michael Bar-Mordecai as Eveline Hillston's medical advisor. In proceedings 1707 of 1999 Mr Michael Bar-Mordecai claims further provision out of the estate for himself alleging that he is an eligible person within the definition in s.6(1)(a)(ii) of the Family Provision Act 1982 as in force at the time Mrs Eveline Hillston died. His claim under the Family Provision Act is a claim against a deceased estate and his evidence should be considered with the special care required by the decision in Plunkett v. Bull (1915) 19 CLR 544: see Isaacs J at 548-549. 4 The definition of "eligible person" in s.6(1)(a)(ii) is in these terms:"eligible person", in relation to a deceased person, means - (a) a person who -… (iii) where the deceased person was a woman, was a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis; 5 What Mr Bar-Mordecai claimed was that, in every-day language, he was living in a de facto relationship with the deceased. He made a further claim under paragraph (d) of the definition of "eligible person", which relates to a dependent member of a household; but he did not press this claim at the hearing. 6 Mr Michael Bar-Mordecai claimed, in the probate proceedings which the Court (Einstein J) decided in 1998, that he was entitled to administration on intestacy as the de facto husband of Mrs Eveline Hillston in the meaning given to that expression by s.32G of the Wills Probate and Administration Act 1898; that definition has a strong general similarity to the definition of "eligible person," although there are differences of expression. He claimed that the will of 31 August 1989 had been revoked, and that he as de facto husband was entitled to Mrs Eveline Hillston's estate on intestacy; Einstein J determined that the will had not been revoked. This decision was affirmed on appeal. His Honour also found that Mr Michael Bar-Mordecai was not Mrs Eveline Hillston's de facto husband, although that decision was not essential for the outcome. 7 In the Summons in proceedings 3039 of 2002 Mr Michael Bar-Mordecai claimed an order that the letters of administration granted to Mr Allan Hillston be revoked, that Mr Allan Hillston be removed as administrator and that Mr Michael Bar-Mordecai be appointed administrator. He filed a Statement of Claim in those proceedings; the Statement of Claim makes various claims for damages, costs and interest, on the basis of allegations which contain much material which is obviously extraneous; the Statement of Claim when taken as a the whole cannot be understood, and it cannot be treated as a pleading of facts which support the claims in the Summons. 8 All three proceedings were heard together from 9 September 2002 to 29 November 2002, 47 sitting days, although on three of those days Mr Michael Bar-Mordecai did not attend, or obtained adjournments on the ground that he was ill. Mr Bar-Mordecai conducted the hearing in person throughout. 9 The foundation of the claim of undue influence is that from about August 1983 until Mrs Eveline Hillston's death Mr Bar-Mordecai was her treating general medical practitioner; this is admitted on the pleadings. Mr Bar-Mordecai was a registered medical practitioner conducting a general practice throughout the relevant events and thereafter until he was struck off by order of the Medical Tribunal on 6 September 2000. He is referred to at many places in the evidence as Dr Bar-Mordecai. His medical file relating to Eveline Hillston Exhibit 4 records 8 attendances up to and on 23 August 1983. Mrs Eveline Hillston also consulted doctors in the City until she ceased work and sold her business in 1982. From 1983 onwards Mr Bar-Mordecai was her only general practitioner; she also saw many specialists. His recorded medical attendances on her are very numerous; for example, in Exhibit CS one record shows 59 attendances from 3 August 1984 to 27 July 1987; another shows 22 from 7 August 1987 to 29 April 1988; another record shows 28 attendances from 19 September 1989 to 7 July 1992. Exhibit 30 shows 56 attendances from 9 March 1993 to 25 June 1994; 33 of these occurred from January to June 1994. His recorded attendances were frequent throughout the relationship and became more so as time progressed. Mrs Eveline Hillston was a patient at the Wolper Jewish Hospital in Woollahra from 10 to 24 April 1994 suffering from chronic airways limitation. In the hospital's records Dr Bar-Mordecai's name appears as her medical attendant, and his signature appears as her medical attendant at a number of places. 10 Mr Bar-Mordecai submitted that the de facto relationship which he alleges did not commence as a consequence of a doctor-and-patient relationship, but as a result of an initial social relationship. This submission is contrary the evidence he first gave on the subject, which shows clearly that his initial contact with Mrs Eveline Hillston arose from her requesting him to see and treat her husband, which he then did for some years from 1979 until her husband's death in 1983, and that during that time he also gave Mrs Eveline Hillston some medical treatment. He later sought to withdraw from this but in my finding his first account was probably correct. Mr Bar-Mordecai's acquaintance with Mr Jack Hillston and Mrs Eveline Hillston came into existence in the context of his treating Mr Jack Hillston, and later Mrs Eveline Hillston, and he first entered their home and spent time in her company in the context of professional attendances. Before Mr Jack Hillston died the relationship of medical attendant and patient between Mr Bar-Mordecai and Mrs Hillston was well established. It was not correct in fact to contend that the relationship, allegedly a de facto relationship, arose as a result of an initial social relationship. The question whether Mr Bar-Mordecai's first or early contacts with Mrs Hillston took place in a social context or in a professional context of her asking him to give medical attention to her husband is not of real importance. The presumption of undue influence arises where the recipient of a gift is the donor's medical attendant, no matter how the recipient came to be the medical attendant. It was in breach of the well-known ethics of the medical profession that he embarked on a sexual relationship with her and took benefits of substantial economic value from her. His conduct was also in breach of ethical principles which restrain emotional and economic exploitation of aged women who have recently been widowed, and these principles are not special to the medical profession. 11 The fact that Mr Bar-Mordecai was a medical practitioner and Mrs Eveline Hillston's usual medical attendant and general practitioner was always central to the relationship between them. Her usual mode of address to him in the presence of others, and of reference to him in his absence, was "Doctor," an expression she used with every show of respect. She had very ready and convenient access to him for his advice and treatment, as they shared dwellings and associated in the course of each ordinary day, including her attendance at the surgery to perform office work there. She had ready access to medications through Mr Bar-Mordecai, including ready access to medications in the drug cupboard at the surgery, not effectively controlled by him and in disregard of legal requirements. If he had not been a medical practitioner it is not possible that Mrs Eveline Hillston would have given Mr Bar-Mordecai so much attention, shared her dwellings with him and conferred large gifts on him, over a number of years. 12 Mrs Eveline Hillston was given privileged access to prescription drugs without the degree of supervision which it was appropriate for her medical attendant to exercise. This signal advantage of the relationship to her is an aspect of the existence and exercise of undue influence by him over her. She had free access to drugs including drugs described by Mr Bar-Mordecai as hypnotics, some of which were capable of being dangerous, depending on how they were used; she used hypnotics sometimes to assist her with sleep. The evidence does not show that she suffered any addiction, or used any prescription drugs to excess, and does not show that her conduct in relation to any of the gifts was affected by her having ingested any drug. 13 Mr Bar-Mordecai did not keep a written drug register in accordance with the law in force at the time. He maintained that he kept a more comprehensive record as a computer record, but acknowledged that he did not comply with what the law required. Mrs Eveline Hillston had ready access, not in a practical way controlled by Mr Bar-Mordecai, to drugs kept in his surgery and used in his practice, including dangerous drugs referred to as Schedule 8 drugs, subject to stronger restrictions and required to be kept in a locked cupboard; there was no locked cupboard. Mr Bar-Mordecai's inability to see, or unreadiness to acknowledge the impropriety of his not maintaining controls over Mrs Eveline Hillston's access to drugs illustrates his inability to take an objective view of her interests; and indeed of his own interests. 14 Mr Bar-Mordecai submitted: "It is submitted that a medical practitioner does not pay his patients' household expenses, home renovation costs, or mortgage repayments, nor would he discharge a large mortgage repayment, with principal and interest, accruing interest to May 2002 to over $1,600,000, except in the circumstances as in these current where the recipient of the benefaction is his de facto wife who might also be his patient." As will appear from these reasons, I do not accept all the assertions of fact in this submission. The consequences for the law relating to Undue Influence of the admitted fact that he was her treating general medical practitioner would not be altered by a showing that there were other ties and relationships between them. 15 Gifts and Claims of Undue Influence. Mr Allan Hillston claims to set aside a number of gifts including these gifts of sums of money:in 1983, a gift of $30,000in 1984, a gift of $20,000in August 1985, a gift of $25,000in January 1986, a gift of $20,000 16 It is admitted that these gifts were made. The pleadings show that the first gift of $30,000 in 1983 was a gift to purchase a computer and that the gift of $25,000 in August 1985 was a gift to purchase an Altos computer; the gift of January 1986 of $20,000 was a gift to purchase a second-hand Altos computer. Mr Michael Bar-Mordecai's evidence was to the effect that he told Mrs Eveline Hillston to give away $130,000 in cash which he says she had with her in her unit in August 1983; the first gift, of $30,000 in 1983, was then given to him. He also said that $20,000 was given to him for payment of legal fees for his divorce; this appears to be the second gift alleged. 17 Mr Allan Hillston also alleges (FASC 21C) that about 1988 or 1989 Mrs Eveline Hillston gave Mr Bar-Mordecai $40,000 as a contribution towards building a new waiting room at the surgery. 18 Mr Allan Hillston alleges that a series of events dealing with a building at 212 Clovelly Road Clovelly, usually referred to as the surgery, constituted a gift of the surgery by Mrs Eveline Hillston to Mr Bar-Mordecai. These events took place over a number of years. They began with a contract for sale of the surgery from Mrs Eveline Hillston to Mr Bar-Mordecai dated 21 October 1987 for $360,000, completed on the same day by a transfer which was registered on 13 January 1988; no part of the purchase price was then paid, $250,000 was secured by a registered mortgage back to Mrs Eveline Hillston and $110,000 remained unpaid and unsecured, and dealt with by an undated acknowledgement of indebtedness. No evidence explained why the $250,000 and the $110,000 were dealt with in different ways. As the acknowledgement speaks in terms of a present debt, not of repayability subject to call, the balance of $110,000 was probably extinguished by operation of the Limitation Act 1969 in October 1993. There was no provision for interest to be payable on the $110,000. Another acknowledgement signed by Mrs Eveline Hillston provided for the $110,000 to be released on her death. The mortgage was discharged without payment by a discharge signed by Mrs Eveline Hillston on 8 July 1993 and registered on 13 September 1993. These dealings with the surgery occurred in the context of earlier events in which she acquired the surgery and leased it to him on favourable terms: I refer to these events later. As well as contending that these dealings, although extending over almost six years, and including, at least in form, several contracts, constituted overall a gift of the surgery, the plaintiff claimed alternatively that various elements in the events were also gifts. Mr Michael Bar-Mordecai did not in his final submissions dispute but conceded that the substance of the events was that there was a gift of the surgery, as in my view there plainly was. 19 Mr Michael Bar-Mordecai's evidence does not explain how these transactions originated and what preliminary discussions or negotiations there were, if there were any. The sale of the surgery to him was very unusual in the respect that it was completed by transfer on the same date as the contract; this is consistent with haste and the absence of deliberation or reflection, and has not been explained. There is no evidence that Mrs Eveline Hillston consulted any independent person or received any advice about whether to make a gift of the surgery, or about the strange arrangements about the purchase price; and it should be concluded that she had no advice from anyone other than Mr Michael Bar-Mordecai about whether to make the gift. Mr Bar-Mordecai explained the selection of $360,000 as the price in a strange way. He said that he had information from a local real estate agent that the property was worth about $320,000 to $330,000, and $360,000 was stated as the price to create a higher cost base so that on any future sale the incidence of capital gains tax payable by Mr Bar-Mordecai would be reduced. This explanation makes it doubtful that Mr Bar-Mordecai ever intended to pay all the $360,000. As events turned out, he paid very little of it. 20 The mortgage provided for interest at 10% per annum, and principal and interest were payable by monthly payments of $2,645 to begin on 21 October 1987, $31,740 per year, over 15 years. The market rate was 15% per annum for such a mortgage at the time. According to the terms of the mortgage repayment was to take 15 years with a final payment on 20 October 2002. Interest was to be calculated at six-monthly rests. Mr Bar-Mordecai did not conform with the requirement for monthly payments. If the scale of monthly payments had been complied with, interest during the first six months would have been $12,500 and payments would have been $15,870, producing a reduction in principal of $3,370. Evidence of Mr Selinger shows that Mrs Eveline Hillston's tax return to the 30th of June 1990, which he prepared on information supplied by her, showed as income $15,072 as interest received from Mr Bar-Mordecai on a mortgage. This would suggest that much of the interest for that year was left unpaid. The evidence does not enable the amount of principal repaid to be calculated. It is alleged in the pleadings that the defendant paid the instalments up to 30 June 1990 meaning, I take it, the instalments payable up to 30 June 1990; the defendant's oral evidence suggested that payment may have been made only for two years or thereabouts, to about October 1989, but I accept what the pleadings establish. 21 The plaintiff alleges and the defendant admits that Mr Michael Bar-Mordecai paid $31,740 in the year up to 30 June 1991, and that the same sum was received back by him on 1 July 1991; and that the same thing happened the following year; he paid $31,740 on or by 30 June 1992 and received back the same amount on 1 July 1992. The plaintiff then claims that the two sums of $31,740 were also gifts. I see Mrs Eveline Hillston's foregoing these sums not as further gifts but as part of the demonstration that there was in substance a gift of the surgery. The defendant explained the transactions as a round-robin between husband and wife to minimise tax. The minimisation effect appears to be his treating the interest component of the mortgage instalments as a deduction in the assessment of his professional income; the interest then formed part of her assessable income and would be liable for tax, presumably at a lower rate than the tax on his income (depending on what his income was); however he got back the amount he paid, and was not out of pocket. There would be a minimisation effect only if their interests were regarded as identical. The gap between the mortgage interest at 10% per annum and the then current market rate for such a mortgage of 15% per annum represented, on the initial principal of $250,000, an annual advantage of $12,500 to Mr Bar-Mordecai. If it were right to perceive the round robin arrangement as a tax minimisation measure, the concessional interest rate would represent a considerable neglected opportunity for tax minimisation. 22 Mrs Eveline Hillston and Mr Michael Bar-Mordecai as purchasers entered into a contract dated 30 November 1988 to purchase the house property 30 Eastbourne Avenue Clovelly for $665,000. The terms of the contract showed that she was to have two-thirds and he was to have a one-third interest as tenants in common. Financing was obtained from ANZ Bank; this operated at least as to part of the purchase price as bridging finance, and within a few months, in transactions which have not been proved in detail, Mrs Eveline Hillston raised and paid all moneys required to pay for the Eastbourne Avenue house. However the house remained subject to successive mortgages to banks. The plaintiff claims that the one-third interest as tenant in common obtained by Mr Michael Bar-Mordecai was in substance a gift to him by Mrs Eveline Hillston. As she paid the whole of the purchase money it plainly was a gift. 23 Each of these gifts was a very substantial gift, out of the order of ordinary tokens of regard or affection. 24 Influence and Independent Advice. Mrs Eveline Hillston conferred her confidence on Mr Michael Bar-Mordecai very fully, and dealt with her property in accordance with his interests, from very early in their relationship. This is shown in a full and clear way by her purchasing the surgery, committing her resources to it, equipping it for his use and granting him a long term lease in September 1983, by her taking his advice about giving away a large sum of money which she kept in the home unit, by her making gifts of significant sums to him in 1983, 1984 and 1985, by her providing him with housing and by the fact that by the middle of 1984 he was aware of everything she owned and its approximate value. On 16 August 1984 Mr Bar-Mordecai was given authority to operate Mrs Hillston's Commonwealth Savings Bank account at the Clovelly Branch - Exhibit 46. Authority dated 30 August 1983 to operate the account of Michael Bar-Mordecai Pty Ltd at the Commonwealth Trading Bank Clovelly - Exhibit 45 names Mr Bar-Mordecai as Director (as well as others) and names Mrs Hillston as Secretary. The copy in evidence is too indistinct to show whether two signatures were required or whether she was authorised to sign documents alone. His influence and dominance over her dealings with her property were established early, and from then on all significant dealings by her with her property were shaped around his interests, and every significant investment or disposition of property by her was favourable to his interests. There was no other person in whom she placed corresponding confidence, and no other person whom she made a practice of consulting for advice or on whom she conferred large benefits, although she could if she chose have consulted her nephews, who were men of business, and she could readily have found a source of independent advice from a solicitor, an accountant or in some other way. There are a few slight indications here and there of discontent on her part, but discontent was never expressed in any truly independent action. Her conduct of her affairs in matters relating to her property presents a picture of dominance by Mr Michael Bar-Mordecai from August 1983 onwards. 25 There was no evidence that Mrs Eveline Hillston at any point received independent advice from a solicitor, accountant or any other professional or non-professional person who might be thought to have been in a position to give her independent advice or to bring her mind to bear, independently of Mr Bar-Mordecai and his influence, on any decision to make any of the gifts. Evidence about the evolution of decisions to make the larger gifts is slight at the most and for some of the gifts of money there is no evidence about the circumstances in which Mrs Eveline Hillston decided to make them. 26 At different times Mrs Eveline Hillston had access to lawyers at a number of firms who conducted legal business for her. These included Mr Hulme of Hattersley & Hulme, who had earlier advised Mr Bar-Mordecai and acted for her on the purchase of the surgery, Messrs Peter Wise & Co. who acted for her in obtaining probate of her late husband's will, and Mr Freeman and his assistant at Blessington Judd Solicitors who acted for her in the preparation of several wills, in the purchase of the Eastbourne Avenue property, and in the sale of the surgery to Mr Bar-Mordecai. There is no evidence that any of these lawyers, or any other lawyer or professional person, gave her any independent advice in relation to any of the gifts, or received any information or had any dealings with her which could support the view that independent advice overcame any undue influence in any of the gifts. 27 Mr Freeman gave no evidence of having given independent advice to Mrs Hillston in relation to any transactions. There is no reason to think that he was consulted for independent advice, and there is no reason to think that he was given sufficient information about the transaction to bring the subject to his mind as one for possible consideration. He was not told that Mr Bar-Mordecai was Mrs Hillston's treating general medical practitioner, and there is no evidence that he was told sufficient circumstances of the transactions to enable him to see that they had the character of gifts. Mr Bar-Mordecai said that Mr Freeman directly asked whether there was a de facto relationship. This evidence is not borne out by Mr Freeman's evidence and I disbelieve it. In Mr Freeman's observation they were caring towards each other, and Mrs Hillston was concerned about Mr Bar-Mordecai's welfare. Mr Selinger the accountant was also not told that Mr Bar-Mordecai was her treating general medical practitioner, and was not told circumstances which made it appear that the transactions with real property were gifts. He advised her against selling the surgery, which advice she did not accept. This advice was not directed to whether or not she should make a gift of the surgery; it related to whether it was a good business proposition to sell it or to retain it. Mr Selinger's evidence showed that Mrs Hillston did not ever tell Mr Selinger to the effect that she and Mr Bar-Mordecai were living as husband and wife, or lovers; and Mr Bar-Mordecai did not ever say anything to that effect to Mr Selinger. This is particularly significant in relation to Mr Selinger, whom she knew over a number of years and with whom she exchanged correspondence on a personal level after her husband's death. There is no basis on which it could be found that Mr Freeman, Mr Selinger or any other person gave Mrs Hillston any relevant advice about whether she should make any gift. The fact that she did not look for or seek advice from them or so far as it appears from any other source is an indication of the extent of Mr Bar-Mordecai's influence over her and her decisions. She did not even have enough independence to raise the subject with professional advisors. 28 There was no lawyer or other possible adviser who was sufficiently informed of Mrs Eveline Hillston's circumstances, or of any facts and circumstances relating to any of the gifts, to be in a position to give her any advice which could qualify as independent advice so as to overcome a presumption of undue influence; no-one who could possibly be thought of as fully informed. In the course of closing submissions I said: I don't think it is appropriate to search the judgments for a complete prescriptive statement of what is and what is not sufficient, because the jurisdiction is a jurisdiction to deal with exceptions and/or mitigations and it deals with them by a judgment which evaluates the facts of the instant case and not by applying any highly prescriptive body of rules. It is for that reason that attempts to bring rigour to bear on what one finds in judgments about what advice must be given, run out in the sand. They can usually be confounded by an attempted comparison with other also apparently well reasoned and authoritative expositions.

I am still of that view; but in this case there is no possible independent advice to examine or evaluate. 29 So in summary Mr Allan Hillston relies on the fact that Mr Bar-Mordecai was, at the times of all the gifts, Mrs Eveline Hillston's medical attendant, and also relies on the presumption of undue influence which arises in those circumstances. Mr Michael Bar-Mordecai's position, to state it very shortly, is to the effect that the gifts are explained as ordinary transactions between wife and husband, and were not the product of exercise of undue influence, or of the relationship of medical advisor and patient. 30 Husband-and-Wife Transactions and the Law. Mr Michael Bar-Mordecai took the broad position that the de facto relationship explains the gifts and does so in a full way which excludes any undue influence exercised by him, and excludes any ground related to his being her medical advisor for inferring that there was undue influence. He characterised the gifts as "… husband and wife transactions set in motion to minimise taxation and to assure the surviving partner was well cared for under all possible future contingencies." (Written Submission 6, para 18). He repeatedly and vehemently referred to himself as Mrs Eveline Hillston's husband, and to her as his wife, and treated that relationship as overcoming any basis for a conclusion that the gifts had been produced by undue influence. His position does not reflect the law about gifts by a wife to a husband. Mr Bar-Mordecai's written submissions included "The Plaintiff's presumption in law operates in light of the defendant's admission that he was the deceased's treating medical practitioner. However the presumption is negated if the medical practitioner has been shown to be the Deceased's de facto husband, as is the case in these proceedings." (Written Submission 6 para 7). There is no legal basis for the contention that the presumption is negated in those circumstances; Mr Bar-Mordecai did not refer to any basis for this contention. 31 A deep anomaly of Mr Bar-Mordecai's case is that if he and Mrs Eveline Hillston had truly seen that their interests were identical because each thought of them as husband and wife, it is difficult to see any reason why any property of hers would be transferred to him during her lifetime. It was obviously a possible future contingency that he might predecease her. 32 In Johnson v. Buttress (1936) 56 CLR 113 134-135 Dixon J explained the grounds on which equity intervenes to set aside gifts produced by undue influence: The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practise such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act. But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected. When they stand in such a relation, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendency or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour. But, except in the well-recognized relations of influence, the circumstances relied upon to establish an antecedent relation between the parties of such a nature as to necessitate a justification of the transaction will be almost certain to cast upon it at least some measure of suspicion that active circumvention has been practised. This often will be so even when the case falls within the list of established relations of influence. 33 Later in the same judgment Dixon J at 135-136 said: Further, when the transaction is not one of gift but of purchase or other contract, the matters affecting its validity are necessarily somewhat different. Adequacy of consideration becomes a material question. Instead of inquiring how the subordinate party came to confer a benefit, the court examines the propriety of what wears the appearance of a business dealing. 34 These passages have become a classic source of Australian law. They do not stand alone and are well supported, for example by the observations of Latham CJ at 119-120. In some authorities the burden placed on the recipient of justifying the gifts is stated in rather stronger language than that used by Dixon J. In Watkins v. Combes (1922) 30 CLR 180 at 194 Isaacs J cited with approval the passage in a judgment of the Privy Council - Poosathurdi v. Kanappa Chettiar [1919] LR 47 IA 1 which includes the following statement: … the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent. 35 As Isaacs J said in the first part of this passage, the burden is heavy. It was not however Isaac J's view, and is not in my opinion correct in principle that independent advice is absolutely required; see Linderstam v. Barnett (1915) 19 CLR 528 at 531, Haskew v. Equity Trustees Executors and Agency Co. Ltd (1919) 27 CLR 231 at 235. 36 In Hartigan v. International Society for Krishna Consciousness Inc [2002] NSWSC 810 I had occasion to consider undue influence in relation to religious advisors and religious beliefs. I made some observations in the judgment about the basis on which the Court acts and the position of a donor. At [28] I said: Characteristically persons claiming this relief have made gross errors of judgment, obvious to any objective outsider. Finally, an owner of property is entitled to dispose of it, even to dispose of it in a very imprudent way, but the Court requires to be satisfied that the transaction is not unconscionable after examining the events and circumstances closely.

At [33] I said: The focus of attention on public policy and prevention of abuse is important for understanding why the law is as exacting as it is, which is not well understood by focussing on the position of the donor, who in the nature of things has behaved foolishly and has brought about a transaction against his own interests. 37 The inclusion of physician and patient among the relationships for which the burden of disproof is imposed on the donee is well established. It was accepted in the Court of Appeal in Mitchell v. Homfray (1881) 8 QBD 587; and the relationship is usually mentioned in judgments which give lists of confidential relationships giving rise to a presumption of undue influence, although actual examples of litigation against medical attendants were more common in the Nineteenth Century than they have later been. See Dent v. Bennett (1839) 4 My.&Cr.269; 41 ER 105, Gibson v. Russell (1843) 2 Y&CCC 104, 63 ER 46, Blackie v. Clark (1852) 15 Beav. 594, 51 ER 669, Ahearne v. Hogan (1844) Drury temp. Sug. 310 (a decision of Sugden LC in Ireland) and Billage v. Southee (1852) 9 Hare 532, 68 ER 623. These cases underlie the ready acceptance of the relationship in Mitchell v. Homfray, and the inclusion of the doctor and patient relationship in the list of established categories in Johnson v. Buttress; and in lists in Billage v. Southee at p540, and in Quek v. Beggs (1990) 5 BPR 11761. 38 In law the relationship of husband and wife does not explain, excuse or justify gifts which other circumstances of the relationship of the parties show were brought about by undue influence, and does not alter the consequences of any other relationship in which the burden of justifying a gift falls on the donee. That this is so appears clearly from the survey of equitable remedies available to a wife against transactions into which she entered for the benefit of her husband made in the judgment of Dixon J in Yerkey v. Jones (1939) 63 CLR 649. Dixon J gave an account of the principles underlying equitable remedies available to a wife in a lengthy historical survey at pp670 to 684. Yerkey v. Jones related to a voluntary benefit conferred by the wife in becoming surety for a debt of her husband. This forms part of a wider subject of relief in Equity for a wife against voluntary benefits conferred on her husband, and direct gifts of property to her husband are included in those benefits. Dixon J's historical survey showed that the interventions made in Equity and the form of the modern rules were profoundly affected by the underlying common law disabilities and incapacities of a wife, by her disadvantageous position having regard to her husband's control of her property, and by developing protection extended by Courts of Equity, passing through changes of opinion and shifts in the intensity of protection over many generations. The modern period begins with the Married Womens Property Act 1882 (United Kingdom) and similar legislation in Australia with which the protection available in Equity to a wife's separate estate was made generally available to her property. 39 After reviewing many authorities of the Eighteenth and Nineteenth Centuries Dixon J said to the effect that the assimilation of dispositions by a wife in favour of her husband to transactions between strangers was not complete. Dixon J said (at 674): It was not supposed that they dealt at arm's length. Story (Equity Jurisprudence (1835), sec. 1395) said: - "The doctrine is now firmly established in equity that she may bestow her separate property, by appointment or otherwise, upon her husband as well as upon a stranger. But at the same time, courts of equity examine every such transaction between husband and wife with an anxious watchfulness and caution, and dread of undue influence. 40 At pp675-676 Dixon J said: In In re Lloyds Bank Ltd.; Bomze and Lederman v. Bomze (1931) 1 Ch. 289, at p. 302 the present Lord Chancellor (Lord Maugham), speaking of gifts by a wife to her husband, said that it is well settled that the relation is not one of those in which the doctrine of Huguenin v. Baseley (1807) 14 Ves. 273 [33 E.R. 526] applies, "but where there is evidence that a husband has taken unfair advantage of his influence over his wife or her confidence in him, it is not difficult for the wife to establish her title to relief." The reason for excluding the relation of husband and wife from the category to which the presumption applies is to be found in the consideration that there is nothing unusual or strange in a wife from motives of affection or even of prudence conferring a large proprietary or pecuniary benefit upon her husband. The Court of Chancery was not blind to the opportunities of obtaining and unfairly using influence over his wife which a husband often possesses. But in the relations comprised within the category to which the presumption of undue influence applies, there is another element besides the mere existence of an opportunity of obtaining ascendancy or confidence and of abusing it. It will be found that in none of those relations is it natural to expect the one party to give property to the other. That is to say, the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused. The distinction drawn between large gifts taken by a man from the woman to whom he is affianced, as case to which the presumption applies, and similar gifts by a wife to her husband, a case to which it does not apply, a distinction sometimes condemned, is explained by this consideration and also, perhaps, by the consideration that the rule is one of policy and, upon a balance, policy is against applying it to husband and wife. But while the relation of a husband to his wife is not one of influence, and no presumption exists of undue influence, it has never been divested completely of what may be called equitable presumptions of an invalidating tendency. In the first place, there is the doctrine, which may now perhaps be regarded as a rule of evidence, that, if a voluntary disposition in favour of the husband is impeached, the burden of establishing that it was not improperly or unfairly procured may be placed upon him by proof of circumstances raising any doubt or suspicion. In the second place, the position of strangers who deal through the husband with the wife in a transaction operating to the husband's advantage may, by that fact alone, be affected by any equity which as between the wife and the husband might arise from his conduct. In the third place, it still is or may be a condition of the validity of a voluntary dealing by the wife for the advantage of her husband that she really obtained an adequate understanding of the actual nature and consequences of the transaction. 41 The first and third of the "equitable presumptions of an invalidating tendency" to which Dixon J referred have application in the present case. Of the first of them, relating to shifting the burden where circumstances raise any doubt or suspicion, Dixon J said at 677: Of the three suggested rules or presumptions to which I have already referred, the existence of the first appears to be beyond question, but it is somewhat vague and indefinite. It may amount to no more than saying that the opportunities which a wife's confidence in her husband gives him of unfairly or improperly procuring her to become surety for his debts or to confer some other benefit upon him is recognized as a matter of fact and taken into account with other facts as a reason for calling upon him to explain or justify a given transaction. 42 With the third, relating to the wife's really obtaining an adequate understanding of the actual nature and consequences of the transaction, Dixon J dealt at some length at p678-680. As in other parts of this subject, there have been significant shifts in judicial opinion over time, and Dixon J was concerned, it seems to me, to repel overstatement of the need to show that the wife really obtained an adequate understanding of the actual nature and consequences of the transaction, and also to repel a view that the onus of proof of an adequate understanding passes, or readily passes to the husband as donee. 43 If it were assumed that the principles with which Dixon J dealt in Yerkey v. Jones apply to de facto relationships there is nothing in the principles with which Dixon J dealt which would exclude from consideration or deprive of effect a special relationship of influence such as that between medical advisor and patient between persons who were also husband and wife. The relationship of husband and wife has no generally exempting effect, notwithstanding that that relationship is not of itself presumed to be a relationship of influence (as to which see Dixon J at 678). Where, as in this case, the gifts are very substantial, and the husband is the medical advisor of the wife, the fairly easy path - "proof of circumstances raising any doubt or suspicion" - into the application of the first of the presumptions of an invalidating tendency to which Dixon J referred has been travelled. 44 The majority judgment (Gaudron McHugh Gummow and Hayne JJ) in Garcia v. National Australia Bank Ltd (1998) 194 CLR 395 shows that the opinions of Dixon J in Yerkey v. Jones continue to establish principles applicable notwithstanding large changes in the role of women in society since his Honour spoke in 1939, and still more since the Nineteenth and earlier centuries during which the doctrines evolved. Observations of their Honours at 404 show that extension of the protection for wives under the principles in Yerkey v. Jones to persons in relationships other than marriage is at least open to consideration. Their Honours said at 404: It may be that the principles applied in Yerkey v. Jones will find application to other relationships more common now than was the case in 1939 - to long-term and publicly declared relationships short of marriage between members of the same or of opposite sex - but that is not a question that falls for decision in this case. It may be that those principles will find application where the husband acts as surety for the wife but again that is not a problem that falls for decision here. 45 Notwithstanding views expressed by Kirby J in Garcia at 422 to 429 no extension of the principles to de facto relationships has occurred. It would not be simple to discern what form an extension would take. The High Court has authoritatively rejected dismantling the protection afforded in equity to wives, and it is hardly likely that an extension would take the form of applying to de facto relationships the part of the doctrine in which there is no presumption of undue influence without also applying at least the first of the presumptions of an invalidating tendency to which Dixon J referred. However that may be, there is no authoritative basis for any extension, and in my view, having regard to the evolution of the protection available to wives and its relation to their legal position in former times of relative disadvantage and lack of capacity and to measures taken by Courts of Equity and later by legislatures to overcome these disadvantages, there is no ready path of extension. Women in de facto relationships have never been in the same position of legal disadvantage and incapacity as wives formerly were, and have never had or needed the same protection in equity. In my view there is no reason in principle for regarding the existence of a de facto relationship as explaining or justifying a substantial gift, or as depriving of effect any circumstance of the parties which would otherwise give rise to a presumption of undue influence. 46 If (contrary to my opinion) the law expounded by Dixon J in Yerkey v. Jones is applicable, the first of Dixon J's equitable presumptions of an invalidating tendency under which the burden shifts where there are circumstances raising any doubt or suspicion plainly applies to all the transactions. There are many circumstances which raise doubt or suspicion about the voluntary dispositions. These circumstances include, most prominently, the fact that Mr Bar-Mordecai was the medical attendant for Mrs Eveline Hillston and her late husband from 1979 onwards, and that his relationship with her arose out treating her husband and later herself. The circumstances in which Mrs Eveline Hillston acquired the surgery soon after her husband's death and leased it to Mr Bar-Mordecai on terms disadvantageous to her, but very advantageous to him, create doubt and suspicion not only for that transaction but also for all later transactions with the surgery. Nothing ever happened to dispel the general air of suspicion and doubt, and suspicion and doubt are enhanced by there being a continuing series of transactions, from time to time over many years, disproportionate to any contributions or advantages flowing the other way. The arrangements made for payment of the purchase price of the surgery were obviously of far less value than simply paying the purchase price of $360,000 would have been; the acknowledgment and counter-acknowledgment relating to the $110,000 show that there was no real expectation that it would ever be paid, while the mortgage was at a favourable interest rate well below the market rate. Payments under the mortgage were not always made; for several years they were negatived by what Mr Bar-Mordecai calls the round-robin transactions. For the discharge of the mortgage there is the absence of any significant involvement of any lawyer or of any person other than Mr Bar-Mordecai evidence explaining the preparation and registration of the form of Discharge and Mrs Gudas, who had no overall understanding and acted only as a witness. The general air of suspicion and doubt was never dispelled, and there has never been shown to have been any person other than Mr Bar-Mordecai in whom Mrs Eveline Hillston placed overall confidence for advice or from whom she received any advice. Throughout the whole relationship her assets were severely depleted and her income was diminished in an extremely marked way, for reasons directly traceable to her dispropriation of herself in favour of Mr Bar-Mordecai; these things of themselves create suspicion and doubt. 47 In my opinion the existence of a de facto relationship between donor and donee would not furnish the answer to an inquiry into whether a gift should be set aside on the ground of undue influence; the history of the gift and the facts and circumstances of their relationship take their place in the wide array of facts and circumstances which must be addressed in each case, in accordance with the detailed address to those facts required when this jurisdiction in invoked. On the need for precise examination of the particular facts see Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113 at 118-119 (Dixon J): The jurisdiction of a court of equity to set aside a gift or other disposition of property as, actually or presumptively, resulting from undue influence, abuse of confidence or other circumstances affecting the conscience of the donee is governed by principles the application of which calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the donor. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: "A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case": The Juliana (1822) 2 Dods. 504, at p. 522. 48 In Royal Bank of Scotland v. Etridge (No.2) [2001] 3 WLR 1021 at 1031 [18] Lord Nicholls of Birkenhead gave an account at p.1030 para 13 to para 19 of the burden of proof and presumptions in undue influence cases. His Lordship gave an account of the law in which what is spoken of as a presumption of undue influence is a rebuttable evidential presumption in some instances, but at para 18 distinguished from an evidential presumption a different form of presumption which arises in the case of relationships within a special class. His Lordship said: Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical advisor and patient. In these cases the law presumes, irrebuttably, that one party had influence over the other. The complainant need not prove he actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship.

I should say with respect that it does not appear to me to accord with the law established in Australia that the presumption of influence is irrebuttable in any case. The actual relationship between persons who were, for example, trustee and beneficiary, solicitor and client or medical advisor and patient may, when proved in detail, show in a clear way that there was no relevant influence of the person initially presumed to have influence over the other. It may be that this observation of Lord Nicholls was not essential to the decision of the House of Lords, although it was concurred in by other Law Lords. If it does represent the law of England, my view is that the law of Australia is different. 49 In my opinion the characterisation of the relationship between Mrs Eveline Hillston and Mr Bar-Mordecai as a de facto relationship is not itself determinative for the claim to set aside gifts; what are of significance are an examination, so far as evidence admits, of the precise circumstances of the parties and of each gift and consideration of how the intention of Mrs Eveline Hillston to make each gift was produced. Characterisation of her relationship with Mr Bar-Mordecai as a de facto relationship or as analogous to a marriage is not the central subject for consideration, and is not a ground of defence. 50 Statutory definitions of de facto relationships have the importance given to them by the statutes in which they are found. A showing whether or not any of those statutory definitions applies has no particular legal significance for the availability of equitable remedies against the gifts. In Mr Michael Bar-Mordecai's claim under the Family Provision Act it is however important to apply the definition of "eligible person" and the provisions of that Act bearing on de facto relationships. In the probate litigation before Einstein J evidence and the disposition of the case dealt with the strongly similar but not identical definition in s.32G of the Wills Probate and Administration Act 1898. Another similar but not identical definition was, during Mrs Eveline Hillston's lifetime, found in subs.3(1) of the De Facto Relationships Act 1984, now the Property (Relationships) Act. These similar statutory definitions are not identical, either in terms or purpose, with the definition of "eligible person"; none of them is applicable in Mr Allan Hillston's claim to set aside the gifts. 51 Issues, Side Issues and Credit. Mr Michael Bar-Mordecai bears the burden of showing in relation to each gift that the gift was not produced by undue influence or, in the words of Dixon J, "… that it cannot be ascribed to the inequality between them which must arise from his special position." The hearing was lengthy because Mr Michael Bar-Mordecai's case took the Court to many facts and circumstances relating to the lives of Mrs Eveline Hillston and himself and their association, and to the circumstances in which the gifts were made. In doing so he dealt with many circumstances which, while not entirely irrelevant, could not be regarded as of great significance, and also with a number of circumstances which, although his sense of their importance was obvious, do not in reality have any bearing on what the Court is to decide. His presentation of the case was affected by evidently strong antipathies which he feels towards the Hillston family, particularly Mrs Eveline Hillston's late husband, and also Mr Allan Hillston, his brother Mr Alex Hillston and their mother Mrs Jane Hillston, widow of the late Jack Hillston's brother Simon Hillston. Although Mr Michael Bar-Mordecai called many witnesses, to a large degree his case depends upon facts and events for which his own evidence is the only significant basis. Mr Bar-Mordecai's evidence and submissions contained many assertions of misconduct by other witnesses or persons otherwise involved in the narration. It is very difficult to sort out relevant passages in his evidence from the maze of incidental expressions of hostility and of marginally significant and frankly irrelevant matter in which relevant matter which he had to put was often enveloped. Mr Bar-Mordecai pursued strange antipathies and vendettas ornamented with assertions of conspiracy, perjury and other misbehaviour for which there was little or no apparent basis. He asserted that Mrs Jane Hillston and Mrs Betty Connell came to the Eastbourne Avenue house as spies. He spent considerable time in giving evidence of facts and circumstances adverse to Mr Jack Hillston, although it is difficult to see any importance those matters had. His hostilities extended to persons closely related to him, including both his parents, whom he asserted were senile. It was his evidence that he had accused them of swindling him in a transaction relating to family property. He called them to give evidence and relied on their evidence, not in retrospect with great success, as some of what they said was adverse to his case. 52 So far as appears from evidence, including evidence of Mr Bar-Mordecai himself, Mrs Hillston was very attached to her husband Mr Jack Hillston and showed every sign of concern and devotion when he was disabled by a stroke and in a vegetative condition, visiting him frequently, ensuring that he was receiving proper attention, and showing Mr Bar-Mordecai signs of being in a desperate state when confronted with difficulties in visiting him at a distant hospital. After his death in a letter Exhibit CD of 10 August 1983 to Mr Selinger she acknowledged his sympathy and compassion and spoke of the event as "… the most tragic moments of one's life." Mrs Hillston reserved a niche next to the crematorium niche in which the late Mr Jack Hillston's ashes were deposited. She used to visit the site where the ashes were deposited every month until about the middle of 1993 when her health began to decline; Mr Bar-Mordecai says that he accompanied her. In her will Mrs Hillston did not provide for the reserved niche to be used for deposit of her remains, but directed that her ashes be scattered on the waters at Clovelly. Mr Bar-Mordecai caused Mrs Eveline Hillston's body to be buried notwithstanding her wish, stated in her will, that her body be cremated. 53 A great deal of time and attention was given during the hearing to issues relating to Mr Bar-Mordecai's credit. On many subjects he was shown by cross-examination, or even by comparison of evidence which he has given at different places, to be an unreliable witness. He has often given evidence which contradicts his evidence in other places or which introduces qualifications or supplementary explanations so far-reaching as to disavow evidence which he has given elsewhere. From time to time, when confronted with some adverse evidence, he produced new affidavits, with new explanations of conduct or events which he could well have produced earlier, if they were true. He did not produce the evidence of persons whom, in a complete and convincing presentation of his case, it would reasonably be expected that he would call. He left significant parts of the events with little or no explanation; his case was particularly unsatisfactory in not giving credible circumstantial explanations of the evolution of decisions of Mrs Eveline Hillston to make gifts, and his own participation in their evolution. 54 Mr Bar-Mordecai gave evidence which was generally unsatisfactory or incomprehensible to explain the course of events in which he had made a correcting affidavit, but had not put all of the correcting affidavit into evidence after tendering in evidence the affidavit which it corrected. This affected the important question whether, during the last four years of Mrs Hillston's life, he generally paid for all her medical expenses, or for some of them - t.1034-1038. The cross-examination, which continued for many days, produced many similar debacles and was destructive of his credibility. 55 Mr Bar-Mordecai made many claims that he was under difficulties in presenting his evidence because he suffered memory loss as a result of an injury in a motor accident in January 1992; however he produced no medical evidence which confirmed the existence of any such memory loss, or explained how it might have arisen, although very often challenged by the plaintiff's counsel to produce such evidence. He described it as intermittent memory loss (t990 l26) and described his short term and long term memory defects. He very often explained himself in evidence by reference to his alleged memory loss. However on many occasions he gave evidence, or made statements during submissions which showed striking capacity for recollection (if indeed the recollections which he then apparently displayed were genuine). He professed to have remarkably detailed and complete recollections of many events, even in the distant past, and he produced such recollections on occasion with great speed, although on other occasions he professed to have extreme difficulty in calling to mind circumstances which may well have been quite important both at the time and since. 56 I do not accept that Mr Bar-Mordecai has any disability or condition which has diminished his powers of recollection. In my finding he simulates memory loss when it is suitable to him to do so, and on the whole he has rather better powers of recollection than the average person, although he is not frank or sincere in what he claims to recollect, or not to recollect. 57 Mr Michael Bar-Mordecai gave evidence, without any apparent sense of anomaly, of behaviour of his own in various respects which show that he is an unreliable person. Striking examples of this are his behaviour and attitude to sexual relationships with women patients, including Mrs Eveline Hillston, and his making in 1986 and keeping a videotape in which he recorded extremely explicit statements by him and by her about their sexual conduct together which no self-respecting person would wish to have permanently recorded. Statements by her recorded in that videotape show that she was not aware while it was being made that a permanent record was being made, and that when she found that it was she requested him to destroy it. His disregarding her request and keeping the videotape, available for production in court 16 years after it was made, show that he was quite faithless in his relationship with her and in his attitude to her personal life and her feelings. Although there are statements by Mrs Eveline Hillston on the videotape which can properly be referred to in evidence as tending to support the existence of a de facto relationship, there are few other statements in evidence attributable to her which might have that effect; three or four witnesses speak of statements by her which might be thought to do so, but there is no written record of any social, official or business communication by her to any person which bears out in any way the existence of a de facto relationship or other relationship analogous to marriage between her and Mr Bar-Mordecai, either in her perception or in reality. Whenever any written material from her deals with anything which could be regarded as approaching the subject, that material invariably tends against the existence of a de facto relationship. 58 Mr Michael Bar-Mordecai dealt with this large difficulty by including Mrs Eveline Hillston among the many persons of whom he said that their statements adverse to his case were lies. In his written submissions Mr Bar-Mordecai submitted that the litigation has arisen out of several facts, and among those he included: (b) The deceit perpetrated by the Deceased to her: (i) Professional advisors;

(Written Submission 6, para 17). 59 Although in evidence he professed profound respect for and emotional involvement with Mrs Eveline Hillston and deep grief at her loss, his treatment of material in evidence emanating from her and his inclusion of her among the persons to whom he attributed lies tends strongly against acceptance of any view that he truly respected her or regarded her highly. 60 Mr Bar-Mordecai in evidence used high-flown language about his relationship with Mrs Eveline Hillston and described her as "my soul mate, a tower of strength, a woman of valour." Recurringly during the hearing, when giving evidence and also when addressing the court he expressed the depths of his feelings for Mrs Eveline Hillston and of his grief, displaying signs of being emotionally overcome, unable to continue speaking and shedding tears. I do not regard these as true expressions of his feelings. Events in the course of the relationship, during which he accepted large gifts amounting to most of her property, his relationships with other women, the way he spoke of Mrs Eveline Hillston to patients and other persons and his moving with no real interval into a passionate physical relationship with Ms Viola Yakovleva after Mrs Eveline Hillston's death show that his true feelings cannot have been those he affected to display. 61 On a number of subjects Mr Bar-Mordecai gave evidence, and adhered firmly to positions which appear inherently improbable, although they were not all definitively shown to be untrue. Of course many things happen in life which are improbable, and no one can protect himself against the occurrence of improbable events as part of facts and circumstances which are important for the establishment of his rights; if improbable things have happened, one must give evidence of them. However a cumulation of many such events is a difficulty for acceptance, by a tribunal of fact, of evidence of a person who has encountered what come to seem too many of them. Something of this difficulty can be understood from considering the circumstance that there is nothing in writing from Mrs Eveline Hillston confirming the existence of a de facto relationship, and a number of documents which are either inconsistent with it or which contain expressions which it is improbable she would have made if there was one; yet on the other hand evidence attributes to her ready oral acknowledgment, to slight acquaintances and persons who were not particularly good friends, of intimate aspects of her personal life. 62 Sex, Ethics and Probabilities. An important part of his claim as he presented it was his evidence to the effect that until what he says was the initiation of their sexual relationship on 23 August 1983, less than three weeks after the death of her husband ended a marriage which had lasted fifty years, Mrs Eveline Hillston had not previously experienced sexual intercourse; his evidence is that she was sexually initiated, at the age of 72, by him at the age of 36, and that his medical expertise equips him to attest to her then state of virginity. There is no kind of confirmation from her of this account of her sexual history and experience. His evidence would show further that after she then embarked on a sexual relationship with him, that relationship continued for almost 11 years, with great frequency and vigour of sexual intercourse. Mr Bar-Mordecai alleged, in his verified Defence para 2(b) to the effect that Mrs Eveline Hillston and he had sexual intercourse four times a week for the duration of the relationship. At several points in his oral evidence he asserted to the same effect. He made a similar statement in her Medical Records in his practice. He claimed that their sexual relationship continued with frequency and vigour even in the last year of her life, when a written statement by her shows that she felt that she was suffering from significant ailments and in such a poor state of health that she wished for euthanasia. It is possible that all this may be true, it has not been incontestably proved to be untrue, but the improbabilities, in my appraisal, are very great. 63 Mr Bar-Mordecai gave evidence (affidavit 24/5/98, paras 49 and 50) to the effect that in response to questioning from Mrs Hillston about Euthanasia in about June 1993 he told her that she was terminal in view of her cardiac and respiratory status and that from then on she told him "I want to die. The pains are becoming unbearable in my right knee and in my chest with the angina." She also told him (para 52) "I don't want a long slow painful death and I certainly don't want to end up in hospital like Jack in a vegetative state." 64 Mrs Hillston wrote out in her handwriting and signed, in the presence of Mr and Mrs Gudas, who signed as witnesses, a document headed "To whom it may concern" dated 30 August 1993, referred to as the euthanasia letter, Exhibit X. Mr Bar-Mordecai assisted her in the preparation of this letter and after it was signed it was kept in his medical file relating to Mrs Hillston. It is in these terms: 30 August 1993

This is to certify that I EVELINE HILLSTON of 30-32 Eastbourne Ave, Clovelly, am 82 years of age. I was born in Romania on 21.12.1910.

I have lived a long, varied and interesting life. For a few years I have become more and more distressed with my breathing. I am able to walk only for 10-20 meters at a time and need to have somebody next to me on whom I can rely because I become severely short of breath and unsteady on my legs. I am also breathless on waking up in the morning, and suffer of nocturnal breathlessness.

I also suffer continuously of severe pain in my right knee and less severe in my leg and hip. I cry out in pain when I move my right knee, even when I am in deep sleep. Sometimes the pain is of such intensity that it wakes me up and I stay wake for hours thereafter. This condition has been aggravated by various falls. On the 24th of this month I fell down again onto a concrete surface and nearly sustained a fracture of my hip. I have been offered a right knee replacement by Dr L. Kohan but have no stamina to endure the pains associated with the post-operative care for the following few months.

Besides, I know now that I suffer of intractable angina; my cardiologist mentioned that it may be advisable to decide on cardiac surgery. It will not however, in the best of cases, help me with my arthritis condition, with all the pains and suffering. I have started to lose my long term memory, and am unable to calculate or care for myself as I used to. I am gradually losing my hearing and my eyesight. Because of all that I am convinced that I should not contemplate any operation.

I witnessed my husband's demise over a period of years, with two strokes in 1982 and 1983. I cannot accept to undergo the degradation he suffered in the Repat. Gen Hospital "Concord", and the other private Hospitals that cared for him.

In view of my continuous and painfully obvious deterioration on ALL FRONTS I have requested the option of Euthanasia feeling that I should no longer have to endure continuous and daily suffering, and realising that in view of my respiratory as well as cardiac condition I am terminal.

I have discussed Euthanasia with my medical practitioners, as well as Leah Gorbatov, a medical student, to whom I explained at length my needs for Euthsanasia.

I have struggled through life, working hard and always trying my best. I now wish to die with dignity.

Eveline Hillston (signature) EVELINE HILLSTON A. Gudas (signature) I. Gudas (signature) Witness A. GUDAS Witness I. GUDAS 65 Mrs Hillston was a patient in the Wolper Jewish Hospital from 10 April 1994 to 24 April 1994 suffering from chronic airways limitation and pre-infarction angina (hospital records in exhibit 17). 66 Mr Bar-Mordecai said on affidavit that they had a very active sex life, referring to the whole relationship to the end of her life, and made a self-serving entry in his medical records relating to her which on its face would bear this out. He claimed that notes in her diaries which are objectively incomprehensible in some way record that this is so. Mr Bar-Mordecai's basis for claiming that the diary entries had this meaning was (t982) "It was recorded in my presence, it was recorded after discussion with Eveline why it should be marked in such a way, and she did it usually after intercourse in bed." Notwithstanding this answer he was unable to explain the meaning of the markings. His evidence of what led to her making the record (affidavit 24 May 1998, paras 45-48) was to the effect that he took her medical history of health care indicators including sexual activity: We discussed sexual frequency and I documented that we had intercourse four times per week since 1983 on the average. Sometimes it would be twice a day but that would only be counted as one sexual episode per 24 hours.

Eveline Hillston wanted to audit our sexual frequencies. She said: "I will diarise our sexual frequencies from October to December 1993." She proceeded to do so haphazardly.

In January 1994 she diarised each sexual encounter religiously, and said: "I think the result was 18 encounters in the 31 days, but on some days we had intercourse twice and that was only countered as one episode. 67 I do not regard this evidence as giving a credible reason for her deciding to keep the record. The diary notes do not correspond in frequency with his claims about the frequency of sexual intercourse. As a pattern of human behaviour it is extremely improbable that diary entries would be made at the times and in the circumstances he claims. The explanation he gives for the notes is not credible, they include a letter code which he could not explain, their meaning cannot be seen and they do not accord with what he says about frequency of sexual intercourse. They could represent medication: they could represent anything. Pages have been torn from the diaries and they are not reliable as records. His evidence about the circumstances in which the notes were made is, in my finding, untrue. It is a fantasy. Continuance and intensity of sexual activity are subjects on which his evidence is even more than usually unreliable. 68 Mr Bar-Mordecai's conduct in forming a relationship with a patient of which sexual intercourse with the patient was an element, and also in engaging (as he claims) in a continuing relationship with a patient of which sexual intercourse was an element over some years, was discreditable to him in that it was in breach of the ethics of the medical profession. As it happens there is evidence, from a practising doctor, of this obvious proposition about medical ethics. Dr Isaac Mordecai gave the following evidence (transcript 1659): Q. Would you agree with me that as a practising doctor you would regard it as improper for a doctor to have a sexual relationship with his patient? A. Yes.

Q. And you would have regarded that yourself to be an improper thing in 1989? A. Yes.

Q. And you would have really known that, I take it, from the time you commenced practice as a doctor? A. Yes.

Q. And you have formed that view as a doctor as a result of teachings you have had about the ethics of your profession; is that right? A. Yes.

Q. And also, wouldn't you agree, probably as a result of teachings you have had in your calling as a rabbi? A. Yes.

Q. It's something that medical practitioners are very aware of because sexual relationships with patients can give rise to very great difficulties. A. Yes. 69 Mr Michael Bar-Mordecai disputed that this elementary requirement of professional ethics applied to him, but did not give any clear reason for disputing it. Mr Bar-Mordecai's evidence showed that he also engaged in sexual intercourse with Ms Viola Yakovleva at a time when she was a patient. His unethical behaviour is adverse to his credibility. It also has a part in the interpretation of the nature of his relationship with Mrs Eveline Hillston, as it shows that he did not treat her with the respect appropriate in a sincere relationship by observing ethical standards. In a sincere relationship based on respect it would be expected that a medical practitioner would, if he engaged in a sexual relationship with a patient at all, cease to act as her medical advisor, and would give his former patient the advantage of objective medical advice and treatment from some other source not complicated by emotional involvement. 70 In my evaluation, Mr Michael Bar-Mordecai exhibited extremely unsatisfactory demeanour as a witness. As a witness he was markedly an opportunist. It was extremely difficult, on occasions, to bring him to address directly questions which were important; however he did not have corresponding difficulty in bringing his mind and expression to bear on matters which he perceived to be of assistance to his case. He often gave what were nominally answers which in fact were unresponsive, or instead of answering a question launched into what would perhaps, if the question had been answered, have been an excuse or explanation for an answer adverse to him. He often obtruded references to grievances, including altogether improbable grievances, into answers when the grievances had little or no relation to the matter in hand. 71 I do not believe that Mr Bar-Mordecai is in truth a person whom fate and malignity have exposed to an astonishing number of improbable circumstances, lies and hostilities. When he has given unsupported evidence of something which is improbable my view is that I should not accept his evidence. In addressing allegations the evidence for which is solely or substantially evidence of Mr Bar-Mordecai alone I am unable to find facts on the basis that his evidence is in any way reliable. Written records made by him are also unreliable. It is no use attempting to weigh up degrees of probability and improbability and attempting to assess how much improbability is too much; his evidence is simply unreliable. I do not see any relevant limits to what he would be prepared to say, or to what he would be prepared to accuse somebody else of doing. He would say anything. Some things he has asserted seem like fantasies from the travels of Baron Munchausen. Perhaps some of these are true, but there is no way of concluding that they probably are true. I do not regard any of his evidence as reliable. It is not even appropriate to treat his evidence as reliable when it was or seemed to be adverse to his own interest, as he had no real perception of what his interest was, and sometimes strongly maintained positions adverse to his apparent interest. Except where his evidence accords with something which is otherwise well established, for example by admissions in pleadings or by contemporaneous records which can be regarded as having an objective source or by witnesses who can be treated as reliable, little of what he has himself stated in evidence can be acted on. 72 Eveline Hillston's Ability and Property. Mrs Eveline Hillston was a person of intelligence and extensive life experience, including business experience. She was born and educated in Romania. She studied medicine for one year, then studied law for three years and qualified as a lawyer in Romania. On 28 June 1933 she married Mr Jack Hillston, who was some years her senior and was an engineer or senior executive in the oil industry. They migrated to Australia in 1939; he served in the Australian Armed Forces in the Second World War and suffered some injury as a result of which he received a service pension; and after his death Mrs Eveline Hillston received a War Widow's Pension, which was not subject to taxation. After 1945 Mr Jack Hillston engaged in various business ventures and activities. At some time Mrs Eveline Hillston established a beauty salon and conducted that business with success for many years; she sold the business in 1982 to a person who had been associated with her in that business, with whom she remained on good terms. Her many years of business success attest to her capacity and understanding of affairs. 73 Mr Bar-Mordecai frequently referred, in evidence and submissions, to Mrs Eveline Hillston's having been a lawyer. The reference is to her having studied law in Romania and having qualified as a lawyer at some time about 1932. This is not a basis for the view that she had any knowledge of the law in Australia, or any understanding of its workings. Her history of successful studies confirms many other indications that she was a person of intelligence and ability. 74 By 1983 Mrs Eveline Hillston had accumulated significant property of her own, as well as property which she inherited from her husband. In the view of Mrs Connell, who had the opportunity to know her well, particularly from 1988 onwards, Mrs Eveline Hillston was quite an astute businesswoman, successful and intelligent and clear thinking. Mr Selinger who was her accountant for some years regarded her as an astute businesswoman and intelligent, with definite ideas. In the appraisal of Mr Freeman, a solicitor who acted for her in several matters, she was a very proper, regal and attractive woman, well groomed, cultured, of strong intellect and strong personality, and she appeared to understand her own financial position very well and to discuss Mr Freeman's advice in a way which suggested full comprehension. A number of other witnesses speak of her as an intelligent person. Mrs Hillston travelled overseas without Mr Bar-Mordecai, to Israel in or about 1984, and to Greece and perhaps elsewhere in 1989. 75 So far as the evidence shows, Mrs Eveline Hillston's resources in August 1983 were these. She inherited all her late husband's property, the value of which for the probate application was said to be $288,584.00. She owned the home unit at 1/6 Mount Street Randwick in which she and her husband lived for many years; it seems that she inherited half of the private company shares which represented title to this unit from her husband, their probate valuation being $40,000, and that she already owned the other half. She inherited some shares in listed companies and Savings Bonds from her husband. She had small sums in bank accounts. She owned a residential property at 5 Tingara Place Forestville from which she received rent; the value of the property and the amount of rent do not appear. Mr Bar-Mordecai's evidence is that it was subject to a mortgage for $30,000 to $40,000 which was discharged about 1984. She sold her beauty salon in 1982, Mr Bar-Mordecai says for $120,000; it does not appear in what form proceeds of this sale were represented in August 1983. Mr Bar-Mordecai gave evidence that Mrs Eveline Hillston held bearer bonds; the amount of the bonds, their value and interest on them do not appear. Mr Bar-Mordecai gave evidence that she had over $130,000 in cash in her home unit. She received a Veterans Affairs Pension as a War Widow and it was free of income tax. There is a suggestion that she may have had some cash or valuables in a safe deposit box in the ANZ Bank at the corner of Pitt and Hunter Streets Sydney, but this is no more than a suggestion and the amount involved, if there was any, is not known. 76 At the end of 1988 and about the time of the contract to purchase the house at Eastbourne Avenue, Mrs Eveline Hillston's property appears to have been the following. She owned the unit at 1/6 Mount Street and the investment property at Forestville and they were not encumbered. She held bonds, the value of which is said by Mr Bar-Mordecai in evidence to be about $400,000, which she sold for the purposes of the purchase (t.1199). She had money on deposit in one or more banks, which included $114,742.76 in the Australian New Zealand Savings Bank Limited at Pitt and Hunter Streets - Exhibit CJ. She no longer had any shares. She continued to receive a Veterans Affairs pension. She was owed most of the principal of $250,000 on the mortgage over the surgery and the unsecured balance of $110,000 by Mr Bar-Mordecai, and she received instalments under the mortgage. Her then sources of income appear to have been the investment property at Forestville, interest on money on deposit, mortgage interest and the Veterans Affairs pension. 77 The purchase of the Eastbourne Avenue property used up the capital resources which until then had been Mrs Eveline Hillston's main sources of income. The Eastbourne Avenue property was itself a source of rental income for her for part of the time until she went to live in it on 1 February 1991, when the Mount Street apartment became a source of income. By that time she was no longer effectively receiving mortgage interest. The whole series of transactions very greatly reduced the income available in money to her, and greatly reduced the possibility of her acting in economic independence of Mr Bar-Mordecai. 78 The impact of the donations on Mrs Eveline Hillston's income is illustrated by comparison of Exhibit CG which contains her income tax return for the year ended 30 June 1987 with Exhibit AS the income tax return for the year ending 30 June 1994 taken with Exhibit AR Mr Bentwich's notes. Her income for 1987 was returned at $60826 and her income for the year to date of death 25 June 1994 was returned (by Mr Bar-Mordecai) at $8,764. Large recognisable elements in the comparison include loss of rent on Forestville and on the surgery and gain of rent on the Mount Street apartment; net rental income in the 1987 return was $20,109 but in the 1994 return $8,977. Interest income mainly on savings bonds and bank deposits was $40,713 in 1987 and the negligible sum of $137 in 1994. 79 Some Details of Events. Mrs Eveline Hillston met Mr Michael Bar-Mordecai in or about 1979 when he was practising medicine in Clovelly Road, Clovelly and she asked him to attend on her husband. He then became her husband's usual general practitioner and medical attendant; Mr Jack Hillston also had specialist treatment and for long periods had hospital treatment. During these periods Mr Bar-Mordecai sometimes treated Mrs Eveline Hillston, but was not her only medical attendant. In the last months of Mr Jack Hillston's life, when he suffered from a stroke and was unable to communicate, Mr Michael Bar-Mordecai assisted Mrs Eveline Hillston in a number of ways, particularly in assisting her to visit her husband who was at times in hospital at Turramurra many miles from her usual dwelling. Mr Jack Hillston died on 4 August 1983. 80 In and possibly before 1982 and 1983 Mr Michael Bar-Mordecai was engaged in litigation in the Family Court against his wife, from whom he was divorced on 11 March 1983. There were disputes about custody of and access to their two daughters. This litigation was largely resolved by August 1983, although there were some later applications to the Family Court. 81 Mr Bar-Mordecai moved in to Mrs Eveline Hillston's flat at 1/6 Mount Street Clovelly and lived there as his residence until 1 February 1991, when he and Mrs Eveline Hillston took up residence at 30 Eastbourne Ave Clovelly. Mr Bar-Mordecai's evidence on the events in which he took up residence and moved his personal belongings to the apartment was challenged. In a statement recorded on videotape Mrs Hillston put the time of his moving in as the end of 1983 or the beginning of 1984, and described a gradual process leading to his living in the Mount Street unit a few months after Mr Jack Hillston's death. I regard it as clear from the evidence of his mother and of his brother that this process took place over several months and was not completed in August 1983. Mr Bar-Mordecai overstated the position by claiming in evidence that he lived there from 23 August 1983. The exact time when the apartment became his residence is not very important in the issues overall. 82 On 9 September 1983 Mrs Eveline Hillston entered into a contract to purchase the land and dwelling at 212 Clovelly Road Clovelly, referred to as the surgery, from Lendala Pty Ltd for $245,000. Mr Hume, a solicitor who had earlier conducted some legal business for Mr Bar-Mordecai, acted for Mrs Hillston: Mr Bar-Mordecai suggested to her that Mr Hume act for her. The purchase was completed on 4 November 1983. Mrs Eveline Hillston paid all the purchase money for the purchase of the surgery. She raised part of the price by mortgaging the surgery to Westpac. It seems rather strange that if Mrs Hillston had $130,000 in cash in her apartment, she would decide, on whatever persuasion, to borrow money from a bank to buy the surgery, and act at least partly on Mr Bar-Mordecai's advice to give the $130,000 away, at least to the extent of giving some of it to him. It is very unlikely that what I have been told is a complete narration. She paid out the mortgage in or by November 1985, using proceeds of sale of shares. Mr Bar-Mordecai did not bear any part of the purchase price. 83 The surgery was close to the Mount Street unit and to the building in which Mr Bar-Mordecai theretofore conducted his medical practice. For some time, perhaps some years, he had wished to purchase 212 Clovelly Road himself but he had been unable to do so; his wish had been defeated by rises in the price quoted by the then owners. On 9 September 1983, the same day as she agreed to buy it, Mrs Eveline Hillston let the surgery to Mr Michael Bar-Mordecai for use as a surgery in a commercial lease which granted him a 16-year term and an option for a further 3 years. The lease was very advantageous to him, in that there was no provision for revision of the amount of the rent and no provision for him to make any contribution to increases in outgoings. The lease was not in registrable form and was not registered, but operated as an equitable lease, and Mr Bar-Mordecai's occupation under the lease was never challenged. He actually took possession on 15 September 1983; that is, before Mrs Eveline Hillston had completed the purchase and paid the purchase price. The unguarded speed with which she entered into legal obligations to him before she had completed the purchase would have complicated her difficulties if for any reason she had been unable to complete the purchase. As well as paying the purchase price from her own resources and borrowings she paid $6000 for a desk, air-conditioning and carpets. Mr Bar-Mordecai was liable to her for rent but at times large arrears built up; his affidavit of 27 February 1984 in his Family Court proceedings (Exhibit AH confidential) shows that he then owed Mrs Hillston $6219.18 for arrears of rent from 15 September 1983 to 28 February 1984. The building was formerly a dwelling house. Mr Bar-Mordecai's evidence was that it was not equipped for convenient occupation as a dwelling. He in fact conducted his medical practice there until his name was removed from the Register in the year 2000. 84 On 4 April 1986 Mr Bar-Mordecai made a videotape, about 20 minutes long, part of Exhibit 22, in which Mrs Eveline Hillston made a number of statements and musings about the nature of their relationship, its history and her feelings. This takes the form of a question-and-answer interview, although Mr Bar-Mordecai's questions are not always distinctly audible. The 1986 videotape and statements made by Mrs Eveline Hillston in it make it clear and it should be found that there was a sexual element in their relationship and that, at least at the time when the videotape was made, it was quite intense. I deal further with the videotapes later in these reasons. 85 The evidence shows a conflict about what bedroom accommodation Mr Bar-Mordecai usually used in the apartment at Mount Street. In my finding Mr Michael Bar-Mordecai sometimes slept with Mrs Eveline Hillston in the main bedroom, and had sexual intercourse with her there. It is however disputed whether, as Mr Bar-Mordecai's evidence would show, he usually shared the main bedroom with her as his sleeping accommodation, or whether he usually used the second bedroom in that apartment. Evidence dealt with the sleeping accommodation used by relatives when staying in flat on visits, the sleeping accommodation used by Mr Bar-Mordecai's two daughters while staying there on access visits, and the sleeping accommodation used by Mr Bar-Mordecai when there were other persons in the apartment. 86 Late in 1985 Mr Bar-Mordecai left the apartment and lived, for a period of about a month, with Dr Lucy Ballin, Medical Practitioner whom he had known for some years. After about one month he left Dr Ballin and returned to live in Mrs Eveline Hillston's apartment. These events would have brought an end to any previous de facto relationship between Mr Bar-Mordecai and Mrs Eveline Hillston; however they are not inconsistent with another de facto relationship later existing between them. 87 On 21 October 1987 Mrs Eveline Hillston agreed in writing to sell the surgery to Mr Bar-Mordecai for $360,000. The transfer was completed on the same day as the contract. 88 On 30 November 1988 Mr Bar-Mordecai and Mrs Eveline Hillston agreed to purchase the house property at 30 Eastbourne Avenue at Clovelly from Mr A.P. Maurici for $665,000. The purchase was completed on 5 December 1988, an unusually short period of time. The approach to the ANZ Bank for finance to purchase the property was made on 24 November 1988 and the bank's approval, on 7 December 1988 (curiously later than the date of the mortgage of 2 December and of settlement of the property on 5 December) approved a facility of $600,000 to be cleared by 30 January 1989. In fact however moneys remained owing under the mortgage to ANZ Bank, under later arrangements, until discharge on 18 November 1989 with payment of $325,068 proceeds of the advance from Citibank out of a credit facility of $350,000. What happened in the interim cannot be seen in all detail but broadly the debt was reduced from Mrs Eveline Hillston's resources, including the proceeds of the sale of the Forestville investment property in the first half of 1989. 89 The ANZ Banking Group Ltd mortgage was discharged in November 1989 contemporaneously with the grant by Mr Bar-Mordecai and Mrs Eveline Hillston of the mortgage to Citibank Savings Ltd over the property at Eastbourne Avenue to secure a credit line facility; it seems that settlement took place on 23 November 1989 when the credit limit was $350,000. 90 Mr Bar-Mordecai said, in his first affidavit of 9 January 1997 paragraph 19 "I say very seldom in her life had Eveline been in debt - and therefore she was unaccustomed to paying interest to a Bank. When I instructed the Citibank clerk: 'not to bother Eveline with the rate cap interest rate, you will only muddle her' or words to that than effect, I knew that it would upset Eveline to find out we were paying 23-26% interest per year on our loan at the time." When taken to this passage in cross-examination t.1223 he said to the effect that she had been told that they were to pay 23-26% interest per year earlier. His oral evidence is plainly entirely inconsistent with the passage in the affidavit which I have set out, and I disbelieve his oral evidence on this subject because it was plainly an invention in response to advertence to disadvantages of the evidence he had earlier given on affidavit. I find that he took steps to conceal from Mrs Eveline Hillston the rate of interest for which she made herself liable when she with him entered into the Citibank mortgage. 91 Some renovations were carried out to the Eastbourne Avenue property. It was leased to two tenants successively. On 17 September 1990 Mrs Eveline Hillston received from Messrs Blessington Judd Solicitors, who had acted for her on the sale of the surgery property, the certificate of title and the original mortgage, and also her will, and gave a receipt. On the same receipt Mr Bar-Mordecai acknowledged that he had received his own will. On 1 February 1991 Mr Bar-Mordecai and Mrs Eveline Hillston moved into the house at 30 Eastbourne Avenue. On 8 July 1993 Mrs Eveline Hillston signed a discharge of her mortgage over the surgery. The mortgage was later registered and the mortgage debt was thereby released. Mrs Eveline Hillston died on 25 June 1994. 92 At times while living in the Eastbourne Avenue house Mrs Hillston expressed a preference for living in the home unit at Mount Street, or a wish to return to live there; this was particularly clearly expressed in the course of the videotape interviews, and also appears elsewhere. However she did not ever, in a concrete way, take measures to return there. By this time rental income from Mount Street was a large part of her income. It is difficult to understand why Mrs Hillston joined in the project of purchasing a very large, and in relation to her circumstances a very expensive house near the waterfront at Clovelly at the age of 78, and committed a large part of her capital resources to acquiring it thereby greatly reducing her potential income, particularly as she sometimes later expressed discontent and a wish to live back in her home unit. Mr Bar-Mordecai said on affidavit that she moved home for his sake. (As he did so often, he attempted to retreat from this when taken to it under cross examination, but his retreat did not, in my view, diminish the force of his affidavit evidence on this subject). There were recognisable advantages for her, as the Eastbourne Avenue house was a very pleasant place in which to live, although far too large for her needs; it facilitated her entertaining house guests and providing accommodation for Mr Bar-Mordecai's staff. She cannot have had or thought she had any need for a long-term real estate investment or prospects of capital gain, having regard to her age. Her decision to purchase the Eastbourne Avenue house and to confer a valuable interest in it on Mr Bar-Mordecai should on the probabilities be attributed to prompting by him. Mrs Hillston joined with him in entering into financing commitments with ANZ Banking Group relating to the purchase. Except for bridging finance pending realisation of the proceeds of sale of her house at Forestville she had no need for finance. She spoke of the finance as a personal loan to Mr Bar-Mordecai, and once the bridging finance became unnecessary this, I find, was its true character. 93 Mr Bar-Mordecai gave a mortgage over the surgery to the Commonwealth Bank on 4 July 1991 to secure borrowings of Michael Bar-Mordecai Pty Ltd. Mrs Eveline Hillston was not a party to this transaction. The mortgage to the Commonwealth Bank over the surgery was discharged on 21 April 1995; this discharge was probably associated with the security which he gave to Citibank on 15 June 1995 over the surgery when the Eastbourne Avenue property was discharged from the Citibank mortgage. 94 The mortgage over the surgery granted in July 1991 to the Commonwealth Bank of Australia was subject to the priority of the mortgage for $250,000 to Mrs Hillston. The discharge of her mortgage enhanced Mr Bar-Mordecai's opportunity to use the surgery as security for bank finance. Mr Bar Mordecai obtained approval from the Commonwealth Bank dated 30 July 1993 (Exhibit DK) for an advance of $250,000 to him. The purpose stated was "To assist re-finance loan to Eveline Hillston" which cannot be literally correct and probably refers to a proposal to re-finance the loan by Mrs Hillston. In the account given in evidence by Mr Bar-Mordecai the project of discharging the mortgage was originated by Mrs Hillston and there was never any proposal to pay her out, or any proposal which could be thought of as re-financing the loan by her. The discharge of her mortgage in 1993 was lodged for registration by the Commonwealth Bank. The evidence did not explain in any clear way what part the Commonwealth Bank had in arrangements to obtain and later to register the discharge of mortgage. 95 I disbelieve Mr Bar-Mordecai's evidence about the proposal for discharge originating from Mrs Hillston; this leaves the origin of the proposal simply without explanation. Certainly there was no evidence that she had any independent advice about discharging her mortgage. In one of his accounts of a conversation in which he said that she proposed to discharge the mortgage, it is his evidence that she said "I will also transfer the unit and my share of the house to you". I do not believe that Mrs Hillston said anything to this effect; if she had intended to do so she would have intended to part with her last substantial assets. If it really had been true that Mrs Hillston had, unprompted, decided to discharge the mortgage and to transfer her last remaining substantial assets to him, that would demonstrate a degree of abject subjection far beyond the usual range of reported cases of undue influence. In Mr Bar-Mordecai's account, the intended gift was dealt with further by looking into transferring those assets to him and discovering that there would be stamp duty, and following upon that discovery Mrs Hillston told him that she would leave a will instead. Then there was a theme in which Mr Bar-Mordecai maintained that Mrs Hillston must have made a will very late in her life, though he did not know when or where, or whether a solicitor helped her to do it or where the document may be; and he referred to the possibility that such a will has been deliberately suppressed. He claimed that Mrs Eveline Hillston gave him assurances, in 1993 (and possibly in 1994) that she had made or intended to make a new will conferring further benefits on him, or that she intended to transfer the home unit in Mount Street and her share in the Clovelly house to him. I disbelieve his evidence to these effects. This string of fables takes its place among the more fantastic of Mr Bar-Mordecai's fantastic stories, like most of them highly improbable but difficult to prove to be impossible. 96 I do not believe Mr Bar-Mordecai when he speaks of statements by Mrs Eveline Hillston to the effect that she intended or was considering giving him even further benefits or gifts, by will or in any other manner. Mrs Eveline Hillston had almost five years after she made her last will, which itself conferred quite significant benefits on Mr Bar-Mordecai, to think out and act on any intention to do even more for him, and if she had intended to do so there was no obstacle to her doing so and she would probably have acted on her intentions. Suggestions made in various ways by Mr Bar-Mordecai that even greater expectations were held out to him and that he has somehow been disappointed are in my finding untrue. 97 Evidence of Hillston Family Members. I do not understand clearly why Mr Bar-Mordecai's evidence included hostile stories and invective directed against Mr Allan Hillston, Mr Alex Hillston and their mother Mrs Jane Hillston, of whom he spoke particularly severely, although the only evidence of hers in the hearing before me was affidavits which he himself tendered. It seems that he sought to paint a picture of adverse feelings of Mrs Eveline Hillston against her relatives on the view that to do so would somehow assist a conclusion that her intention to confer benefits on him was the product of her own will and not of his influence. 98 Mr Michael Bar-Mordecai attempted to show that the plaintiff Mr Allan Hillston and his brother Mr Alexander Hillston, usually called Alex and sometimes Alexi, had serious financial problems relating to the business which they conducted in Greece, and that a few months before her death Mr Allan Hillston made a demand on Mrs Eveline Hillston for a payment in the order of $600,000 as a gift or loan, which she refused. According to Mr Bar-Mordecai, Mrs Hillston told Mr Bar-Mordecai she washed Mr Allan Hillston's hair for him, an expression Mr Bar-Mordecai was unable to explain, although it seems to mean that she responded dismissively. 99 The whole subject of Mrs Eveline Hillston's disposition towards her nephews appears to me to have only a small connection with any issue of importance, but a great deal of time was given to it. Letters in Exhibit B passing between Mrs Hillston and her relatives clearly show her strong affection and high regard for her nephews and her readiness to give them financial assistance. There was nothing wrong or improper about approaches by Mr Alexander Hillston to Mrs Eveline Hillston for advances of money, whether by way of loan or gift, and in my finding these approaches were not unwelcome to Mrs Eveline Hillston, nor were they resented or rejected. The only way in which an adverse view might be taken of these approaches would depend on acceptance of the view that it was inappropriate for her money to be placed out of the reach of Mr Bar-Mordecai. In truth Mr Alexander Hillston's approaches to Mrs Eveline Hillston for money have little or nothing to do with anything really in issue in the case. 100 Mrs Eveline Hillston was well disposed towards both her nephews, and she corresponded and otherwise communicated with them in a manner appropriate for a loving aunt. Her good disposition towards them was borne out by correspondence in evidence and many expressions in the correspondence, by the dispositions in her will in their favour, and by their evidence of their communications with her, and I accept their evidence. As men of business they did have needs for capital, and money difficulties from time to time. I do not accept Mr Bar-Mordecai's evidence to the effect that Mrs Eveline Hillston received a request or demand for a loan of an enormous sum of money, or that she refused it out of hand, or that she resented the request or spoke to Mr Bar-Mordecai about the application for funds in a slighting way; events like those would be quite inconsistent with the general state of her relationship with her nephews, and Mr Bar-Mordecai's evidence on that subject, which was not corroborated at all, is in my finding untrue. 101 Mrs Jane Hillston was not called as a witness nor was her affidavit read in the hearing before me by Mr Allan Hillston. She was a witness in the Probate proceedings, and affidavits she made in those proceedings were tendered in evidence by Mr Bar-Mordecai - Exhibits 25 and 62. She was in a position to give relevant evidence as she lived in the house at 30 Eastbourne Avenue for some months in 1991 and 1992, including the period when Mr Bar-Mordecai was convalescent after being badly injured in a motor accident. Mr Allan Hillston when cross-examined explained not having called her evidence in terms of her being unwell and living in Greece. Comments Mr Bar-Mordecai made seemed to show that he put her affidavits in evidence himself with the object of attacking them, and of attacking the conduct of Mr Allan Hillston in relying on her evidence in the Probate proceedings. If the attack on Mr Allan Hillston's conduct in relying on his mother's evidence had any force at all (and I cannot see that it has) its force would be neutralised by the fact that he did not tender her evidence in the present proceedings. 102 Mrs Jane Hillston's evidence was to the effect that she arrived from Greece about 10 December 1991, lived with Mrs Eveline Hillston at her home at 30 Eastbourne Ave Clovelly for about seven months, and "during the 7 months of my stay with the deceased I observed that the deceased and Dr Bar-Mordecai retired for the night to separate bedrooms which were both located on the middle floor of the house at 30 Eastbourne Street Clovelly." She also said "At no time since her husband died did I ever hear the deceased or the plaintiff say anything to suggest they were de facto partners or lovers." Mr Bar-Mordecai made many adverse assertions against Mrs Jane Hillston, including a claim that her visit ended when Mrs Eveline Hillston required her to leave after Mrs Jane Hillston had demanded to see Mrs Eveline Hillston's will and this had been refused; there is no reliable evidence in support of this story, and no understandable reason why it was put forward, and in my finding it is untrue. However that may be, Mrs Jane Hillston's affidavit in the probate proceedings went into evidence in circumstances where cross-examination was not available. I see no good reason for not accepting the passages in her evidence which I have set out, and I accept them. 103 Mr Allan Hillston gave evidence about, among other things, the bedroom accommodation used by Mr Bar-Mordecai on occasions when Mr Allan Hillston visited the apartment at Mount Street, and also the house at 30 Eastbourne Avenue. Mr Allan Hillston gave evidence that he stayed in the Mount Street apartment on his first return visit to Australia in 1985, after leaving to live in Greece in 1983. In his affidavit Exhibit 60 Mr Allan Hillston said to the effect that on his return visits between 1983 and 1990 he would stay at the Mount Street apartment and "I observed that the unit had only two bedrooms, one which was occupied by my aunt and during my stay with my aunt, I occupied the second bedroom of the unit. During my visits with my aunt … I observed that neither of the two bedrooms in the unit showed any signs of being used by Dr Bar-Mordecai. I never observed Dr Bar-Mordecai to stay with my aunt overnight." Mr Bar-Mordecai's evidence was that Mr Allan Hillston's parents (Mr Simon Hillston and Mrs Jane Hillston) lived in Australia until July or August 1988, when they went to live in Greece, and that before 1989 Mr Allan Hillston during his Australian visits stayed at his parents' home in Bondi; so that he did not stay in the Mount Street unit in 1985. To the contrary, in her affidavit Exhibit 62 Mrs Jane Hillston said "In 1984 my husband and I left Australia to live in Greece. Since that time I have lived in and intermittently in Greece and Australia. During my visits to Australia, I always stayed with the deceased." Mr Michael Bar-Mordecai contended that Mr Allan Hillston is an unreliable witness, and that he gave false evidence about having stayed in the Mount Street apartment in 1985. He commented that Mr Allan Hillston had failed to produce his passport to show when he had come to Australia. The comment is groundless; an entry in a passport could show nothing about where Mr Allan Hillston stayed while he was in Australia. In my finding it is clear that Mr Allan Hillston did stay in the Mount Street apartment in 1985 as he says, and that Mr Bar-Mordecai's evidence that he did not is quite wrong. 104 I accept Mr Allan Hillston's evidence. I infer from this and other evidence of visitors to the Mount Street apartment that, although Mr Bar-Mordecai did spend much time at the apartment, and often slept there, sometimes sleeping with Mrs Eveline Hillston there, he did not do so when her relatives were present and might observe his behaviour. 105 Mr Bar-Mordecai also contended that Mr Allan Hillston gave knowingly false evidence to the effect that Mr Bar-Mordecai and Mrs Eveline Hillston occupied different bedrooms in the house at Eastbourne Avenue on occasions when Mr Allan Hillston was in Australia in 1991 and 1992 and visited for several days at a time. In his affidavit Exhibit 60 Mr Allan Hillston said to the effect that he observed that Mr Bar-Mordecai's bedroom was on the first floor of the house. When cross-examined he explained how he observed this: "That observation was at that time when I was looking through the house, at my aunty's request. I observed at the time there was some gentleman's clothing on the bed in that particular room and, of course, I made the assumption, knowing very well that my aunty did not have the house available to any other gentleman, I can only presume that of course, I assumed that is your bedroom." In evidence in probate (Exhibit 69) he said to the effect that he was not sure which bedroom Mr Bar-Mordecai slept in. This evidence also showed that he did not stay overnight or sleep at the Eastbourne Avenue house but visited her every day during his visits. He rejected wholly a suggestion that he had intended to mislead the court. In my finding there was no basis for any such suggestion; his observation that Mr Bar-Mordecai's bedroom was on the first floor of the house was reasonably based on what he observed when he was looking through the house; and it was probably true that Mr Bar-Mordecai had a bedroom of his own; this is no less true because he may well have occupied Mrs Eveline Hillston's bedroom and shared her bed on occasions. 106 Mr Allan Hillston also gave evidence that in 1992 Mrs Eveline Hillston was not freely mobile, had a knee problem, could not put too much weight on her knee and had difficulty in walking any distance; she suggested to him that her swimming days were over because of the steep steps she had to climb up and down to get to the seaside at Clovelly Beach. It is altogether clear that Mrs Eveline Hillston in fact did have difficulty with her knee, and had difficulty in walking and particularly in using steps and reaching the water to swim at Clovelly Beach, in the last two or three years of her life. She speaks of her difficulty in walking and her unsteadiness in the Euthanasia letter Exhibit X which I set out earlier. A number of witnesses gave evidence of observations about whether Mrs Eveline Hillston walked freely, and whether she needed assistance; their observations vary, probably because of variations in the times at which they observed her and the degree of effort which she made. Something depends too on the capacity of the witness for observation, and on the witness's objectivity and degree of sensitivity to Mrs Eveline Hillston's feelings and behaviour. Mr Allan Hillston's evidence about Mrs Eveline Hillston's mobility does nothing to injure confidence in his credibility. 107 It was also contended that there were anomalies in Mr Allan Hillston's evidence about his financial problems, and in about whether he had watched the 1992 video, in details about steps he had taken in relation to preparation of affidavits in the probate proceedings; and a number of other matters which I regard as trivial or inconsequential. The attempt to discredit Mr Allan Hillston and his evidence was quite unsuccessful. I regard him as a sincere witness and generally reliable, subject to some difficulties of completeness and precision about events from some years ago. Where he and Mr Bar-Mordecai are directly in conflict I unhesitatingly rely on Mr Allan Hillston's evidence, as it is far more likely to be true. 108 Mr Bar-Mordecai contended that it reflected adversely on the credit of Mr Allan Hillston that he complained or caused a complaint to be made to the New South Wales Police that Mrs Eveline Hillston had died in suspicious circumstances. In my view there were reasonable grounds for such a complaint to be made, and for police investigation to be undertaken; reasonable grounds for suspicion were raised by Mr Bar-Mordecai's having been Mrs Eveline Hillston's usual medical attendant while living in a close personal association with her, and by his having administered morphine to her shortly before her death. There was an extensive investigation by New South Wales Police, some papers from which appear in Exhibit 17, and the investigation led to a decision by the Coroner not to conduct an inquest. It should not be found that Mr Allan Hillston's complaint was not reasonably based, or was wrongly motivated, or was in any other way adverse to his credit. The same conclusion should be made of Mr Alex Hillston's limited involvement in the complaint. 109 Mr Alexander Hillston gave evidence on affidavit and orally, and Mr Bar-Mordecai tendered in evidence (Exhibits 23 and 24) two affidavits which Mr Alexander Hillston made in the probate proceedings. His evidence was to the effect that he stayed with Mrs Eveline Hillston and Mr Jack Hillston in the apartment at times during his high school and university years. He studied law at the University of New South Wales but was not admitted as a solicitor. In 1983 he left Australia to live in Greece; he returned for visits approximately every 18 months and normally stayed at Mrs Eveline Hillston's home, the Mount Street apartment or the Eastbourne Avenue house. He communicated regularly with his aunt by telephone or by letter. He produced in evidence (Exhibit B) copies of a number of letters he received from Mrs Eveline Hillston. Good feelings of Mrs Eveline Hillston towards him are shown by her having lent him her car, hosted parties for friends, taken him into confidence about making a will and asking him to be her executor, and actually making provision for him in her will, by her preparedness to lend him money and generally by her hospitality to him and by her maintaining a good disposition towards him, evidenced by the terms of letters and messages she sent him. In February 1993 and in February 1994 Mr Alexander Hillston stayed with Mrs Eveline Hillston in the house at Eastbourne Avenue, for about 10 days on each occasion. In May and in June 1994 he spoke to her by telephone from Greece and asked her to lend him between $200,000 and $300,000 because his company in Greece had the official distributorship contract from Fuji. There was discussion about this and in early June she said to the effect that she would probably have to get a loan on a mortgage over the flat with Citibank and that she would do this. However she had not done so when she died. In his oral evidence he said that he did not ever observe Mr Bar-Mordecai living in the Mount Street unit and was unaware that he was living there other than periodically spending some time there. He was aware that Mr Bar-Mordecai's daughters visited there on access visits, and vaguely remembered one daughter, Tammy, staying in the unit on occasions. 110 Mr Alexander Hillston's interpretation of the relationship (t.348 l14) was to the effect that they had a normal friendly relationship as good friends would have. When asked "Were you aware of any physical intimacy?" He answered "Not really" and went on to say to the effect that Mr Bar-Mordecai put his arm around Eveline Hillston in order to assist her to get up and down, and that he noticed on one or two occasion that he ruffled her hair and "From what I remember it, it was done humorously". Mr Alexander Hillston also said in evidence "She regarded you as a dear friend. She was very, very fond of you, and I think she was obviously very, very interested in anything you were doing." (t388 ll8-10). This is far short of an indication that he interpreted the relationship as a de facto relationship, or that he had reason to. 111 Mr Alexander Hillston's evidence was challenged and it was submitted that I should regard his evidence as unreliable because of some circumstances, for example his recollections about the dates of his parents' international movements in the 1980s, and about who paid for dinners he attended between 1986 and 1994, the circumstances in which he took part in his mother's return to Greece from Australia in 1992, and other minor circumstances. One contention was that it was adverse to his credit that he gave evidence that Mrs Eveline Hillston told him that she lent money to Mr Bar-Mordecai for software. Evidence does not establish and the plaintiff does not allege that there were loans for that purpose, but that does nothing to show that Mr Alexander Hillston's evidence does not say accurately what Mrs Eveline Hillston told him. It does seem fairly clear that she gave Mr Bar-Mordecai money for software. Mr Bar-Mordecai made many observations adverse to Mr Alexander Hillston's credit, turning for the most part on small circumstances or completely unimportant circumstances and supposed anomalies in his evidence. There is no substantial basis for these criticisms. 112 In cross-examination Mr Alexander Hillston was taken to evidence he had given in the probate proceedings to the effect that he observed that Mrs Eveline Hillston and Mr Bar-Mordecai retired to separate bedrooms in the Eastbourne Avenue house at night, bedrooms located on the same floor of the house. He gave an explanation for this observation; he presumed that Mr Bar-Mordecai was going into a separate bedroom as he was walking down the hallway, and he did not identify any particular bedroom and was unclear where Mr Bar-Mordecai slept. It was contended that his treatment of this matter was adverse to his credit. I do not regard it as adverse to his credit, particularly as it was not established that he made or had an opportunity to make any observations to the effect that Mr Bar-Mordecai shared Mrs Eveline Hillston's bedroom while he was in the house. He gave evidence in his affidavit that he went into her bedroom from time to time: "On most occasions she was lying down and I sat on the edge of the bed and talked to her. On some occasions Mr Bar-Mordecai joined us and also sat on the edge of the bed and talked to my aunt. These were the only occasions when I saw Mr Bar-Mordecai in my aunt's bedroom and I never saw them in bed together." This was in complete conflict with Mr Bar-Mordecai's claim that Mr Alexander Hillston had on a number of occasions seen Mrs Eveline Hillston and Mr Bar-Mordecai in bed together, and that they were cuddling. It was a considerable difficulty for accepting Mr Bar-Mordecai's account that it did not include any circumstances which would make it probable or explain that an adult person would remain and observe such a scene; with no great delicacy but only ordinary adult feelings of respect for privacy very few adults would remain and watch such a scene, let alone repeat the experience. 113 With the benefit of observing Mr Alex Hillston giving evidence, including cross-examination, I have confidence in his evidence that no such event ever happened. I do not accept Mr Bar-Mordecai's evidence that Mrs Eveline Hillston's relatives (and he said much the same of Mrs Jane Hillston) observed him and Mrs Eveline Hillston in bed together cuddling. A conclusion I base on this part of Mr Bar-Mordecai's case is that he is quite capable of maintaining in evidence that complete fantasies are true. I have confidence in Mr Alexander Hillston and his evidence; there was no open display of a sexual relationship or of a de facto relationship to him, and there was no overt display of signs of affection, kissing, touching or otherwise, in his presence. 114 Witnesses called by Allan Hillston. Professor Carlos Kraemer made an affidavit and gave evidence in the plaintiff's case. Professor Kraemer is a Professor of Engineering at Valencia in Spain; he is a nephew of the late Mr Jack Hillston, whose sister was Professor Kraemer's mother, and he regarded Mrs Hillston as his aunt and spoke of her as his Aunty Eveline. He met Mrs Hillston a few times in Spain and France over some decades before Mr Jack Hillston's death. In October 1983 he came to Sydney for a World Road Congress and during the Congress stayed in Mrs Hillston's apartment at Mount Street. To his observation Mr Bar-Mordecai was not then living at that apartment. Mrs Hillston introduced Mr Bar-Mordecai to him and said "He is the family doctor and a friend." He met Mrs Hillston again about 1986 when he spent a week with her at her invitation in Israel, and again met her for one or two hours at Athens Airport during her visit to Greece in 1989. He maintained contact with Mrs Hillston by letters and telephone, and after the Israel trip had a much closer relationship with Mrs Hillston. In 1994, when he held a professorship at Madrid, he accepted an invitation from the Queensland University of Technology in Brisbane to spend two months as an Invited Professor lecturing in that university and elsewhere in Queensland, Sydney and Melbourne. He was to be in Brisbane for a welcoming ceremony on Monday 27 June 1994. He arranged to travel to Sydney, to arrive on Saturday 25 June 1994 and stay with Mrs Hillston before moving to Brisbane. He left Madrid on 24 June and at some time immediately before or during the journey learnt that she had died. He had spoken to her by telephone a few days before his departure when it seemed to him that she was in good health. 115 Professor Kraemer arrived in Sydney on Saturday 25 June and was met by Mr Bar-Mordecai, and stayed with Mr Bar-Mordecai at the Eastbourne Avenue house that weekend until he left for Brisbane on the morning of Monday 27 June. On Sunday 26 June Professor Kraemer spent the day with Mr Bar-Mordecai except for some hours when Mr Bar-Mordecai worked at the surgery. Professor Kraemer was taken to the surgery. While he was in Mr Bar-Mordecai's company Mr Bar-Mordecai at time seemed to be in excellent humour and good spirits, but at other times appeared extremely sorrowful for short periods. They visited Centennial Park; Professor Kraemer says they went jogging, Mr Bar-Mordecai says that they went on several speed walks there. Professor Kraemer returned to Sydney on Friday 8 July. By this time Viola was living in the house; Mr Bar-Mordecai introduced him to Viola and appeared to be in the best possible spirits. Professor Kraemer visited again on 31 July when Viola was installed in the house with her family. He visited again, it would seem on or soon after 22 August, when he was accompanied by the lady who is now his wife, who had come from Spain. 116 I do not regard Professor Kraemer's observations of Mr Bar-Mordecai's moods on 25 and 26 June as of any real significance adverse to Mr Bar-Mordecai. It is understandable in his circumstances as he puts them forward that, although affected by grief and at times showing signs of it, at other times he would summon up good spirits to present to a guest. Much attention was given to Mr Bar-Mordecai's challenge to Professor Kraemer's evidence that he arrived early in the day on Saturday; Mr Bar-Mordecai suggested that he arrived at 9 pm. In my finding it is probable that Professor Kraemer spent a significant part of that day in Mr Bar-Mordecai's company. 117 Professor Kraemer's observation of the relationship that Mrs Hillston had with Mr Bar-Mordecai was that it was a friendship relationship; "… When I met her and you in '83, it was from then on clear that you have a close friendship." He also said that it was a respectful relationship but not intimate. He discussed the relationship with Mrs Hillston, not deeply. He encouraged the friendly relationship with Mr Bar-Mordecai because he thought for her it was positive. "I was very happy about this relationship because I was interested in her happiness so I see it was a positive thing." In his understanding it was a mother/son relationship. To his observation it was a friendly relationship with mutual respect. He did not ever observe any physical intimacies between them. 118 The plaintiff called the evidence of Mrs Betty May Connell. Mrs Connell, who is a retired pharmacist, became acquainted with Mrs Eveline Hillston in the late 1970s; she was introduced by Mrs Jane Hillston and her husband. They met on several occasions. When Mrs Connell retired in August 1988 she began to see Mrs Eveline Hillston more often, they became closer friends and she began visiting her home at least once a month for lunch or outings. Mrs Connell gave evidence of a conversation with Mrs Eveline Hillston in which Mrs Eveline Hillston represented moving to Eastbourne Avenue as something Mr Bar-Mordecai wanted to do and that she did not really want to do. During visits at Eastbourne Avenue Mrs Eveline Hillston sometimes said things which showed ambivalence about her feelings for living at Eastbourne Avenue and living in the same house as Mr Bar-Mordecai; she said that she would feel happier back in her little unit. She spoke very warmly of Mr Alex Hillston saying "Alexi is my son." Mrs Connell was present about October 1993 on an occasion when Mrs Eveline Hillston said to Mr Bar-Mordecai "When are you going to pay back to me the money that you owe me" and received an answer that fobbed her off; she appeared agitated and concerned. Mrs Connell did not recall seeing them kiss each other, hold hands, place their arms around each other or exhibit any signs of physical affection to each other or maintain physical contact, and no suggestion was ever made by Mrs Eveline Hillston that they were living as husband and wife or were lovers. On the other hand Mr Bar-Mordecai beset Mrs Connell with assurances that he loved Mrs Eveline Hillston; but he chose to do so on occasions when Mrs Eveline Hillston was out of the room, there were no corresponding statements by Mrs Eveline Hillston, and no such statements while she was present and in a position to debate the matter. 119 Mrs Connell was cross-examined in a severe manner and her evidence was attacked forcefully. In cross-examination it was established that on an occasion when Mr Bar-Mordecai was in hospital after suffering severe injuries, she observed that Mrs Eveline Hillston held Mr Bar-Mordecai's arm for a minute or so, not very long. It was contended that this falsified her evidence that she had not observed behaviour which indicated physical affection or maintaining any physical contact. The event in the hospital of which she spoke has no force, in my view, to show that her evidence generally about there being no outward signs of affection is unreliable. It is quite unremarkable that a close friend making a hospital visit should give moral support to a severely injured person by briefly holding his arm; that is not a sign of physical affection, and the suggestion that it is trivial. 120 A number of other matters offered supposedly as criticism of Mrs Connell's recollection and reliability had no real force. She said to the effect that she saw it as a possibility that Mr Bar-Mordecai and Mrs Eveline Hillston were sexually involved. She said "I saw it as a possibility. As I said before, I thought she couldn't." This was not based on any particular observation of their behaviour; and the possibility was not difficult to discern, nor was the conclusion that it was no more than a possibility because Mrs Eveline Hillston could not behave in that way. This passage of evidence does nothing to diminish confidence in Mrs Connell's evidence. She was a confident, clear-headed witness, firm under extended attack, with no trace of any interest or wrong motivation. In my view she was a sincere and reliable witness. Her evidence is particularly important as she was a woman friend, old enough to retire in 1988, she had known to Mrs Eveline Hillston for many years, and from 1988 on she saw her frequently, and was the recipient of confidences; yet she was not told and was not shown any behaviour which indicated that there was a sexual relationship or a de facto relationship between them. 121 Clearly there in fact was a sexual aspect of the relationship between Mrs Eveline Hillston and Mr Bar-Mordecai. It is however important for interpreting the social context that it was not made known to a longstanding woman friend who, although not Mrs Eveline Hillston's age, was within one or two decades of her age so that, if Mrs Eveline Hillston was to confide in anybody, she might well have confided in Mrs Connell; but did not. 122 Mr Allan Hillston tendered in evidence (Exhibit CA) and later read the affidavit of Lorna Cossar in the probate proceedings of 4 November 1995. Mrs Cossar was not able to attend from Canberra to be cross-examined, and I gave leave for her affidavit to be read notwithstanding that she is not available. The fact that she is not available for cross-examination and cannot be challenged has to be borne in mind when appraising the weight of her evidence, especially her evidence on matters otherwise known to be contentious on which the opportunity to cross-examine and the opportunity for the court to observe her response would be important. She knew Mrs Eveline Hillston for many years from 1940, and from 1981 onwards frequently visited her and went on outings with her. She said "During my visits at the deceased's home at 30 Eastbourne Street Clovelly, I observed that the deceased and Dr Bar-Mordecai, the plaintiff in these proceedings, had separate bedrooms on different floors of the house". She does not give in her affidavit any information on which the basis of this observation can be understood, or the bedrooms can be identified. Her evidence could at most have little weight. 123 Mr Charles Monty, who was formerly a patient of Mr Michael Bar-Mordecai, made an affidavit and was called to give evidence by the plaintiff. Mr Monty gave his occupation as Consultant; he works in some way in the real estate industry, but does little work now because of his state of health. He spoke in evidence of a number of health problems. He met Mr Bar-Mordecai about 1964 or 1965, before Mr Bar-Mordecai began to study medicine. He next met him in 1992 when Mr Monty was suffering from extreme depression and needed medical attention, which Mr Bar-Mordecai gave him. Then in 1993 he had further treatment for pain relating to a crushed vertebra, back pain, neck pain and headaches, with Endone. Somewhat to his surprise, Mr Bar-Mordecai asked to borrow Mr Monty's Mercedes motorcar when Mr Monty was going overseas; Mr Monty agreed. Mr Bar-Mordecai spoke to him very freely about highly confidential subjects, including Mr Monty's sexual behaviour, and also Mr Bar-Mordecai's sexual behaviour. 124 Mr Michael Bar-Mordecai spoke to Mr Monty of his sexual relationships in great detail, and asked Mr Monty about his at almost every visit to the surgery. Mr Bar-Mordecai said to the effect "I have been having sex with a number of female patients of mine". He also took Mr Monty into his confidence in drafting a letter in response to a letter of complaint from Health Care Complaints Commission, and in discussing settlement of Mr Bar-Mordecai's motor car accident claim. Mr Bar-Mordecai spoke to Mr Monty about Mrs Eveline Hillston; he spoke in glowing terms, saying "I met this old lady years ago and she is exceptionally kind to me "and spoke about her generosity, his association with her, her assistance with computer software and the practice and said "Whatever I need she will give it to me." Notwithstanding that Mr Bar-Mordecai spoke very freely about his own sexual activities, he did not suggest to Mr Monty that his relationship with Mrs Eveline Hillston included any sexual activity. 125 During late 1993 Mr Bar-Mordecai spoke to Mr Monty of having sex with numerous female patients, and spoke in those terms during virtually every visit, sometimes with names, or nationality, age or other physical attributes. In about late 1993 or early 1994 Mr Bar-Mordecai began to speak during almost every visit about a woman with whom he was having a relationship whose name was Viola. He spoke with enthusiasm and tasteless details. 126 Mr Monty did not meet Mrs Eveline Hillston except on one occasion about three weeks before her death, and he did not ever see any social interaction involving both Mr Michael Bar-Mordecai and Mrs Eveline Hillston. Mr Monty gave evidence of his interpretation of the nature of their relationship; however his interpretation is based almost entirely on statements by Mr Bar-Mordecai, and does not have the significance of the interpretation of a person who was acquainted with both and was able to make an interpretation of their relationship in a social context. On the basis of what he was told it was Mr Monty's belief, or I would say his interpretation that the relationship was a friendly platonic one, a relationship in which Mr Bar-Mordecai aided Mrs Hillston to take walks and in return she was extremely kind to him and assisted him; that they had a relationship where she was a benefactor to Mr Bar-Mordecai. Mr Monty's interpretation cannot have any weight for my overall conclusion about the nature of the relationship; he was at the periphery of their social interaction. 127 Mr Monty attended Mrs Eveline Hillston's funeral and observed that Mr Michael Bar-Mordecai was crying and appeared to be extremely upset. However within two or three days after the funeral he saw Mr Bar-Mordecai at the surgery; in evidence he said "I have never seen him as happy as he appeared on this occasion. He was showing emotions that he was 'over the moon'. He constantly talked to me about the 'money' he had 'inherited from Mrs Eveline Hillston'. I recall him shouting words to the effect 'I am a millionaire, I'm a millionaire, everything now goes to me'. During that visit Mr Bar-Mordecai said to me words to the effect 'Viola moved in virtually right after the funeral, the next day'." 128 Mr Monty was cross-examined with great severity by Mr Bar-Mordecai; the cross-examination was a whole-hearted attack on Mr Monty's credibility, sincerity and accuracy. Mr Monty has had a previous hostile passage with Mr Bar-Mordecai in that Mr Monty was associated with a common law damages claim by his wife against Mr Bar-Mordecai arising out of medical treatment of his wife; this claim was abandoned; Mr Monty says it was abandoned because there was no insurance, and Mr Bar-Mordecai says it was abandoned because it was groundless. Mr Monty is a man who has had real pain and illness and has suffered, and had a real need for medical treatment. My impression of him is that he is a man of feeling, not of cold rationality. I see no difficulty in accepting evidence of Mr Monty in which he claims that Mr Bar-Mordecai discussed with him freely, and indeed excessively, confidential matters including matters relating to Mr Bar-Mordecai's sexual life, his sexual relations with female patients and in particular his relations with Viola. This is consistent with evidence elsewhere that Mr Bar-Mordecai has spoken to patients with remarkable openness about sexual matters including Mr Bar-Mordecai's own sexual experiences; indeed Mr Bar-Mordecai's own evidence includes passages to similar effect. Mr Monty adhered very clearly and firmly to his evidence under severe challenge. I regard him as a reliable witness, and reliable in his accounts of Mr Bar-Mordecai's speaking with astonishingly unguarded openness about his own sexual behaviour, his behaviour with Viola, his feelings after Mrs Eveline Hillston's death, and his relationship with Mrs Eveline Hillston during her lifetime. On the subjects with which his evidence deals I regard Mr Monty as far more reliable a witness than Mr Bar-Mordecai. 129 Ms Tatyana Daych, whose evidence was called by Mr Bar-Mordecai and who at one time after Mrs Hillston's death lived with Mr Bar-Mordecai, it would seem in a de facto relationship after a religious marriage ceremony, gave evidence that in a conversation with Mr Monty, Mr Monty said, about Mr Bar-Mordecai "His last wife, Mrs Eveline Hillston left him enough". It was contended that this was inconsistent with Mr Monty's evidence about his interpretation of the relationship in its reference to Mrs Hillston as a wife. Mr Monty did not remember having said such a thing, but gave evidence quite emphatically that he did not believe he would have said it because he did not regard Mrs Eveline Hillston as Mrs Bar-Mordecai's wife. Miss Tanya Daytch's evidence was not given with any context which would enable a real appraisal to be made of the likelihood of Mr Monty's having spoken in that way. Nor is there any circumstance which really explains why Mrs Daytch would have regarded the statement as significant or would have remembered it. It could not have much significance if it were true that Mr Monty had, on some occasion when a full exposition of his interpretation of the relationship was not significant, referred to Mrs Eveline Hillston as having been Mr Bar-Mordecai's wife. As a matter of probability however I do not find that he made any such statement, while if he had made it, it would have little force to diminish the force of his evidence about what he says Mr Bar-Mordecai told him. 130 Mr Bar-Mordecai submitted that Mr Allan Hillston had failed to call witnesses who may have assisted his case and that the court should infer that those witnesses would not have assisted his case. The persons referred to in this submission were Eva Dery, Elena Siloglou-Hillston, Fred Davies, Viola Yakovleva and Jane Hillston. It was Mr Bar-Mordecai's evidence that a draft affidavit of Eva Dery was served on him at some time. A copy of the draft is Exhibit Y (t.1506). The document was not signed or sworn and gives no indication whether Eva Dery was a witness of any material facts. There is no evidence which could show that Eva Dery is so closely associated with Allan Hillston or should be treated as in his camp as to support the suggestion that he had failed to call her. 131 Elena Siloglou-Hillston married Alex Hillston in July 1993 and visited Australia with him in February 1994; with her then husband she stayed in the Eastbourne Avenue house for about 10 days. She made an affidavit in the probate proceedings on 6 November 1995 and a copy was put in evidence by Mr Bar-Mordecai - Exhibit 50 (t928). She and Mr Alex Hillston have since been divorced and she lives in Greece. Mr Bar-Mordecai put a copy of her affidavit in evidence and it plainly supports Mr Allan Hillston's case. There is no substance in his criticism that Mr Allan Hillston should have brought her from Greece to give evidence. 132 Mr Fred Davies (sometimes Davis) was referred to in evidence in cross-examination of Mr Bar-Mordecai - t.1019-1020. Mr Bar-Mordecai said that he proposed to subpoena Mr Fred Davies and call him as a witness. Mr Davies had been a patient of his as had his wife Margo Davies. Mrs Davies had been a very old friend of Mrs Hillston and was a regular luncheon partner with Mrs Hillston and Mr Bar-Mordecai. Mr Davies appears in a photograph in evidence (or at least, Mr Davies' hand can be seen in the photograph). No evidence showed any reason why Mr Davies would be in a position to give evidence of any importance, or why any evidence of his would relate to something which it was incumbent on Mr Allan Hillston to prove, or why Mr Davies was in Mr Allan Hillston's camp so that any adverse conclusion could be based on Mr Allan Hillston not having called him. The same should be said for Margo Davies. There is no substance in the criticism that Mr Allan Hillston should have called them and failed to. In any event Mr Bar-Mordecai's evidence was that he proposed to subpoena them. 133 There is no evidence establishing that Ms Viola Yakovleva has any connection with Mr Allan Hillston which would justify the comment that he should have called her evidence. Nor is there any evidence establishing what evidence she would give. Mr Bar-Mordecai could well have called her evidence if it would corroborate evidence he has given himself about his relationship with her, although according to his evidence that relationship ended badly and she cannot be seen as associated with him or in his camp. In my view neither party is open to adverse inference based on Jones v. Dunkell for not having called her. 134 Mrs Jane Hillston's affidavits were tendered by Mr Bar-Mordecai. Mr Allan Hillston was asked in cross-examination why he had not called her in these proceedings and explained "First off, she resides overseas. Secondly, her health is in such a state that she is unable to travel." Generally her affidavits contain material strongly favourable to Mr Allan Hillston's case and denying various adverse suggestions Mr Bar-Mordecai sought to make in evidence, largely superfluously, about Mrs Jane Hillston and her late husband. Mr Bar-Mordecai put copies of the affidavits in evidence. There is a reasonable explanation for not bringing her from Greece, if further evidence of hers was required. (I cannot see that it is.) There is no substance in this criticism. 135 Witnesses called by Mr Bar-Mordecai. Mr Bar-Mordecai called many witnesses. Most of them dealt with his claim that there was a de facto relationship; indeed few of them dealt with anything else. Most of those who dealt with that claim were persons who had been patients, to whom Mr Bar-Mordecai had made statements about facts in his personal life and Mrs Eveline Hillston's personal life which it is difficult to understand a doctor would reveal, particularly bearing in mind that Mrs Eveline Hillston was a patient and entitled to respect and confidence. There were other witnesses in such positions as neighbours, domestic staff and acquaintances, who do not all fall fully into this category of patients. Some had knowledge of the nature of the relationship based largely or even entirely on statements by Mr Bar-Mordecai which he had no business to be telling them and which should fairly be described as sexual boasting. He gave evidence (t989) to the effect that he regarded the sexual aspect of their life as a very private matter, not to be discussed with outsiders and certainly not to be discussed in terms of any details concerning her sexual history; yet it is clear from other parts of his evidence that he did discuss such matters with other persons and that he claimed that he would not regard it as proper to do so because, as he alleged, there was a husband and wife relationship. (t989-990). He also put the view to the effect that he had spoken to patients in terms of his own sexual history and not of hers; however this is altogether inconsistent with evidence of Paul Carew which he tendered in evidence. 136 Dr Isaac Mordecai, who is Mr Bar-Mordecai's younger brother, gave evidence on affidavit and orally. He is a medical practitioner and graduated with medical degrees from the University of Sydney in 1987. He also has degrees in Arts and religious studies and is a Rabbi, although without pastoral responsibilities. For about 8 months in 1989 he worked in Dr Bar-Mordecai's practice; this period included the period when Mr Bar-Mordecai made a claim against his relatives. Dr Isaac Bar-Mordecai left the practice at the end of 1989 and has since conducted his own practice. He gave an account, generally similar those given by his parents, of meeting Mrs Eveline Hillston towards the end of 1982 and thereafter of her and Mr Bar-Mordecai becoming inseparable and participating in family social events, religious festivals, and attendances in Synagogue on high holy days. At some early point in the relationship Mr Bar-Mordecai told him he was living with Eveline at Mount Street, and thereafter slept at the home at Chaleyer Street, Rose Bay only on alternate weekends and parts of school holidays during access visits. He described their showing signs of affection, holding hands, his ruffling her hair in public, indicating that they shared an intimate relationship. From September 1985 onwards the access visits took place at the Mount Street unit. His visits to their residence included occasional visits to the Eastbourne Avenue house as a doctor to treat Mr Bar-Mordecai when he was ill. He says that on each occasion he would see Mr Bar-Mordecai and Mrs Hillston in bed in the master bedroom on the middle floor of the house. She wore a night dress and he lay adjacent to her wearing only his underpants. His clothes, medical journal and reading lamp were near the bed. He saw Mrs Hillston giving signs of affection to Mr Bar-Mordecai while he was in hospital, caressing his hand and saying "my darling, I love you", in tears on leaving and kissing him goodbye. Mr Bar-Mordecai's behaviour in relation to Mrs Hillston was altogether different from his behaviour in relation to his mother. Dr Isaac Mordecai regarded Mrs Hillston as the person who filled Mr Bar-Mordecai's life. Dr Isaac Mordecai conducted her funeral service as Rabbi, and also a reburial service. He has observed Mr Bar-Mordecai crying at the recollection of Mrs Hillston on several occasions over the years, including an occasion on a visit to her grave site. 137 Dr Isaac Mordecai realised that Mr Bar-Mordecai and Mrs Hillston had a sexual relationship when in 1991 he attended Mr Bar-Mordecai who was ill at their home, and went into the bedroom to attend to Mr Bar-Mordecai who was lying in bed with Mrs Hillston; she had a blue nightgown on and he had his underwear on; he then realised that they had a sexual relationship, and was shocked, but told himself that he should have realised it. He had known earlier that they resided together, and had known for two or three years that Mr Bar-Mordecai was her treating doctor, but had not formed the view that such a sexual relationship was possible. He did not confide his realisation to his parents. Until he had this realisation he assumed that any relationship was entirely platonic. He visited the Eastbourne Avenue house many times, at lunch times or after dinner at night, sometimes on weekends; he would have long conversations with her on the Saturday night after Sabbath. 138 Mrs Ruby Mordecai is Mr Bar-Mordecai's mother. She was born about 12 years later than Mrs Hillston. Her affidavit evidence included evidence to the effect that she first met Mrs Hillston at the end of 1982 when she accompanied Mr Bar-Mordecai to a Friday evening Sabbath dinner at Mrs Ruby Mordecai's house and was introduced as a very close friend. She met her several times at the surgery. Between 1983 and 1994 Mrs Hillston joined her family for festival meals. (One of these occasions is shown on the videotape.) Mr and Mrs Mordecai were introduced to relatives of Mrs Hillston including Mrs Jane Hillston and her husband and son, who in turn visited Mr and Mrs Mordecai for dinner at the Festival of Tabernacles in 1984. She also met Professor Kraemer. Mrs Hillston spoke to Mrs Mordecai about the purchase of the surgery, saying that she wanted Mr Bar-Mordecai to have space to practice medicine. Mrs Ruby Mordecai said that Mr Bar-Mordecai moved out of her home in August or September 1983, and she did not know where he was living, but that he returned to the home for access to his children every alternate weekend and other access occasions, when he would stay at the Mordecais' home with the children. This arrangement changed from August 1985. She regarded him as having finally moved out of her home at Chaleyer Street Rose Bay in 1985 when the access arrangements with the children changed. Thereafter Mrs Mordecai saw the children on visits to Mount Street or to Eastbourne Avenue, and on holidays. Her friendship with Mrs Hillston grew and as well as meeting at Friday evening dinners and festival days and holy days they would visit the Art Gallery and attend the theatre and concerts together. She observed Mr Bar-Mordecai and Mrs Hillston often picking food off each other's plates; that he would offer her his hand, assist her in getting from the car or walking around the house and they often sat holding hands. She said "Mrs Hillston was a very 'proper' lady and observed all the proprieties when in my presence." Mrs Hillston would occasionally telephone to discuss Mr Bar-Mordecai's diet. 139 Mrs Mordecai occasionally visited the unit at Mount Street; she saw that there was a small bedroom containing a single bed and cupboards which contained some of her son's clothes, and that the main bedroom contained a double bed. She also gave evidence of visiting the house at Eastbourne Avenue frequently, especially at weekends when the grandchildren were there. She observed a bedroom containing a double bed in which there were clothes belonging to both Mrs Hillston and Mr Bar-Mordecai. At the time of Mr Bar-Mordecai's injury in January 1992 Mrs Hillston was at hospital every time she visited her son, and would sit beside his bed fondling his head or holding his hand. When she visited Eastbourne Avenue during Mr Bar-Mordecai's convalescence she would frequently see Mrs Hillston lying on top of the covers next to Mr Bar-Mordecai while he was under the covers in bed. Her view was that all times they behaved in a loving and supporting fashion towards each other both in public and in private. In oral evidence she gave an account of her feelings towards Mrs Hillston in which she did not like Mrs Hillston very much at the beginning but her feelings gradually changed as she observed their loving relationship. 140 Mrs Ruby Mordecai's evidence showed that there was never any mention to her by either Mr Bar-Mordecai or Mrs Hillston of a sexual relationship between them. During Mr Bar-Mordecai's convalescence Mrs Mordecai had the opportunity of going into the bedroom and saw that Mrs Hillston's clothes as well as his clothes were lying around in the bedroom. She said to the effect that this was the first time she realised that there may have been an intimate relationship between them. "I think I realised it before but this was like, being confronted with the fact." (t1951/24). She agreed that she had told the Medical Tribunal that she was shocked when she first saw that. 141 Mr Elias Mordecai, Mr Bar-Mordecai's father gave evidence on affidavit to the effect that he first met Mrs Hillston about the end of 1982, met her later mostly at his own home when she would accompany Mr Bar-Mordecai for dinner on Friday nights, festival days and holy days; he would also sometimes see her at the surgery or speak to her when she answered the telephone when he rang Mr Bar-Mordecai. He also visited them at 30 Eastbourne Avenue mostly for evening meals. He described their behaviour in which Mr Bar-Mordecai always offered her assistance, listened to every word she had to say, waited on her at times, they would pick food from each other's plates and sit holding hands. It was his view from their behaviour that they felt very close to each other, were always supportive of each other and showed affection and closeness. He described signs of affection which she displayed while Mr Bar-Mordecai was in hospital after his motor accident. He visited his son at Eastbourne Avenue during his convalescence many times, and on some of these occasions went into the bedroom where Mr Bar-Mordecai would be on one side of a double bed. Mr Bar-Mordecai told him "Mrs Hillston sleeps on the other side of the bed next to me." 142 Mr Elias Mordecai's affidavit presented a serene portrayal of the relationship which was very far from being complete statement of his views. In oral evidence Mr Elias Mordecai spoke somewhat wildly and there were inconsistencies in his evidence both internally and with evidence which he acknowledged giving on another occasion. He expressed hostility towards Mrs Hillston saying that his son was under her thumb, that she influenced him fully, that she consumed him, and adopted earlier evidence in which had said "For a woman of her age to be with a person who is 30 years her junior, obviously there's something wrong in her as much as one would say there is wrong in him in having fallen for it." He also said that initially his view of Mrs Hillston was like that "… but we changed over completely because we saw her attitude towards him and his attitude towards her was a relationship far better than many relationships between married people." (t1966/48). He also confirmed evidence he had given elsewhere that she got her shackles around him, and said that she seduced him. Some of his evidence was quite wild and strange. He said that she was absolutely materialistic, a very odd view having regard to the subject matter of this suit and her large gifts. He expressed an interpretation that Mrs Hillston was jealous of the Mordecai family. He gave evidence to the effect that there was no public commitment between Mr Bar-Mordecai and Mrs Hillston as husband and wife and attributed this to her being ashamed of herself in a way. He agreed that she would never introduce Mr Bar-Mordecai as her husband. He said that at the end she manifested her love towards him in a most open way, and that everyone who saw them together could say that they were very intimate. His evidence does not include any evidence that there was ever an open avowal by Mr Bar-Mordecai, or by Mrs Hillston to his parents that they were living together as husband and wife, or that they were in a de facto relationship, or any evidence that Mr Bar-Mordecai interpreted their relationship in that way. The closest approach to that subject is his evidence of what Mr Bar-Mordecai told him about the sleeping arrangements when he visited during his convalescence in 1992. 143 Mr Elias Mordecai's appraisals of Mrs Eveline Hillston and of her relationship with Mr Bar-Mordecai are not at all objective and should not be relied on by me in evaluating the relationship. 144 There was some conflict between Mr Bar-Mordecai and his parents and brother in 1989 when, for the first time, he claimed that he should be paid money in respect of a payment he had made in 1979, it seems of $80,000 or perhaps more, to pay off a mortgage on the house in Chaleyer Street, Rose Bay which had been purchased in the name of his brother Isaac Mordecai, with money provided by Mr and Mrs Mordecai as well as money raised on the mortgage. In the view and in the evidence of other members of the family Mr Bar-Mordecai's payment was a gift to his brother, as also purchasing the house in his brother's name with their parents' money was a gift. However in 1989 Mr Bar-Mordecai contended that money ought to be paid to him in respect of what he had paid towards the Chaleyer Street house, or the mortgage. He chose an unfortunate time to bring forward this claim, which included a threat of legal proceedings, as his mother was receiving hospital treatment for cancer at the time, and his brother was employed by Mr Bar-Mordecai in his medical practice. His claim was disputed, he did not press on with it and there was no litigation. 145 Mr Bar-Mordecai said in his affidavit of 24 May 1998 in the Probate proceedings para 40 "My parents and brother considered that they had God on their side. They had swindled me of a third of the property. They said: 'God had realised that - and brought Eveline Hillston to your rescue to buy you the surgery and thereby compensate you for the swindle'." His parents denied that they said to this effect, both as to there being a swindle and as to the interpretation of Mrs Hillston's place in the Divine purpose, while Dr Isaac Mordecai denied that the statement which I have quoted had been made, and gave a very different account of what had been said (t1655/35) "I agree that the term God would have been used and it would have been used in the sense of Michael, you have always been a generous person, and God would have rewarded your generosity in another way" and "God was invoked, but it was in terms of God reciprocating to Michael his generosity towards us." Q. And was it suggested that Mrs Hillston was the vehicle of that reciprocation of that generosity?

A. Yes. 146 Dr Isaac Mordecai's evidence put completely different complexion of what was said and is far more likely to be true. In Dr Isaac Mordecai's account of what was said there was no acknowledgment of a swindle, and it is not difficult to accept this because there was no real basis for thinking there ever was a swindle. I do not accept that Mr Bar-Mordecai's relatives ever offered him the blasphemous consolation that the gift of the surgery fulfilled some Divine purpose of equating a wrong they had done to him. I do not understand why Mr Bar-Mordecai introduced the whole subject into evidence and created needless complexities and difficulties for himself; its only impact on the resolution the issues is that it is a further instance of his averring improbable and fantastic events, and is injurious to his credit. 147 Mrs Adriana Gudas' affidavit was read by Mr Bar-Mordecai and she gave oral evidence. Mrs Gudas met Mr Bar-Mordecai as a patient at his surgery in November 1991. He suggested that she meet Mrs Hillston as they were both originally Romanian, and with her husband and their two children she visited Mr Bar-Mordecai and Mrs Hillston at the house in Eastbourne Avenue for coffee. From July 1992 onwards Mrs Gudas was employed by Mr Bar-Mordecai in his medical practice as a secretary. At first she usually worked at the surgery during the evenings and for longer shifts at weekends; from January 1994 she worked from 3 pm to 10 pm, it seems on most days, and later after Mrs Hillston's death there were other variations. She continued to work as a secretary for Mr Bar-Mordecai until his practice came to an end. With her family she lived in the lower floor of the house at Eastbourne Avenue from April 1993 until August 1994, and paid rent to Mr Bar-Mordecai for the premises; payment of rent was a separate transaction to payment of her wages. Mrs Hillston often came to the surgery in the evenings to accompany Mr Bar-Mordecai on house calls. Mrs Gudas did not see Mrs Hillston doing secretarial or reception work at the surgery. While Mrs Gudas lived at the Eastbourne Avenue house she was twice asked to come upstairs and witness documents. Her evidence was not clear as to whether these requests were made by both Mrs Hillston and Mr Bar-Mordecai, or only by Mr Bar-Mordecai; probably she has no clear recollection. Her doubts about the request to come up and witness documents extended to doubts about who in particular asked her to write on the documents. The first document was the discharge of mortgage; she witnessed Mrs Hillston's signature on the document, did not read it and was not told the nature of the document. The event of her going up stairs, witnessing the document and returning took a very short time. On a second occasion she and her husband were requested to sign and signed a document as witnesses to Mrs Hillston's signature. The document is in fact Exhibit X the Euthanasia letter but Mrs Gudas did not know and was not told its contents. 148 Mrs Gudas had social contact with Mrs Hillston both through meeting at the surgery and conversing there and through visiting her around mid-morning on most mornings when Mrs Gudas was at home at Eastbourne Avenue; they would drink coffee and talk, and sometimes Mrs Gudas would help Mrs Hillston with household chores such as washing up and bed making. On the occasions when she helped with making the bed she observed that it had been slept in by two people. Sometimes Mr Bar-Mordecai was at the house for morning coffee or for lunch and she often heard them planning their days and their outings in terms which showed that their everyday activities were shared. Mrs Gudas would usually report to Mr Bar-Mordecai at evenings after working at the surgery on what the earnings were for the day. Sometime she spoke to Mr Bar-Mordecai up the stairs but on two or three occasions she was called up and spoke to him in the bedroom occupied by Mr Bar-Mordecai and Mrs Hillston on the middle floor where they would be in bed together. 149 On occasions Mrs Gudas observed them at the house, shopping or walking to Clovelly Park; they would walk hand in hand or Mrs Hillston would take Mr Bar-Mordecai's arm. It was Mrs Gudas' observation that they were loving and affectionate towards each other; they often held hands, Mr Bar-Mordecai would sometimes hug Mrs Hillston or kiss her on the cheek; they were very supportive of each other and would not hear anything adverse about the other. 150 In her affidavit Mrs Gudas said "2. I recall that when I was first introduced to Mrs Hillston by Dr Bar-Mordecai he introduced her as 'this is the little lady I am living with'". In my understanding of her evidence this did not mean to Mrs Gudas that they were living as husband and wife or in a de facto relationship; it seems to have meant to Mrs Gudas, as the words literally indicate and as was obvious, that they were living in the same house. Her evidence shows that when she was first called up by Mr Bar-Mordecai to speak to him and make a report about the takings at the surgery, and saw that they were in bed together she was shocked, as she had not been told that they were living together in the sense of sharing the same bedroom, and she was shocked to discover it, although Elsa Clut had told her that they were sleeping together. That is to say, although Mrs Gudas had been introduced to Mrs Hillston soon after her first visit at the surgery in November 1991, had been and acquainted with her through meetings at the surgery since she began to work there in July 1992, it was not until she was called into the bedroom, which must have been some time after April 1993, that she found that they were sharing the same bedroom, and she was shocked to find this. She had not accepted what Ms Clut had told her. Mrs Gudas did not ever hear Mr Bar-Mordecai speak of Mrs Hillston during her lifetime as his wife or as his de facto and did not ever hear anyone else such as a neighbour or a patient speak of them in that way. She did not hear Mr Bar-Mordecai use the term "de facto" or "de facto wife" until he told her after Mrs Hillston's death that he was entitled to receive money from her estate. 151 I find this rather striking as Mrs Gudas knew Mrs Hillston for some years, lived in part of her house for rather more than a year, often saw her for coffee and chatted about general things and helped her with household chores, and shared Romanian as a common language with her as well as English. This contrasts somewhat with evidence of other women, with whom Mrs Hillston had slighter acquaintance and less grounds to feel confidential, that she told them fairly readily that she and Mr Bar-Mordecai lived together, or similar expressions. On the other hand Mr Bar-Mordecai had made a situation obvious to Mrs Gudas by calling her up to the bedroom to make a report, as he did again on a small number of occasions; this revealed to Mrs Gudas the situation which she had not theretofore understood. 152 Mr Iosif Gudas, Mrs Gudas' husband also gave evidence on affidavit and orally. His observations arose from his living in the lower floor of the house at Eastbourne Avenue from April 1993 onwards; he observed that Mr Bar-Mordecai and Mrs Hillston shared life, eating and conversing together and returning to the house together, Mr Bar-Mordecai opening the car door for her and walking together and holding hands; returning from shopping. On one occasion Mr Gudas took their mail to them late one night; he knocked and called that he was coming up and observed Mr Bar-Mordecai coming out of a bedroom wearing only his underpants to collect the mail; Mrs Hillston was in the bedroom wearing a nightgown. Mr Gudas found it difficult to understand what exactly the relationship between them was; until this event he had not seen anything to suggest that they were sleeping together. Mrs Hillston never told Mr Gudas that Mr Bar-Mordecai was her husband and Mr Bar-Mordecai never told him that Mrs Hillston was his wife. 153 Ms Elsa Clut is a massage therapist and from about October 1989 she rented space in Mr Bar-Mordecai's surgery for her practice. She continued to rent space and practice there until Summer 1997. Mr Bar-Mordecai referred some patients to her. Her practice was successful. She regarded Mr Bar-Mordecai highly, sympathised with him in his difficulties in legal proceedings and was willing to give evidence to assist him to prove his case; she acknowledged this in evidence but I do not find that she intended to exaggerate or distort her evidence. Ms Clut met Mrs Hillston at the surgery where she was helping Mr Bar-Mordecai with the computer. Soon afterwards at Mr Bar-Mordecai's request she gave Mrs Hillston knee massage at the Mount Street unit. Mrs Hillston told her "Dr Bar-Mordecai lives here with me." While she was giving Mrs Hillston massage Mr Bar-Mordecai came to the unit. He made a joke in extreme bad taste on the subject of massage, at which Mrs Hillston laughed. Ms Clut attended the surgery every day and saw Mrs Hillston on numerous occasions attending in the waiting room; sometimes she would converse with Mrs Hillston. Sometimes she would observe him talking to Mr Bar-Mordecai when no patients were present; talking together and putting arms around each other. 154 Mrs Hillston told her that she had bought the surgery for Mr Bar-Mordecai and later told her that Mr Bar-Mordecai had bought a big house at Clovelly with her. She told Ms Clut on many occasions to this effect "I love Dr Bar-Mordecai. He is very shy and conservative." About 1991 Ms Clut asked why they did not get married; Mrs Hillston said "I am happy with the way it is." She also spoke confidentially about her hopes for Mr Bar-Mordecai after her own death saying "After I die I want the doctor to get a nice lady and marry someone to look after him. I hope they will enjoy the house. I hope whoever it is will be able to look after him and understand him. He is not a person who likes to be alone. He is like me. He will need someone and needs a lady." Ms Clut heard communications and passed on messages which showed that there was a close personal relationship and shared concern for managing domestic affairs such as shopping. On one occasion Mrs Hillston told Ms Clut "I did not have children. I do not regret this. My husband and I were very busy during that time of our lives." On one of the first occasions she visited Mrs Hillston at Eastbourne Avenue (and I understand from her evidence that this was before Mr Bar-Mordecai's injury) Mrs Hillston took Ms Clut through the house and indicated various rooms, and at a room on the middle level of the house in which there was a double bed she said "This is our main room." 155 Ms Clut was close at hand when Mr Bar-Mordecai was injured, she says on Friday 3 January 1992; the motor accident occurred near her home, she attended the scene and tried to assist him by fanning air while he was trapped under the vehicle. She informed Mrs Eveline Hillston of the accident and took Mrs Eveline Hillston and Mrs Jane Hillston from the Eastbourne Avenue house to the Prince of Wales Hospital. Ms Clut saw Mr Bar-Mordecai at the hospital at a time which cannot have been very long after he arrived there. He asked her "Please call Mrs Hillston and Tamara". Mrs Hillston came into the room, kissed him on the forehead and spoke to him affectionately saying that she loved him. At this point Mr Bar-Mordecai had not been cleaned up at the hospital and was still bleeding. His face was covered with blood. While Mr Bar-Mordecai was recuperating at the Eastbourne Avenue house Ms Clut would collect mail at the surgery and deliver it to him. On these occasions she often saw him lying on the double bed in the bedroom on the middle of the house. Mrs Hillston would be in her robe and sitting on the bed with him. She frequently saw Mrs Hillston and Mr Bar-Mordecai holding hands and sometimes saw her kissing him on the forehead. Ms Clut saw them holding hands while walking together in Centennial Park, many times. It was her observation that Mrs Hillston had very bad knees and that both knees caused considerable pain. However she would do everything by herself and wanted no one to support her when she walked; she was a very strong person in all her attitude, but if she needed help would ask Ms Clut for assistance, for example stepping down steps. 156 Ms Clut met Professor Kraemer, who like her spoke Spanish. Mrs Hillston appeared very fond of Professor Kraemer; she really liked him. 157 It was Ms Clut's interpretation that Mrs Hillston and Mr Bar-Mordecai were living together and she was his wife; the way they talked to each other it was like a normal couple. Ms Clut had many opportunities to observe Mr Bar-Mordecai and Mrs Hillston, including observing them together almost every working day, walking in the park and at their homes. Ms Clut was not told directly or indirectly by either of them that they had a de facto relationship or a sexual relationship but she was able to deduce that they did from their behaviour, which she was in an unusually good position to observe day by day. Her intuition must have been considerably assisted by Mr Bar-Mordecai's crude joke early in their acquaintance. Plainly Ms Clut is well disposed towards Mr Bar-Mordecai but to my understanding this did not unduly influence her evidence, which I regard as sincerely stating her observations, knowledge and interpretation. 158 Mr Bar-Mordecai read the affidavit and called the evidence of Mrs Josephine Hren. Mrs Hren saw Mr Bar-Mordecai as a patient at his practice twice in 1989 and 1990. Mr Bar-Mordecai suggested that she see Mrs Hillston at the Mount Street unit; she met Mrs Hillston and was employed as a cleaner there for a little over a year. She worked on Mondays and when she arrived about 9 am she would often find Mr Bar-Mordecai eating his breakfast with Mrs Hillston, or showering and shaving. Sometimes he was in his pyjamas. Her duties included making the double bed in the main bedroom and it was obvious to her that two people had slept in the bed. She would tidy clothes away and would put a man's underwear, socks and similar items in drawers in that bedroom. After her employment finished she would from time to time see them walking in the streets of Clovelly as she walked her dog; she observed that they often walked holding hands. She visited Mrs Hillston at the Eastbourne Avenue house, two or three times a week for about an hour in the morning. They would have coffee and sometimes go for a walk or swim. She sometimes helped Mrs Hillston with household chores including making the double bed in the bedroom on the middle floor; again she observed that the bed had been slept in by two people and that a man's clothes were evident in the room. She observed Mr Bar-Mordecai and Mrs Hillston behaving affectionately, holding hands, Mr Bar-Mordecai putting his arm around her or affectionately kissing her cheek. When Mr Bar-Mordecai was a patient in the Prince of Wales Hospital about January 1992 she visited him there; when she arrived Mrs Hillston was sitting beside his bedside holding his hand to her breasts. In my finding Mrs Hren's evidence on the matters that I have set out is reliable. 159 Mr Bar-Mordecai called the evidence of Mrs Veronica Marsh and tendered a copy of an affidavit she made in earlier proceedings - Exhibit 32. Mrs Marsh knew Mrs Eveline Hillston as a friend for many years, from about 1947, when Mrs Hillston recommended Mrs Marsh to Mr Jack Hillston for employment as a bookkeeper in the business which he managed in Bathurst Street Sydney. Over the years they met many times, including meetings at Clovelly Beach and meetings on bus journeys to the City while they both worked there. At one time Mrs Marsh was a patient of Dr Bar-Mordecai, but she ceased seeing him at some time in the late 1980s. For a long time Mrs Marsh lived in Lidcombe or Auburn but from about 1966 on lived in Clovelly and now lives in Coogee. She gave up work in 1980. She visited Mrs Eveline Hillston at Mount Street, and also at Eastbourne Avenue. Clearly the two were quite friendly because Mrs Hillston expressed concern about Mrs Marsh's weight, sufficient concern to propose that Mrs Marsh come and live in the Eastbourne Avenue house so that Mrs Hillston would cook properly for her; Mrs Marsh was not prepared to do this. 160 It was Mrs Marsh's evidence that on one occasion when they were both at Clovelly Beach in 1991 Mrs Hillston said to her "Doctor and I live together in that big brown house" pointing to what must have been the Eastbourne Avenue house. Mrs Marsh said "That must be wonderful for you, but how do you look after it?" Mrs Hillston said "Doctor sees to it". Mrs Marsh said "He is like a son to you." Mrs Hillston replied "No darling - we are a couple." Mrs Marsh felt surprised, but did not make an exclamation and said something puerile referring to Charlie Chaplin marrying Oona O'Neill. Mrs Marsh's observation, based on seeing Mr Bar-Mordecai and Mrs Hillston at the surgery was that their affection for one another was obvious. Mrs Marsh felt very strongly that an injustice was done to Mr Bar-Mordecai when he was struck off for professional misconduct and wrote to various public authorities to protest. The source of her strong feelings was that Mrs Hillston had said that she and Mr Bar-Mordecai were a couple. 161 Mrs Marsh gave me the strong impression of being a sincere witness. Her mind works through feelings rather than reasoning, and what she said in the witness box often digressed from the question put to her. She knew Mrs Eveline Hillston for many years and I do not find it surprising or improbable that Mrs Hillston should have spoken to her about her personal life. I accept that Mrs Marsh, who knew both Mr Bar-Mordecai and Mrs Hillston, and had seen them together at the surgery and had observed obvious affection for each other, made the interpretation that he was like a son to her, but was told by Mrs Hillston that they were a couple. This happened in or about 1991 while they lived at the Eastbourne Avenue house. In the context the statement that they were a couple was a delicate but clear indication to Mrs Marsh that there was a sexual relationship. Mrs Marsh needed to have this pointed out to her as her intuitive interpretation of the relationship was that it was like mother and son. 162 Mr Bar-Mordecai called the evidence of Mrs Jitka Vilimovsky and read an affidavit which she made in the probate proceedings. Mrs Vilimovsky became a patient of Mr Bar-Mordecai in 1987 and she and her son were treated by him on many occasions since then. She met Mrs Hillston on an occasion which she says was in 1988, when she observed her walking hand in hand with Mr Bar-Mordecai in Centennial Park. She also observed that Mrs Hillston accompanied Mr Bar-Mordecai on an occasion, she says in 1989, when he attended a biomedical library. She also saw them in their home and in Dr Bar-Mordecai's surgery. Mrs Vilimovsky was not confident in her evidence, and her evidence is not reliable about the order or times of events. She gave the times of some events which occurred at the Eastbourne Avenue house several years earlier than could possibly be correct. Mrs Vilimovsky has had some very bad life experiences associated with marital conflict and her son's behaviour, and has experienced great distress. Her evidence was that she was told by Mr Bar-Mordecai, on an occasion for which I cannot make any clear finding about the time and place, "I am in a de facto relationship with Mrs Hillston. I carry her picture in my wallet" and he showed her a passport photograph. Dr Bar-Mordecai took Mrs Vilimovsky and her son to visit the Clovelly Beach home. She was received with kindness and sympathy by Mrs Hillston. In Mrs Vilimovsky's observation Mrs Hillston was very happy in her home environment with Mr Bar-Mordecai. Mrs Vilimovsky gave evidence on affidavit "She showed me their bedroom and said 'this is our bedroom but we are going to enlarge it - plans are going to be submitted by the doctor to Randwick Municipal Council.'" In evidence in the probate proceedings - Exhibit AG - she dealt with this further; she gave evidence about the location of the bedroom and said "you walk a few steps and I have, well I seen it absolutely, it was their bedroom. There was bedding on the thing, and there was a pyjama and her, and Mrs Hillston's nightie." In cross-examination before me she agreed that she could not remember the exact words which Mrs Hillston used and that what she could have said could have been something like "This is the bedroom" or "This is my bedroom" or some words like that, but went on to point out that she had seen a nightie and striped pyjamas in the room. In re-examination she returned to the position that Mrs Hillston showed her a bedroom and said "Here is our bedroom". 163 While I regard Mrs Vilimovsky as a sincere witness who endeavoured to tell the truth according to the best of her recollection, she has had some stressful experiences and her recollections are not accurate when it comes to giving the time of events or arranging them in correct order. Her command of English is good but not perfect and not always idiomatically correct. I accept however that she observed Mrs Hillston and Mr Bar-Mordecai walking together in Centennial Park holding hands, that Mr Bar-Mordecai told her that they were in a de facto relationship, that this occurred at some early point in her knowledge of the existence of Mrs Hillston, and that she also saw Mrs Hillston at the surgery. I also accept that at some time while Mrs Hillston lived at Eastbourne Avenue, Mrs Vilimovsky was received kindly at the Eastbourne Avenue house and that Mrs Hillston showed her some of the house including a bedroom with a double bed and a man and woman's night attire. They were not close friends or confidants; Mrs Vilimovsky's position was that she was a patient of Mr Bar-Mordecai, in some stress and distress and in need of a kindly reception and sympathy, which she was given. 164 Mrs Kora Nowak made an affidavit in proceedings in the Medical Tribunal - Exhibit 31 - and was called by Mr Bar-Mordecai to give evidence there - the transcript is Exhibit AF. She also made an affidavit in identical terms in the Probate proceedings on Appeal Exhibit AE. She met Mr Bar-Mordecai as a patient in 1990 and met or encountered Mrs Hillston at the surgery when attending there to see Mr Bar-Mordecai; all in all she saw Mrs Hillston at the surgery many times. It is her evidence that on an occasion later 1990 or early in 1991 Dr Bar-Mordecai introduced her to Mrs Hillston at the surgery. They travelled together on a bus to the City as Mrs Nowak was going to work there and Mrs Hillston was going to a concert. She gave evidence of a conversation which took place on the bus journey. This was their first conversation ever apart from seeing Mrs Hillston at the surgery on some earlier occasions. They had not been introduced before Mr Bar-Mordecai introduced them shortly before the bus journey began. There are small variations in her accounts of the conversation but in substance she says that the conversation was to this effect. Mrs Hillston said to her "Doctor and I live together in a large house down by the water at Clovelly Beach." Mrs Nowak said "Oh, it's really nice that you treat Dr Michael like a son" or "He must be like a son to you," and Mrs Hillston replied "No dear, we live as husband and wife" or "Oh, no, no, he is actually my husband." Mrs Nowak said "Oh. I didn't know he was married" and Mrs Hillston said "Well, we aren't really married but we live together in the same place." This dampened the conversation because Mrs Nowak was embarrassed at bringing up the subject with her interpretation that Mr Bar-Mordecai was like a son. She says that this conversation arose while they were having a chat about Mr Bar-Mordecai, about Mrs Nowak's surgical treatment and generally. 165 It was also Mrs Nowak's evidence that in March 1991 Mr Bar-Mordecai told her "I live in a de facto relationship with Eveline Hillston since August 1983 and that I'm very happy with Eveline Hillston." 166 There are difficulties in the way of accepting Mrs Nowak's evidence. Except as a patient passing through the surgery she was unknown to Mrs Hillston until the occasion of the conversation she sets out; it is improbable that Mrs Hillston would reveal much of her personal life to a new acquaintance while passing the time on a bus. Mrs Nowak had no apparent reason to treat the conversation as important or particularly remember it and she says to the effect that it came to her mind when, at a time which must have been early in 1999 about 8 years later, she saw a newspaper report of proceedings against Mr Bar-Mordecai, came forward to tell him what she remembered and made an affidavit which he took part in preparing. Her affidavit is rather bare of detail and circumstances and contains detail which must have been supplied to her by Mr Bar-Mordecai and could not have come from her recollection; the date August 1983 must have been supplied by him. It is also a difficulty for accepting Mrs Nowak's evidence of words used by Mrs Hillston that apart from Mr Mohamed, whose recollection was not exact, it is not elsewhere said in the evidence that she spoke of Mr Bar-Mordecai as her husband or herself as his wife; in the statement recorded on videotape she said that she was not his wife and not his mother. Other statements attributed to her take indirect forms such as "We are a couple" or "This is our bedroom". Counsel for Mr Allan Hillston contended that there is no other evidence of a statement by her that Mr Bar-Mordecai was her husband or that she was his wife; in such a large body of evidence it is difficult to confirm categorically that there is no other such evidence but for her to make such a statement was certainly uncharacteristic. Then too, there are small variations in Mrs Nowak's account of what was said different parts of her evidence; in the affidavits "We live as husband and wife" and in oral evidence in the Medical Tribunal "He's actually my husband" followed by "We aren't really married." It is not possible for me to make a confident finding about what words were used by Mrs Hillston. A fair view of Mrs Nowak's evidence is that she did not claim to remember the words exactly, but to give the substance of them. In my finding, in a casual gossiping chat on the bus with a woman she hardly knew, Mrs Hillston did in some way indicate that her relationship with Mr Bar-Mordecai was not maternal but was like a husband and wife relationship although they were not married. 167 Mr Bar-Mordecai placed much reliance on the evidence of Ms Paula Carew, whose only real source of knowledge was statements by him. Ms Carew gave the impression of being a sincere witness with clear recollection, but her evidence is largely a reflection of what Mr Bar-Mordecai told her, and is of little value for that reason. Mr Bar-Mordecai's reliance on her evidence is rather striking in view of his having, on 30 January 1996 told Ms Rebecca Lynch a solicitor in a firm then acting for him (see her note Exhibit CN) that his solicitor should not use an affidavit from Ms Carew as she was not a good person; he went on to tell Ms Lynch to the effect that Ms Carew was of bad character and of low intelligence. There was no indication to me in the evidence or in her demeanour that she is of bad character, or that she is of low intelligence. His reliance on her evidence now is strangely anomalous and he was unable to give a comprehensible account of why he had denigrated her to Ms Lynch. 168 Mr Bar-Mordecai called the evidence of Mr Fred Chemler, who knew Mr Bar-Mordecai through his medical practice; he was a patient from 1979 until Mr Bar-Mordecai was struck off. Mr Bar-Mordecai also treated Mr Chemler's wife and family. He met Mrs Hillston in the 1980s at the surgery. He met Mrs Hillston many times at the surgery; she was usually typing and working as a receptionist. Over many years he observed that she would accompany Mr Bar-Mordecai on house calls. He was able to converse with Mrs Hillston in Romanian and with Mr Bar-Mordecai in Hebrew. He regarded Mr Bar-Mordecai as a friend, and went to see him in hospital when he heard that he had been injured. On the hospital visit he observed Mrs Hillston holding Mr Bar-Mordecai's hands at his bedside. She put her hand on his head and took his hand. From then on it was Mr Chemler's observation that they were happy together; Mr Chemler's feeling was that they were in love and he felt that they suited each other. Mr Bar-Mordecai told Mr Chemler, it would seem on more than one occasion and in Mrs Hillston's absence, that he was living with her, and went on to give details of their personal relationship and how they lived together, which Mr Chemler stopped, asking him not to go too far. 169 Apart from the hospital visit Mr Chemler only saw Mr Bar-Mordecai and Mrs Hillston in the context of the medical practice. His affidavit was prepared by Mr Bar-Mordecai, and some passages of it are almost in a common form with several other affidavits he prepared. I accept that Mr Chemler made the interpretation, based on his observations of them and on what Mr Bar-Mordecai told him, that they were living together in a happy loving relationship, notwithstanding that Mrs Hillston was much older. Mr Chemler's wife, Mrs Mariam Chemler made an affidavit which I allowed to be read on Mr Bar-Mordecai's assurance that she would be available for cross-examination, but he was unable to produce her for cross-examination and her affidavit should be disregarded. 170 Mr Yossi Litvin, whose evidence was called by Mr Bar-Mordecai, came to Australia in late 1985 and became Mr Bar-Mordecai's patient. He met Mrs Hillston at the surgery in 1987, and thereafter met her there on many occasions. On several occasions he saw them walking in Centennial Park, sometimes hand in hand or arm in arm. He regarded Mrs Hillston as a friend and sometimes visited the house at Eastbourne Avenue for tea or coffee and conversation. She suggested the possibility that he rent the flat at the lower floor if he needed somewhere to live; nothing came of this. They had interesting conversations over a cup of tea, but not dealing with private life. On one occasion when he visited the Eastbourne Avenue house for a cup of tea Mrs Hillston showed him around the house, and when showing the bedroom which contained a double bed said "That's our bedroom" or something to that effect. In my finding Mr Litvin's evidence on the matters I have set out is reliable. 171 Mr Bar-Mordecai read the affidavit and called the evidence of Mr Makrim Mohamed. Mr Mohamed met Mr Bar-Mordecai in 1986 when Mr Mohamed's de facto wife Dora Moore (who has since died) was his patient. Later Mr Mohamed also became a patient of Mr Bar-Mordecai. When Dora Moore and Mr Mohamed attended for consultations Mr Bar-Mordecai spoke of his having a de facto wife who was older than he. In consultations he always spoke of Mrs Hillston, spoke of her as his wife, and mentioned their recent activities such as attending a concert or going on walks. Her photograph, and other photographs were displayed in the surgery. He spoke of her buying his clothes. He asked Mr Mohamed about his sex life and told Mr Mohamed personal details about Mrs Hillston. Mr Mohamed first met Mrs Hillston when he and Dora Moore visited Mr Bar-Mordecai in the Prince of Wales Hospital following his motor vehicle accident in 1992. Mrs Hillston, whom Mr Mohamed and Dora Moore had not previously met, was holding Mr Bar-Mordecai's hands to her breast while standing at his bedside. It was his evidence that in a conversation Dora Moore asked whether she was Mr Bar-Mordecai's mother and she replied "Not at all, Doctor is my husband. We have lived together many years. I would have died had he not survived his accident." 172 Mr Mohamed's affidavit was prepared by Mr Bar-Mordecai, and contains passages which closely resemble passages in another affidavit which he prepared, suggesting that to some extent Mr Bar-Mordecai prepared affidavits to a common form. Mr Mohamed's English is not perfect and his recollection of the statement which he says Mrs Hillston made to Dora Moore and himself is not exact. Cross-examination produced variations in his account of what Mrs Hillston said; I regard the variations as not of great significance, in relation to recollection of an oral statement made over 10 years before giving evidence. I accept that Mrs Hillston did say, when Dora Moore made a statement which indicated that in her interpretation Mrs Hillston was Mr Bar-Mordecai's mother, something to the effect that he was her husband, but the exact words by which she indicated this are not established. 173 Mr Antonio Jose gave evidence on affidavit and orally. He knew Mr Bar-Mordecai as a patient even before his practice was conducted at the surgery and met Mrs Hillston he says in 1983; he lived opposite the building in Mount Street where she lived and used to see her walking hand in hand with Mr Bar-Mordecai; he saw them hold hands, he saw Mr Bar-Mordecai place his arm around Mrs Hillston's shoulders, and he saw her massage his neck when seated on a bench in Centennial Park. In early 1989 he laid a marble floor in the surgery; Mr Bar-Mordecai and Mrs Hillston discussed the work with him and came to the garage at his home to choose marble. From that time on Mr Jose says that he observed them more than before and his interpretation was that they were happy together and he felt that they were in love and that they suited each other although she was much older. Mrs Hillston told him that she bought the surgery for Mr Bar-Mordecai and was very happy to do so. There was a discussion about laying another marble floor, in the Clovelly house; but Mr Jose refused the work. Mr Jose and Mrs Hillston were no more than acquaintances. The value of his affidavit is somewhat diminished by passages in it which follow what appears to be a standard form used in other affidavits. I regard Mr Jose's interpretation of their relationship as of small importance. 174 Mr Desmond Self was a patient of Mr Bar-Mordecai from August 1986; he met Mrs Hillston at the surgery on several occasions and on one occasion assisted in moving some furniture with his utility truck from the Eastbourne Avenue house to the Mount Street unit. He had very little acquaintance or conversation with Mrs Hillston ever. Mr Bar-Mordecai told him that Mrs Hillston bought him the surgery and that he had a loving relationship with her. It was Mr Self's evidence that he felt that their relationship was anything but platonic and in his observation Mr Bar-Mordecai had a loving and touching relationship and respectful attitude to her. Mr Self had no more than a slight acquaintance with Mrs Hillston and very little social interaction and I do not regard his interpretation as of any significance. 175 Kathleen McCue was called by Mr Bar-Mordecai to give oral evidence. Her evidence was very bare with no circumstances; it was to the effect that in a very small discussion between Ms McCue and Mrs Hillston, Mrs Hillston said that her relationship with Mr Bar-Mordecai was a loving relationship; she went no further. The statement took place about 1992 or 1993. She said that Michael was a nice boy, he didn't let her down, he took her to lunch when she wanted to go and he was generally a loving person. She was not saying that he was her husband or partner. Ms McCue's evidence was not challenged by cross-examination. It gives no support to Mr Bar-Mordecai's case. 176 Mr Bar-Mordecai called a number of other witnesses who were patients, whose observations and interpretation of the relationship I regard as of slight importance; for reasons generally similar to those relating to Mr Self. 177 Mr Bar-Mordecai read an affidavit made by Mr Kenneth John in the Probate proceedings. Transcripts of oral evidence of Mr John in the Probate proceedings and in the Medical Tribunal were also tendered Exhibit AY, and a note by Mr John Exhibit AZ was tendered for a limited purpose relating to matters in his oral evidence. Mr John was no longer alive at the time of the hearing. Mr John, a retired English teacher and a widower, and a patient of Mr Bar-Mordecai since 1984, met Mrs Hillston in December 1991 when Mr Bar-Mordecai invited him to the house at Eastbourne Avenue for lunch. They found that they were congenial company and from then on spent many hours together, Mr John reading to her, taking her for drives, walking with her slowly in Centennial Park, playing the piano for her, sometimes going out to lunch to the Art Gallery and once or twice to Opera House concerts. Mr John would chauffeur her on her outings and to medical specialist consultations and shopping. He was introduced to several of her friends and was often a guest at Eastbourne Avenue for lunch. They were both octogenarians and there was no element of physical attraction between them. He said that he was just a polite visitor and his relationship with Mrs Hillston was a very proper one. She spoke about Mr Alex Hillston in a way which showed that she was very well disposed towards him although she did not respect his business judgment, and about Mr Allan Hillston in ways which showed that she respected his business judgment. On the other hand she was not well disposed towards her other nephew who lived in Israel. 178 Mrs Hillston did not talk to Mr John about Mr Bar-Mordecai on a personal level and did not ever tell Mr John that Mr Bar-Mordecai was her husband. Mr John's evidence on the whole shows that he was well disposed towards Mr Bar-Mordecai. Mr John said "She was living with him. He was part of the furniture of the place." His observation that the relationship Mr Bar-Mordecai had with Mrs Hillston was "Well, they were behaving as if they were a married couple, I suppose. They were on that kind of personal term with each other, yes." 179 Evaluation of the Relationship. Mr Bar-Mordecai's evidence shows that Mrs Eveline Hillston was not the only object of his sexual attention. He said in evidence that he had sexual intercourse with Ms Viola Yakovleva at the house at Eastbourne Avenue on one occasion on an afternoon in December 1993 when Mrs Hillston was out of the house as she had gone out with Mr John; this was during a period of three days when, his evidence was, Mrs Hillston had moved out of the bedroom after a dispute - "a fight". At that time Ms Viola Yakovleva was employed to do office work in the surgery. She was also a patient of his. The employment seems to have been somewhat irregular, in that she was not paid amounts recorded as wages, but benefits were provided for her, including payments towards or provision of a car for her to use. 180 Ms Viola Yakovleva's medical record (Exhibit BC) shows she became a patient on 6 June 1993 and was seen frequently thereafter. In September there was an attendance on 1 September, an attendance on 6 September, two attendances on 9 September, one on 3 September, three on 22 September one of them late in the evening, one late in the evening on 24 September and one late in the evening on 25 September and evening visits on 26, 27, 28 September. There are records of 41 medical attendances in 1993, 17 in 1994 before the date of Mrs Eveline Hillston's death and continuing attendances thereafter until May 1995, one in February 1997; a total of 62 attendances. It was his evidence that Mr Bar-Mordecai said to Mrs Hillston (affidavit 24 May 1998, paras 58 and 59) "I will live with Viola eventually" which meant that he would live with Ms Viola Yakovleva after Mrs Eveline Hillston's death; an astonishingly insensitive thing to tell Mrs Eveline Hillston, but quite true as a prediction. In para 58 he said that he did not see Viola for eight months; this was contrary to the medical record of attendances in the first six months of 1994, and he qualified this evidence in a later affidavit - 28 August 2002 para 55. During this period of eight months he paid Viola Yakovleva $3,000, drawn from a bank on 18 January 1994; he says that this was a loan, and that it was never repaid. 181 Mrs Eveline Hillston died early on Saturday 25 June 1994; her funeral took place on Monday 27 June, and Ms Viola Yakovleva moved into the Eastbourne Avenue house as Mr Bar-Mordecai's domestic companion on the evening of Tuesday 28 June, and remained there for some two months. Mr Bar-Mordecai gave two different accounts of the manner in which Viola Yakovleva was asked to move into the house; in both the invitation was extended after Mrs Hillston's death. He first said that he gave the invitation to Ms Viola Yakovleva when he met her by chance but later said that he met her mother by chance, and passed the invitation through the mother. At some time while Viola Yakovleva lived there her mother also lived in the Eastbourne Avenue house. They had a stormy relationship in the course of which Mr Bar-Mordecai allowed her to use some of Mrs Eveline Hillston's jewellery, including her wedding ring, and he was unable to get back the jewellery. When she left he complained to the police that Ms Viola Yakovleva had stolen some candlesticks belonging to Mrs Eveline Hillston's estate. 182 These events, in which a much younger woman was brought into what had been Mrs Eveline Hillston's home, to be Mr Bar-Mordecai's sexual and domestic companion, on and from the day after Mrs Eveline Hillston's funeral, completely belie, in my finding, his claims of strong emotional involvement with Mrs Eveline Hillston and his claims, expressed in various ways, to have experienced severe grief at her death. He has claimed that his relationship with Ms Viola Yakovleva was a de facto relationship. It is simply impossible that he had any sincere attachment to Mrs Eveline Hillston; his behaviour with Viola Yakovlava shows that he did not. 183 Mr Bar-Mordecai has pointed to a number of payments which he claims to have made as supporting his allegation that there was a de facto relationship. Mr Bar-Mordecai alleged in his Defence para 2(f) to the effect that until 1 February 1991 Mrs Eveline Hillston paid all the household expenses of the home unit at Mount Street and that from 1 February 1989 on he paid all the household expenses other than some housekeeper costs. He pointed to evidence in which he claims he either paid or shared household expenses for the first seven years, and that through his company Michael Bar-Mordecai Pty Ltd he paid for all living and medical expenses during the last four years of Mrs Eveline Hillston's life. First I observe that he has not proved in any clear way that he in fact shared household expenses, or paid living and medical expenses during the times he speaks of. Very few of Mrs Eveline Hillston's personal papers and records have been produced in evidence; most which are in evidence have been produced from sources other than Mr Bar-Mordecai, although he remained in possession of the Eastbourne Avenue house and was in a position to control its contents for some years after her death, and he says he papers of hers in the year 2001, so they cannot be produced. The burden of proving that he in fact made the payments he alleged is very clearly on him, and rests on him in circumstances of suspicion where he has removed the means of testing what he has to say. 184 Although he made a number of attempts or shows of attempts at proving that he made payments, he did not ever produce any clear, comprehensible or admissible evidence in support of his claims to have made these payments. Nor did he show in any clear way the relationship between himself and the company Michael Bar-Mordecai Pty Ltd so as to show, if it is the fact, that payments made by the company in some way should be treated as payments by himself. However that may be, it is in no way a credit to him, and in no way remarkable that he should have shared household expenses from 1983 to 1990, when he says he was living, without paying any rent, in Mrs Eveline Hillston's apartment at Mount Street. As much of Mrs Eveline Hillston's capital which was a source of significant parts of her income had been diverted to Mr Bar-Mordecai or disposed of in accordance with his interest and wishes by 1 February 1991, the fact if it were shown to be true that he paid all or most of the household expenses from then on could have little significance. 185 Mr Bar-Mordecai also refers to the fact that he paid the Citibank mortgage repayments. The Citibank mortgage was entered to on 16 November 1989 and substituted for finance obtained from ANZ in connection with purchase of the Eastbourne Avenue house. Mr Bar-Mordecai has contended that the Citibank mortgage moneys were borrowed for renovations to the Eastbourne Avenue house, and that they were so expended. However he has not proved in any acceptable way, with any corroborative material, that the moneys were spent for that purpose. The borrowers from Citibank were Mrs Eveline Hillston and Mr Bar-Mordecai, and they joined in giving a mortgage to Citibank over the Eastbourne Avenue house to secure the borrowing. Mrs Eveline Hillston made notes - Exhibit L - dated 6 October 1990 for Mr Selinger, an accountant who was preparing her tax return and perhaps doing other work in her interest. She gave the following explanation about the purchase of the property at Eastbourne Avenue: The property was purchased on 5th Dec 1988 by myself and Dr Michael Bar-Mordecai. Initially I paid $665,000.00 to the vendor, which was the total price of the building. Doctor undertook to complete the building and carry out all necessary repairs and improvements, which at the time were estimated to cost up to $250,000.00. The contact drawn by Mr Freeman, solicitor provided that I was to own 2/3 and doctor 1/3 of the building. Doctor obtained a personal loan from ANZ Bank for above amount, with a mortgage on the building. Later this loan was transferred to the City Bank, and has increased to $350,000.00. I, too, invested some more capital in the building, the total of my investment now amounting now to $734,000.00 (you will probably check these figures any way when doing my balance sheet). 186 Mr Selinger said that he first learnt that Mr Bar-Mordecai would be residing at 30 Eastbourne Avenue with Mrs Eveline Hillston in about 1991 when she said to him to this effect "Doctor and I are partners in that house in bought in Eastbourne Street, we are both going to live there. Doctor is going to make some improvements to pay for his share. He will live in one part of the house and I will live in the other." Mrs Hillston told Mr Selinger to the effect that she owned two-thirds of the Eastbourne Avenue property, Mr Bar-Mordecai had one third, she would pay the sum of money and Mr Bar-Mordecai was going to take out a loan for his third. The round-robin was not explained to Mr Selinger. 187 The statement in Exhibit L that initially Mrs Eveline Hillston paid $665,000 which was the total price of the building has to be qualified because it is probable that initially money advanced by ANZ was used to meet part of the purchase price, and that Mrs Eveline Hillston provided enough money to make up for this over the next few months after completion of the sale of her investment property at Forestville. From that time onwards there is no difficulty in accepting her characterisation of the money advanced by ANZ bank as a personal loan to Mr Bar-Mordecai, with a mortgage on the building. Nor is there any difficulty about accepting her characterisation of the Citibank finance as a personal loan to Mr Bar-Mordecai. Mrs Eveline Hillston did not bring in mortgage interest as an expense in her tax returns for the years 1990 and 1991, in which she brought in rental income on the Eastbourne Avenue property and would have been entitled to set off mortgage interest on the property if she had paid any mortgage interest. Given the entire lack of confidence which I feel in Mr Bar-Mordecai's veracity and his evidence, Exhibit L is the only acceptable evidence about what the Citibank advance was for; as between Mrs Eveline Hillston and Mr Bar-Mordecai, it was to be a personal loan to him, although as between them and the bank they were both obliged to Citibank. 188 Mr Bar-Mordecai's evidence was emphatically to the effect that he did not undertake to Mrs Hillston that he would complete the renovation work on the Eastbourne Avenue house and carry out all necessary repairs and improvements, but also to the effect that he in fact did carry them out, although not in pursuance of any undertaking or obligation to Mrs Eveline Hillston. There is no room for any confident finding about whether he did pay for work on the Eastbourne Avenue house, or how much if anything he spent on it. Mrs Eveline Hillston's statement Exhibit L implies that she invested a further $69,000 in the building, it would seem on repairs and improvements. 189 There was no reliable evidence that any of the money advanced under the Citibank facility went to Mrs Eveline Hillston or for her benefit. Mr Bar-Mordecai claims that his making Citibank mortgage repayments (or the fact that mortgage repayments were made by Michael Bar-Mordecai Pty Ltd) supports the characterisation of the relationship as a de facto relationship. As he was jointly and severally liable to Citibank there is no reason why his making payments which he was obliged to Citibank to make shows any particular thing about his relationship with Mrs Eveline Hillston. After Mrs Eveline Hillston's death Mr Bar-Mordecai paid money he received as personal injury damages in reduction of the debt, and then later arranged for Citibank to discharge the Eastbourne Avenue house from its security and to take and rely on a mortgage dated 15 June 1995 over the surgery; and the amount of the debt continued to increase. The discharge of the mortgage over Eastbourne Avenue released Mrs Eveline Hillston's personal liability and freed her estate from any obligation to Citibank. He claims that he should in some way receive credit or an allowance against the estate for these events; but there is no reason why he should do so. Quite to the contrary, as it is determined in this judgment that the donation of the surgery property should be set aside, and as the amount received on sale of the surgery property was reduced by payment of the debt of $439,978.42 to Citibank Savings Ltd, by then wholly Mr Bar-Mordecai's debt, he is chargeable to the estate for that amount. 190 To show that the relationship was a de facto relationship, or (with greater accuracy) to show that he was an eligible person within para(a)(ii) of the definition in s.6(1) of the Family Provision Act, Mr Bar-Mordecai pointed to a number of circumstances. One was the duration of the relationship. It is clear that Mr Bar-Mordecai and Mrs Eveline Hillston shared a common dwelling from 1983 to 25 June 1994. The pleadings establish this. 191 Mr Bar-Mordecai contended that characterisation of the relationship as a de facto relationship was assisted by evidence of Mrs Betty Connell to the effect that the relationship caused a certain amount of consternation, wondering what was going on, what the relationship was and what Mr Bar-Mordecai was doing in the house, to Mrs Jane Hillston, Mr Alex Hillston and Mr Allan Hillston. Mr Bar-Mordecai also pointed to photographs showing an association of Mrs Eveline Hillston with his daughters and the display of those photographs in the surgery, where they were visible by patients. He also pointed to the knowledge of a number of witnesses of the fact that Mr Bar-Mordecai shared a dwelling with Mrs Eveline Hillston; these included Mr Smith, who contacted Mr Bar-Mordecai at the home unit and later at the home at Eastbourne Avenue, Mrs Chemler to a similar effect, Mrs Ruby Mordecai and Mrs Hren, who was the housekeeper. Mr Jose observed that Mr Bar-Mordecai's cars were parked in the driveway of the home unit. Mr Bar-Mordecai also referred to presents; not indeed to the gifts the subject of the proceedings, but to a gold Citizen watch given to him by Mrs Eveline Hillston and a gold chain which he bought for her in August 1989 and which she wore always; this seems to be the chain which he later allowed Ms Viola Yakovleva to use. 192 It was Mr Bar-Mordecai's evidence that (affidavit 22/2/96 para 31): At the beginning of the relationship in accordance with our discussion, we went out of our way to conceal the sexual nature of our relationship from other people. For example, when Mr Hillston's nephew Professor Carlos Kramer came to stay at the unit in October 1984 during a 10-day visit from Spain, I slept in the surgery and returned to the unit for breakfast each morning. … (para 32) from about February 1991 apart from Mrs Eveline Hillston's elderly friends … we would share the same bed while guests were staying with us. Some of our guests, such as my daughter Tamara, her husband Simon Shwartz and Alex Hillston (Mrs Eveline Hillston's nephew) would come into our bedroom while we were in bed together and would sit on our bed and talk to us. 193 It is only to be expected and it is not surprising that there was no awareness by others of the sexual nature of the relationship during the period when, according to Mr Bar-Mordecai's evidence, they sought to conceal it. 194 Mr Bar-Mordecai also relied on what he referred to as physical intimacy which occurred in the presence of relatives, friends and strangers. Under this heading he referred to a wide variety of behaviours. They included behaviour illustrated in a photograph taken at Hamilton Island in 1990 in which Mr Bar-Mordecai is shown with his arms around Mrs Eveline Hillston's shoulders, and in a photograph which he says was taken in the Mount Street home unit in 1989 Mr Bar-Mordecai is shown with his hands on Eveline Hillston's shoulders. In this bizarre photograph both are smiling or laughing and Mr Bar-Mordecai is not wearing trousers - for which he gave the bizarre explanation "… I am not wearing my pants because we had just played squash and everything was wet." The person who is said to have taken the photograph did not give evidence. Another photograph, said by Mr Bar-Mordecai to be taken at Clovelly Beach late in 1990 by Mrs Jane Hillston, shows them in bathing costumes standing side by side which their arms touching. He also referred to a photograph which shows Mr Bar-Mordecai with his arm around (or in my interpretation behind) Mrs Eveline Hillston at a dinner table in a restaurant. These and other photographs show behaviour which should be taken to indicate that there was a close personal association or friendship. Other photographs in Exhibit 5 show Mrs Eveline Hillston in an apparently friendly situation with Mr Bar-Mordecai's daughters, and with his mother. There is evidence that Mr Bar-Mordecai exhibited photographs of Mrs Eveline Hillston and his daughters in his surgery consulting room where they were visible by patients. 195 Mr Bar-Mordecai also pointed to indications in video recordings which he categorised as evidence of physical intimacy. In the 1986 video Exhibit 22 Mrs Eveline Hillston is shown caressing Mr Bar-Mordecai's hands. In a 1994 video Exhibit 29 Mr Bar-Mordecai is shown, very fleetingly, licking Mrs Eveline Hillston's fingers at a dining table. There is also evidence of several witnesses who observed Mr Bar-Mordecai ruffling or touching Mrs Eveline Hillston's hair, walking hand in hand with her in Centennial Park or otherwise in public, and other taction in public - his placing his arm around Mrs Eveline Hillston's shoulders or her massaging his neck while seated on a park bench. In my finding these observations are correct, Mr Bar-Mordecai did from time to time, while walking in Centennial Park or otherwise in public, hold hands with Mrs Eveline Hillston, put his arms around her or otherwise make minor displays consistent with physical affection. 196 There are also witnesses whom I regard as, in this respect, reliable who speak of physical taction in home or social situations. Dr Isaac Mordecai spoke of observing Mrs Eveline Hillston caressing Mr Bar-Mordecai's hands, touching him and his ruffling her hair; Mrs Ruby Mordecai spoke of their sitting and holding hands and Mr Elias Mordecai spoke of their picking food from each other's plates and sitting holding hands. I accept this evidence about their behaviour in home or social situations. This behaviour more clearly betokened intensity of feeling and was visible to a narrower circle than their behaviour in public. 197 Another group of observations relate to Mrs Eveline Hillston's behaviour while Mr Bar-Mordecai was severely injured and in hospital. Ms Clut observed Mrs Eveline Hillston kiss Mr Bar-Mordecai on the forehead when he was in hospital, before he had been cleaned up on being admitted. Mrs Hren, who worked as a cleaner for them in 1990 and 1991 for a little over a year, visited Mr Bar-Mordecai in hospital in January 1992, at Mrs Eveline Hillston's request, soon after he had been injured. She visited him in the Prince of Wales Hospital at Randwick and observed Mrs Eveline Hillston to be sitting by Mr Bar-Mordecai's bedside holding his hand to her breasts; Mrs Ruby Mordecai was standing at the foot of the bed looking on and Mr Elias Mordecai was present, reading a newspaper. Mrs Ruby Mordecai spoke in evidence of Mrs Eveline Hillston sitting by Mr Bar-Mordecai's bedside in hospital fondling his head or holding his hand. Mrs Connell also visited him in hospital and saw Mrs Eveline Hillston hold Mr Bar-Mordecai's arm for about a minute. 198 Displays of affection or (it may be) of moral support and sympathy at a time when Mr Bar-Mordecai had been badly injured and was in hospital, especially when he was first admitted to hospital, could not readily be interpreted as indicating some sexual aspect of the parties' relationship; to most observers they would seem to be sympathetic emotional responses in a time of crisis. Apart from conduct observed in hospital at a time of crisis, conduct capable of being interpreted as displaying affection which took place in public was relatively restrained; somewhat more intense displays took place in a very narrow circle consisting only of Mr Bar-Mordecai's parents and other close relatives. 199 A number of witnesses spoke about their observations of Mrs Eveline Hillston's mobility and ability to walk unaided, to walk upstairs and other minor physical tests. Their observations were not altogether consistent, and could hardly be expected to be, in view of the progressive nature of impediments to mobility with advancing years. The strongest statement of her disability in walking is her own statement in the Euthanasia Letter Exhibit X on 30 August 1993: she was in the best position of anyone to appraise and describe her disability. Without attempting precision, I find that in the last two years of her life her mobility was significantly impeded. In particular, she found it difficult to walk down from her house to swim at Clovelly Beach; stairs were a difficulty. I do not accept that events in which, in Centennial Park and otherwise in public, Mr Bar-Mordecai held her hand or put his hands around her are all to be explained as assisting her with her mobility; that was not the interpretation of several persons who knew her. Underlying my findings about their behaviour in public and the appearance their behaviour gave to observers must be my certain knowledge, based on the 1986 video, that there was a sexual aspect of their relationship. This knowledge was not available to observers of their public behaviour. According to Mr Bar-Mordecai's evidence, it was concealed until about 1991. Indications that they were in a continuing sexual relationship were few and very indirect. 200 Apart from instances of tasteless sexual boasting by Mr Bar-Mordecai to patients and others who had no real discernible standing to hear such information, there was no plain avowal by Mr Bar-Mordecai or by Mrs Eveline Hillston, separately or together, to relatives, friends or anyone else involved in social interaction with them, that they lived together as if they were married, or that their relationship had a sexual aspect. Nor is there any written statement by him, dating from any time in Mrs Hillston's lifetime, of the existence of such a relationship to any public authority. Mrs Eveline Hillston came closes to a plain avowal when she pointed out to several friends that the bedroom in the Eastbourne Avenue house was their shared bedroom, by brief references to the effect of "this is our bedroom". Shared occupancy of the bedroom was obvious enough to cleaners and housekeepers, to Mr Bar-Mordecai's mother and to his brother Dr Isaac Mordecai who attended him in that bed and bedroom when he was convalescing or when he was sick. To this small group, their making a conclusion from their observations and social intuition that there was a sexual relationship between the two was highly probable; not indeed altogether certain. The conclusion was however left to social intuition, not to avowal in clear terms, even to relatives. 201 In terms of social behaviour they were, in the common expression, constant companions, often seen together on family social occasions, in restaurants, sometimes at Synagogue, at recreation swimming or walking in Centennial Park, and very usually in day by day work. Mr Bar-Mordecai and Mrs Eveline Hillston shared social life, although Mr Bar-Mordecai had limited social life the main events in which were entertainment given by his parents, and entertainment by Mrs Eveline Hillston of her women friends. They attended concerts and Opera House performances together. They shared recreations, principally walking, usually in Centennial Park, went together on a holiday and on at least one occasion Mrs Eveline Hillston attended a medical conference with Mr Bar-Mordecai. On at least two occasions Mrs Eveline Hillston travelled overseas alone, and she visited and stayed with Mrs Jane Hillston and her family in Greece. 202 Mrs Eveline Hillston often worked at the surgery performing data entry and other office work. He claims that she worked as his receptionist, secretary, surgical assistant and advisor and did not receive a wage. This extended over many years. She also took part with Mr Bar-Mordecai in work in developing the EMBRIS software system, a system for creating computerised medical records. She contributed a great deal of her time and of her work in these ways, and the economic benefits flowed to him. Sometimes she accompanied him in his car when he went on house calls. 203 Mrs Hillston conducted the household in which he lived and often prepared his meals. He stated in evidence and stated to others that Mrs Eveline Hillston bought all his clothes. He accompanied her shopping and sometimes did some minor domestic chores. He accompanied her on medical consultations with specialists, usually on his own referral. 204 They did not use the same surname, and Mrs Eveline Hillston was never known by the surname Bar-Mordecai (although after her death Mr Bar-Mordecai, most inaccurately, caused that name to be inscribed on her headstone). His affidavit evidence is internally inconsistent as to his mode of address to Mrs Hillston: see t.1024-1025, 1028: but I regard it as probable that his usual mode of address to her in the presence of others was "Mrs Eveline Hillston", or "Eveline Hillston" or "E. Hillston", and he advanced in less public circumstances to addressing her as "E.H.", while she almost invariably spoke to him and referred to him as "Doctor". When in 1994 an invitation was issued to her to attend Dr Isaac Mordecai's wedding, Mrs Eveline Hillston was invited by a written invitation directed only to her, and by the name Mrs Eveline Hillston. It was by that name that she was known to Mr Michael Bar-Mordecai's relatives, and to everyone else. 205 In ordinary human behaviour I suppose that de facto relationships are not always avowed in unambiguously clear terms, and the social intuition of friends, relatives and acquaintances is enough to make the position clear. But that is far from being true for Mr Bar-Mordecai and Mrs Eveline Hillston, remembering that when the relationship began he was 36 years of age and she was twice as old, 72, and according to him it began when she had been widowed for less than three weeks. When the relationship ended she was 83 years of age and he was of course still 36 years her junior. Social intuition is not enough to teach observers that, with such a difference in ages, two persons who share the same dwelling and are often seen together, and show signs of affection publicly, are living together as husband and wife or are in a de facto relationship, or that there is any sexual element in their relationship. The difference in ages does not make that impossible; for example, it seemed to Mrs Connell that it was possible. However the relationship was open to interpretation as that of an elderly and affectionate mother or aunt with a son or nephew; such relationships exist. The interpretation that there was a sexual relationship was available and one or two witnesses actually spoke of making it, although I suppose most observers would never get past their puzzlement. Only those who observed, or were told in so many words that the two occupied the same bed and bedroom had any real basis for thinking of them as husband and wife or in a similar relationship. Several of these spoke in terms which showed that this knowledge changed their previous interpretations of the relationship, and that they were shocked. The absence of public or open avowal of the relationship is significantly adverse to the conclusion which Mr Bar-Mordecai seeks. 206 A number of persons, including friends of Mrs Hillston, sent Mr Bar-Mordecai cards and letters expressing sympathy for him and recognition of loss on her death. These messages are not specific in recognition of any particular relationship between them. The impression projected to friends, acquaintances and relatives was, with few exceptions, ambiguous at most. There was in my finding no presentation whatever to Mrs Eveline Hillston's relatives of Mr Bar-Mordecai as her husband, or as occupying any similar social position. 207 In his affidavit of 22 February 1996 Mr Bar-Mordecai said (para.32) "From about February 1991 apart from Mrs Hillston's elderly friends, … (rejected) … we would share the same bed while friends were staying with us. Some of our guests, such as my daughter Tamara, her husband Simon Schwartz and Alex Hillston (Mrs Hillston's nephew) would come into our bedroom while we were in bed together, and would sit on our bed and talk to us." In his affidavit of 7 January 1997 (para 34) he dealt further with Tamara and Simon Schwartz entering the bedroom, saying that after a ball (meaning late at night) they marched in unannounced to show Tamara's ball gown. I reject Mr Bar-Mordecai's evidence that Mr Alexander Hillston observed them in bed together. However he did not call the evidence of his daughter Tamara and her now husband Simon Schwartz; or explain his not doing so, and I do not accept that Mrs Eveline Hillston and he openly displayed themselves to adult relatives, sharing a double bed together and, as he says, cuddling; this is far too improbable for a finding to be based on Mr Bar-Mordecai's own evidence. 208 The evidence of his daughters and son in law about what they observed would have been important, and evidence of the interpretation of the relationship made by them as his close family members would be important material for the Court to have when evaluating the relationship. The perceptions of close relatives, associates and friends with a high degree and frequency of contact is far more important for this purpose than the perceptions of persons with relatively little contact and social interaction, such as persons who only or principally encountered Mr Bar-Mordecai and Mrs Hillston as patients or otherwise through the medical practice or business contacts. 209 Public Authorities and Written Records. On a number of significant occasions Mrs Eveline Hillston explained her circumstances in terms inconsistent with her being in, or her understanding herself to be in a de facto relationship. On 3 February 1988 she was reviewed at the Repatriation General Hospital, Concord for her condition of severe late-onset asthma. She was entitled to repatriation benefits and a pension in view of her late husband's military service and disability. When giving her history she told the doctor "she lives in Clovelly in her own old brick unit and is a widow." She made no reference to Mr Bar-Mordecai living in the unit, or to any relationship with him as her husband or any like relationship. Mr Bar-Mordecai gave evidence to the effect that she expressed concern about whether knowledge of the relationship would adversely affect her entitlements to pension or benefits. Mr Bar-Mordecai's account attributed dishonesty to Mrs Eveline Hillston; the words he attributed to her were "I believe that by claiming to be in a de facto relationship I would compromise my War Widow Veterans Affairs entitlement, so I will not do so on my taxation returns." I do not believe his evidence on this subject. I regard this evidence as a further example of his facility for claiming to produce from his memory conversations from the distant past to explain away difficulties. I regard the history she gave in February 1988 as truly showing her perception of her then circumstances. In each of her wills, made on 17 February 1986, 22 December 1987 and last on 31 August 1989 she appointed Mr Bar-Mordecai executor and trustee and gave him significant benefits, but also gave significant benefits to many other persons and did not treat him as the appropriate beneficiary for all or the greater part of her resources. 210 On no occasion in dealing with accountants, solicitors or other professional persons, or with public authorities has it been shown that Mrs Eveline Hillston ever stated to the effect that she was a party to a de facto relationship, or that she had a husband, or made any similar avowal of a relationship with Mr Bar-Mordecai. 211 Mrs Eveline Hillston's passport bears Mr Bar-Mordecai's name and address as the next of kin to be notified; but it was his evidence that he wrote that in himself. The tax return for Mrs Eveline Hillston's estate for the year 1993/1994, made by Mr Bar-Mordecai, showed him as her de facto husband. However earlier tax returns prepared during her lifetime did not. The only written records made in her lifetime which in any way support the claim that there was a de facto relationship are medical records made by Mr Bar-Mordecai. I do not see this self-serving behaviour as assisting his case. 212 In a letter to Mr and Mrs Axenfeld, relatives in Israel, dated 12 February 1991, a translation of which (from Romanian) is Exhibit 15, Mrs Eveline Hillston gave an account of her move to Clovelly. She said: Zelma may have told you that as I telephoned her some days ago and advised that I have moved for a few weeks, perhaps even some months into the house which I bought a few years ago in Clovelly. I took the ground floor and the doctor the floor above, which he will share with his daughters when they stay with him. It is a large house and could easily accommodate a family or even two … I am neither physically nor mentally equipped to be happy about this change, but it is a good thing for me to be busier and it is true that the entire house and yard requires personal attention and some repairs so we can sell it at a good price some day. 213 Although there are a number of letters and notes from Mrs Eveline Hillston to Alexander Hillston and other relatives in evidence, in none of them does Mrs Eveline Hillston say to the effect that Mr Bar-Mordecai was her husband, or indicate even the most indirect way that he was her de facto husband. References to Mr Bar-Mordecai are usually rather objective or even distant, referring to him as Doctor; however sometimes he is spoken of as a friend; and he is plainly spoken of as living in the same house. 214 Mrs Eveline Hillston attended creative writing classes, and several short works of imaginative fiction written by her are in evidence; although these are fictional, they contain recognisable references to Mr Bar-Mordecai of considerable indulgence and sentimentality. She prepared a note, which may have been in connection with her creative writing, on 25 March 1993 headed "Introducing Myself" which gave a short account of her life in one page, but said of her then circumstances "I live in a large home facing Clovelly Beach, which I share with friends. … I frequently see friends and acquaintances." She made no mention of Mr Bar-Mordecai, or of her having any current emotional relationship except that she said that she shared her house with friends; and indeed evidence shows that from time to time there were house guests, including, in the previous year, Mrs Jane Hillston for about half a year. There is a reference to her husband, plainly meaning Mr Jack Hillston. From its nature this document is of limited value in showing her own views of her situation and relationships, but it shows how she presented the position to others. Evidence of Mrs Connell, and of Mrs Jane Hillston who had been known to her since 1947, clearly shows that Mrs Eveline Hillston did not present herself to long-standing women friends as a party to a de facto relationship. Mr Bar-Mordecai referred to her longstanding women friends as "the old guard" and suggested that Mrs Eveline Hillston concealed something from the old guard; but if she saw herself as committed to a deeply emotional relationship, long-standing women friends are among the persons to whom she could well have revealed it. 215 When evidence deals with Mr Bar-Mordecai making known to others, usually patients, his sexual relationship with Mrs Eveline Hillston the events usually exhibit two characteristics. One is that he spoke with marked lack of sensitivity about the relationship, evidenced not only by his speaking about it at all to persons such as patients, but also by insensitive and crude terms in which he spoke. The other is that the process took the form of communication by him of information to the recipient, not confirmation to the recipient of something which the recipient had already perceived through the recipient's own intuition. The grossest example appears in the evidence of Mr Bentwich, the accountant who conducted Mr Michael Bar-Mordecai's income tax affairs from 1991 onwards, and prepared Mrs Eveline Hillston's 1993 tax return about February 1994. His evidence was that during 1993 Mr Bar-Mordecai introduced him to her at the surgery, and that he obtained information to prepare her 1993 return from her and also obtained information from her previous accountants Selingers and from Mr Bar-Mordecai. Mr Bentwich's evidence is that in about February 1994 he was driven to the house at Eastbourne Avenue by Mr Bar-Mordecai when he had Mrs Eveline Hillston's return for her to check and sign; Mr Bentwich was left at the house, Mrs Eveline Hillston checked the return and signed it, and asked him whether he would like to look around the house. She then showed him around the house, and took him the middle level of the house and indicated to him a bedroom and said "This is our bedroom". The bedroom contained a double bed. She also explained that the downstairs was occupied by one of Dr Bar-Mordecai's secretaries (referring, in fact, to Mrs Gudas and her husband and children.) 216 Mr Bentwich's affidavit continues (para.9 of his affidavit of 22 February 1996): A couple of weeks later I had a conversation with Dr Bar-Mordecai to the following effect:

He said: There's no big deal. It's a physical thing vagina to penis. 217 Mr Bar-Mordecai responded to Mr Bentwich's evidence with his own account of the conversation, giving it greater length and a slightly softer edge, with no real indication of sensitivity. Of this event I observe that despite having the bedroom pointed out to him by Mrs Eveline Hillston Mr Bentwich did not interpret the event and felt that he had to ask Mr Bar-Mordecai what their behaviour was. The answer he received was expressed in an extremely insensitive way, not consistent with a claim that there was emotional attachment. On any view of what exactly Mr Bar-Mordecai said to Mr Bentwich he did not say, and what he said did not mean anything to the effect that there was a continuing relationship as husband and wife on a bona fide domestic basis. 218 I accept Mr Bentwich's evidence about the terms which Mrs Eveline Hillston spoke of the bedroom. I accept that she spoke to several other persons in similar terms. None of these were close relatives or people who were important to her. 219 One conversation or interview recorded on the videotape Exhibit 22 was made on 4 April 1986. Much of the verbal expression is compressed and difficult to follow indicating a high degree of common understanding. However it is clear that from time to time Mr Bar-Mordecai sought to lead Mrs Eveline Hillston into conversation about their sexual behaviour. First she responded by asking about his sexual interlude with Dr Lucy Ballin, leading to a discussion of postures for sexual intercourse; then she expressed concern about whether discussing the relationship with Dr Lucy Ballin would injure the relationship between them. She gave a soliloquy on her feelings about their relationship and expressed satisfaction at feeling that she had not a son but a younger person who could benefit from her experience. She said "My vanity's playing also a part. It's a wonderful feeling for a woman of my age and at this stage of my life to still be desired." She discussed very frankly her perception of Mr Bar-Mordecai's attitude to women including Dr Lucy Ballin, his former wife and herself. She said to the effect that she could not become Mr Bar-Mordecai's life's partner, and appeared to contemplate that Mr Bar-Mordecai might return to his former wife. She also used the expressions which seem to show some empathy towards Dr Lucy Ballin. At the conclusion of the tape she invited Mr Bar-Mordecai to her bedroom, and the discussion of sexual postures and experience resumed. 220 The material recorded concludes: Doctor Bar-Mordecai: Tell me. What would you do if whatever you just said went on film?

Mrs Eveline Hillston. Show me. But do destroy it. It's very dangerous to have.

This last exchange indicates clearly that Mrs Eveline Hillston had not understood that a filmed record was being made, and that when she found out that it was, she wished it to be destroyed. 221 Also recorded on the videotape Exhibit 22 are several interviews, beginning on 19 April 1992, between Mr Bar-Mordecai and Mrs Eveline Hillston in which they made a long record of her life history and circumstances. Mr Bar-Mordecai explained making this tape in terms of its being in some way for the instruction of patients, medical students or medical practitioners in the circumstances of an aged person; this explanation is grossly improbable and I disbelieve it. Making the tape cannot on any reasonable basis have been intended by him to have anything to do with education or instruction. The material recorded was largely guided by questions from Mr Bar-Mordecai, and on my view of the probabilities he conducted the interviews and prepared the tape with a view to the prospect of using information on it to his advantage at some future time. The interviews were long and a great deal was discussed, much of it of no present importance. Statements recorded include her statement to the effect that she was missing some of the comfort of her flat while living in Eastbourne Avenue. She did not accept the suggestion that a chairlift would be appropriate. She gave a history of her education in Romania. She recounted her current daily activity, recreation and reading pattern. She gave an account of her friendship with Dr Bar-Mordecai which did not depict him as her husband or de facto husband. A very wide range of subjects were discussed. She spoke with goodwill of her sister-in-law, referring to Mrs Jane Hillston. Mr Bar-Mordecai persisted with questions seeking some adverse statement about Mrs Jane Hillston. She gave a long account of her working career, and of her husband's working career in Romania and in Australia, and of his ventures and his failures in investing in shares. At a further interview on 23 May 1992 Mrs Eveline Hillston gave an account of her business as a beautician. 222 Mrs Eveline Hillston also gave an account of her marriage and emotional life with her husband including the following: Dr Bar-Mordecai: You didn't have any children. Why?

Mrs Eveline Hillston: Well, some people say it wasn't God's will. I don't know. It was also like the whole generation, my generation, we lived strange times. I am married. A year after that I came to Australia. I came to Australia. A year after that Jack was already away in the Army … Then he came back a sick, shattered man who needed months and years to recover, to a very, very small extent. He never really recovered … He overcame the sickness to a certain extent but he never was the same. There is not the faintest reflexion in what she said, here or anywhere else, of a marriage unconsummated for fifty years, or of a happy sexual initiation in her eighth decade. 223 Mr Bar-Mordecai led her through an account of Mr Jack Hillston's later illness and his death. He also led her to a discussion of her views about euthanasia and her current state of health. He then led her to speak about her relationship with himself. She said to the effect that he started living in her place a few months after her husband's death towards the end of 1983 or the beginning of 1984; this was spoken of as "sharing house with the doctor." She said "Well, I suppose that many women in my position would envy me from that because it's brought life into my life in many ways." Later she said "… in a way of course I have been privileged. You have been a doctor all the time. A doctor in the house is quite an achievement." He then asked: DR BAR-MORDECAI: What do you think of me at present after eight years?

MRS HILLSTON: What do you mean of you? Of you as what? As a doctor, as a person?

DR BAR-MORDECAI: No, the person who has lived with you for eight years.

MRS HILLSTON: What do I think of you doctor? I don't know. I don't want to take this interview say, or questioning time, as a sort of priestly confession.

MRS HILLSTON: It's not and I don't accept it to be. So I say what I think I would like to hear myself say, not what I really believe or

DR BAR-MORDECAI: So you don't want to answer the question?

MRS HILLSTON: Not because I don't want to be open. Because I'm not sure that what I would say this next few minutes would be the right thing. What I think of you? I think you are a very honest, a very devoted, a very pleasant person in many ways. I believe in your sense of ethics and sense of duty. But sometimes I wonder if I know you well, yes. 224 After referring to her life with Mr Jack Hillston Mr Bar-Mordecai again led her to her life with himself. The tape deals extensively with her many ailments and her medication, with whether she was aware of any mental deterioration, and with her goals in life; she said she had none. She said to the effect that she loved the flat and "… I think I would be happier in my flat than here. I would like not to have to share my flat with anybody … I mean you specifically, yes, yes, yes." He asked "Do you think mature, elderly females need a relationship?" and she answered "No doubt." And later "I speak about the full relationship, of communication, of feeling, of having dinner together, having breakfast together, having a walk together, going to the theatre, going to a picture, going to a garden, going for a holiday." Later he asked her "Do you think women over 60 require regular sex?" and she replied "I don't know" but when further pressed she said: No, I wouldn't think they do." Dr Bar-Mordecai: You don't?

Mrs Eveline Hillston: Not regular. There are certainly women who do but I wouldn't make it a general rule, no. I think they require more a companionship, a warm friendship. Maybe even a tender friendship.

She again spoke warmly about Mrs Jane Hillston. She was taken to deal (a second time) with other relatives including her sister. 225 Mr Bar-Mordecai referred to his own injury and to Mrs Eveline Hillston's having looked after him: If I would have died, what would you have done? MRS HILLSTON: But you didn't die, doctor. DR BAR-MORDECAI: But what would you have done? MRS HILLSTON: I certainly would have cried. DR BAR-MORDECAI: But what would you do? MRS HILLSTON: It's really a question that one can't answer. DR BAR-MORDECAI: Yes, you can. Would you have continued to live in this big house? MRS HILLSTON: No. DR BAR-MORDECAI: You would have moved back to your unit? MRS HILLSTON: Yes. Straight away. 226 Later she said: I would have felt very lost … very lonely. You are many times a headache but I would prefer to have you.

He then asked whether she would have gone to Israel to see her sister and after some answers continued: Dr Bar-Mordecai: So you would have gone. Mrs Eveline Hillston: Yes. But I think that though, whilst I am not your wife or your mother, or - but I think that it would have destroyed me. Dr Bar-Mordecai: If I had died.

Mrs Eveline Hillston: Yes I think so. I mean it would be so inconsiderably wrong.

Mrs Eveline Hillston. Yes. I don't think I could have taken it well. Dr Bar-Mordecai later returned her to the subject of what she would have done if he died; she answered inconclusively. 227 It is in my view significant that when called on to consider what her reaction would be if Mr Bar-Mordecai died Mrs Eveline Hillston attempted to define her emotional position and in doing so stated that she was not his wife or his mother, while at the same time acknowledging that his death would be very disturbing to her. While she had difficulty defining the relationship and her emotional position in it, it was clearly her view that she was not Mr Bar-Mordecai's wife. In saying this I rely not only on the words spoken but on her manner of response as recorded on the film. I do not accept contentions by Mr Bar-Mordecai that in giving this answer she was in some way dissembling or concealing her feelings. On the evidence as a whole it is clear, in my finding, that it was not Mrs Hillston's interpretation of her situation that she was living with Mr Bar-Mordecai as husband and wife. 228 For some years, from September 1985 until February 1991 Mr Bar-Mordecai's two daughters regularly stayed in the Mount Street home unit with Mrs Eveline Hillston on every second weekends and part of school holiday and religious holy days, and were cared for by her. She gave them a lot of care and it would seem that she had a fairly good relationship with them. There were occasions when his daughters stayed at the Clovelly house. The period when the younger daughter was subject to court-controlled access ended about 1992, and by that time Mrs Eveline Hillston's relationship with the daughters does not seem to have been uniformly happy. In 1992 Mr Bar-Mordecai forbad his younger daughter Aviva from coming to the Clovelly house on the ground that Aviva was rude to Mrs Eveline Hillston (t1052 l45-48). 229 Mr Bar-Mordecai's daughters spent what was, over the years, considerable time in the Mount Street unit, and significant time at the Eastbourne Avenue house. They were in a position to give evidence of practices about occupation of rooms in both places; and Tamara's husband Simon Schwartz was in a position to give evidence about occupation of rooms at Eastbourne Avenue. As the younger daughter Aviva now lives in Israel there would be real difficulties about calling her evidence, but no explanation was offered for Mr Bar-Mordecai's not calling the evidence of his elder daughter Tamara and her husband. Some evidence suggests, obscurely, that Mr Bar-Mordecai has had some conflicts with his daughters, but the circumstances do not clearly appear, and do not constitute an explanation for his not calling the evidence of either of them. 230 The relationship no doubt brought perceived advantages to Mrs Hillston. These advantages included advantages relating to Mr Bar-Mordecai being her medical attendant. She saw it as a large advantage to her to have a doctor resident in the house; this was rational and the advantages were real as he was ready at hand to deal with her health problems, including those which were emergencies. She also had ready access to drugs according to her own judgment of when she needed them, without effective control by him. She also had the opportunity to occupy herself with unpaid work in his surgery and to encounter the patients and other persons there. The relationship was a source of social contact and support in daily living, including transport and recreation. 231 In my finding, while Mr Bar-Mordecai and Mrs Eveline Hillston both occupied 30 Eastbourne Avenue, Clovelly there were significant periods during which they slept together in the double bed in the main bedroom. It may well be true that they had sexual intercourse while living in that house, although Mr Bar-Mordecai has greatly overstated the intensity of sexual activity in his evidence. Mrs Eveline Hillston spoke of the main bedroom in ways which acknowledged that she shared the bed and the bedroom with Mr Bar-Mordecai to several witnesses, and when I consider their evidence together I am of the view that it should be accepted that she made a few spoken acknowledgements that she did so. It does not at all follow that I should not accept other evidence to the effect that Mr Bar-Mordecai also had a bedroom of his own in the house; there are said to have been (at least) seven bedrooms in the house. There is no reason to disbelieve the evidence of persons including Mr Allan Hillston, Mr Alex Hillston and Mrs Jane Hillston who saw indications that Mr Bar-Mordecai apparently used a bedroom of his own, or who made observations which did not show to them that the two shared a bedroom, or their evidence that they were not told to that effect. I regard it as plain on the whole of the evidence that they did not always share a bedroom or a bed at 30 Eastbourne Avenue. The sexual element in the parties' relationship was not made known to Mrs Eveline Hillston's relatives, on what was known to them the interpretation that there in fact was a sexual element in the relationship would not be made at all readily, and they did not make it. It was only made by a very few people. 232 Family Provision Claim. I turn to deal with proceedings 1707 of 1999 in which Mr Bar-Mordecai by Summons dated 17 March 1999 claims an order for provision out of the estate of Eveline Hillston and in relation thereto an order extending the time to make his application until the date of the Summons. 233 Mr Bar-Mordecai bears, in his Family Provision claim, the onus of proving that at the time of Mrs Eveline Hillston's death he was living with her as her husband on a bona fide domestic basis. Mr Bar-Mordecai's presentation of his case often seemed to equate a sexual relationship with compliance with the definition of eligible person: an invalid equation. The whole expression "as her husband on a bona fide domestic basis" must be taken together, is not readily susceptible of being broken down and is not readily susceptible of analysis of parts such as "bona fide" in isolation, or of exposition of a "domestic basis". The whole expression requires that there be a sustainable analogy with a marital relationship, including the observance of good faith in the relationship. On a whole view of the relationship and Mr Bar-Mordecai's behaviour my view of the facts is that the relationship is explained by and was a long-continued intrigue by Mr Bar-Mordecai to get control of Mrs Eveline Hillston's property or as much of it as he could. It was, in my finding, his intention from beginning to end of the relationship to carry out this purpose. I do not accept that he ever was sincerely involved in any emotional bond with Mrs Eveline Hillston. I am not here speaking about what she felt about the relationship. 234 The relationship was economically exploitative from beginning to end. At all times Mr Bar-Mordecai lived in housing provided by Mrs Eveline Hillston; he lived there as if he had a right to do so, without making any contribution in the nature of rent, or contributing in any real way to the capital cost of the dwellings. He obtained many other inappropriate economic benefits from the relationship. Early in their relationship Mrs Eveline Hillston bought the surgery, plainly at his instigation as she had no use for it other than relating to his need for it, and he had earlier wished to acquire it himself. She leased it to him on terms very favourable to him, and she committed capital resources to acquiring it. It is overwhelmingly likely that she did these things at his suggestion. Later she sold the surgery to him, by what was in form a sale but did not actually bring her any significant capital; he gave her a mortgage for less than all the price at less than an economic interest rate; he made an arrangement with her which meant that $110,000 of the price would not be paid, and it was not paid. He took a one-third interest in the Eastbourne Avenue house, although she paid all the purchase price. He made what he calls the round-robin arrangements for several years of mortgage instalments. He obtained a discharge of her mortgage over the surgery. He took a number of significant gifts of cash from her. The net effect was to take from her her most significant assets and by far the greater part of the means by which she gained income. Even if he had proved (and he has not) that she made all these gifts and conferred all these benefits with a full understanding of their impact on her economic position and welfare, the fact that he accepted all these benefits would show that the predominant characteristic of his relationship with her was his exploitation of her resources. It is not in my judgment possible that a husband participating in good faith in a domestic relationship would take so many gifts in such large amounts; the fact that the gifts took place demonstrates that the personal relationship was the means of carrying out his exploitative intentions. He did not when she died meet the definition of "eligible person" because at the time of her death he was not living with her as her husband on a bona fide domestic basis. 235 Findings I have earlier made establish that there was no open presentation to friends, relatives or to anyone with whom they had significant social interaction that there was a marital relationship or anything like one: in view of their ages it was very unlikely that the sexual element in their relationship would be perceived by intuition: his relatives did not perceive it over a number of years till the shocking knowledge was forced on them by seeing the sleeping arrangements, her relatives did not see the sleeping arrangements and did not have grounds for the intuition: there was no public or open avowal and there were a few indirect indications to people on the periphery of their lives that they shared a bedroom. My conclusion on the events which I have reviewed and findings I have made in these reasons is that there was no sustainable analogy to a marital relationship. It should not be found that Mr Bar-Mordecai is an eligible person, or that he is qualified to apply for further provision. 236 The Summons was issued on 17 March 1999 by Mr Paul Conway solicitor of Messrs Tribe Conway & Co, purportedly on behalf of Mr Bar-Mordecai. The only defendant was and is Mr Allan Hillston the administrator of the estate. Mr Conway ceased to act for Mr Bar-Mordecai and filed notice of ceasing to act on 29 June 1999, and since that time Mr Bar-Mordecai has been unrepresented in these proceedings. He asserted before me that the Summons was issued without his authority, but that he had later adopted it; he did not give any evidence showing when he adopted the proceedings as his own. 237 An amendment to the Family Provision Act, which took effect on 25 June 1999, amended the definition of "eligible person" in subs.6(1) but having regard to Schd.1 cl.2 of the Amending Act the earlier definition applies to these proceedings. The relevant parts of the Family Provision Act are the definition of eligible persons in subs.6(1) which I set out above, s.7, which states circumstances in which the Court may order provision and s.16 which states the time for application for provision. As no earlier order for provision has been made s.7 provides: … if the court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person. 238 Section 16 subss.(2) and (3) provide: (2) An order under s.7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subs.(3), by order, allow. (3) The Court shall not make an order under subs.(2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application's not having been made within that period. 239 Subsection (4) makes it clear that an application for an extension may be made although the prescribed period has expired. 240 The last day of the prescribed period of 18 months was 25 December 1995. In view of the terms of subs.(2) the power to order an extension of the prescribed period is discretionary and it is to be exercised having regard to all the circumstances of the case, but (subs.(3)) is not to be made unless sufficient cause is shown for the application's not having been made within the prescribed period. The reference in subs.16(2) to all the circumstances of the case makes it relevant to consider the strength of the applicant's claim to be an eligible person, and the strength of the applicant's claim for an order under s.7. 241 Some of the same considerations may be relevant both to decision on whether sufficient cause is shown and also to decision on allowing a further period having regard to all the circumstances of the case. In Lewis v. Lewis [2001] NSWSC 321 Hodgson CJ in Eq, after referring to reported and unreported cases on extension of time, both under s.16 and in relation to special circumstances under subs.28(5) (which is not presently relevant) said: 82. In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s.16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s.16 of the Act, which, in the absence of consent, precludes an extension being granted unless "sufficient cause is shown for the application not having been made within" the prescribed period. 83. The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like sufficient in all the circumstances to justify the granting of an extension of time. 242 In relation to subs.16(3) Mr Bar-Mordecai did not in truth offer any evidence of a cause for the application not having been made by 25 December 1995. 243 During the prescribed period Mr Bar-Mordecai actively pursued a claim to be appointed administrator of Mrs Eveline Hillston's estate on the ground that she died intestate and that he was her de facto spouse under s.32G of the Wills Probate and Administration Act and hence was entitled to the whole of her estate on intestacy, having regard to s.61B(1)(ii) read with s.32G. If that claim had been successful there would have been no need for him to make any application under the Family Provision Act, or to establish that he was an eligible person within subs.6(1), which closely resembles the definition in s.32G. It was open to him to make a claim under the Family Provision Act within the prescribed period, at the same time as he claimed administration or otherwise, so as to obtain consideration of his claim in the obvious contingency that he might not succeed in showing that there was an intestacy; the proposition that there was an intestacy depended on showing that the will of 31 August 1989 had been revoked. The outcome of the probate proceedings (to reduce the very elaborate outcome to a short statement) was that Mr Bar-Mordecai did not establish that the will had been revoked and that there was an intestacy; for that reason the question whether he was Mrs Eveline Hillston's de facto spouse within s.32G was not determinative of the probate proceedings, but much evidence was given, many witnesses were called, much hearing time was given and findings were made by Einstein J on the question whether Mr Bar-Mordecai was the de facto spouse within s.32G; his Honour found that he was not. 244 Plainly if Mr Bar-Mordecai had brought a claim under the Family Provision Act within the prescribed period both proceedings, if managed in any reasonable way, would have been heard together and the issue whether he was an eligible person would have been tried at the same time as the issue whether he was a de facto husband under s.32G; would have been determined on the same body of evidence, and would not have been successful. The estate and the other persons interested in the estate, including Mr Allan Hillston would have been involved in one hearing, not two hearings on the two closely similar definitions, would have been put to the trouble and expense of obtaining a decision once only and not twice, and would have incurred the expense of one hearing and not of two hearings. By not commencing the proceedings within the prescribed period Mr Bar-Mordecai has brought about the result that he has been able to go through two trials on substantially similar issues whereas if he had acted within the prescribed period the outcome would have emerged in a way which (although not simple), would have been far simpler than the process through which Mr Allan Hillston and the estate have now been taken. Mr Bar-Mordecai has found a way to litigate a second time an issue which he has already taken through a lengthy trial and has lost. 245 Mr Bar-Mordecai consulted solicitors about the estate of Mrs Eveline Hillston in July 1994 and received from them written advice. A letter (Exhibit D) written by Mr David Tonge, a partner of Messrs Barkus Pearson, to Messrs Clayton Utz on 6 July 1994, a copy of which was sent to Mr Bar-Mordecai recorded that Mr Bar-Mordecai had been referred to Barkus Pearson by Mr John Lees solicitor in the belief that there appeared to be Family Provision Act problems. The terms of the letter show clearly that the possibility was brought to his attention of his making a claim under the Family Provision Act if disputes about claims against the estate arose. 246 In Exhibit F is a letter of advice written to Mr Bar-Mordecai by Mr Richard Toltz a partner of Messrs Clayton Utz on 7 July 1994. This letter reviewed Mr Bar-Mordecai's rights in relation to the will of 31 August 1989, a copy of which Messrs Clayton Utz had seen. The letter reviewed what his rights would be if the will had been revoked and if it had not been. As well as advising on rights as de facto husband if the will were revoked the letter said "Under her will dated 31st August, 1989 you have the right to remain in occupation of Unit 1/6 Mount Street, Randwick during your life without any fee or rental; and otherwise except for the furniture and contents of that property you have no beneficial entitlement under the will. In these circumstances we note that in view of your eleven year relationship as her de-facto husband you may consider making an application under the Family Provision Act for additional benefits from her estate." Exhibit F also includes a follow-up letter of 19 July 1994 indicating that no action would be taken until further instructions; Mr Bar-Mordecai did not further instruct Messrs Clayton Utz. 247 Mr Bar-Mordecai did not call the evidence of Mr Gerard Kodomichalos, the solicitor who acted for him early in the Probate proceedings and may well have been in a position to give evidence about whether or not Mr Bar-Mordecai was given advice by Mr Gerard Kodomichalos or by counsel, or otherwise when Mr Kodomichalos acted for him, about whether or not he could or should make a claim under the Family Provision Act. He called the evidence of Mr Kodomichalos' elderly father, whose evidence in chief was peripheral at best, but showed that there was no reason to think that there would be difficulty in calling his son. I infer that the evidence of Mr Gerard Kodomichalos would not have assisted Mr Bar-Mordecai's application for an extension of time. 248 It was also shown in cross-examination that Mr Bar-Mordecai had given evidence in the Probate proceedings that on Saturday 25 June 1994, the day Mrs Hillston died, he met a solicitor in Bondi Junction who gave him advice about Mrs Hillston's will, and advised him that he should only discuss the fact that Mrs Hillston had destroyed her will in front of him with his solicitors; he met the solicitor on the pavement outside a coffee shop in Bondi Junction, did not know who he was, his name, address or where he practised; he had not seen him before or since and did not receive a bill; and as far as can be understood Mr Bar-Mordecai did not follow the advice and it was not until late in 1995 or early 1996 that he discussed with lawyers the destruction of the will. This is a subject on which Mr Bar-Mordecai gave evidence which was grossly improbable. 249 There were some curious events in the history of the probate proceedings which are very discreditable to Mr Bar-Mordecai. On 15 August 1994 Mr Gerard A. Kodomichalos, solicitor then acting for Mr Bar-Mordecai maintained on his behalf, in a letter Exhibit C to Australian and New Zealand Banking Group Ltd, that he was the administrator of the estate, that he was the de facto spouse and had instructed the solicitor that Mrs Eveline Hillston did not leave a will, that he intended to apply for letters of administration and that he wished to inspect the contents of her safe custody box for that purpose. Endorsed on the letter was a statement by Mr Bar-Mordecai that he was the administrator. Mr Bar-Mordecai applied in common form for letters of administration by Summons filed on 23 December 1994 in which Mr Kodomichalos acted for him. In support of that application he filed his affidavit of 23 December 1994 entitled "Affidavit of Applicant for Administration", which he read in these proceedings, and on which he was cross-examined. In that affidavit he swore that he was the de facto husband of Eveline Hillston and said "3. I believe the deceased did not leave a will or document purporting to embody the testamentary intentions of the deceased" and went on to state a number of searches which he had made, in her private papers and through his solicitor leading to the statement "4(e) My own searches and those of my solicitor have not located any will made by the deceased." The affidavit dealt with the will of 31 August 1989 only by producing a letter from Messrs Blessington Judd which showed that they forwarded it to her on 17 September 1990 and she gave an acknowledgement by letter. 250 This affidavit was entirely lacking in frankness. Mr Bar-Mordecai knew that Mrs Eveline Hillston had made the will of 31 August 1989 as he participated in her preparation to make it; he also knew that she had uplifted the will from her solicitors in September 1990 and kept it at her home as he participated in those events. However there was no mention of his part in uplifting the will or keeping it at the house; no frank account of his searches could have failed to mention his knowledge of those events. Nor was there any mention of the event which he later came to allege in which he was present when Mrs Eveline Hillston revoked the will by tearing it up. Thus the case he put forward when applying for letters of administration was to the effect that the will had been returned to her by her solicitors and had not been found on search after her death from which it should be inferred that she had in some manner revoked it. This continued to be the case he put forward to the Court and to his opponents until late 1997. 251 The probate proceedings became contentious and Mr Bar-Mordecai by Messrs Minter Ellison solicitors who were then acting for him filed a Statement of Claim (Ex CM) in the Probate proceedings on 18 September 1995, verified by his affidavit of that date. The Statement of Claim alleged that the deceased died intestate. In his Defence and Cross-claim filed on 3 October 1995 (Ex Z) Mr Allan Hillston, who was the second defendant, denied that the deceased died intestate and cross-claimed for probate of the will giving its date as 30 August 1989 (Ex CN). In his Defence to the Cross-claim (Ex AA) filed on 8 November 1995 and verified by his affidavit of 6 November 1995 Mr Bar-Mordecai pleaded "3. In answer to the whole of the Cross Claim, the Cross Defendant says that the deceased is presumed to have destroyed the said Will, with the intention of revoking it" and gave particulars showing that she had obtained the original will from her then solicitors about 17 September 1990 and "The original Will has not been able to be located since the death of the deceased." These verified particulars are quite inconsistent with the case of revocation by destruction which Mr Bar-Mordecai later advanced. 252 In an affidavit Mr Bar-Mordecai made in the Probate proceedings on 9 January 1997 he said to the effect that Mrs Hillston had told him that she had destroyed her will, but did not refer to the fact (as he later alleged to be the fact) that he had seen the will torn up in front of himself; and he did not put that account of what had happened forward in any way known to the Court or to his opponents until he made an affidavit saying to that effect on 20 August 1997. 253 Mr Bar-Mordecai claimed in evidence before me that he told lawyers who were then acting for him, late in 1995 or in 1996, that Mrs Eveline Hillston had destroyed the will in his presence, and that he did not raise that case because he was told that no-one would believe him. He called the evidence of Mr Hallen SC and of Ms Rebecca Lynch solicitor with a view to establishing that this was so. Much of what they said was inconclusive; Mr Hallen's evidence was based on recollection from events from well over six years before, unaided by notes; Ms Lynch had some assistance from notes. 254 It is clear that Mr Bar-Mordecai told Ms Lynch on 30 January 1996 that Mrs Eveline Hillston destroyed her will; Ms Lynch's note Exhibit CN says: "Mrs H Destroyed Will Feb 1992 when B-M at home with two broken legs after argument with Jane Hillston in kitchen." This subject may have been mentioned at a conference with counsel. This account is not the same as that in his affidavit of 20 August 1997 in which he says that the will was torn up in July 1992, some months after Mr Bar-Mordecai was at home with two broken legs (or, he preferred to say, broken ankles). 255 Assisting his credit may have been Mr Bar-Mordecai's object in giving and calling evidence that he had told lawyers that the will had been destroyed a considerable time earlier than he brought that allegation forward in a way known to other parties. I do not think that these circumstances do in any way assist his credit; these circumstances would not overcome disadvantages for his credit arising from the fact that he first advanced and verified a case that the will should be presumed to have been revoked because it was last known to be in her possession and was not found after her death, whereas the case he later came to maintain meant that that case was not true or not frank. He supported the case which he later disavowed by his own affidavit evidence, as he later supported his later case. Calling the evidence of Mr Hallen and Ms Lynch did nothing to improve my adverse view of Mr Bar-Mordecai's credit based on his affidavits, verified pleadings and manner of conducting the probate proceedings and bringing forward what, finally, was his position about revocation. However that may be, the exercise did nothing to improve his case on sufficient cause and allowance of an extended period for Family Provision proceedings. 256 Mr Bar-Mordecai's oral evidence would suggest that in fact he did not make searches for Mrs Hillston's will. The position is very confused, as in an early affidavit in the probate proceedings he said he had conducted searches for the will, in a later affidavit in the Probate proceedings he corrected this and said to the effect that no searches were ever made; before me he did not read that passage in the correcting affidavit but when challenged in cross-examination he adhered to the correction, not to the passage which he had put in evidence. It is difficult to know what to make of this; if he had actually known that the will had been revoked because he had been present when it was torn up, it is hardly possible that he would have searched for it. These difficulties have contributed to my view that his evidence generally is unreliable. 257 There were inconsistencies in his affidavit evidence at different places relating to his having made or not having made a search among Mrs Hillston's private papers for a will - t.1022-1023. This led him to give this uncomfortable answer (t.1033, l.24-28): Q. So you are a person, are you, who is prepared to put in a lie in an affidavit to be placed before the Supreme Court of New South Wales because your solicitor tells you. Is that the kind of person you are? A. That's the kind of person that I was then. 258 When dealing with the circumstances of his making a false affidavit in the Probate proceedings he said (t1034, l.6): A. I didn't know the significance of any litigation because I had never been involved in any litigation.

This was altogether untrue as appeared immediately from the following passage in his evidence. 259 It is altogether clear that the availability of the opportunity to make an application under the Family Provision Act if the will was not revoked but took effect was brought to Mr Bar-Mordecai's attention by lawyers in July 1994. Throughout the probate proceedings he maintained, without success, the claim that the will had been revoked; although what he put forward in support of this was not consistent throughout. His case that the will had been revoked was rejected by Einstein J whose decision conclusively establishes that the will was not revoked in any manner, and in particular establishes that it was not revoked by being torn up by Mrs Eveline Hillston in Mr Bar-Mordecai's presence, as his case came to be. As this has been established it is clear that Mr Bar-Mordecai did not act reasonably in maintaining that the will had been revoked in his presence, and in continuing to do so, falsely, for several years. It should be inferred that the reason for his not bringing proceedings under the Family Provision Act in 1994 or 1995 was or included that he preferred to maintain a different but false claim which if it had succeeded would have brought him the whole of the estate on a clearer basis. He had full opportunity to bring forward a claim under the Family Provision Act within the prescribed period as an alternative claim. What he did caused great prejudice to the estate and persons interested in it by involving the estate in protracted litigation in probate, and this prejudice has been greatly compounded by his attempt to raise much the same matter in his claim under the Family Provision Act. It should be found that there was not sufficient cause for his not making his claim by 25 December 1995. 260 If Mr Bar-Mordecai's claims were to be considered under s.7 there is in my view no real prospect that the court would decide that it should order provision to be made for him or that the court should be of the opinion that provision ought to be made for his maintenance or advancement in life having regard to the circumstances of the present time. In Mr Bar-Mordecai's circumstances at the time of Mrs Eveline Hillston's death, he was a medical practitioner with a long-established busy and successful medical general practice, and (although his position on this subject has not been consistent) I infer that he had high earnings, in all respects sufficient for his own maintenance and advancement in life. No-one was dependent on him. He had liabilities to the estate in respect of his ownership of a one-third interest in the Clovelly house, the surgery and gifts of money which, as determined elsewhere in this judgment, the estate was entitled to have set aside. His evidence does not establish what other resources he then had, or that he had no other resources, and in view of his capacity for earnings over the years it is not at all likely that he had no other resources. The provision made for him in Mrs Eveline Hillston's will was, in his circumstances, generous and included provision for his housing for his lifetime in the home unit, and an entitlement to the furniture and contents of the home unit. He was also given a five percent interest in the residue of her estate, and a right to purchase assets at market value. He had not behaved well towards Mrs Eveline Hillston in her lifetime, as by the exercise of undue influence he had gained the apparent ownership of much of her property, subject to her entitlement in equity to have the gifts set aside, and his doing so had greatly reduced her income. He had significant obligations to Citibank, and although he has maintained that those obligations were incurred, wholly or partly, for repairs and renovations to the Clovelly property he has not proved that this was so and I have found that the true view of the obligation to Citibank is the explanation Mrs Eveline Hillston gave for it, that is that it was a personal loan to him. He had quite sufficient resources for any discernible needs and he was an undeserving claimant. 261 His affairs are now in a very poor state but that arises out of his having maintained unsuccessful litigation against the estate on a false basis and having incurred large obligations for costs, and also out of his name's having been removed from the medical register on the ground of his own professional misconduct. In these circumstances there are in my view no real prospects that, if an extension of time were granted, he would obtain any significant further provision. In my judgment I should not, having regard to all the circumstances of the case, by order allow a further period for his application in accordance with subs.16(2). In any event I am required by subs.16(3) not to make an order as sufficient cause has not been shown for the application's not having been made by 25 December 1995. For these reasons proceedings 1707 of 1999 will be dismissed. 262 Claim to revoke Letters of Administration. It is very difficult to identify what were claimed in proceedings 3039 of 2002 to be grounds on which Mr Allan Hillston should be removed as administrator of the estate. My interpretation of Mr Bar-Mordecai's submissions, which were difficult to relate to the terms of the Summons or of the Statement of Claim, is that he contends that Mr Allan Hillston misconducted himself by being a party to and a witness in the probate proceedings, in which Mr Allan Hillston and the interests related to his were altogether successful; the contention was to the effect that success was obtained unjustly with the use of evidence which Mr Allan Hillston knew to be false. It was claimed that he had knowingly put forward false evidence of himself, Alexander Hillston, Professor Kraemer, Mrs Betty Connell and of others with the object of claiming Mrs Eveline Hillston's estate. The proof that it was false is that it conflicted with Mr Michael Bar-Mordecai's evidence. There is no substance whatever in this part of the case; the issues of fact in probate were tried to a conclusion, Mr Bar-Mordecai's evidence was rejected and the evidence which he claims Mr Allan Hillston should not have put before the Court was found to be true. There is no basis on which I should find that Mr Allan Hillston knowingly relied on false evidence in the Probate proceedings. There were further complaints to the general effect that Mr Allan Hillston had misconducted himself by bringing the present proceedings, by spending money of the estate on them, and by opposing Mr Bar-Mordecai on the gifts, the de facto relationship, his claim under the Family Provision Act and generally. These contentions were made without any regard to the duty of the administrator to uphold the interests of the estate and to put forward for adjudication any case reasonably available in opposition to claims such as Mr Bar-Mordecai makes and in the interests of the persons who are entitled under the will, such as the claim to set aside gifts. There is no basis whatever for concluding that Mr Allan Hillston has not acted properly as administrator, or that he ought to be removed. For these reasons proceedings 3039 of 2002 will be dismissed. 263 Claims based on Undue Influence. Mr Bar-Mordecai has not rebutted the presumption of undue influence in relation to any of the gifts of money or other transactions which Mr Allan Hillston seeks to set aside. Demonstration that the gifts were produced by undue influence goes far beyond a rebuttable but unrebutted presumption: undue influence is, on the findings I have made, the true and only explanation for the gifts. Mr Bar-Mordecai did not put in evidence any credible account or any real explanation of the acts or events which led up to the making of the gifts of money or the evolution of Mrs Hillston's intention to make them. All the gifts and transactions should be set aside and he should be treated as holding his interest in the surgery and the Eastbourne Avenue property as trustee for Mrs Eveline Hillston and for her estate. 264 This court in proceedings under s.66G of the Conveyancing Act 1919 appointed trustees for the sale of the property at 30 Eastbourne Avenue and those trustees effected its sale by an agreement of 4 April 2001 for $1,955,000. On completion of the sale on 17 May 2001 the trustees realised a net amount of $1,839,368.80 and on 20 June 2001 under the directions of the court they paid the greater part of that amount to the plaintiff as administrator of Mrs Eveline Hillston's estate and retained $579,557.46 referrable to Mr Bar-Mordecai's one-third interest as tenant in common. The trustees still hold that amount in investment at interest and subject to the direction of the Court. For the purposes of equitable remedies the amount invested and interest thereon should be identified with the interest in the Eastbourne Avenue property which was given to Mr Bar-Mordecai. 265 The same trustees were appointed by order of the Court made on 15 December 2000 to sell the surgery property, which they sold on 12 December 2001 for $2,855,000. An interlocutory order made on 16 February 2001 required possession to be given up by 23 February 2001, and as the trustees were able to complete the sale soon after that date it should be taken that the order was complied with. They completed the sale on 6 March 2002 and their net realisation, after payment of costs and expenses including GST associated with the sale, was $2,209,186.29, which they retain in investment at interest and subject to the control of the court. There may be further proceeds from a fund of $10,000 set aside to meet any remaining expenses of or incidental to the sale, referred to in para 4 of the affidavit of W.A.K. Hart of 7 March 2002. Those investments with interest should be treated for the purpose of equitable remedies as representing in part the surgery the gift of which is now set aside. However the amount realised was reduced by the need that the trustees for sale should pay out to Citibank $439,978.42 to discharge obligations under Mr Bar-Mordecai's mortgage to Citibank over the surgery, and Mr Bar-Mordecai is further chargeable with that amount, together with interest from 6 March 2002. 266 In 1988 or 1989 Mrs Eveline Hillston gave Mr Bar-Mordecai $40,000 as a contribution towards building a new waiting room at the surgery; the new waiting room was in fact constructed. It should be taken that the amount of $40,000 was in fact used for that purpose, and for that reason Mrs Eveline Hillston's estate should not recover any remedy in respect of that payment. 267 The plaintiff makes a claim, consequent on its claim that the sale of the surgery should be set aside, for the amount of rent which would have been payable to Mrs Eveline Hillston and her estate under the lease of the surgery dated 9 September 1983. The commercial lease ceased to operate and the equitable leasehold interest and obligation to pay rent came to an end by merger when Mr Bar-Mordecai became the registered proprietor of the surgery soon after the contract and its completion both of which occurred on 21 October 1987. Mr Bar-Mordecai gave evidence that Mrs Eveline Hillston orally terminated the lease in November 1987. His evidence on this matter is not corroborated and there are no circumstances which make it probable that such an event happened. It would have been superfluous to terminate the lease as it was brought to an end by merger. I do not believe Mr Bar-Mordecai's evidence about the oral termination. The grant of equitable relief against the gift of the surgery involves treating the lease as having continued in effect. In consequence Mr Bar-Mordecai remained liable for the rent until expiry of the term on 9 September 1999, and should be treated as if he continued to be liable for the amount of the rent while he remained in possession, as he did until 23 February 2001. 268 The plaintiff claims $196,752.24 for rent at $282.69 per week from 21 October 1987 to 23 February 2001. It was conceded in the plaintiff's counsel's closing submissions that payments made on account of the mortgage should properly be allowed against the claim for rent and I will act on this concession. The pleadings establish that mortgage instalments were paid up to 30 June 1990: this means that 32 monthly instalments of $2645 were paid, a total of $84,640. Later payments under the mortgage were neutralised by what Mr Bar-Mordecai calls the round-robin and no allowance should be made for them. Mrs Hillston's estate should recover $112,112.24 for rent. 269 If the discharge of the mortgage for $250,000 over the surgery stood alone I would have set it aside as a gift produced by undue influence; however it takes its place as one of the circumstances showing that the transfer of the surgery was itself a gift which should be set aside. 270 Mrs Eveline Hillston received all the rent available while the Eastbourne Avenue property was leased from 12 October 1989 to 30 May 1990. She received rent for a little less than 8 months of the period between acquisition on 5 December 1988 and occupation on 1 February 1991. The property was leased during a later and shorter period during which all rent received went into Mr Bar-Mordecai's account. Rent deposited to Mr Bar-Mordecai's account totalled $37,382.71. Evidence in Exhibit A shows that he received the whole $37,382.71 and not one-half as alleged in the pleadings. Mrs Hillston's notes for Mr J. Selinger dated 6 October 1990 Exhibit L confirm this. The plaintiff's remedy should accord with the evidence notwithstanding its departure from the pleadings. As the conferral of an interest in the property on him was a gift which is now set aside, he is liable to Mrs Eveline Hillston's estate for the rent he received. 271 The plaintiff claims an account of Mr Bar-Mordecai's dealings with the assets of the deceased during the period he was in practical control of them. His control in various forms extended up to the times in 2001 and 2002 when possession of the Eastbourne Avenue house and the surgery was recovered from him. He gained and maintained control under colour of claims to represent the estate and to be entitled to a grant of administration, and of claims to be the owner of the surgery and of a one-third interest in the Eastbourne Avenue house, whereas he held these on trust for Mrs Eveline Hillston and her estate, and he is accountable accordingly. I will direct an inquiry and payment of any sums found to be due. 272 Mr Bar-Mordecai sought to raise, in para 23 of his Defence, some contention to the effect that Mr Allan Hillston's claim is barred or estopped by reason of delay. There was no significant delay as the proceedings could not be commenced before Letters of Administration were granted, and were commenced soon after Letters of Administration ad litem were granted late in the hearing of the Probate proceedings. 273 There may be some special considerations affecting costs, having regard to the earlier proceedings and to the very extensive interlocutory proceedings in this case. I will defer consideration of all questions of costs until the parties have had an opportunity to consider these reasons and to make any application for appropriate orders about costs. 274

Conclusions and Orders. Mr Allan Hillston is entitled to these remedies.

(1) Judgment for money amounts to which the estate is entitled: gifts of money $ 95,000.00 rent on the surgery $112,112.24 rent on Eastbourne Avenue $ 37,382.71 Citibank mortgage on surgery $439,978.42 $684,473.37

(2) The plaintiff claims that the estate should be allowed interest under s.94 of the Supreme Court Act and in my view it is appropriate to award interest and to adopt the rates of interest allowed upon judgment debts from time to time. For the claims for gifts and rent which total $244,494.95 I adopt the date of commencement of the Undue Influence proceedings on 22 July 1998 as the date from which interest should be calculated. Some of the rent on the surgery is calculated by reference to later periods, but far more of the rent and all of the other money claims arose much earlier and in my view it is a fair basis for allowing interest to allow it from the commencement of the proceedings. For $439,978.42 paid by trustees for sale to redeem the Citibank mortgage on the surgery interest should be allowed from 6 March 2002 when that sum was paid. Interest up to the date on which these reasons are published will be included in the sums for which judgment is given.

(3) Declarations and orders setting aside the gift of the surgery and requiring payment to the administrator of the estate by the trustees for sale of the proceeds of sale and the moneys earnt on their investment.

(4) Declarations and orders setting aside the gift of a one-third interest in the house at 30 Eastbourne Avenue Clovelly and requiring payment to the administrator of the estate by the trustees for sale of the proceeds of sale and the money earnt on their investment.

(5) An account of dealings with estate assets as claimed in Claim 5 of the Second Further Amended Statement of Claim filed on 10 October 2002. An effect of this decision is that the surgery and the Eastbourne Avenue house are assets of the deceased for the purposes of this account. 275 I make these orders in proceedings 3240 of 1998:

(1) Give judgment for the plaintiff Allan David James Hillston against the defendant Michael Jacob Bar-Mordecai for $684,473.37 together with interest of $140,887.14 so that the sum for which judgment is given is $825,360.51.

(2) Declare that the transfer by the late Eveline Hillston to the defendant dated 21 October 1987 of the property at 212 Clovelly Road Clovelly known as the surgery being the land in Folio Identifier 13/1/2507, the discharge of mortgage X300156 over that land and other dealings between the said Eveline Hillston and the defendant relating to the surgery were a gift by the said Eveline Hillston to the defendant of the surgery obtained by the exercise by the defendant of undue influence over the said Eveline Hillston and further declare that the said gift is now set aside.

(3) Declare that the transfer to the defendant dated 5 December 1988 of a one-third interest in the property at 30 Eastbourne Avenue Clovelly being the land in Folio Identifier 17/5559 and other dealings between the said Eveline Hillston and the defendant relating to the property at 30 Eastbourne Avenue Clovelly were a gift by the said Eveline Hillston to the defendant of the said one-third interest in that property obtained by the exercise by the defendant of undue influence over the said Eveline Hillston and further declare that the said gift is now set aside.

(4) Order that the proceeds of the sales of the surgery and of the property at 30 Eastbourne Avenue Clovelly including the proceeds of investment now held by trustees appointed by this Court for the sale of those properties be now accounted for and paid over by the trustees to the plaintiff.

(5) Reserve to the plaintiff liberty to apply for further orders giving effect to and carrying out declarations 2 and 3 herein.

(6) Order that an account be taken of all assets of the deceased that the defendant got in, converted, paid out or otherwise dealt with on or after 25 June 1994.

(7) Order that it be referred to the Registrar in Equity to take the account referred to Order 6 and to certify to the Court the entitlements of each party to or relating to assets, money or other property which may appear upon taking the account.

(8) Reserve liberty to apply for orders for the enforcement of any entitlement of the plaintiff for or relating to assets, money or other property or otherwise which may appear on taking of that account.

(9) The general costs of these proceedings, and the costs of the account and inquiry, are reserved. 276 I make these orders in proceedings 1707 of 1999:

I make these orders in proceedings 3039 of 2002: 277 (1) Give judgment for the defendant.

Last Modified: 03/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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