Karpin v Gough

Background

1. The deceased died aged 87 on 4 November 2019. The deceased had been married twice and both of the deceased's wives predeceased him. The deceased's first wife (Shirley), to whom he was married in July 1970 and with whom the deceased had three daughters (Jacqueline, Amanda and Claudine), died in July 2001. The deceased's second wife (Denise), whom he married in June 2012, died in April 2019 having been hospitalised in 2015 and then admitted to an aged care facility with dementia in late October 2015. The deceased was survived by his three adult daughters, they being the main beneficiaries of his estate.
2. By his Will, the deceased gave a legacy of $500,000 to a long-standing employee (the deceased's building manager, Mr Stephen Devitt) (which legacy has already been paid); made provision for a $2 million fund to care for Denise (which, as Denise predeceased him, forms part of the residuary estate); and left the whole of the balance of his estate to his three daughters in equal shares as tenants in common. As noted above, no provision was made under the Will for Ms Karpin.
3. As adverted to above, the deceased's estate is sizeable. The inventory of property prepared by the defendant for probate purposes identifies the deceased's estate as principally comprised by the deceased's residence at Hunters Hill (with an estimated value of $10 million) together with bank accounts and personalty. The defendant has valued the deceased's estate for probate purposes at $11,408,000 (which includes the deceased's interest as the sole beneficiary of Denise's estate in the sum of approximately $1 million). Ms Karpin, however, asserts that the value of the deceased's estate is considerably more (in the order of some $60 million) (see below).

Affidavit evidence

1. Ms Karpin swore five affidavits in the proceedings: Ms Karpin's first affidavit sworn 12 June 2020; Ms Karpin's second affidavit sworn 10 August 2020; Ms Karpin's third affidavit sworn 7 October 2020; Ms Karpin's fourth affidavit sworn 23 August 2021; and Ms Karpin's final affidavit also sworn 23 August 2021. (I refer to Ms Karpin throughout by that name - her maiden name to which she reverted on the advice of her numerologist as she explained at [4] of her affidavit sworn 12 June 2020; but as Ms Karpin explains she was usually known to the deceased by the surname "Gray", which explains various references to that surname in the evidence.)
2. Ms Karpin also relied on the affidavits of: Mr Deepak Shankar, solicitor for the plaintiff, affirmed 30 June 2020 and a second affidavit of Mr Shankar affirmed 28 October 2020; Ms Thais Ugarte, retiree and friend of Ms Karpin, sworn 2 October 2020; Mr George Pegios, retiree and friend of Ms Karpin, sworn 7 October 2020; Ms Gillian Higgin, friend of Ms Karpin, sworn 12 October 2020; Dr Clive Lovell, General Medical Practitioner and friend of Ms Karpin, sworn 14 October 2020; Ms Elsa Lovell, retiree and friend of Ms Karpin, sworn 14 October 2020; Ms Mary Stewart, interior designer and friend of Ms Karpin, sworn 14 October 2020; Mr Jake Gray, Ms Karpin's former husband, sworn 15 October 2020; and Ms Mariana Arambasic, counsellor, art therapist and friend of Ms Karpin, sworn 29 October 2020.
3. The defendant swore three affidavits in the proceedings: Mr Gough's first affidavit sworn 3 August 2020; Mr Gough's second affidavit sworn 2 March 2021; and Mr Gough's third affidavit sworn 23 August 2021.
4. Mr Gough also relied on the affidavits of: Ms Belinda Lennox, solicitor for the defendant, sworn 5 August 2020; Ms Claudine Newtown, daughter of the deceased, affirmed 16 September 2020, and a further affidavit sworn by Ms Newton on 24 November 2020; Mr Stephen Devitt, former employee of the deceased, sworn 17 September 2020, and a further affidavit sworn by Mr Devitt on 23 September 2021; Professor Carmelle Peisah, old age and human rights psychiatrist, sworn 18 November 2020; and Ms Sue Williams, aged care worker and carer for the deceased, affirmed 22 July 2021.

First meeting of Ms Karpin and the deceased

1. There is a dispute as to when Ms Karpin first met the deceased (and connected with this in a temporal sense there is also a dispute as to when Ms Karpin first moved into the deceased's Hunters Hill house).
2. Ms Karpin alleges that she met the deceased in September 2015, at a dinner at the deceased's Hunters Hills house with his friend and doctor (Dr Clive Lovell) and Dr Lovell's wife (Elsa) (see Ms Karpin's first affidavit sworn on 12th June 2020 at [14]). Both Dr and Mrs Lovell have given evidence in the proceeding broadly supporting Ms Karpin's account of this first meeting, although Dr Lovell placed the first meeting in 2017 (see Dr Lovell's affidavit sworn 14 October 2020 at [7]) and Mrs Lovell placed the meeting in September or October 2015. In particular, Mrs Lovell gave evidence that Ms Karpin moved into the Hunters Hill house in late 2015 or early 2016 (which presupposes a first meeting some time before then - see at [25] of Mrs Lovell's affidavit and T 165.1-12, 165.29-31; although I note that elsewhere (at [28] - Mrs Lovell deposed that "everything seemed fine and happy with [the deceased] from the time [Ms Karpin] moved in with him which I recall being after Christmas 2015").
3. The defendant says that the first meeting could not have taken place in September 2015 because Denise (to whom Ms Karpin accepts the deceased was devoted - see Ms Karpin's first affidavit sworn 12 June 2020 at [34]) lived at home until she was admitted to hospital on 2 October 2015 and later an aged care facility on 27 October 2015 (see Ms Newton's first affidavit affirmed 16 September 2020 at [17] and [22]). It is noted that Denise required a very high level of care (see Ms Newton's first affidavit at [19]). The evidence from the deceased's later carer (Ms Sue Williams) is that the deceased visited Denise daily and continued to care for her (Ms Williams' affidavit affirmed on 22 July 2021 at [2]) when she was admitted to a nursing home in late October 2015 (Ms Newton's first affidavit at [22]).
4. Further, the defendant notes that there is also evidence that Ms Karpin was an inpatient at The Sydney Clinic (for alcohol dependence) for a period from 30 October 2015 (see the defendant's second bundle of evidence, marked Ex 4 in the hearing at p 166), which (while not necessarily inconsistent with a first meeting in September 2015) does appear to be inconsistent with at least one version given by Ms Karpin of her second meeting with the deceased (see below).

Second meeting

1. Ms Karpin has deposed in her first affidavit (at [15]) that her second meeting with the deceased was one week after she met him. This, however, is inconsistent with a statement Ms Karpin later made to police in connection with an Apprehended Violence Order (AVO) application brought by the deceased (see below), in which statement Ms Karpin placed her second meeting with the deceased as being "a few weeks" (i.e., not one week) later (see Ex 4 at p 15 [5]). That said, this second version of events does run into a potential timing problem given the 30 October 2015 in-patient admission to The Sydney Clinic, since a "few weeks" after a first meeting in September 2015 - at least if that first meeting was in late September 2015 - would place the second meeting at or about the same time as the in-patient admission, which could not be correct. Ultimately, however, the more compelling evidence that points to the likely timing of the first and second meetings is that which I consider below - and which places the likely second meeting as occurring on 21 January 2016.
2. Mrs Lovell deposes that the second meeting was a couple of weeks after the first (Mrs Lovell's affidavit at [23]). However, at the time of the AVO application, Mrs Lovell's statement to police put the second meeting as being "a month or so later" (see Ex 4 at p 24 [13]).
3. Relevantly, both Ms Karpin and Mrs Lovell depose that the second meeting was when Ms Karpin drove Mrs Lovell to take photographs of furniture that Mrs Lovell had stored at a "storage facility" (Ms Karpin's affidavit at [15]; Mrs Lovell's affidavit at [23]), though Mrs Lovell recalls that the furniture was stored at the deceased's offices at Auburn. The defendant points out that Mrs Lovell owned the furniture in question and argues that it is therefore likely that Mrs Lovell would remember where it was stored. In any event, Mrs Lovell says that the group (including the deceased) then went to a Costco supermarket (Mrs Lovell's affidavit at [24]) where the deceased asked for Ms Karpin's phone number.
4. The defendant says that the inspection of Mrs Lovell's furniture took place on 21 January 2016, when Mr Devitt arranged for the assembly of furniture for Mrs Lovell (see Mr Devitt's affidavit sworn on 17 September 2020 at [14]-[15]) and notes that Mr Devitt deposed that this was when he first met Ms Karpin (see at T 196.18-23). Ms Karpin has deposed that January was the first time she had visited the deceased's offices as she was "being kept a secret" (Ms Karpin's third affidavit sworn 7 October 2020 at [43]). Ms Karpin being "kept secret" was somewhat of a common refrain in her evidence - see at T 49.30ff; [18] of Ms Karpin's first affidavit.
5. The defendant points out that the visit to Costco occurring on 21 January 2016 is consistent with a docket sent to Ms Karpin by email by the deceased's secretary, Ms Sarina Sorbello, on 22 January 2020 which shows the date of the Costco visit as being 21 January 2016 (see Ex 4 at p 28); and with Ms Karpin's bank transaction statements (Ex 4 at p 34) (noting that no other Costco transactions appear in Ms Karpin's bank statements). The defendant also points out that the Costco docket shows that homewares were purchased on separate credit cards of the deceased and Ms Karpin (which the defendant contends shows that the two were not cohabiting as family members at that time).
6. The defendant says that Ms Karpin's Optus telephone records also support the conclusion that the second meeting took place on 21 January 2016 (noting that the records place Ms Karpin in Clyde and Homebush, near Auburn, on that date - see the defendant's first bundle of evidence, marked as Ex 1 in the hearing, at p 11). The Optus telephone records also show that Ms Karpin called the deceased's telephone number (for the first time) on 23 January 2016 (see Ex 1 at p 20).
7. Thus, if the second meeting was a "few weeks" or a "month or so" after the first dinner meeting (as both Ms Karpin and Mrs Lovell stated at the time of the AVO proceedings), and if the second meeting occurred at the time of a visit to Costco, this would place the first meeting as being in the period from around mid-December 2015 to early January 2016 (not as early as September or October 2015 as both Ms Karpin and Mrs Lovell had deposed). If the second meeting was sooner than a few weeks or a month or so after the first (and the second meeting coincided with the Costco outing), as the affidavit evidence of both Ms Karpin and Mrs Lovell suggests, then the first meeting would not have been before January 2016.
8. Apart from illustrating the unreliability of the evidence of Ms Karpin and Mrs Lovell (at least from a temporal perspective), the timing of the first two meetings is relevant having regard to the evidence of Ms Karpin as to when she commenced cohabitation with the deceased.

Commencement of sexual and intimate relationship

1. Ms Karpin says (inconsistently with the timeline indicated by reference to the Costco visit, as explained above) that in October 2015 she spent "at least four nights a week" at the deceased's Hunters Hill residence and that the couple "developed a sexual and intimate relationship" (see Ms Karpin's first affidavit at [16]). (Even if the couple had immediately commenced a sexual relationship, logically Ms Karpin could not have been staying at least four nights a week at the Hunters Hill residence in October 2015 if the second meeting with the deceased - on which occasion he asked for her telephone number - was not until the Costco outing and if that did not take place until 21 January 2016.) The deceased's daughter, Ms Newton, deposes that her father first mentioned that Ms Karpin was staying at the Hunters Hill residence in July 2016, and that she had not seen Ms Karpin at the house prior to October 2016, which is around the time that she says Ms Karpin moved in (see below).

Cohabitation at Hunters Hill

1. In her affidavit, Ms Karpin places the commencement of her cohabitation with the deceased at the Hunters Hill residence as being by late December 2015 or January 2016 (Ms Karpin's first affidavit at [16]). The December 2015 date is inconsistent with the Costco evidence referred to above; the January 2016 date is conceivable but implausible having regard to the evidence of statements made by Ms Karpin to others (to which I refer below).
2. The defendant submits that the date that Ms Karpin commenced staying at Hunters Hill with any regularity was much later in 2016 (most likely in around October or November 2016), when Ms Newton says the deceased told her that he would let Ms Karpin move into the house. The defendant says that this is consistent with Ms Karpin's statements to her psychologist (Ms Karen Duncan) in November and December 2016 (see below) to the effect that she was considering her options with respect to accommodation with her "boyfriend" at Hunters Hill and an offer of a place in Waverley (see Ex 4 at pp 113-114).
3. As to when Ms Karpin moved into, and was living at, the deceased's Hunters Hill residence, the defendant points to the following timeline as gleaned from contemporaneous records from different sources.
4. On 17 February 2016, Ms Karpin visited her general practitioner (Dr Chan) (who had been her doctor for over a decade - see Ms Karpin's affidavit at [66]). In her notes of that consultation, Dr Chan noted that Ms Karpin "has no permanent accommodation has been living with friends or daughter's place. Unable to afford private rental" (Ex 4 at p 49). (Ms Karpin, however, says at T 93 that she never discussed it (her relationship with the deceased) with Dr Chan because Dr Chan had said to her "Don't ever live with that old man again" and Ms Karpin said that she was "scared to tell her [Dr Chan] because she's Chinese, she's lovely" (apart from being a non-sequitur, this evidence makes little sense because by this stage, even on Ms Karpin's account, she could only have just moved in with the deceased, so the concept of living "with that old man again" seems inapt).
5. Dr Chan prepared a medical report on 17 February 2016 (which Ms Karpin submitted to NSW Family and Community Services (FACS) in support of an application for social housing) again there noting that Ms Karpin "has no permanent accommodation and unable to afford private rental" (Ex 4 at pp 50-56). The form signed by Ms Karpin in connection with that application, and which attached Dr Chan's report, stated Ms Karpin's address as being an address in Darlinghurst.
6. In the period from May 2016 to August 2016, Ms Karpin also apparently made various representations about her housing situation to the Wesley Mission, which provides assistance in locating social housing (see Ex 4). Notes prepared by staff at the Wesley Mission staff were in evidence. A note dated 13 May 2016, recorded that Ms Karpin "has been couch surfing since her marriage broke down. Stays with friends and sometimes her daughter" (see Ex 4 at p 82) and a note dated 20 May 2016 recorded Ms Karpin's current address as the same address in Darlinghurst that had been noted in the FACS application (see Ex 4 at p 82).
7. On 16 May 2016, Ms Karpin submitted a further application to FACS for public housing, this application included Ms Karpin's friend, Ms Higgin (Ex 4 at pp 66-73). On this application, Ms Karpin noted her residential address as a PO Box in Bondi Junction and indicated her personal circumstances, including homelessness, as being unchanged (Ex 4 at p 68; see also T 60.1-4). Ms Karpin further noted Ms Higgin's residential address as a PO Box in Bondi Junction, stating that Ms Higgin had no fixed address. However, Ms Higgin's evidence in the proceeding (see Ms Higgin's affidavit sworn 12 October 2020) was to the effect that she owned residential property in New South Wales (T 175.4-27). Ms Higgin gave evidence that until 2015 she had lived on a property she owned in Queensland, and that, from 2015 until 2017, she did not have a single place of residence but, rather, worked as a carer for the elderly, and thus "moved around" (T 173.39-50). Ms Higgin gave evidence that she had stayed with Ms Karpin and the deceased at his home in February 2016, and that Ms Karpin had told her that she had moved into the Hunters Hill residence some six to eight weeks prior (see at T 174.39-41).
8. It appears from the notes subpoenaed from The Sydney Clinic that Ms Karpin was admitted to The Sydney Clinic (for alcohol dependence) on 27 May 2016 and stayed until 30 May 2016. The Sydney Clinic staff notes record Ms Karpin as stating that she was staying at her daughter's house at Daceyville (Ex 4 at p 92), identifying her next of kin as her daughter Paige, and that her "X-husband" Jake Gray would be driving her home. The defendant notes that (at Ex 4 at p 125) Mr Gray is also described as the "husband".
9. In June 2016, Ms Karpin was referred by Wesley Mission to a psychologist, Ms Karen Duncan for treatment of "Depression, Anxiety and Alcohol Dependence". On 18 July 2016, Ms Duncan recorded that Ms Karpin had told her that she was homeless and had been since 2008; and that she "sometimes stays with boyfriend …" (Ex 4 at p 110). (This is the first reference in the contemporaneous notes to Ms Karpin staying with "boyfriend" and is not expressed as a permanent arrangement). The defendant points out that, after her meeting with Ms Karpin, Ms Duncan made representations supporting Ms Karpin's application for public housing (Ex 4 at p 111).
10. On 27 July 2016, notes from an appointment Ms Karpin attended at Wesley Mission record that Ms Karpin advised that she was "currently sleeping at daughter['s] ... house in Daceyville" (Ex 4 at p 124-125). Again, Wesley Mission notes on 18 August 2016 record that "majority [of time] staying with her daughter at Daceyville" (Ex 4 at p 124). On 23 August 2016, the Wesley Mission notes record that Ms Karpin was "stressed with the uncertainty of her accommodation" (Ex 4 at p 141).
11. On 17 November 2016 (as adverted to above), Ms Duncan noted that Ms Karpin was "considering moving in with boyfriend"; and on 15 December 2016 Ms Duncan's notes refer to an "invitation to move in with boyfriend … [as well as] offered housing with Waverley housing - considering the pos and neg too" (Ex 4 at pp 113-114).
12. Wesley Mission notes on 3 February 2017 record that Ms Karpin was "currently residing in Hunters Hill within a house and working as a carer, as well as living in Daceyville with her daughter" (Ex 4 at p 154). However, some three months later, Wesley Mission notes on 3 May 2017 record that Ms Karpin "feels quite settled living and is currently residing at her daughter's house" (Ex 4 at p 157).
13. That said, there is evidence from Mr Devitt that in around May 2016, Mr Devitt had a conversation with the deceased in which the deceased said words to the effect that: Now that Roz has moved in, I want to be careful that she can't make a claim. I want to talk to Chris Gough about when she could make a claim.
14. This is supported by an email dated 12 May 2016 from Mr Gough to Mr Devitt at an email address apparently associated with the deceased or his company, with the subject heading "DEFACTO MATTERS", which includes the advice that "the lady cannot apply for an interest in [the deceased's] property unless they have been together for two (2) years, had a child together or she has made a substantial financial contribution towards his assets" (here seemingly referring to the test applicable for claims from a family law perspective).
15. This suggests both that Ms Karpin had moved into the Hunters Hill house some time earlier than October 2016 and that the deceased was not wearing "rose-coloured glasses" at the time but was concerned to ensure that his assets were protected from any potential claim by Ms Karpin to his property. Mr Devitt has deposed that he showed the deceased the email from Mr Gough and that the deceased often said to him words to the effect "I have two years before we have to worry about a claim". (Pausing here, this is by no means implausible in circumstances where the deceased had considerable assets, which it is understandable he would wish to protect against a claim by someone relatively new to his life.)
16. As late as 5 May 2017, Ms Duncan sent a letter of support for Ms Karpin's application for social housing near her daughter, stating Ms Karpin's address as being in Daceyville (where one of Ms Karpin's daughters resides): … Rosalind provides daily care to her mentally ill adult daughter, Paige Gray. Rosalind is [sic] currently stays with Paige in Paige's Dept of Housing property on a regular basis as Paige needs regular assistance. It is essential that Rosalind be placed in housing close to her daughter Paige so she can continue to provide Paige with the care she needs.
17. The defendant contends (and broadly, though with the qualification I make below, I would accept) that the weight of the evidence is that Ms Karpin was not living with the deceased at any time before late 2016. The defendant accepts that Ms Karpin may have stayed at the house occasionally before late 2016 but says that this does not qualify her as a member of the deceased's household (see the defendant's submissions on this aspect which I summarise in due course). The defendant says that it was not until November 2016 (when, according to Ms Duncan's notes, Ms Karpin began to consider moving into the deceased's house) that it might be said that Ms Karpin stayed at the house on a regular basis (and the defendant submits that, even then, Ms Karpin did not become a member of the deceased's household).
18. Ms Karpin on the other hand alleges that she and the deceased lived together at the deceased's home in Hunters Hill from an earlier time (as noted above, she puts this variously as commencing in October 2015 or at the latest by late December 2015 or from about January 2016).
19. I accept the caution with which notations made in medical records or like consultations must be treated (see, for example, Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] per Basten JA; Afoa v McBride [2017] NSWCA 323 at [65] per Macfarlan JA, and at [70] per Payne JA), particularly insofar as they are dependent on the accuracy of the note-taker as to the history that is then being given. However, what is striking is the consistency of the position as portrayed in the notes taken by various medical persons and by those from whom Ms Karpin was seeking assistance in terms of accommodation or support. The picture there painted is not of someone in secure accommodation with a de facto partner; at best there is reference to staying sometimes with a boyfriend and an offer to move in with the boyfriend (which was apparently being considered in the context of a competing offer of public housing at Waverley). It is of course possible that Ms Karpin was simply painting an untruthful picture of her homelessness when engaging with the various persons who recorded the above notes (though, if so, it does not reflect well on her credit); but at the very least it makes it difficult to accept at face value Ms Karpin's evidence now that during most of this period she was living with the deceased at his Hunters Hill residence. The evidence of various of her friends in that context is not consistent and seems likely to have been drawn from Ms Karpin's own account of events.
20. Furthermore, Ms Newton's evidence is that she regularly visited and stayed with the deceased during 2016 and that she saw no sign of another person living at the house until later in the year. In particular, Ms Newton's evidence is that she visited about two to three times per week during January and February 2016 (Ms Newton's first affidavit at [26]); that in April 2016 she spent several days at Hunters Hill (Ms Newton's first affidavit at [30]) and then lived there in May 2016 in the bedroom that Ms Karpin says she occupied (Ms Newton's first affidavit at [31]); and that she again stayed at the house in that same bedroom between 22 August and 10 September 2016 (Ms Newton's first affidavit at [36]). It is noted by the defendant that, during these times, Ms Karpin's phone records indicate that Ms Karpin was on the other side of Sydney in the eastern suburbs.
21. However, while there is ample contemporaneous evidence from third party sources to suggest that Ms Karpin had not moved (at all or in any settled way) into the Hunters Hill residence before October or November 2016 (as opposed to staying there overnight or for occasional nights from time to time), against this is the evidence of Mr Devitt (coupled with the email advice of 12 May 2016 from Mr Gough to which I have referred above), which is compelling evidence to the contrary as it conveys the deceased's understanding of the situation at that stage. I also note that the deceased's witness statement dated 24 May 2017 in the AVO proceeding refers to him being in a relationship with Ms Karpin for approximately 18 months and that "[w]e lived together for about a year. She would go back to her own house every now and then for about two or three days at a time" (see at [3]).
22. Bearing in mind Ms Karpin's general unreliability as a witness and her apparent willingness to misrepresent her accommodation status to various regulatory authorities or other persons, it is nevertheless not insignificant that the deceased was, on Mr Devitt's account, both acknowledging that Ms Karpin "has now moved in" to the Hunters Hill house and seeking advice to protect his position (and that the deceased himself later placed the timing of the two living together as being "about a year"). Even if Mr Devitt had misunderstood what the deceased was saying (and Ms Karpin had not in fact moved in by that stage), it is apparent from the advice that was sought from Mr Gough at that time that the deceased was contemplating some kind of relationship with Ms Karpin in which she would be sharing his home.
23. Therefore, on the balance of probabilities I find that Ms Karpin had most likely moved at least some of her possessions into the Hunters Hill house in around mid May 2016, although the preponderance of the evidence is that it is likely that she was only staying there on a settled basis or with any regularity from about October or November 2016 (when the deceased acknowledged this to his family - itself not an insignificant step one would think in the family context). That is not inconsistent with the evidence of Ms Newton that on the occasions that she stayed at the Hunters Hill house in the period between May 2016 and October 2016 she saw no evidence of Ms Karpin being there; nor is it inconsistent with Ms Karpin's telephone records placing her in the eastern suburbs on regular occasions in that period.

March 2017 hospitalisation

1. The deceased was hospitalised for a surgical operation in the period from 14-21 March 2017 (see Mr Devitt's affidavit at [20]; and Ms Karpin's evidence that she had a role in caring for the deceased at that time).

Termination of the relationship in May 2017

1. Mr Devitt has deposed that in May 2017 the deceased asked him to attend a meeting at Emerson Pearson, Lawyers, saying that he was "going to get a second opinion about the arrangements with Ros" (see Mr Devitt's affidavit at [21]). Mr Devitt deposes that a partner of that firm, Mr Tony Krouk, met privately with the deceased and that, after that meeting, he went into Mr Krouk's office where Mr Krouk spoke generally about Ms Karpin and said that she could possibly make a claim on his property.
2. Mr Devitt has also deposed (at [22]) that he knew that Ms Karpin was travelling to Noosa in late May 2017 to visit her daughter there; and that the deceased asked him to attend another meeting with the lawyers on 22 May 2017, during which the deceased said words to the effect that he wanted to end the relationship with Ms Karpin; and that the lawyers agreed to prepare an email to send to Ms Karpin.
3. Consistently with Mr Devitt's recollection of events, an email was prepared by the deceased's solicitors formally terminating the deceased's relationship with Ms Karpin. Mr Devitt has deposed that he showed this email to the deceased, who read it and approved the substance of the email, and who then directed Mr Devitt to send the email to Ms Karpin (Mr Devitt's first affidavit at [23]). I note that Ms Karpin has deposed to the deceased being unable to read or write (see, for example, at [35]; [45]; [78] of her affidavit sworn 12 June 2020) but this is inconsistent with the evidence of Mr Devitt (his long-standing business manager) and is belied by the video evidence of the deceased reading a speech at Ms Newton's wedding.
4. The email sent on 22 May 2017 by the deceased to Ms Karpin read as follows: Dear Rosalind I find this email very difficult to send. I have realised that our relationship is not working and we are not compatible long term. I have discovered that you are not the person that I thought you were and this has really upset me. It is my decision to end the relationship and I hope you will respect it. I have changed the locks on my home and I ask that you please not return. I will have all your personal belongings and effects itemised and packaged and moved to storage until you can let me know where you would like them to be sent. I will ensure that they are insured against theft and damage. If you do not have anywhere in the short term to stay (perhaps you may consider staying in Noosa with your daughter?) then I will arrange for some short term accommodation for you. If you need some temporary accommodation please contact Stephen Devitt or Nick to arrange. I hope that after some time we can meet and chat as friends. I wish you all the very best.
5. There is evidence that almost immediately after that email was sent access was changed to the deceased's email account (apparently to allow access by Ms Karpin) but the significance of this is moot as it is not clear that anything was done in relation to the email account at that time.
6. Ms Karpin does not dispute that at around this time she had gone to Queensland to visit her daughter (she says to assist her to euthanise her dog - see at [52] of her affidavit sworn 12 June 2020). Ms Karpin has given evidence that, on 23 May 2017, she returned to the Hunters Hill home from a weekend spent with her daughter in Queensland to find that her possessions had been removed from the house; and that Ms Newton (and Ms Newton's husband, Mr David Newton, were in the house). Although the deceased's email stated that the locks had been changed, Ms Karpin was apparently able to obtain access to the premises as there were workmen there at the time. There was a verbal altercation which was filmed on Mr Newton's mobile telephone (and which I viewed in Court). Ms Karpin says that she was forcibly removed from the Hunters Hill home by the police (and Ms Karpin complains that this was done in a threatening fashion). There was also mobile phone evidence of a verbal altercation on this occasion when Ms Karpin's daughter arrived at the premises (footage of which was also played in Court). (The deceased was apparently shown some of this video footage, as there is a reference to it in later documents - see below. Ms Karpin disputed that she was swearing in the video footage - cf the deceased's reference to this in later documents.)

Apprehended Violence Order

1. On 24 May 2017, Ms Karpin was served with an Apprehended Violence Order (AVO) on behalf of the deceased (which Ms Karpin defended and which application was ultimately withdrawn by the NSW police in November 2017, on the date it was listed for hearing). In the context of that AVO proceeding, both Ms Karpin and Mrs Lovell gave statements to the police (as adverted to above). It is evident that Ms Karpin's AVO witness statement formed the basis for her subsequent affidavit in this proceeding (see below), the latter being almost a cut and paste from the former albeit with at least one significant change in the chronological presentation of the evidence (to which I refer below).

Evidence as to deceased's concerns

1. Mr Devitt has deposed (see at [25]-[27] of his affidavit) to various concerns he says the deceased raised with him about Ms Karpin (including to the effect that he thought she was giving him drugs as he was tired all the time), which I raise because it is consistent with the document later prepared at the suggestion of the deceased's solicitor as to the reasons for termination of his relationship with Ms Karpin (see below).

Deceased's Will

1. On 26 June 2017, as noted above, the deceased made his last Will. Ms Karpin points out that this was a month after the incident on 23 May 2017 when she was removed from the home of the deceased. (No challenge is here made to the deceased's testamentary capacity, although Ms Karpin has submitted that matters raised by the deceased as to her conduct were the result of influence by Ms Newton - see below.)

Removal of items from Hunters Hill house

1. Mr Devitt has deposed that Ms Karpin's items from the Hunters Hill house were boxed up by the deceased's family and taken to the Auburn store (and then, after some were collected by Ms Karpin, the remainder to a storage facility). Mr Devitt has deposed that Ms Karpin attended the Hunters Hill house in his presence on 5 July 2017 to collect items that she claimed were hers.

Consultation with Professor Peisah

1. On 4 September 2017, the deceased had a consultation (in his solicitor's office) with Professor Carmelle Peisah (a registered medical practitioner and psychiatrist, specialising in "old age and human rights" psychiatry). Professor Peisah was instructed by Mr Krouk to provide a professional assessment and report of the deceased's capacity to undertake a number of tasks, including to initiate and terminate relationships. For this purpose Professor Peisah met with the deceased on 14 September 2017 for just under two hours at the solicitor's offices. Professor Peisah's evidence is that the deceased understood the nature of his interview and the assessment as being "to test my ability to understand and get my questions and answers right for the solicitor".
2. Professor Peisah records that the deceased was "perplexed" about his breakup with Ms Karpin and kept repeating that "she was not the woman [he] thought she was". Professor Peisah records that the deceased thought that Ms Karpin was taking advantage of him financially (referring to the purchase of a pair of Louis Vuitton sneakers); that she was maintaining another property when she was paying her daughter's expenses; that she had illicit drugs in the house and was using them; and that she had been drugging him with a sleeping drug.
3. Professor Peisah records the deceased's account of the circumstances in which the deceased met Ms Karpin and their relationship, including that the deceased said that "[s]he moved in with me about 18 months ago, but then only on and off. She told me she was living in Darling Point but we found out she was living in a council flat, and she lived some of the time there and some of the time with me, in separate bedrooms" (the affidavit of Professor Peisah sworn 18 November 2020 at [10]). It is noted by the defendant that the deceased made similar comments describing the nature of the relationship in his statement to police for the purpose of the AVO matter (see Ex RMK1 to the affidavit of Ms Karpin sworn 12 June 2020, marked as Ex A in the hearing) (and this is also consistent with the account given by Mr Devitt of various concerns the deceased raised with him as to Ms Karpin).
4. Ms Karpin maintains that, in making these assertions, the deceased appeared to be under the influence of Ms Newton, noting the assertions made by Ms Newton in her two affidavits filed in this proceeding (the allegations of undue influence were made in effect because of the similarity in those assertions). Ms Karpin further maintains that these assertions had no foundation (see below).
5. Professor Peisah concluded that the deceased had the capacity to advocate for his interests and terminate a relationship (see her affidavit at [12]); and in her report Professor Peisah addressed (at [2.2]) the deceased's cognitive state, concluding that his scores on one of the tests suggested significant cognitive impairment likely to be consistent with a mild dementia due to a combination of vascular brain changes and alcohol use. Professor Peisah concluded that in her opinion the deceased as at 26 June 2017 had capacity, among other things, to make a Will and to manage day to day financial affairs.

Deceased's statement as to reasons for termination of relationship

1. Mr Devitt has deposed that in around September 2017, during a meeting he attended with the deceased and Mr Krouk, the solicitor suggested that the deceased prepare a document setting out his reasons for terminating the relationship with Ms Karpin (see at [32]). Mr Devitt says that the document was prepared by Mr David Newton and emailed to the deceased and to Mr Devitt in around September 2017; and that the document was read and approved by the deceased (see Mr Devitt's first affidavit at [32]).
2. The reasons set out in the document as leading to the termination of "the friendship" were listed against the following headings: "[Ms Karpin's] marital ambitions" (including pressure to divorce Denise and marry her); "dishonesty" (Ms Karpin's dishonesty in that she had used a credit card to make unauthorised purchases of $3,800 over three days) and that he believed she had misled him about her living in housing commission premises and formed the view "she was not the woman [he] thought she was"; "the deceased had received legal advice that the actions he had taken to prevent Ms Karpin from being able to make a claim may not have prevented her from taking action; and "unstable behaviour" (during early May 2017).
3. The unstable behaviour set out in the in the statement included that: Ms Newton had observed Ms Karpin drinking heavily and videoing the children; Ms Karpin had blocked the deceased's calls from his daughter, Jackie; Ms Karpin had accused Jackie of hiring a private investigator to follow her; Ms Karpin had interrupted a call of Ms Newton and her father to accuse Jackie of being a troublemaker; and Ms Karpin accused the deceased or his daughters of setting a trap for her by concocting a false person to contact her via text message.
4. The notes also include a section headed "Subsequent notes consolidating [the deceased's] reasoning for termination", against the headings "Behaviour on Video". "Medication" "Ongoing dishonesty" and "Dr Lovell's Notes", including reference to the deceased's shock and fear at what he had seen on the video taken by Mr Newton on 23 May 2017 (Ex F); the deceased had a fear Ms Karpin had been sedating him; Ms Karpin had falsely claimed certain items were gifts from the deceased, including a Rolex that had belonged to the deceased's second wife, Denise, and the deceased's belief that Ms Karpin had or may have stolen certain missing items from the Hunters Hill house; Ms Karpin's claims of being a former mining executive with substantial offshore moneys held in Singapore; and that the deceased disputed the accuracy of Dr Lovell's notes "as provided by [Ms Karpin] and suspected an ulterior motive for their inclusion (those notes relating to incidents on 26 April and 6 February); the deceased "feeling guilt" about his association with Ms Karpin after an interaction with Denise in her care-facility on 20 May 2017; and the discovery on 21 May 2017 of cannabis smoking implements and documents that concerned the deceased greatly.

Relationship between Ms Karpin and the deceased from December 2017

1. Ms Karpin says that after May 2017 she did not see the deceased until late December 2017 when the deceased contacted her again. Ms Karpin says that she and the deceased then continued their relationship (including a sexual relationship from time to time when she went to his house) until the deceased died on 4 November 2019 (although they did not resume their cohabitation). Ms Karpin points to the telephone records in evidence that indicate that there were over a thousand telephone calls between the two in the two last years of the deceased's life. As noted above, Ms Karpin complains that the treatment of the deceased, by at least Ms Newton, was elder abuse and Ms Karpin says that the deceased should have been permitted to live as he wished to do for the last years of his life. Ms Karpin's position appears to be that, but for family appearance, she would have been in a de facto relationship with the deceased up until his death.
2. Mr Devitt's evidence is that he was not aware of any further contact between the deceased and Ms Karpin (after mid-2017) until some time around January 2018 (see Mr Devitt's first affidavit at [33]). Mr Devitt deposes that on 25 January 2018 the deceased came into his office and told him that Ms Karpin was in a terrible state and needed cash; that he (the deceased) wanted to give her some money; and that they went to the Westpac Bank at Homebush where the deceased withdrew $6,000 in cash which Mr Devitt saw the deceased give to Ms Karpin when she arrived at his office.
3. Mr Devitt has set out a document (prepared by the deceased's secretary Ms Sorbello on Mr Devitt's instructions) summarising the amounts that Mr Devitt says the deceased gave to Ms Karpin out of his private account in the period between 25 January 2018 and 5 April 2019 (see Mr Devitt's first affidavit at [34] and Ex SD1, marked as Ex 5 in the hearing at p 37), totalling some $66,995.24. Of that amount, Mr Devitt says that $28,500.44 related to a trip by Ms Karpin to Vietnam in late February or March 2018 to acquire items for the business she was then starting; $7,998.10 for dental work (in respect of which he says the deceased said in mid-April 2018 he would pay and Ms Karpin would pay him back when she had money from a claim against her previous dentist - see at [40]); and $30,496.70 described by Mr Devitt as loans.

July 2018

1. Mr Devitt has deposed that in around July 2018 the deceased told him that Ms Karpin wanted to move back in with him; that Ms Karpin needed some money; and that Ms Karpin had given him a document to sign which the deceased refused to sign. Mr Devitt has attached to his affidavit an unsigned document being a "Financial Agreement pursuant to Part VIIIAB of the Family Law Act 1975", which Ms Karpin gave evidence had been drafted by her barrister (and which hence corroborates Mr Devitt's account). That document (which I emphasise was not executed by either party and hence is no more than a draft) included a (draft) warranty by both parties that neither was unable to support himself or herself "without a means tested or income tested pension allowance of benefit" (inconsistent to that extent with the position now put forward by Ms Karpin as to her financial needs) and left blank (for the deceased to complete) provision for Ms Karpin in the event of separation.

Instructions for preparation of Loan Agreement - October 2018

1. Mr Devitt has deposed that on 30 October 2018 he gave instructions to a solicitor to prepare a loan agreement between the deceased and Ms Karpin (referred to in the communications as the deceased's "girlfriend") for cash advances and payments amounting to $31,846.70. An email of 12 April 2019 from Mr Devitt to Mr Gough records that this loan agreement was not "presented" to Ms Karpin at the time, on what Mr Devitt said were the deceased's instructions to "leave it for the moment".
2. The draft loan agreement was apparently updated in December 2018 and by letter dated 15 April 2019 it was sent by the solicitor to Ms Karpin in relation to the claimed loan moneys. Mr Karpin responded on 31 May 2019, denying any loan and disputing the accuracy of the spreadsheet prepared by Mr Devitt.

Deceased's death

1. Meanwhile, in February 2019, the deceased was admitted to a nursing home where he resided for 2 months. On 30 April 2019, the deceased returned to live at Hunters Hill with a carer (Ms Williams). As noted above, the deceased died on 4 November 2019.

Commencement of present proceeding

1. On 18 June 2020, Ms Karpin filed a summons seeking a family provision order. Ms Karpin alleges that at various times she was in a de facto relationship with the deceased and, or in the alternative, that she was a member of the deceased's household.

Ms Karpin

1. The defendant says that Ms Karpin is not a witness of truth, pointing to various statements made by her which it is contended were demonstrably false; much of which it is said appear to be intended to show a stronger bond with the deceased than that which in fact existed.
2. It is noted that, in her first affidavit, Ms Karpin stated that "when Earle started to support me I went off the pension" but that this was a false statement (which had been copied across from her statement made to the police in AVO proceedings) (Ex 4 at p 14); which Ms Karpin later corrected (after the defendant's request for information from Centrelink) in her later affidavit; that being the only statement corrected in her affidavit evidence. The defendant points out that in her oral evidence Ms Karpin admitted lying to Centrelink during her time living with the deceased (T 55.4-28).
3. The defendant points to the evidence (adverted to above) as to the time when Ms Karpin moved in to the Hunters Hill house (Ms Karpin deposing that "by late December 2015 or January 2016 I had moved into Earle's house at Hunters Hill" - see Ms Karpin's first affidavit at [16]) whereas the Optus phone records show that Ms Karpin did not call the deceased at all until 23 January 2016 (Ex 1 at p 20) and that there is no record of Ms Karpin making any calls from the vicinity of Hunters Hill until 30 January 2016 (Ex 1 at p 22). The defendant says that, even then it appears from the documentary evidence that any stay at the Hunters Hill residence was no longer than one night, if that. Further, the defendant points to Ms Karpin's evidence as to the first dinner meeting with the deceased (see above), which the defendant says was not possible at the time as Denise was still living in the house until 2 October 2015.
4. The defendant points to Ms Karpin's evidence that she believed moving in was a "permanent arrangement and changed the address on my driver's licence to the Hunters Hill address" (Ms Karpin's first affidavit at [23]). The defendant notes that this was done for a period of 11 days in 2016 but then Ms Karpin changed the address on her licence back to Daceyville. The defendant says that this was apparently done in order to obtain a Costco card (see Ex 2, being an email exchange in relation to the Costco membership card) and certainly was not done on a permanent basis. It is noted that Ms Karpin later changed her address again to Hunters Hill the day the relationship ended, but that the period that this was done was only for four days again and Ms Karpin's evidence in cross-examination was that she had "no idea" why she had done that (T 67.45-50). (The defendant argues that this demonstrates Ms Karpin could be bothered changing her address if sufficiently motivated.)
5. Next, the defendant points to Ms Karpin's evidence at [52] of her first affidavit that "[she] had not been away from Earle for even one day since January 2016". It is said that this was patently false, the defendant referring to Ms Karpin's in-patient stays at The Sydney Clinic, her visits to Queensland and her phone records (see Ex 1), noting that the phone records show only rare visits to Hunters Hill until at least October 2016.
6. As noted above, Ms Karpin's statement made to the police in defence of the AVO proceedings was apparently used as the basis of her first affidavit in the present proceeding (they being almost identical in content). The defendant says that one marked difference is the change between [29] of the AVO statement (Ex 4 at p 18) and Ms Karpin's first affidavit at [51]. In the AVO statement, Ms Karpin represented as follows: By February 2017 I had most of my possessions in Earle's house. My jewellery was in his safe although some of my possessions such as household contents are in storage.
7. Whereas, in her first affidavit, Ms Karpin deposed that: By February 2016 I had all of my possessions in Earle's house other than furniture and some of my house contents. My jewellery was in Earle's safe. My furniture and large items such as household contents were in storage.
8. The defendant notes that the timing of the paragraphs in both documents is broadly chronological, with the preceding and following paragraphs only a month apart in date (all in 2017) but that in her affidavit Ms Karpin has changed to February 2016 the date when she purportedly moved into the Hunters Hill residence. The defendant says that this is an intentional effort to present a period of cohabitation which is much longer than that which is shown on the documents, particularly Ms Karpin's phone records.
9. The defendant says that the above statements are disproved by reference to documents; and contends that Ms Karpin makes them for the purpose of showing a relationship of longer length and deeper connection, to prove that she and the deceased were living in a permanent and committed relationship when they were not.
10. By contrast, the defendant says that in one instance the falsehood can only be assumed to have been produced to hurt (or perhaps manipulate) the deceased when he was living, this being an accusation that the deceased had given Ms Karpin genital herpes. It is noted that this was an allegation made during the deceased's lifetime (it being made in Ms Karpin's witness statement in the AVO matter; Ex 4, p 20 at [39]). The defendant contends that it must have been distressing, noting that Ms Karpin said the deceased had told her "he had only ever had sex with his two wives". Ms Karpin maintained that allegation in her affidavit evidence (see [65]-[68] of her first affidavit).
11. The defendant maintains that Ms Karpin's evidence regarding the deceased giving her genital herpes was false (and there was no little cross-examination on this issue). In particular, it is noted that on 6 August 2010 (well before the first meeting between Ms Karpin and the deceased) Ms Karpin had a consultation with Dr Chan, who recorded the note "genital herpes - recurrent" (Ex 4 at p 36) for which Dr Chan prescribed Valtrex. On 29 January 2014, Ms Karpin consulted another doctor (Dr Iyer at Bondi Junction Medical Centre) who noted that Ms Karpin "says that she has genital herpes. Rang Kingsford Medical Centre and spoke to Dr Chan who [confirmed] that patient had genital herpes"; and Dr Iyer also prescribed Valtrex (Ex 4 at p 39).
12. The defendant says that Ms Karpin's explanation in oral evidence (to the effect that her doctors had each lied on her notes about her having a particular disease in order for her to be prescribed a stronger drug for another condition) is absurd and should not be believed.
13. It is noted that Ms Karpin took the deceased to see Dr Lovell, the deceased's doctor for many years, who agreed with her "summation" that she had contracted the herpes virus from the deceased, to which the deceased responded "I'm terribly sorry" (see at [67] of Ms Karpin's 12 June 2020 affidavit). The defendant is critical of Dr Lovell in failing to take a relevant history of herpes from Ms Karpin, whom he had only commenced seeing in the previous year (Ex 4 at p 43A), and for relying entirely on Ms Karpin's statement on this issue. It is noted that in cross-examination Dr Lovell said that "[he] had no reason to doubt her statement" (T 160.11), despite the deceased never having presented with symptoms in their decades of friendship and professional relationship (T 160.29-34). It is also noted that Dr Lovell never tested the deceased for herpes and never prescribed medication (Valtrex) for him.
14. In her affidavit, Ms Karpin deposed that the diagnosis of herpes "has been quite debilitating" and that "[she is] now unable to have a sexual relationship with anyone without using a condom". Reliance was placed on this as a "factor warranting" in Ms Karpin's submissions on the present application (though in cross-examination Ms Karpin insisted that it was not a "huge thing" and said she was sorry that she had raised it - see T 40.1-15).
15. The defendant maintains that Ms Karpin's false statements about the deceased giving her herpes and the ramifications that this has had with respect to her sex life are intended to paint the deceased in a poor light. The defendant says that Ms Karpin's statements also allege that the deceased caused her harm whereas, in fact, any harm was caused by Ms Karpin to the deceased. Criticism is made that Ms Karpin presumably put the deceased at risk of developing a sexually transmitted disease late in life, as well as putting him through the mental anguish of believing that he had transmitted a disease to another person. It is submitted that the complaints Ms Karpin makes in her first affidavit (at [70]) are the very harm that she in fact caused to the deceased.
16. It is noted that Ms Karpin has also alleged that the deceased gave her an unspecified eye disease (T 35.2-6). The defendant notes that Ms Karpin has been seeing doctors for years for recurrent eye infections, commencing in December 2014 when she saw Dr Kwiatek who noted "herpes simplex infection" and referred her to the Eye Hospital with "presumed simplex" (Ex 4 at p 38).
17. The defendant says that the allegations regarding the deceased giving Ms Karpin herpes reveal Ms Karpin not only to have little credit, but a callousness towards the deceased (both during his life and after his death) that cannot be contradicted by her later statements that "he was the love of her life" and that she "had never been so happy" (Ms Karpin's affidavit at [47] and [48]).
18. It is further submitted by the defendant that it is bizarre that Ms Karpin alleges that she continued to have a sexual relationship with someone who gave her the disease. Whether or not that be the case, it is clear on the medical records that Ms Karpin was diagnosed with genital herpes well before she even met the deceased; and it was Ms Karpin herself who raised this issue - both in her AVO statement to the police and in the present proceeding (not just in her affidavit but in the submissions put forward as warranting the application for family provision); and the suggestion that the medical practitioners falsely recorded a diagnosis in order to prescribe medication so that Ms Karpin could obtain it for a lesser price is not credible.
19. The defendant says that Ms Karpin also makes other false statements which are easily contradicted, referring to the following matters.
20. First, Ms Karpin deposed in her first affidavit at [12] that she gave her car away to her grandson; whereas later her solicitor advised it was only lent to him (Ex 4 at p 79).
21. Second, Ms Karpin says that the deceased could not read or write. The defendant says that the video (viewed in Court) of the deceased reading at Ms Newton's wedding clearly shows him reading for a period of minutes from an A4 piece of paper (Ex 3). It is said that Ms Karpin's inability to accept the truth is evidenced by her reaction to the video (at T 104.1-18) where she said "I disagree that he was reading" and instead made the ridiculous assertion he may have been prompted.
22. Third, Ms Karpin claims that in August 2008 she donated some particularly rare scrolls to the Art Gallery of New South Wales (Ms Karpin's first affidavit at [13]). The defendant issued a subpoena to the Art Gallery of New South Wales for documents in relation to any such donation, which revealed no record of a donation in the names of either Ms Karpin or Ms Gray (her husband's surname) for the year of 2008. It is noted that, at Ms Karpin's fourth affidavit at [24] (and in Ex RK 4 to that affidavit) Ms Karpin produced documentation that she deposed was in relation to the scrolls. The defendant points out that the exhibit is almost entirely illegible and a request for the production of a legible document to the solicitor for Ms Karpin has not been answered. The defendant says that what can be read appears to have been filled in by Ms Karpin herself and contends that it does not amount to convincing confirmation of Ms Karpin's assertion (at [13]). The defendant says that the assertion was not relevant to the issues in the proceedings and submits that it is "merely another example of the plaintiff's relaxed attitude to her obligation [of] truthfulness to the Court".
23. Next, the defendant says that Ms Karpin's statement that she had never been so happy as she was with the deceased is contradicted by her statements to her psychologist, Ms Duncan, to whom she was referred in June 2016 for the treatment of depression, anxiety and alcohol dependence (Ex 4 at p 111). The defendant points out that (at Ex 4 at p 115) Ms Karpin is recorded as saying that her relationship with the deceased was negatively impacting on her life.
24. Finally, it is noted that in her oral evidence, Ms Karpin also admitted making numerous false statements to various persons or bodies: Centrelink (T 54.36-40), the Department of Family and Community Services (for public housing) (T 51.45-47) and the Wesley Mission (T 60.1-13, 73.1-12) who assisted her to obtain priority listing for public housing.
25. Of further relevance is the evidence of Ms Karpin that she "only takes prescription drugs" (see Ms Karpin's first affidavit at [65]), which is contradicted by various notations in her medical records (notably, the admission paperwork vis-à-vis Ms Karpin's alcohol dependence in Ex 4 at p 100) which make reference to Ms Karpin's admitted marijuana use.
26. The defendant says that these statements were all made under oath, and orally, by affirmation; that they are patently false; and that Ms Karpin should not be believed where her statements are not otherwise supported by objective evidence.

The Plaintiff's Witnesses

1. The defendant points out that Ms Karpin's witnesses were friends who visited or stayed at Hunters Hill between early 2016 and May 2017; that none stayed at the house for more than a few days; and that their evidence can only be of momentary or sporadic interactions with the deceased and of the descriptions given to them by Ms Karpin. It is said that, with few exceptions, the witnesses called by Ms Karpin were adamant about dates but could not point to any reason for their firm recall of the precise date Ms Karpin commenced living at Hunters Hill, and then were vague about other dates. Those witnesses were as follows.

Thais Ugarte

1. Ms Ugarte, a friend of Ms Karpin, gave evidence that she visited the Hunters Hill residence, including when Ms Karpin was living at Hunters Hill, which she deposed was "in early 2016, perhaps in February". It is noted that in cross-examination Ms Ugarte volunteered that she "was disappointed that Jake had met [Earle] before me" (T 134.1-2), which the defendant says was strange given Mr Gray's own oral evidence that he had never met the deceased (T 150.50, 151.1). Ms Ugarte also stated early in her oral evidence she was at the house the night before Ms Karpin was removed from the house but later amended that statement to the week before, and then said it could have been April or May (T 136.12-31).

Jake Gray

1. Mr Jake Gray is Ms Karpin's ex-husband. It is noted that Mr Gray did not recall the circumstances under which his affidavit was sworn (requiring two signatures before it was signed correctly) (T 148.2-18); and that he did not appear able to recall details without reference to written material (despite being asked to refrain from referring to it - see T 151.26). In any event, it is noted that Mr Gray's evidence is that he did not meet the deceased and only relied on the statements made to him by Ms Karpin and others.

George Pegios

1. Mr Pegios, a deregistered dentist (who accepted that he had been deregistered on the basis of dishonesty, including a finding that he had given evidence in a criminal trial knowingly in order to mislead the Court) gave evidence that he knew that Ms Karpin moved in with the deceased in early 2016. The defendant points out that Mr Pegios could not explain why it was he was able to recall with precision that was the starting date of the relationship apart from vague recollections that "it was a very significant thing. I mean, I was aware of her previous relationship with another gentleman, so I was happy …" (T 134.35-40); and that Mr Pegios relied on Ms Karpin's statements that she commenced living with the deceased in 2015, and did not visit Hunters Hill until early 2016 (T 134.26-30). It is noted that the reasons Mr Pegios gave for relying on Ms Karpin's statement included that "[s]he wouldn't have made that up" (T 144.30).

Dr Lovell

1. The defendant, as noted above, is critical of the fact that Dr Lovell relied on the statements of Ms Karpin rather than carrying out any fact checking. It is noted that Dr Lovell's notes in the deceased's medical records of the breakup relied entirely on the comments of Ms Karpin and were cited by the deceased as a reason for the termination of the relationship.

Elsa Lovell

1. The defendant notes that Mrs Lovell was adamant Ms Karpin moved in in late 2015 but that she accepted in her written and oral evidence that the second meeting between the deceased and Ms Karpin was at Costco after photographing a bed at the deceased's business (T 164.11-21), which meeting (as explained earlier) is most likely to have taken place on 21 January 2016, as was accepted by Ms Karpin (T 44.36-39). The defendant says that Mrs Lovell's recollection as to the 2015 date of moving in was incorrect but that she would not accept her evidence was in error. Mrs Lovell said she was "100% sure" her evidence was correct (T 164.34). The defendant submits that Mrs Lovell's memory in that regard was faulty and her evidence in general unreliable.

Mary Stewart

1. Ms Stewart (an interior designer and friend of Ms Karpin) gave evidence in very vague terms that she visited Ms Karpin at Hunters Hill, commencing in early 2016 (T 169.1-5). Ms Stewart could not recall exact dates nor give a reason apart from her close friendship with Ms Karpin as to why she knew the date of commencement.

Gillian Higgin

1. Ms Higgin gave evidence that she first visited Ms Karpin at Hunters Hill in February 2016 (T 174.9-14). Notably, the documentary evidence reveals that Ms Higgin was searching for social housing, and was recorded in Ms Karpin's applications for social housing as having "no fixed address", although in cross-examination Ms Higgin revealed that she is the co-owner of a property in New South Wales (T 175.15-34) (although this assertion was subsequently withdrawn).

Sue Williams

1. Ms Williams lived at Hunters Hill with the deceased as his carer and companion for four days per week during the final months of the deceased's life. Ms Williams gave evidence in her affidavit about the conversations she had with the deceased; in particular, that his meeting Rosalind was one of the biggest regrets of his life, that he was concerned she would "go [him] for millions" (at [13]) and that this caused him stress (at [16]).

Claudine Newton

1. As noted above, Ms Newton is the deceased's daughter. Ms Newton accepted in her affidavit prepared in September 2020 that the deceased and Ms Karpin lived together for the period from October 2016 to May 2017. It is said that the later production of Ms Karpin's phone records (produced under subpoena in August 2021) confirm Ms Newton's evidence that Ms Karpin did not stay with any regularity at Hunters Hill until late 2016.
2. Ms Newton was cross-examined as to her evidence that she stayed at Hunters Hill during the period from 22 August 2016 to 10 September 2016. Ms Newton disagreed that the deceased had told her that Ms Karpin moved to Mission Beach so that she (Ms Newton) could move into the house. The defendant points to the telephone records that show Ms Karpin did not enter Hunters Hill at all during the period (Ex 1 at p 99-104) in which Ms Newton stayed at the house at all (the first time that she did being one entry at 9.19am on 11 September 2016). It is said that Ms Karpin remained in the Eastern Suburbs for the entirety of Ms Newton's visit to the house, until on 12 September 2016, according to the phone records, she headed to Mascot and on to Mission Beach (Ex 1 at p 105).
3. The defendant refers to the description given by Ms Newton as to the way she and Ms Karpin shared the care of the deceased in the last months with the plaintiff before the relationship was terminated (indicating that when Ms Karpin returned to her home in Kensington, Ms Newton would visit Hunters Hill in order to take her turn and look after her father - see at T 227.1-27).
4. Pausing here, in submissions Ms Karpin notes that only one of the three daughters of the deceased has given evidence in the proceedings (Ms Newton). However, it is by no means apparent what turns on that fact. No Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference was sought and it is not apparent what evidence it might be expected the defendant would have adduced from the deceased's other two daughters (particularly when none has put her own financial circumstances in issue) on any issue that calls for evidence from them.

Stephen Devitt

1. As noted above, Mr Devitt was the deceased's business manager. Mr Devitt worked with the deceased for over forty years and his evidence was that he was involved in "basically everything" the deceased did (T 198.46-50).
2. The defendant says that Mr Devitt was trusted by the deceased with his business, and to assist with his personal affairs. It is noted that Mr Devitt was present at the deceased's offices on Ms Karpin's second meeting with the deceased, though he did not meet her on that occasion; and that Mr Devitt later became acquainted with Ms Karpin through her visits to the deceased's place of business. Mr Devitt's evidence is that he attended the solicitor's office with the deceased in May 2017 when the deceased decided to end the relationship (see Mr Devitt's first affidavit at [22]-[25]).
3. It is noted that Mr Devitt was not cross examined on the document containing the deceased's reasons for terminating his relationship with Ms Karpin. Mr Devitt also described Ms Karpin making constant requests for money (see his first affidavit at [34]), and deposes that he also became the contact for Ms Karpin, particularly when she had been promised payment by the deceased. Mr Devitt explained that Ms Karpin called him if the money did not go into her account when expected (T 204.26-35, 208.33-38).
4. The defendant points to Mr Devitt's evidence that Ms Karpin also threatened that she would take her grievances concerning the AVO proceedings and her lack of money to the media (T 208.1-47). Mr Devitt's evidence is that he formed the view that the deceased was under significant pressure from Ms Karpin, and that the deceased was very concerned to protect his family from Ms Karpin (T 208.165-17).

Observations as to witnesses

1. Broadly, I accept the defendant's witnesses as credible and reliable. While Ms Newton clearly has a personal interest in the outcome of the proceeding, her evidence more closely accords with the objective chronology of events set out above. Mr Devitt also was a credible witness, who was amply placed to observe the deceased's concern as to Ms Karpin, the events surrounding the termination of the relationship, and the provision of moneys to Ms Karpin during the second phase of the relationship.
2. Ms Karpin, on the other hand, gave inconsistent and unreliable evidence; was prone to exaggeration (such as when she said she had not spent a day apart from the deceased - which was demonstrably incorrect); and, on her own evidence, was not above making false statements as to the relationship to various agencies (from whom she was seeking assistance) or medical personnel and third parties at the time. Ms Karpin was a loquacious (and seemingly uninhibited, given some of the detail she divulged) witness, with an engaging frankness but had a tendency to digression and to gloss over inconsistencies in the evidence; and I suspect that her evidence has been unconsciously or otherwise affected by her perspective of the events that occurred. Her evidence was riddled with errors and inconsistencies. I do not suggest that Ms Karpin was being deliberately untruthful in relation to matters such as when, in particular, the relationship commenced, or when she first moved into the Hunters Hill house, but I cannot place weight on her evidence as being a reliable recollection of events; and her emphasis on the claims (untenable in the light of the earlier medical notes) that the deceased gave her genital herpes does not paint her in a good light. I accept that Ms Karpin's friends are genuinely fond of her and would be likely to accept at face value Ms Karpin's statements as to her relationship with the deceased. However, it is clear that many of her friends were simply basing their evidence on the accounts given to them by Ms Karpin and do not have an independent recollection of events.

Deferred ruling on evidentiary objection

1. Certain exhibits to the affidavit of Ms Newton were the subject of objection pursuant to s 138 of the Evidence Act 1995 (NSW) (Evidence Act). The exhibits were admitted provisionally and I indicated that I would rule on their admission in the final reasons.
2. Counsel for Ms Karpin stated that her objection was based on Ms Karpin's assertion that the documents had been removed from her computer. The defendant says that this was not the case; rather, Ms Newton copied the files that were left in the house by Ms Karpin, some of which she attached to her affidavit; and that these files were then returned to Ms Karpin (see Ms Newton's first affidavit at [53]-[56]). Ms Newton's evidence is that she did not access Ms Karpin's computer, nor did she remove files from the computer (T 218.27-43).
3. The defendant notes that Ms Karpin did not raise the prospect that documents were taken from her computer prior to the hearing. It is said that Ms Karpin had access to the documents attached to Ms Newton's affidavit and complained only that the files had been copied. Ms Newton's evidence was the email to Mr Gray had been copied from the printed bundle left at Hunters Hill (T 219.26-29) and therefore it would have been returned. It is said that there was no evidence that the document had not been returned to Ms Karpin.
4. The defendant says that the documents were not illegally obtained. The defendant accepts that it may have been a breach of Ms Karpin's privacy, but the documents were in the deceased's house, comingled with his records, and they were searched with his authority and in his presence (see Ms Newtown's first affidavit at [53]-[55]). It is accepted that the documents were owned by Ms Karpin and were returned to her after copying. It is submitted that there was no offence in the obtaining of the documents and that the tender should be permitted.
5. Section 138 of the Evidence Act provides as follows: (1) Evidence that was obtained (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
6. Basten JA, in Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426, having earlier considered the general law discretion to exclude unlawfully obtained evidence (see at [16]-[20] referring to Ridgeway v The Queen (1995) 184 CLR 1; [1995] HCA 66), noted (at [22]-[23]): 22 It is clear that s 138 varies the common law in a number of respects: see J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002) Australia, LexisNexis Butterworths, at 510. Nevertheless, s 9 of the Act states: "9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment." Thus, in relation to s 138, there is no doubt that the statutory rule involves exclusion of evidence, where its terms are engaged, subject to a discretion to admit. The general law rule was framed in terms of a discretion to exclude. Secondly, s 138 is not in terms limited to unlawful or improper conduct on the part of law enforcement authorities. Each of these considerations may be relevant in determining what constitutes "impropriety" for the purposes of s 138 and invite caution in considering whether to apply general law principles without qualification. On the other hand, because the Act does not define the concept of impropriety, it is difficult to perceive any necessary intention on the part of the legislature to vary the principles collected in Ridgeway, derived from earlier Australian authority. Accordingly, those principles should be applied. 23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases the joint judgment in Ridgeway (at 39) referred to offences being procured or induced.
7. In Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1, the High Court said the following regarding the operation of s 138 (at [12]-[14]): 12 In the event, s 138 enacts a "discretion" which is wider than the modified Bunning v Cross discretion discussed by the ALRC in the Interim Report. Bunning v Cross is an exclusionary discretion that applies in criminal proceedings and requires the court to balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law . Section 138 provides for the conditional exclusion of evidence obtained by, or in consequence of, impropriety or illegality in any proceeding to which the Act applies. Notably, the exclusion is not confined to evidence that is improperly or illegally obtained by police or other law enforcement agencies. The "discretion" conferred is to admit the evidence, should the court be persuaded that the balance of the competing public interests requires that outcome. 13 As s 138 is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally. In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt. 14 Recognition that s 138 is not confined to evidence obtained by the improper or illegal conduct of the police raises a number of issues. Whether evidence has been obtained improperly in such a case is determined by reference to "minimum standards of acceptable police conduct". The standard by which the court assesses the impropriety of the conduct of private individuals is less clear. That question is not raised in these appeals; it is common ground that the surveillance evidence was obtained in contravention of Australian law.
8. I cannot conclude that the evidence contained in the exhibits to Ms Newton's affidavits was illegally obtained. This is a serious allegation, that would require the leading of substantial evidence (to which the parties would require an adequate opportunity to respond) in order to satisfy me of the impropriety or illegality of the methods by which the evidence was obtained.
9. I therefore admit the provisionally admitted exhibits into evidence with no qualification.

Relevant legislative provisions

1. Section 57 of the Succession Act defines "eligible person" as follows: 57(1) Eligible persons: (definition of "eligible person") … (b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death, … (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who … was at that particular time or at any other time, a member of the household of which the deceased person was a member. … (f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.
2. Section 21C of the Interpretation Act 1987 (NSW) provides that: 21C References to de facto partners and de facto relationships: 1. Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: a. the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or b. the person is in a de facto relationship with the other person. 2. Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if: a. they have a relationship as a couple living together, and b. they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. 3. Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: a. the duration of the relationship, b. the nature and extent of their common residence, c. whether a sexual relationship exists, d. the degree of financial dependence or interdependence, and any arrangements for financial support, between them, e. the ownership, use and acquisition of property, f. the degree of mutual commitment to a shared life, g. the care and support of children, h. the performance of household duties, i. the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
3. Section 59 of the Succession Act provides that: 59. When family provision order may be made: (1) The Court may, on application of Division 1, make a family provision order in relation of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57--having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

Issues

1. The principal issues identified in the case are: (i) whether Ms Karpin is an eligible person; (ii) whether there are "factors warranting"; (iii) whether proper and adequate provision for Ms Karpin has not been made under the Will of the deceased; and (iv) that, if proper and adequate provision has not been made under the Will of the deceased, what provision (if any) should be made at the time of hearing.

(i) Eligibility

1. Ms Karpin maintains that she falls within the definition of an eligible person in s 57(1)(e) of the Succession Act. Thus, Ms Karpin accepts that, by reason of s 59(b) of the Succession Act, the onus is upon her to prove that, having regard to all the circumstances of the case, there are factors which warrant the making of the application (see below).
2. The defendant accepts that Ms Karpin and the deceased had a relationship in the last four years of his (87 year) life. It is said that he was an elderly man at the time they met, and his beloved wife (Denise) was reaching the end of her struggle with dementia. The defendant says that the relationship between the deceased and Ms Karpin was short; that it was not always an harmonious one; that there was a significant break of 6 months where they had no contact at all; and that, by the end of the deceased's life, Ms Karpin had "moved on" to another partner (Ex 4 at p 120).
3. The defendant says that, on Ms Karpin's own evidence, there are two distinct periods during which eligibility might arise: first, the period from when Ms Karpin moved into the Hunters Hill home (either, on Ms Karpin's case from around late 2015 or early 2016, or, on the defendant's case, not earlier than about October 2016) through to May 2017 (thus, at most, some 18 months but, on the defendant's case, perhaps some seven months); second, the period from late December 2017 to the deceased's death.
4. As to the first period, the defendant contends that cohabitation commenced no earlier than approximately 10 October 2016 when Ms Karpin moved her possessions into the Hunters Hill house. The defendant says that the relationship before then was simply a social relationship of friendship with, perhaps, Ms Karpin staying occasionally overnight. It is submitted that there was no conduct giving rise to eligibility and no de facto relationship up to that time. (I agree.)
5. The defendant says that even when Ms Karpin says she was living at Hunters Hill, Ms Karpin did not regard that as her home or residence and spent much time away from there (pointing to the records of Ms Karpin's account to others in relation to her accommodation - to which I have referred above). It is said that, during the time Ms Karpin was "living" at Hunters Hill, she was not a member of the deceased's household; that she did not stay there all the time, regularly returning to her daughter's house at Daceyville or elsewhere; that she spent a significant time as an inpatient in a clinic for alcohol dependency; that she continued to seek social housing from the Department of Family and Community Services, and continued to collect the pension, including rent assistance. Further, it is noted that during the entirety of their relationship, she represented to all her doctors and other service providers she was homeless or staying with and caring regularly for her drug dependent daughter and grandson.
6. It is said that Ms Karpin's oral evidence reveals her equivocal attitude to her relationship with the deceased; noting that she repeatedly referred to the deceased's place as "not my home" and Daceyville as her "home" (T 18.11-15) and that she said that "10 months into the relationship, you know, it's not my house" (T 73.26-31, see also at T 51.18-21).
7. As to the second period (i.e., the alleged resumption of the relationship in late December 2017) the defendant says that there is no dispute that, over the next three to four months, the deceased provided $28,500 for a trip by Ms Karpin to Vietnam and for stock purchases; and that, over the next 14 months, some $30,500 was provided by way of cash or transfer to Ms Karpin. It is noted that in late 2018 and early 2019 some $8,000 was provided to Ms Karpin for dental work. The defendant says that after no later than the end of April 2019 Ms Karpin had no part in the deceased's life.
8. The defendant says that, for the period from late December 2017 to the deceased's death, there is no factual matrix which could give rise to any element of eligibility. It is noted that Ms Karpin was not living with the deceased at the time of his death (said to be an essential criterion for a "close personal relationship") since on her own evidence she had not lived at Hunters Hill since mid-2017.
9. The defendant concedes that, if eligibility is satisfied (within the meaning of s 57(1)(e)) at any time during the lifetime of the deceased, that eligibility "continues" until the date of death. However, the defendant says that even if Ms Karpin was in a de facto relationship with the deceased in respect of the first period (2016 - 2017) that relationship was not present at the time of the deceased's death so as to satisfy that part of the eligibility criteria (within the meaning of s 57(1)(b)). (I agree.)
10. The defendant thus submits that if Ms Karpin is an eligible person it can only be within sub-paragraph (e) of the s 57(1) definition, that is, that she was partially dependent on the deceased person and a member of his household (as noted above, that seems indeed to be Ms Karpin's contention). The defendant says that this period of eligibility, even on Ms Karpin's case, appears to be no more than some 18 months (the first period). Whereas, the defendant says the period is seven months (if at all). It is noted that (which is said to be relevant but acknowledged not to be determinative) during the whole of the first period the deceased was married to his wife Denise whom he had married in 2012 and who predeceased him by some seven months on 17 April 2019.
11. As to the second period, it is noted that Ms Karpin deposes at [108] of her first affidavit that "from December 2017 … [she] visited [the deceased] on many occasions at Hunters Hill". The defendant says that there is no evidence that Ms Karpin stayed overnight on those occasions. It is submitted that, whatever the nature and frequency of these visits, they ceased sometime in February 2019 when the deceased entered the nursing home at Vaucluse (and it is noted that although Ms Karpin says she saw the deceased thereafter (until April 2019), she never again visited Hunters Hill).
12. Whether Ms Karpin was dependent or partially dependent; and whether Ms Karpin was a member of the deceased's household, are questions of fact (the defendant here referring to Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [68]-[72] per Payne JA (Macfarlan JA agreeing)).
13. As to the meaning of "household" reference is made to Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35]-[51], where Hallen J said that: … It is the characteristics and dimension of the domestic relationship that make it a household. … The concept … connotes a degree of continuity and permanency of mutual living arrangements. … … Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient.
14. The defendant submits that Ms Karpin never lived at Hunters Hill on a permanent basis and says that any period during which she is found to have so lived was relatively short (which the defendant says may be demonstrative of a lack of commitment and permanence).
15. The defendant submits that, during the time Ms Karpin was present at Hunters Hill, she was not a member of the deceased's household. It is noted that Ms Karpin did not stay there all the time, regularly returning to her daughter's house at Daceyville; that in January 2017 Ms Karpin spent time as an in-patient in a clinic for alcohol dependency; that Ms Karpin continued to seek social housing from Government bodies; that Ms Karpin continued to collect the single pension including rent allowance; and that Ms Karpin travelled to see her daughter in Queensland. The defendant emphasises that, during the entirety of the relationship Ms Karpin represented to all medical and other service providers that she was homeless or staying with and caring regularly for her drug dependent daughter and grandson.
16. The defendant points to the following statements made by the deceased during his lifetime concerning his relationship with Ms Karpin: on 24 May 2017 (see Ms Karpin's first affidavit at [78] and p 68 of Ex A) a statement to the police in the context of an application for an apprehended domestic violence order; on 14 September 2017, to Professor Peisah (see Annexure B to the affidavit of Professor Peisah sworn 18 November 2020 at pp 27-29) recording comments made by the deceased to her; and a document said to have been adopted by the deceased (see Ex SD-1 to Mr Devitt's first affidavit, marked as Ex 5 in the hearing, being document "K" at p 32) giving a detailed history of the relationship with Ms Karpin and his attitude towards her.

(ii) Factors warranting

1. Ms Karpin submits that the following are the factors which warrant the making of the application.
2. First, that she would probably have been the de facto partner of the deceased cohabiting at the time of his death, had it not been for the interference of his children or at least Ms Newton (and thus, she would have come within category (b) of the definition of eligible person).
3. Ms Karpin has asserted that at the time the deceased made his last Will on 26 June 2017, he was under the influence of assertions made by Ms Newton. (However, there is no challenge to the deceased's testamentary capacity nor is there any challenge based on actual undue influence.)
4. I do not accept that this conclusion is warranted, having regard to the statements made by the deceased to Mr Devitt, Ms Williams and Professor Peisah. While some of the matters to which the deceased there referred are matters that may have been drawn to his attention or raised by Ms Newton or other members of his family, the evidence of Professor Peisah was such that (notwithstanding that Professor Peisah concluded that the deceased was presenting with mild dementia) the deceased had the ability to form his own views as to whether to initiate or terminate romantic relationships. Professor Peisah was a careful and compelling witness; and I accept Professor Peisah's conclusions in this regard.
5. However, Ms Karpin maintains that she was able to refute all of the allegations made in the deceased's statements in her evidence; and that the statements are in contrast to, and inconsistent with, the deceased's statements both to her and to independent witnesses after the event (see Ms Karpin's affidavit sworn 7 October 2020 wherein she attributes to the deceased a statement to the effect that "[he] was under tremendous pressure from [his] children and their husbands to get [Ms Karpin] out of the house" and that he was "virtually kidnapped"; see also Ms Ugarte's affidavit sworn 2 October 2020 and Mr Pegios' affidavit sworn 7 October 2020 in which they attributed to the deceased statements to the effect that he had "nothing to do with" the ouster of Ms Karpin, that he "did not have control" and that it was his "children and their husbands", and that the deceased wanted "to look after [Ms Karpin] and help her start a business" and the affidavit of Ms Stewart sworn 14 October 2020 in which she attributed to the deceased a statement regarding his intention to purchase Ms Karpin a terrace in Paddington).
6. In particular, Ms Karpin denies that she was irresponsible with alcohol and says that, after the allegations were made in the Apprehended Violence Order proceeding, she arranged for a test to be taken of herself to disprove long term alcohol effects and drug use. (I note, however, that there was some evidence of alcohol dependency at least insofar as Ms Karpin appears from time to time to have admitted herself to The Sydney Clinic on that basis, and Ms Karpin made various admissions as to her recreational marijuana use - see above.) Insofar as Ms Karpin was accused of giving Valium to the deceased to drug him, Ms Karpin points out that Diazepam (Valium) was medication given to the deceased by a medical practitioner; and it is noted that, in the deceased's statement to Professor Peisah, the deceased said that he was still taking Diazepam each night with whisky.
7. Nevertheless, I still cannot conclude that, but for the assistance (or as Ms Karpin would characterise it interference) by family members at the time of termination of the relationship in May 2017, the couple would have been in a de facto relationship at the time of the deceased's death. Ms Karpin's own statements to Ms Duncan suggests a degree of ambivalence about the relationship at least as at November 2016.
8. Second, that she and the deceased shared a loving relationship "from about January 2016 until November 2019" (a period of over three and a half years). I accept that there was a relationship (although the period of cohabitation was much less than the three-and-a-half-year period to which reference is made). I accept that it was an "on and off" again relationship; that it involved a sexual and intimate relationship; and that for a period of at least approximately six to seven months (from October or November 2016 (and, albeit to a lesser extent, possibly from May 2016) i.e., for a period of up to two months) Ms Karpin had moved her possessions into the house. I also accept that it was a loving relationship although there is some evidence of dispute at times.
9. Third, that she has been left with health conditions by reason of events that occurred during the relationship in that she admitted herself to a mental institution after the events of May 2017 and she also has to live with genital herpes for the rest of her life. Ms Karpin says that this is a recurring condition which will cause difficulty if she has the opportunity of starting any new relationship of a sexual nature. As noted above, I do not accept that the genital herpes (or eye condition) was caused by the deceased. As to the admission to a mental institution, I accept that Ms Karpin was stressed and upset about the manner in which the relationship ended.
10. Fourth, that she has a need for provision. I set out in due course the evidence as to Ms Karpin's financial circumstances. I accept that Ms Karpin is in a position of some need.
11. Fifth, that the estate is a large estate (on the defendant's case about $11 million; on Ms Karpin's case closer to $60 million). I accept that, on any view, the estate is large (see below).
12. Sixth, that, having been in a de facto relationship with the deceased for more than a year and having continued the relationship (without cohabitation) for almost two further years prior to his death, it would be expected that she be provided for by the deceased on his death. I consider below the nature and duration of the couple's relationship. For present purposes, I accept that the deceased and Ms Karpin were in a brief de facto relationship (for somewhere between six to seven months - when the deceased acknowledged this to his family, and 12 months, when the deceased acknowledged this to Mr Devitt).
13. Seventh, that the deceased continued to provide for the Ms Karpin until the date of his death (see, for example, Ms Karpin's first affidavit at [94] and [99] as to the provision of cash) and she remained partially dependent upon him until the date of his death. I consider in due course the evidence as to the provision made for Ms Karpin over the relevant period. Suffice it to note that I do not accept that Ms Karpin remained partially dependent upon the deceased to the date of his death. It seems to me that the evidence establishes that in the second period of their relationship the deceased treated provision to Ms Karpin as being by way of loan (albeit that he may well not have expected the loans to be recoverable).
14. Eighth, that the deceased promised to her and others that he would provide for her. I accept that there is evidence of statements by the deceased to the effect that he was contemplating buying a terrace in Paddington for Ms Karpin (see the affidavits of Mr Pegios sworn 7 October 2020, and Ms Stewart sworn 14 October 2020). That evidence must be contrasted with the deceased's evident concern not to expose himself to claims by Ms Karpin. The making of such statements would in my opinion be equally consistent with empty promises made by the deceased to look good in the eyes, or in the company, of Ms Karpin's friends. (Further, to the extent that those statements were made towards the end of the deceased's life, there is evidence that by then he had signs of mild dementia, as Professor Peisah opined.)
15. Ninth, that there are no persons with competing claims. It is accepted that no beneficiary has put her or his financial circumstances in issue.
16. Tenth, that she should not be a burden on the public pocket when there is an estate of this size which could accommodate her financial needs for the future. I accept the general principle that regard may be had to the impact of the making of provision or not on the public purse (see Evans v Levy [2011] NSWCA 125 at [55] per Young JA, citing Whitmont v Lloyd (Supreme Court (NSW), Bryson J, 31 July 1995, unrep)).
17. Finally, that Ms Karpin cared for the deceased from March 2017 when he had been hospitalised for a prostate operation (see, for example, the evidence of Ms Newton in cross-examination to this effect at T 227.12-28).
18. The defendant contends that Ms Karpin has not established that there are "factors warranting" the bringing of the application. It is said that, given the possible category of her eligibility, Ms Karpin must prove she is a "natural object of the deceased's testamentary bounty" (the defendant citing Re Fulop (Deceased) (1987) 8 NSWLR 679 at 681 where McLelland J, as his Honour then was, referred, inter alia, to "factors which when added to the facts which render the applicant an "eligible person" give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by a deceased".
19. The defendant says that the following factors count against "factors warranting": the deceased's overriding obligation to his wife and his children; the shortness of the relationship (each of the periods and the combined period); that the deceased made a Will in June 2017 reflecting an appreciation by the deceased of his obligation to his wife and his daughters; that, whatever the relationship of Ms Karpin and the deceased, the deceased did not make another Will in the more than two years before he died; that the nature of the relationship after the making of the Will was, at most, a friendship; that financial and other benefits provided by the deceased to Ms Karpin, especially during the first period, more than outweighed and discharged any "moral obligation" of the deceased to Ms Karpin by his Will; the circumstances by which the first period came to an end (referring to the Apprehended Violence Order and matters incidental thereto); and that Ms Karpin did not contribute to the deceased's estate which had been built up over decades. It is submitted that, taking into account the subjective factors, the community would not expect the deceased to include Ms Karpin in his Will.
20. It is accepted that in determining whether there are factors warranting regard may be had to what the community might expect of a testator even if the claimant is an "eligible" person. It is noted by the defendant that, even if Ms Karpin was at some stage a "de facto spouse" (which is not admitted) the period of that relationship being less than two years would be insufficient, inter vivos, to ground an application under the Property (Relationships) Act 1984 (NSW).
21. The defendant submits that Ms Karpin's case, at its highest, is that there was some sort of physical and emotional relationship between her and the deceased wherein the deceased provided all the financial benefit and Ms Karpin provided companionship. It is said that, in the overall circumstances, especially given the provision made by the deceased during his lifetime for Ms Karpin, the community would not expect provision to be made for Ms Karpin in the deceased's Will; and that this is more so given the deceased had very recently rewritten his Will and the relationship had ended by the time of the deceased's death.

Determination as to factors warranting

1. I consider that the evidence does not establish that Ms Karpin was a natural object of the deceased's testamentary bounty having regard to the shortness of the relationship and the fact that by the time of his death the deceased had communicated a firm view that Ms Karpin should have no claim on him or his estate; and particularly having regard to the provision made for Ms Karpin during the time that she was in a relationship with the deceased.

(iii) Adequacy of provision

1. Ms Karpin contends that, if it be accepted that she is an "eligible person" and there are factors which warrant the making of an application, the deceased did not make adequate provision for her proper maintenance or advancement in life (and indeed made no provision for her).
2. Section 59 of the Succession Act provides that the Court may make a family provision order if it is satisfied that, in addition to the applicant being an eligible person and there being factors warranting the making of the application, at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person.
3. The adequacy of provision has been considered in various decisions (see Sgro v Thompson [2017] NSWCA 326 and those set out below). The requirement of "adequate" provision concerns the quantum or amount of the maintenance, education, and advancement in life (see Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [77] per Buss JA, as the President then was). In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Vigolo) at [122] per Callinan and Heydon JJ, the following was said as to the "adequacy" of provision: Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and … changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
4. In Hunter v Hunter (1987) 8 NSWLR 573, Kirby P said the following (at 575): The adjectives "adequate" and "proper", qualifying respectively the provision that is made and the purposes ("maintenance, education or advancement in life") for which such provision is needed, emphasise the task of evaluation which is before the Court. It is an evaluation which necessarily takes the Court to the provision actually made by the will, on the one hand, and to the needs for maintenance, education and advancement in life of the claimant, at the date of death, on the other. It has conventionally been said that the test applied, to determine whether the provision made is "adequate" requires of the Court not only a scrutiny of the needs of the claimant for maintenance, education or advancement in life such as were reasonably foreseeable to the testator but also a consideration of the relationship between the testator, the claimant and the other relevant persons having similar claims for adequate provision to be made for them: Goodman v Windeyer (1980) 144 CLR 490 at 496 applying Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 477-479 (PC).
5. As to the meaning of the terms "maintenance", "education", "advancement" and "support", Basten JA (with whom Allsop P, as the Chief Justice then was, and Ipp JA agreed) in Driver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54 (at [34]) opined that "provision covers many forms of support and assistance which one individual can give another", and that such forms of provision "will vary over the course of the person's lifetime". In Vigolo, Callinan and Heydon JJ said the following at [115]: 'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.
6. The statutory inquiry (being whether the deceased made adequate provision for an applicant's proper maintenance) is determined from the perspective of a wise and just testator (aware of all the relevant circumstances) informed by accepted community standards (Bosch v Perpetual Trustee Company [1938] AC 463 at 478-479 per Lord Romer; see also McKenzie v Topp [2004] VSC 90 per Nettle J (his Honour then sitting in the Supreme Court of Victoria) and Stone v Stone [2016] NSWSC 605 per Brereton J, as his Honour then was).

Assets of the deceased

1. Ms Karpin complains that the defendant has not complied with Practice Note SC EQ 7 9.2 and 9.1(e) and says that she is not fully aware of the extent of the estate and/or the notional estate.
2. It is noted that the inventory of the property of the deceased states that the assets of the deceased were worth $11,408,456.07; and that this includes, as one of the assets of the estate, a debt owing by Ms Karpin (described as "Rosalind" in the Inventory).
3. Insofar as the Inventory lists the deceased's interest in private companies at an estimated value of $1,000, Ms Karpin asserts that these assets were worth in the vicinity of $50,000,000.
4. Ms Karpin says that the deceased claimed to own a vast office and factory complex at Rawson Street, Auburn; that he advised her he had sold another building for $21 million; and that he had just purchased a new "top of the range" Tesla motor vehicle which he was driving up to the date of his death.
5. Ms Karpin has adduced in evidence an ASIC search of the deceased's directorships and shareholdings in corporations, from which the following submissions are made as to the corporations that relate to the property at Rawson Street, Auburn and an adjoining property at Parramatta Road, Auburn which Ms Karpin says the deceased claimed to own.
6. Fodobe Pty Limited (Fodobe) is the registered proprietor of the Rawson Street Property. That property (then part of a larger parcel of land) was purchased in 1989 by Fodobe, which was then named Earl Cameron Constructions (Aust) Pty Limited (to which I will refer as Earl Cameron Constructions (Aust)), for $3,200,000. The transfer was registered on 2 January 1989 (see generally the affidavit of Mr Shankar affirmed 28 October 2020 at [8]-[10]). The land was developed and became an acreage of industrial and commercial properties in Auburn.
7. In October 2013, the land was subdivided into two lots (the Rawson Street Property, Lot 299 (1.929 ha)) and the Parramatta Road Property, Lot 300 (1.789ha)).
8. The Parramatta Road Property was transferred to The Trust Company (Australia) Limited (Trust Company) on 14 March 2014 for an unstated consideration. (Ms Karpin assumes that this was the sale for the sum of $21,000,000 of which she says the deceased had spoken to her.) The Trust Company transferred this property to Yuqido No 2 Pty Limited on 6 March 2020 for a consideration of $46,000,000 (which Ms Karpin submits indicates that the value of the Rawson Street Property, a larger property, would be worth more than $46,000,000).
9. Ms Karpin says that there is an admission in the defendant executor's affidavit that the Rawson Street Property is worth about $55,000,000 but that the defendant asserts that it was not owned by the deceased (despite the fact that the deceased owned all of the shares in Earlcam Pty Limited (Earlcam) beneficially). It is noted that the executor admits that it is notional estate.
10. As to the relevant shareholdings, Ms Karpin notes the following. All of the shares in Fodobe are owned by Earle Cameron Corporations Pty Limited (Earle Cameron Corporations); all of the shares in Earle Cameron Corporations are owned by Earle Cameron Holdings Pty Limited (Earle Cameron Holdings); all the shares in Earle Cameron Holdings are owned by Earlcam; and all the shares in Earlcam are owned beneficially by the deceased.
11. Fodobe (which, as noted above, was formerly called Earle Cameron Constructions (Aust)) changed its name to Fodobe on 11 October 1990. On the same day, a new company, again called Earle Cameron Constructions (Aust) Pty Limited but with a different ACN was incorporated (to which I will refer as Earle Cameron Constructions (Aust) (No 2)). The shares in the (new) Earle Cameron Constructions (Aust) (No 2) are said to be all owned indirectly by Earlcam.
12. Ms Karpin notes that all of the directorships in the relevant companies were changed to the three beneficiaries of the estate on or about 4 November 2019.
13. It is noted that, by the time of the hearing, the deceased's estate had an estimated value of $10,572,291.50 held as cash (the legacy of $500,000 having been paid to Mr Devitt) and that there are no unpaid liabilities.
14. Ms Karpin's estimated costs are $253,000 (presumably on the indemnity basis). (The defendant complains that there is no reference as to whether the proceedings are being conducted on a "conditional" basis or whether there is any "uplift factor"). The defendant's estimated costs on the indemnity basis are approximately $250,600, of which approximately $159,600 has been paid. Ms Karpin's estimated costs include some $109,000 since 24 August 2021.

Defendant's submissions as to whether there was proper and adequate provision

1. As to whether proper and adequate provision "has not been made by the Will of the deceased … at the time when the Court is considering the application" (s 59(1)), the defendant submits (including, especially, for the reasons set out with regard to "factors warranting") that proper and adequate provision has been made notwithstanding that there is no provision under the Will. It is submitted that if the moneys provided by the deceased to Ms Karpin were by way of gift (which total some $86,000), then that amount, over a relatively short period, is adequate provision which has been made during the lifetime of the deceased and discharged whatever moral obligation the deceased may have had.
2. Turning to the matters set out in s 60(2), the following submissions are made.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;

1. The defendant says that the duration of the relationship is, in the first alleged period, at most 18 months (the defendant says seven months) and in the second alleged period again some 18 months (and probably closer to 12 months).
2. I find that the relationship was a de facto relationship for a short period of time while Ms Karpin was living at Hunters Hill. I consider it likely that the relationship was of a sexual or intimate nature prior to the time that Ms Karpin moved in to live at Hunters Hill. After the resumption of the relationship it was not a de facto relationship but a close personal friendship.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. I accept that the deceased's principal obligation was to his wife Denise (living at the time he made his Will but predeceasing him by some six months) and then to his daughters, as was recognised by the deceased in the Will. The defendant says that there was no obligation (moral or otherwise), nor responsibility, owed to Ms Karpin. I accept that by the time of his death there was no ongoing moral or other obligation owed to Ms Karpin. By then the relationship was a friendship in the course of which the deceased made moneys available by way of loan to assist Ms Karpin, but she was not dependent on him.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. The defendant accepts that the deceased's estate is large as is his notional estate.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. Ms Karpin's financial circumstances are set out in her affidavit sworn 12 June 2020. Ms Karpin there deposes (at [140]) that she has an income of about $804 per fortnight on the age pension but no other income and that her income each week goes on household bills, food and petrol. Ms Karpin there deposes that she usually lives part time with her daughter (in Daceyville) and part time with her grandson and his girlfriend at Rosebery. Mr Karpin deposes to assets of about $9,000, some shares that she says are worth about $20,000 and some antiques and fine arts worth about $20,000. At [143], Ms Karpin deposes to the sale of some shares in the past three years for about $8,000 and to the sale of some shares in 2017 for about $1,000.
2. The beneficiaries under the deceased's Will do not put forward their competing need to be taken into account in considering Ms Karpin's claim.
3. Further, the defendant says that Ms Karpin is needy but far from destitute. The defendant says that Ms Karpin was unable to account for spending of around $200,000 in the last three to four years (T 103.1-30). It is noted that Ms Karpin asserts that during her relationship with the deceased she spent freely (see at [12] of her 12 June 2020 affidavit) but the defendant says that this is not consistent with someone who was careful to be keeping their options open. It is noted that Ms Karpin entered the relationship with the deceased as a pensioner and remains a pensioner. The defendant says that the deceased provided generously for her during the course of their relationship and provided loans or gifts for her to run a business importing antiques from Vietnam which have not been repaid; and that apparently the business did not succeed.
4. It is said that Ms Karpin's desire for a Paddington terrace (see at [147] of her affidavit of 12 June 2020 where Ms Karpin deposes to her needs) sits uncomfortably with Ms Karpin's inability to climb more than three to five stairs (Ex 4 at p 70). (The defendant also points out, somewhat critically, that Ms Karpin is clearly not prepared to live in other suburbs perhaps closer to Daceyville.)

(e) if the applicant is cohabiting with another person, the financial circumstances of the other person

1. The defendant says that Ms Karpin is not known to be cohabitating with any other person but that Ms Karpin does have the ability to stay long term overnight (and, apparently, semi-permanently) at the residences of her children. Ms Karpin in her 12 June 2020 affidavit says that she spends most of the time with her youngest daughter, who was recently badly injured in a horse accident in April 2020 and needs Ms Karpin's care. Ms Karpin says that her daughter is on a disability pension.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. The defendant notes that Ms Karpin has a pacemaker and takes medication for depression and heart problems. Ms Karpin has deposed that she considers herself in very good health for her age other than having teeth problems (and a pacemaker) (see at [150] of her 12 June 2020 affidavit). I have noted above the explanation made in relation to Ms Karpin's dental work prior to the deceased's death.

(g) the age of the applicant when the application is being considered

1. Ms Karpin was aged 79 years at the date of the hearing.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. It is noted that Ms Karpin does not allege she made any such contribution, although I would accept that she provided the deceased with intimacy and companionship during the period of her relationship with him (and I refer to the deceased's account of that relationship to Professor Peisah as noted above).

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. The defendant says that the deceased made provision of $19,000 (referring to Mr Devitt's 23 September 2020 affidavit, annexure "A") and $67,000 (Mr Devitt's affidavit of 17 September 2020, annexure "L") by way of cash gifts or unrecoverable loans (beyond food and accommodation) for Ms Karpin during his lifetime. It is accepted that no provision was made from the estate of the deceased.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. The deceased made his Will on 26 June 2017. The defendant says that the deceased's further attitude to Ms Karpin is demonstrated by his comments to Sue Williams, his carer during 2019. Ms Williams deposed that the deceased said words to the effect that when he first met Ms Karpin "she would always cry poor and say that she needed money" and that "she is always after [him] for money, and says if [he doesn't] pay her she will take [him] to Court" (see Ms Williams' affidavit affirmed 22 July 2021 at [11]-[16]). Ms Williams deposed that the deceased referred to Ms Karpin as "that woman" and that the deceased had told her that "[s]he's going to go [him] for millions" and that "one of the biggest regrets" of his life was "that [he] ever met that woman". (This is consistent with the account given by the deceased to Professor Peisah in September 2017.)

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

1. The defendant says that Ms Karpin received accommodation from time to time during late 2016 and up to May 2017. In the first period of the relationship Ms Karpin had the benefit of holidays as well as entertainment. In the second period it appears the only benefits received by Ms Karpin were financial benefits and meals. In general, I accept this although I consider that Ms Karpin did move into the Hunters Hill house from around mid-May 2016.

(l) whether any other person is liable to support the applicant

1. The defendant says that this factor is not relevant in the present case. I would simply note that Ms Karpin at least appears to enjoy some support in the way of accommodation from her daughter in Dacceyville.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. The defendant points to the cross-examination of Ms Karpin (and see the submissions as to credit) in this regard.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. The defendant says that there is no other person whose conduct is relevant to the proceedings. (Ms Karpin, however, has raised the conduct of the deceased's children in effect in interference in the deceased's relationship with her - though in this regard I take into account the evidence also of Mr Devitt and Professor Peisah.)

(o) any relevant Aboriginal or Torres Strait Islander customary law;

1. This factor is not relevant.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

1. No other factor is here raised by either party.

Summary of defendant's position

1. In summary, the defendant does not dispute that Ms Karpin had a relationship with the deceased. It is accepted that Ms Karpin spent a deal of time at Hunters Hill during the period October 2016 to May 2017; noting that this is supported by the documentation, particularly the phone and bank records (see Ex 1 and Ex 4). It is said that the relationship was not an harmonious one. (It certainly was not an harmonious one in May 2017.) The defendant points out that the deceased took steps to ensure Ms Karpin could not claim on his assets while living; and that he ended the relationship for reasons he was clearly able to enunciate some months after the event. It is said that even when the deceased recommenced their connection, he did not look at Ms Karpin through rose coloured glasses. The defendant points out that the deceased gave Ms Karpin money, and lent her money for dental work, none of which has been returned. The defendant submits the relationship was not one of permanence and commitment, and that the statements made by Ms Karpin, where those statements were not supported by other documents, should not be believed.
2. It is said that the deceased provided for Ms Karpin during the course of their cohabitation, and during their later friendship; that he did not think fondly on their relationship, which the defendant says is shown in comments he made to his friend, Mr Devitt, his carer, Ms Williams and Professor Peisah; that he thought Ms Karpin may make a claim on his assets whilst he was living and sought to take steps to avoid that occurring; and that he wrote a Will after he terminated their relationship and left her no provision. It is submitted that the benefits for his three daughters belie any suggestion of a poor relationship with them.
3. The defendant submits that all (if not more than) of that to which Ms Karpin was entitled as a result of their relationship came to her during the course of their time together and that no further provision should be made.

Determination as to adequacy of provision

1. Had I found that there were factors warranting the making of the application, I would nevertheless have concluded that there was adequate provision made for Ms Karpin during her lifetime.

(iv) Making of provision

1. Had I found that there was inadequate provision for Ms Karpin (and that there were factors warranting her application) I would in those circumstances have concluded that (apart from the forgiveness of the claimed loans - which Ms Karpin disputes in any event) only a small amount should be awarded as a buffer for contingencies and vicissitudes of life (say $50,000 to $100,000).

Conclusion

1. I have found that, on the balance of probabilities, Ms Karpin did not move into the Hunters Hill residence until at the earliest May 2016 (consistently with the deceased's acknowledgement to that effect to Mr Devitt) and even then did not do so on a settled basis until around November or December 2016 at the earliest (this being consistent with the notes made by Ms Duncan, with Ms Newton's evidence as to when the deceased told her that Ms Karpin was moving in, and with Ms Newton's evidence as to the times she stayed in the Hunters Hill residence during 2016). I accept that before May 2016 Ms Karpin may well have stayed occasionally in the house overnight and that there may have been a sexual relationship between the two during that period.
2. Although on the balance of probabilities I have found that Ms Karpin had moved some of her possession into the Hunters Hill home from around mid-May 2016 and was staying there sporadically from that time, I consider that there was not the element of permanency or settled relationship until around October or November 2016 (when the deceased acknowledged to his daughter Ms Newton that Ms Karpin had moved or was moving into the home). Thus, at least from the end of 2016 to May 2017 I consider that there was a de facto relationship (during the period when Ms Karpin had moved her possessions into the Hunters Hill house and was living there on a more permanent basis). It is possible that the de facto relationship commenced at an earlier time but I find that it was not earlier than mid-May 2016. (Thus, at the most, the de facto relationship would have been for about a year; but it was at least six or seven months in duration.)
3. I accept that Ms Karpin spent periods of time away from the Hunters Hill house in that period but I consider that this is not inconsistent with the couple being in a de facto relationship at the time; nor is the fact that she may well (in her own mind) have been keeping her options open, so to speak (say by maintaining her application in relation to public housing) perhaps as a fallback in case the relationship did not work out on a long term basis.
4. For that period, I accept that there was a close personal relationship and that Ms Karpin was at least partially dependent on the deceased for food, accommodation, holidays and the like. Thus, I consider that Ms Karpin was a member of the deceased's household, albeit for a short time (of no more than a year), and an eligible person under s 57(1)(e).
5. The de facto relationship was not in existence at the time of the deceased's death and, although there was then a close personal relationship (or friendship) with the deceased for the period from December 2017 to April 2019, I do not accept that Ms Karpin was dependent on the deceased in that period. The provision of amounts of cash (when Ms Karpin said she was in need) or for dental expenses and the like does not amount to dependence in my opinion, particularly when it is apparent that the deceased regarded some or all of those amounts as loans (although I accept that Ms Karpin disputes that characterisation).
6. As noted above, I do not accept that there are "factors warranting" the application but that even if there were, I do not accept that there was inadequate provision made for Ms Karpin in the Will. As noted, had I concluded otherwise I would have made a relatively small provision as a buffer against the contingencies or vicissitudes of life.
7. As to costs, ordinarily costs of such a claim are borne out of the estate. In the present case, it cannot in my view be said to have been such a misconceived application so as to warrant an order that the plaintiff bear her own costs of the application. It is of some concern that the costs are of a substantial amount since August 2019 having regard to the benchmarks ordinarily contemplated for such an application. However, subject to any submissions on that issue or any application for special costs orders, I would make the usual costs order for this kind of claim.

Orders

1. For the above reasons I make the following orders: 1. Dismiss the plaintiff's claim. 2. Order that the costs of the plaintiff's claim be borne on a party/party basis out of the estate of the late Earle Cameron. 3. Order that the defendant's costs be borne on an indemnity basis out of the estate of the late Earle Cameron.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2022