Maria Saravinovksa v Krste

3 Muschinski v Dodds (1985) 160 CLR 583 Palagiano v Mankarios [2011] NSWSC 61 Parsons v Southern Tableland and South Coast Racing Association [1978] 1 NSWLR 47 Sangha v Baxter [2009] NSWCA 78 Saravinovski v Saravinovski [2014] NSWSC 1282 Saravinovska v Saravinovski (No 2) [2014] NSWSC 1513 Saravinovska v Saravinovski (No 3) [2014] NSWSC 1961 Saravinovska v Saravinovski (No 4) [2015] NSWSC 64 Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 Sharpless v McKibbon [2007] NSWSC 1498 Skarica v Toska [2014] NSWSC 34 Smilevska v Smilevska (No 2) [2016] NSWSC 397 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Vella v Wah Lai Investments (Australia) Pty Ltd [2004] NSWSC 583 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 White v O'Neill [2010] NSWSC 1193 Wilcox v Wilcox [2012] NSWSC 1138 Woodland v Rodriguez [2004] NSWSC 1167 Texts Cited: Cross on Evidence, 10th Australian edition, 2016 Lexis Nexis Butterworth Fisher and Lightwood's Law of Mortgage, 3rd Australian Ed, Lexis Nexis Butterworths, 2014 Macquarie Australian Dictionary, online edition Category: Principal judgment Parties: 2011/361081 Maria Saravinovska (Plaintiff) Krste (Chris) Saravinovski (Defendant)

2012/39748 Chris Saravinovski (Plaintiff/Cross-Defendant) George Saravinovski (Defendant/Cross-Claimant) Representation: Counsel:

2011/361081 G.A. Sirtes SC and A.L. Avery-Williams (Plaintiff) E.A. Cheeseman SC and J.A. English (Defendant)

2012/39748 E.A. Cheeseman SC and J.A. English (Plaintiff/Cross-Defendant) G.A. Sirtes SC and A.L. Avery-Williams (Defendant/Cross-Claimant)

2011/361081 Gells Lawyers (Plaintiff) F.C. Bryant Thomas & Co (Defendant)

2012/39748 Rudra Legal Corporation Pty Ltd (Plaintiff/Cross-Defendant) Gells Lawyers (Defendant/Cross-Claimant) File Number(s): 2011/361081 and 2012/39748 Publication restriction: No

Judgment

1. These reasons are divided into the following sections: 1. A. Summary and procedural history - paragraphs [2] - [30] 2. B. Findings of fact - paragraphs [31] - [238] 3. C. Resolution of Chris' Case - paragraphs [239] - [264] 4. D. Resolution of George's Case - paragraphs [265] - [304] 5. E. Resolution of Maria's Case - paragraphs [305] - [461] 6. F. Legal principles as to fact finding and credit - paragraphs [462]-[473] 7. G. Findings as to credit - paragraphs [474]-[601] 8. H. Reasons for some contested findings of fact - paragraphs [602]-[622] 9. I. Three interlocutory applications - paragraphs [623]-[672] 10. J. Conclusion - paragraphs [673] -[674] 11. Schedule One - Dramatis Personae 12. Schedule Two - Consolidated history of properties 13. Schedule Three - George's submissions on his contributions 14. Schedule Four - Chris' submissions on George's contributions

A. Summary and procedural history

1. Leo Tolstoy famously begins his novel "Anna Karenina" with the observation "All happy families resemble one another, each unhappy family is unhappy in its own way". Very sadly, the Saravinovski family falls into the latter class. This judgment resolves three sets of proceedings between members of that family. Without any disrespect, in these reasons the Court will refer to the parties and other witnesses by their Christian names.
2. Chris or Krste Saravinovksi ("Chris") is the patriarch of the family. He was born in Macedonia in 1930.
3. Chris married Radmila ("Rada") in Macedonia in 1955. While still living in that country, they had three sons: George Saravinovski (born in 1956) ("George"), Bill Saravinovski (born in 1961) ("Bill") and Louie Saravinovski (born in 1962) ("Louie").
4. Chris migrated to Australia in 1963. Rada and the three boys joined him in 1966.
5. Over the years, Chris built up a substantial property portfolio. The complicated history of the ownership of, and dealings with, the properties in that portfolio plays an important role in these proceedings. In particular, George says that, as an obedient son and at Chris' request, between 1972 and 2009 he gave Chris all his (George's) income, which enabled Chris to build up that portfolio. Chris denies that and says that George owes him $800,000 secured by a mortgage over one of the properties. Chris says he built up his property portfolio from savings, superannuation and investment income.
6. In 1986 the Saravinovski family travelled to Macedonia. One of the purposes, if not the motivating purpose, of that trip was to find George a Macedonian wife. That was done. Within 4 days of first meeting her, George (then aged 30) married the 19 year old Maria Jovanovska, who became known as Maria Saravinovska ("Maria").
7. The origin of these proceedings is Maria's allegation that while in Macedonia, in the days before she married George, Chris made certain representations to her about property she would receive in Australia if she married George and looked after Chris and Rada. Maria says she relied on those representations and acted accordingly. Chris, and those members of the family allied with him, deny her allegations in their entirety.
8. Rada died in July 1993.
9. At various times over the years Bill and Louie lived independently. At other times they lived under Chris' roof in the Saravinovski family home. In contrast, Maria, George and their children, Belinda Saravinovksa ("Belinda") and Bobby Saravinovski ("Bobby") lived under Chris' roof the entire time from when George and Maria returned from Macedonia as a newlywed couple in 1986 until 2 December 2009. On or shortly before that day simmering tensions between family members erupted into a violent argument which included the police being called. On George and Maria's version of events, Chris threw them out of the Saravinovski family home.

B. Findings of fact

1. Chris was born in Macedonia in 1930. He married Rada in 1955. Rada was 22 years old. While they were still living in Macedonia they had three sons: George born in 1956, Bill born in 1961 and Louie born in 1962.
2. In 1963 Chris migrated to Australia. Rada and the three boys joined him in 1966.
3. Maria was born in Macedonia on 14 July 1967.
4. By transfer dated 22 July 1966 Chris, described as a labourer, purchased No 45, Rockdale ("No 45"), for $12,000 subject to a 10 year mortgage of $7,750 from the Commonwealth Savings Bank of Australia ("CSBA").
5. By transfer dated 29 November 1974 Chris (now described as a PMG technician) and Rada purchased No 22, Rockdale ("No 22") for $34,000 subject to a four year mortgage to CSBA for $17,500.
6. In 1975 George completed the Higher School Certificate at James Cook Boys High School.
7. On 22 February 1977 the CSBA's mortgage over No 22 was discharged.
8. Also in February 1977, George sat the matriculation examination for Sydney University.
9. On 18 September 1980 George became an Australian citizen.
10. On 11 December 1980 George commenced employment with the Stock Exchange as an Information Officer - Library Investor Services.
11. By transfer dated 11 June 1981 Chris and Rada (both of No 45 and Chris now described as a Telecom Supervisor) purchased No 14, Rockdale ("No 14") for $73,000 subject to a mortgage for an unknown amount to the Bank of New South Wales Savings Bank Limited. The transfer is the first document in evidence signed by Gordon Bryant as solicitor for Chris and Rada.
12. In May 1983 Chris received a licence as a real estate salesman at the agency of Mr C Cockinos at No 414, Rockdale ("No 414").
13. In 1984 Rada had a stroke which left her with a slight droop on the right side of her mouth and some small difficulty with her right hand and may have mildly affected her speech (see paragraph [393] below).
14. By transfer dated 8 February 1984 (with Mr Bryant apparently acting for both parties) Chris and Rada transferred No 22 to George and Bill as joint tenants for $110,000. George (described as a Clerical Assistant) and Bill (described as a Bank Officer) were recorded on the transfer as living at No 22. The property was subject to an 8 year mortgage from George and Bill to the CBA for $56,000. The Court is unable to conclude whether any money was paid to Chris in respect of this transfer or applied by him towards the purchase recorded in the next paragraph.

C. Resolution of Chris' Case

1. By his statement of claim filed on 5 April 2012, Chris sought judgment against George for the sum of $800,000 together with interest pursuant to the 2003 Mortgage or, among other things, an order for an account to be taken as to what was due to Chris from George pursuant to the 2003 Mortgage.
2. Some parts of the statement of claim and George's amended defence are reproduced in paragraphs [245] to [246] below.
3. The ways in which Chris' Case ultimately came to be put did not really reflect the way the case was pleaded. This point was taken by Senior Counsel for George on the first day of the hearing. His submission was that Chris should be held to his pleading. There was much force in that submission. Chris' statement of claim had been on foot for just under two and a half years as at the first day of the hearing. It was submitted for George that, rather than presenting an amended pleading, Chris was seeking to make the case set out in his outline of opening submissions.
4. To comprehend the problem properly, it is necessary to refer to the provisions of both Chris' statement of claim and the outline of opening submissions filed on his behalf.
5. In his statement of claim there are bare allegations of Chris doing things which he ultimately came to assert were benefits conferred on George and Bill that gave rise to an indebtedness from them to him. These were: 1. Transferring No 22 to them "for the express consideration of $110,000" but requiring them to pay nothing. 2. Paying for George to travel to Macedonia in 1986 and for George's wedding receptions both in Macedonia and Australia. 3. Transferring No 14 to George "for the express consideration of $120,000" (when it was acknowledged that George paid nothing). 4. Paying $137,000 towards the cost of the purchase by George and Bill of No 7. 5. Paying for repairs and restoration work to No 7, in particular the cost of a new roof, a new bathroom, a new kitchen and for landscaping. 6. Providing assistance to George and Bill in the payment of their mortgage instalments to ANZ in respect of No 7. 7. Causing George to become the registered owner of 100 shares in KR&S in respect of which he made no contribution.
6. I have described those allegations as bare allegations because all that has been pleaded is the bare fact of those alleged benefits being conferred. Significantly, there is no pleading that any of those transactions involved a loan to George or the incurring of some liability by him to Chris in relation to them.

D. Resolution of George's Case

1. George's case, as set out in his amended statement of cross-claim in response to Chris' Case, depended upon two different alleged representations and an argument developed in submissions, but not expressly pleaded, that there was a "joint endeavour" between Chris and George. The Court understands the claim based upon the representations to be a claim for proprietary estoppel, whereas the claim based on a "joint endeavour" is an appeal for what is sometimes described as a "common intention constructive trust".
2. These claims gave rise to an extraordinarily detailed analysis, as far as the evidence allowed it to go, of the financial dealings between the parties. George's analysis is reproduced in Schedule 3 to these reasons. Chris' analysis is reproduced in Schedule 4 to these reasons. I have carefully considered each of those analyses. Because of the ultimate conclusion the Court has reached in relation to George's Case, it is unnecessary for the Court to resolve the minutiae of the financial and factual disputes thrown up by the parties' respective positions.
3. George bears the onus of proving, on the balance of probabilities, the facts in support of his case. For the reasons which follow, the Court is not satisfied that George has discharged that onus in relation to proving the representations upon which he relies. Furthermore, the state of the evidence does not permit the Court to make the requisite finding of fact that it was the common intention of Chris and George that George should have a beneficial interest in properties acquired by Chris.

George's Case based on representations

1. In his amended statement of cross-claim George alleged these representations: 5. The cross defendant was the father and head of the family. He represented throughout the cross claimant's life that the cross claimant would benefit from the family assets provided the cross claimant: - (a) paid the whole of his net income to the father; (b) followed the Macedonian tradition that the father controlled the family financers (sic) in his absolute discretion; (c) entrusted to the father the accumulated assets and property in his absolute discretion; and (d) cared for his father (and mother) throughout their lifetimes … 36. Further and the alternative (sic) the cross claimant says the cross defendant is estopped from denying the interest of the cross-claimant in the greater share of the cross-defendant's property. Particulars of "greater share" (a) That the cross claimant's property at No 14, Rockdale be owned by the cross claimant/defendant unencumbered. (b) The whole of the property owned by the cross defendant known as No 5, Kogarah Bay. (c) Such other sum that is just and equitable in the circumstances as determined by the Court following the taking of accounts. 37. Throughout the life of the cross claimant the cross defendant represented that the cross claimant would receive the greater share of the property of the cross defendant upon the death of the cross defendant or such earlier time by implication were the cross defendant to resile from his representation. The implication arose from the conduct of the parties pleaded in this cross claim.
2. Insofar as the alleged representation concerning the "greater share" is concerned, there was an initial issue between the parties arising from George's submission that "although this issue was framed in terms of the "greater share [as particularised]", the particulars do not bind George on his claim. They are merely an indication of the evidence of the "greater share that would be lead (sic)". Chris, in my view correctly, disputed that proposition. However, the dispute is academic because, on any view, George has failed to prove that Chris ever represented to him (George) that he would receive "the greater share" or anything to like effect.
3. Because of the view which the Court has taken about Maria and George's credit, their own evidence of either of the alleged representations is insufficient to satisfy the Court that such representations were made. In any event, neither of them gave evidence of representations to the effect of those alleged.

George's common intention constructive trust

1. George cited the well-known passages in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137 in support of his proposition that there was a "joint endeavour in this case insofar as George understood and believed that Chris was collecting his income for the purposes of contributing it to the family pool. His income was totally controlled by Chris. It would have assisted with the repayment of mortgages and funded the equity used to purchase further property. George's relationship with his father was founded on George's blind trust and confidence in relation to these matters".
2. The touchstone of George's submission is that, assuming that George gave all his income to his father between 1972 and 2009, which Chris used to finance the properties and assets now in his name, it would be unconscionable for Chris to claim that as his sole property. On one reading of George's submissions, they appear to suggest it is sufficient for George's alleged conduct to have been unilateral to engage the assistance of equity. If that is the case, then the submission must fail because more is required than a unilateral conferring of a benefit on another to make that other's retention of an asset unconscionable. The authorities require a consensual joint relationship or endeavour.
3. The authorities were helpfully summarised by Slattery J in Smilevska v Smilevska (No 2) [2016] NSWSC 397, a case which bore considerable factual similarities to the Saravinovski family's dispute: 159. The legal principles in relation to a constructive trust that arises from a common intention between the parties, are those that Deane J set out in Muschinski v Dodds [1985] HCA 78, 160 CLR 583 at 619: Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct. The circumstances giving rise to the operation of the principle were broadly identified by Lord Cairns L.C., speaking for the Court of Appeal in Chancery, in Atwood v. Maude: where 'the case is one in which, using the words of Lord Cottenham in Hirst v. Tolson, a payment has been made by anticipation of something afterwards to be enjoyed (and) where ... circumstances arise so that future enjoyment is denied'. Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do. (Citations omitted). 160. As indicated in the final sentence of Deane J's statement of principle above, unconscionability is the touchstone of the creation of such a constructive trust. As White J held in Shepherd v Doolan [2005] NSWSC 42 ("Doolan") at [30]: The ultimate basis for the imposition of a constructive trust is that it would be unconscionable for the holder of the legal title to the property to assert that he holds it free of any beneficial interest in the claimant. However, although "unconscionability" is the underlying basis upon which equity will intervene, it is not itself a sufficient description of the principles upon which equity does so. Equitable rights do not arise merely because the Court considers it fair in all the proven circumstances that the legal owner of property should hold it, or a portion of it, for the benefit of another. (Citation omitted). 161. Temjana relies upon a statement that Gleeson CJ cited with approval in Green v Green (1989) 17 NSWLR 343 ("Green") at 357: Sir Nicolas Browne-Wilkinson VC's statement in Grant, as noted earlier in these reasons, in relation to the principles of contract, at 657: In many cases of the present sort, it is impossible to say whether or not the claimant would have done the acts relied on as a detriment even if she thought she had no interest in the house. Setting up house together, having a baby, making payments to general housekeeping expenses (not strictly necessary to enable the mortgage to be paid) may all be referable to the mutual love and affection of the parties and not specifically referable to the claimant's belief that she has an interest in the house. As at present advised, once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house ... The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly, in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so... 162. Functionally, a common intention that the parties both hold may provide the necessary circumstance which renders it unconscionable for a legal owner of property to refuse to recognise the other's equitable interest in that property. Barrett J (as his Honour then was) commented in Brandling v Weir [2003] NSWSC 723 at [34]that 'unconscionability' as a basis for a finding of a constructive trust is: really no more than a variant of the common intention approach I have already discussed or, more accurately, that common intention approach is but an example or aspect of the application of a wider principle as to the circumstances in which equity will intervene to redress unconscionability. 163. The common intention relied upon need not be expressly stated by the parties, and may be inferred from their conduct. As Glass JA held in Allen v Snyder [1977] 2 NSWLR 685 ("Allen") at 690: The common intention to which the Court gives effect may be expressed in such an oral agreement, or it may be inferred from the conduct of the parties. What is enforced is an actual intention, inferred as a matter of fact, not an imputed intention which they never had, but would have had, if they had applied their minds to it. (Citations omitted). 164. As to what conduct may give rise to an inference of a common intention sufficient to justify the constructive trust, Temjana relies upon White J's decision in Doolan at [37] - [38], where his Honour held: [37] The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law. A common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture. [38] The intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose. This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties' actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. For a "common intention" constructive trust, a contribution, direct or indirect, to the costs of acquisition of the property is a matter from which an intention that the claimant have a beneficial interest in the property might be inferred. There is a difference between a fact from which an inference can be drawn, and a fact from which a rebuttable presumption arises. The significance of the difference will depend upon the strength of the presumption. In the case of the "common intention" constructive trust, there is no presumption that the beneficial interest is in proportion with the contribution to the purchase price. (Citations omitted).

Estoppel - Maria's submissions

1. Maria's estoppel case depended upon her establishing the representation pleaded in paragraph 30 of her further amended statement of claim that Chris represented to her that "[Chris] represented to [Maria] that [Chris] would give [Maria] property". Only if that representation were established would it be necessary for the Court to consider the next part of her claim that "When the family moved to No 5, that house became the property the subject of the representations" (further amended statement of claim, paragraph 31).
2. Maria's submissions may be summarised as follows: 1. Maria's emotional distress as she gave her evidence bespoke the truth of what she was saying. In particular, as it was her evidence that "Chris' promise made me marry George", the inference must be that the promise was a specific and significant one for her to agree to marry someone she had just met. 2. Chris' various offers recorded on the hospital tape are the end point of a modus operandi which the Court should infer went all the way back to Chris' first meeting with Maria. 3. Mr Bryant's letter of 24 February 2010 set out in paragraph [220] above refers to Chris "always [having] been prepared to extend generosity to [George] and his family if they were prepared to provide a reasonable level of care and assistance for him in the home". The use of "always" enables the Court to infer that it was also Chris' disposition to offer property in 1986. 4. There were circumstantial factors which supported Maria's recollection such as the intention of the trip being to find George a wife who would act as a homemaker, the ease with which he could represent to Maria and her family that he was a man of substance who could make such an offer, and evidence of Rada's poor health fortifying the need to attract someone to undertake the domestic role formerly undertaken by Rada.

Estoppel - Chris' submissions

1. Chris not only submitted that Maria had failed to discharge the burden of proving the alleged representations, but argued that the Court could go further to find the representations had not been made and (presumably, even if they had been made) were not relied upon. In summary, Chris submitted: 1. The alleged representations had been made too long ago for any account of them to be reliable. In any event, Maria's and George's credibility had been destroyed in the witness box and they could not be believed. 2. The fact that Maria's estoppel claim was not included in her original statement of claim cast doubt on its veracity. 3. Maria's versions of the representations kept shifting. 4. Insofar as Macedonian tradition was relied on to inform the alleged representations, there was no evidence of such a tradition. 5. George's evidence of what had been said, even if it could be relied on (which it could not), did not accord with Maria's. It was materially different. 6. Nothing in the hospital tape supported Maria's case. Not only was it silent about the alleged representations made in 1986, but it was not possible to use the offers which Chris is recorded as having made in the hospital tape in 2009 to infer that he would have made any such offers in 1986. 7. Insofar as the likelihood of the representations having been made were said to have been supported by Rada's poor health in 1986, the video evidence made it clear that Rada was far from incapacitated. The video evidence falsifies what Maria submitted had been powerful circumstantial evidence supporting the plausibility of the representations she alleged. 8. The alleged representations were not sufficiently clear and unequivocal and therefore could not be reasonably be relied on.

Estoppel - resolution

1. The representations were pleaded as having been made on more than one occasion in Macedonia and were originally particularised as being partly expressed orally and partly implied. To the extent it was said that the representations were to be implied, this allegation depended upon what was referred to as the "traditions of the Macedonian people". There was no admissible evidence of what those traditions were, so that part of the allegation need not be considered.
2. The particulars of the representations being expressed orally were: (1) The terms of the representations as set forth at T107.29-35 and T110.8-14 of the transcript. The representations were repeated on several occasions in Macedonia prior to the marriage of [Maria] and George Saravinovski. (2) The oral part of the representations were conversations between [Maria] and [Chris] before [Maria's] marriage in 1986. (3) The representations were made in early 1986 when George Saravinovski and his parents (Chris and Rada) were visiting Macedonia. The initial representations were made at the home of [Maria] at about Easter time in 1986. Present at the time of the first representation were [Chris], George, [Maria], Rada and the neighbour referred to in paragraph 14 of the affidavit. The words are also repeated in later conversations between [Maria] and [Chris] prior to the [Maria] marrying George in Macedonia.
3. Maria's oral evidence referred to in the particulars was: (T107:28-35) Q. Do you recall him saying anything else to you that evening? A. INTERPRETER: He also said "If you marry him and if you look after us once you come to Australia" ‑ he was talking about himself, his wife and his sons, Rada at that time was ill, he said to me "As you can see Rada is not well". He said "When you come to Australia you do not have to work. I have houses and a shop. If you look after us and if you look after Rada and especially if you do not allow her to go to a nursing home I am going to give you one of my properties". (T110:8-14) A. INTERPRETER: When I met George, Chris and Rada the second time, Chris said to me, "You are not going to have any regrets. I am the richest Macedonian man in Australia. If you look after us, you don't have to work. You don't have to have any concerns about your future. When you come to Australia you don't have to work. Your work will be looking after us, looking after my wife and that is why we came to Australia because, as you can see, my wife is quite sick. That is why we came here, to marry George off".

Maria's PRA claim - "close personal relationship" - general principles

1. By her further amended statement of claim, Maria claimed this relief under the PRA: (1) Pursuant to s 20 of the PRA an order, that within 28 days of the making of orders herein, the Defendant pay the Plaintiff a sum that is just and equitable. (2) An order that the interest of the Defendant and (sic) the house situated at No 5, Kogarah Bay, NSW be charged with the payment of the sum ordered by the Court as due from the Defendant to the Plaintiff.
2. The parties agreed that the formal prerequisites set out in ss 15 and 18 of the PRA for Maria to bring her PRA claim have been satisfied. Issue was joined at the first substantive enquiry, namely whether or not she had been "a party to a domestic relationship" with Chris for the purposes of the PRA.
3. Section 14 of the PRA provides: 14 Applications for orders under this Part (1) Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both. (2) An application referred to in subsection (1) may be made whether or not any other application for any remedy or relief is or may be made under this Act or any other Act or any other law.
4. Section 5 of the PRA includes: 5 Domestic relationships (1) For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). …
5. There was also no dispute as to how s 5(1)(b) was to be applied, reference primarily being made to Dridi v Fillmore [2001] NSWSC 319 and Hayes v Marquis [2008] NSWCA 10 ("Hayes"). That approach may be summarised as noting that the requirement for provision of "domestic support and personal care" is cumulative. Domestic support concerns matters relating to the household and encompasses matters such as free accommodation and meals - although it is not necessary for there to be a sharing of food or eating arrangements together - shopping, washing of clothes and the like. Personal care may be satisfied through matters including physical support such as assistance with mobility, personal hygiene, physical comfort and emotional support.

Maria's PRA claim - close personal relationship - Maria's submissions

1. The evidence on which the Court particularly relies in reaching its conclusion is set out in detail in paragraphs [382] and following, below. To avoid repetition, in this part of the reasons I will just summarise the evidence upon which the parties each placed emphasis.
2. Maria called in aid the evidence of the independent witnesses Rade, Pavlina Zajakovska ("Pavlina"), Nikola, Slavko Sjoriforski ("Slavko") and Cveta Stojcova ("Cveta").
3. Next, Maria drew attention to the video and photographic evidence. It was submitted that the video of Maria's relatives visiting No 45, where Maria was seen sitting off to the side and essentially being the server, was typical. The footage of Christopher's christening was said to demonstrate Maria's importance to Chris because she, rather than any of his sons, is seen sitting next to him at the head table.
4. Considerable emphasis was placed on the hospital tape. It was submitted that if Chris was capable of taking care of his own needs, why should he be making such generous offers to Maria and George to persuade them to return to No 5 to care for him? Other aspects of Maria's evidence were, it was said, indicative of the closeness of her relationship to Chris, including her enquiries about his blood pressure, noticing his toenails and her protestations that she saw Chris as a father.
5. Next, Maria relied on her own evidence, along with that of George, Belinda and Bobby. That evidence demonstrated a pattern of providing personal care and domestic support the entire time Maria lived with Chris.
6. It was submitted that a Jones v Dunkel inference should be drawn on the basis of the failure to call Valentina, who resided in the Saravinovski house from 2002 to 2005.
7. As for Louie's evidence, Maria submitted that the Court should be satisfied that between 1997 and about 2006 or 2007 Louie was estranged from his father. In those circumstances, Louie was not in a position to give evidence about what was going on during that period.
8. Finally, while both Chris' and Bill's evidence was said to be unreliable (and in the case of the former, to be discounted because he was not available for cross-examination), certain statements against interest made by them in connection with Chris' personal injuries claims were said to be corroborative of Maria's role.

Maria's PRA claim - close personal relationship - Chris' submissions

1. As might be expected, Chris' primary submission was based upon the strong attack that had been made on his behalf on the credit of Maria, George and the other witnesses called in Maria's case. Chris submitted that given the limitations of those persons' evidence, the Court could not be satisfied that a domestic relationship for the purposes of the PRA had existed between Chris and Maria between 1986 and 2009.
2. On the question of personal care, Chris submitted that even if, contrary his submissions, Maria's evidence was accepted about the personal care that she said she had provided to him, it was no more than sporadic assistance during the period 1986 to 2009. That was insufficient for a domestic relationship under the PRA. There was nothing more than ad hoc instances of personal care, such as Maria changing a dressing following Chris' hip operation in 2002. Even a few months driving him to appointments after that operation would not be sufficiently continuous to satisfy the definition of s 5(1)(b).
3. The difficulty with Chris' submission that the acts of personal care were not sufficiently continuous to satisfy the definition in s 5(1)(b) is that it introduces an impermissible gloss on the statutory language by referring to sufficient continuity. This ignores the cumulative nature of the requirement for domestic support and personal care.
4. It is undoubtedly correct that for there to be a domestic relationship there must have been both domestic support and personal care. Furthermore, the concept of a relationship requires continuity. Nor do I doubt the correctness of McColl JA's observation in Hayes at [84] that "If two adults live together full time and one provided domestic support and personal care to the other only once or twice a year, it would be difficult to say that a close personal relationship had been established". However, particularly where domestic support is essentially continuous, the language of s 5 does not require the personal care to be co-extensively continuous. To take an example, a niece may live with her aunt for many years and provide virtually continuous domestic support. However, provided that there are some acts of personal care that in the total context of the relationship are more than de minimis, the definition will be satisfied. In a particular case it may be that over the course of what would otherwise undoubtedly be a "close personal relationship" the aunt may require very little by way of personal care from her niece. However, it bespeaks the existence of the close personal relationship that when such personal care was required, it was the niece who provided it. The ultimate statutory question is whether there was a close personal relationship having regard to the statutory characteristics.

Maria's PRA claim - close personal relationship - resolution

1. The definition of a close personal relationship which will be a domestic relationship for the purposes of the PRA has three elements (see paragraph [336] above). They are that the (1) persons were living together and that one or each of them provided the other with (2) domestic support and (3) personal care. There is no doubt that at all material times Maria and Chris were living together. The real question is whether the other two, cumulative, requirements of domestic support and personal care are made out. Even if they are, as McColl JA said in Hayes at [80] (Beazley JA (as her Honour then was) agreeing): 80. Further, the concept of "living together" is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole.
2. Making the requisite value judgment, the Court is satisfied that Maria and Chris had a close personal relationship for the purposes of the PRA. That relationship began sometime after George married Maria in Macedonia on 9 May 1986 and no later than upon their return from Macedonia to Australia later in 1986. The relationship ended when Maria, George and their family left No 5 on 2 December 2009. In reaching this conclusion, the Court finds that Maria was the chief homemaker for the Saravinovski family, of which Chris was the head, providing, relevantly, Chris with domestic and personal support during that period. That support was not insignificant or intermittent. The evidence upon which the Court relies in reaching the conclusions set out in this paragraph comprises the matters which now follow.
3. The starting point is what the Court regards as a significant statement by Chris during the course of the hospital tape. As is set out in paragraphs [622] below, the Court does not rely on anything Maria or George said on the hospital tape insofar as it can be characterised as self-serving. However, given that the Court is satisfied that Chris did not know he was being recorded, it accepts what he said during the course of the hospital tape as a reliable reflection of his state of mind at the time.

Maria's Case - legal principles relating to adjustment of interests with respect to property

1. The conclusion in the previous section that Chris and Maria were parties to a domestic relationship means that the Court's discretion under s 20 of the PRA is enlivened. That section provides: 20 Application for adjustment (1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties. (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.
2. There was no dispute about the applicable legal principles. The starting point is the decision of Gleeson CJ and McLelland CJ in Eq (Meagher JA to like effect) in Evans v Marmont (1997) 42 NSWLR 70 at 79-80: Most importantly, s 20 specifies, in par (a) and par (b), the matters to which the court is to have regard. As was pointed out above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made, in a context, and that context may well include factors of the kind referred to by Hodgson J at first instance in Dwyer v Kaljo. However, par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the court may adjust property interests in a just and equitable manner.

Maria's Case -"the divisible property"

1. The Court is able to commence its consideration of this topic by reference to certain matters which were common ground.
2. The parties accepted that it was necessary to identify the divisible property at the start of the relationship when Maria married George in 1986 and as at the date of hearing. This approach, among other things, enables an evaluation of whether there have been contributions made to specific assets and not others and what, if any, the fruits of the relationship may have been. The parties also accepted that by virtue of their being married, George's assets should be treated as Maria's marital property.
3. Next, the parties conducted the proceedings on the basis that there was no evidence as to the current value of the various components of the divisible pool of property. They agreed that the precise values could be the subject of further evidence at a later stage of the proceedings if necessary. They accepted that the Court could award Maria an adjustment of interests in the nature of a percentage of either the pool of the property or specific property which Chris holds without knowing the precise value of the pool.
4. No party applied to make additional or amended submissions arising from George's death while this judgment was reserved.
5. Finally, the parties were in agreement about Chris' and Maria's property at the commencement of the relationship in 1986.
6. Chris held: 1. No 45 purchased in 1966 for $12,000 and subject to a 10 year mortgage of $7,750. While the date of discharge of the mortgage is unknown, on the basis that it was a 10 year mortgage and by reference to Chris' subsequent activities in purchasing properties, the Court infers (to the extent it may be relevant) that the mortgage had been paid off by 1986. 2. No 14 purchased in 1981 for $73,000 subject to a mortgage for an unknown amount. It is unknown when that mortgage was discharged but, again to the extent it may be relevant, the Court infers it was discharged no later than 1988 when Chris and Rada transferred No 14 to George for $120,000 and George gave the CSBA a mortgage over the property to secure an advance to him and Maria. 3. No 428, purchased in 1984 for $230,000 subject to a four year mortgage from the CSBA for $75,000. That mortgage was discharged in 1988, two years after Maria had married George.

Maria's Case - contributions

1. By reference to the principles set out in paragraphs [402] and following, above, consideration of this question requires two general observations to be made.
2. First, the exercise of assessing contributions is holistic and not strictly mathematical or in the nature of taking partnership accounts, although the potential usefulness of a mathematical analysis is not to be ignored.
3. Second, it will be apparent from the Court's consideration of George's case that the Court is not satisfied that George (and therefore, for present purposes, Maria) made any financial contributions to the acquisition of property by Chris. The question of an alleged contribution of outgoings at No 5 is dealt with next.
4. George gave evidence that from August 2009 he and Maria took over the payment of the outgoings in relation to No 5. There is no independent corroboration of that statement and, consistently with the Court's view of George's evidence, no finding is made that such contributions were made. In any event, even if they had been made, it would only have been for a four month period which, for the purposes of the present assessment, the Court regards as de minimis.
5. Further in relation to financial contributions, Maria also submitted that she worked in Chris Realty under Chris' direction for no income. This submission gives rise to two questions: first, whether it is to be accepted as a matter of fact and, second, whether it was a contribution to Chris' property.
6. As to the first of these questions, there is some independent verification that Maria was at Chris Realty with Chris. Nikola gave evidence that after Rada died he visited Chris Realty "occasionally" and that "most of the time" Maria was there with Chris. He does not say what she was doing there. Bill gave evidence that Maria "attended the office" but did not say what she did. Given that the Court is satisfied that Maria was the principal homemaker in the Saravinovski family home, it is inherently likely that she would have performed similar tasks at Chris Realty in terms of cleaning and perhaps, occasionally, basic reception or administrative tasks. The Court is not able to conclude that she did any more because there is no independent evidence to corroborate the extent of the work that Maria claimed she did.
7. The Court does not accept that the rent receipts signed by Maria in 2005 and 2006 in respect of No 7 (see paragraph [173] above) support the conclusion that she was working at Chris Realty or that she undertook other tasks in relation to that business' tenants. The receipts are for a period when No 7 was owned by George and Bill and Maria was living next door at No 5. The natural inference, which the Court draws, is that because Maria was at home it was both obvious and convenient that she should go next door to collect the rent in which her husband had a half interest. The Court is not satisfied that it had anything to do with working for Chris Realty.

Maria's Case - adjustment of interests

1. In approaching the question of whether and, if so, how the interests of Chris and Maria should be adjusted, in the circumstances of this case the Court particularly bears in mind four of the statements of principle that are more fully set out above.
2. First, because this is a case where there was no practical union of lives and property and it cannot be said that Maria's contribution somehow "freed up" Chris to undertake his property producing activities, what might be described as the usual nexus between economic contributions by one party and non-economic contributions by the other is not so readily apparent. These proceedings are closer to the type described by Ipp JA in Bilous v Mudaliar [2006] NSWCA 38 cited by the Court in Hayes (see paragraph [405] above): Some situations do not lend themselves either to a pure global approach or to a pure asset-by-asset approach. In some cases the judge may decide to have regard to the particular contributions made to individual assets, weigh up the overall respective contributions of the parties and make differing apportionments in relation to the interests of the parties and different assets.
3. Second, the present case is an example of what Brereton J described in Sharpless (see paragraph [407] above) as a case "of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, [so that] the rationale for the approach authorised by Mallett is much weakened, if not entirely removed."
4. Third, Brereton J's further explication in Burgess (see paragraph [408] above) is relevant because this is a case "much more akin to one between a parent and a daughter-housekeeper, in which the approach typically adopted in a de facto relationship case might not be appropriate. In each such case the approach to the assessment of the respective contributions of the parties will depend on the facts, and in particular the specific contributions in that case".
5. Fourth, and most importantly, as Brereton J put it in Kardos (at [38], see paragraph [404] above) the fundamental inquiry at this third stage of the process is to determine "what order is required in order sufficiently to recognise and compensate the applicant's contributions … having regard to, and only to, the respective contributions of the parties referred to in s 20".

F. Legal principles as to fact finding and credit

1. The Court was given helpful summaries of the legal principles in relation to fact finding and credit by each of the parties. Those submissions were one of the few areas of the case where there was no disagreement as to the way in which the Court should go about fact finding in a case such as the present where most of the critical evidence depended upon uncorroborated oral testimony and where, to quote Maria and George's written submissions, "There are vast factual differences between the parties".
2. In approaching the task of fact finding, particularly where credit is a significant issue, the Court has applied ten principles.
3. First, at the forefront of the Court's approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.

Maria

1. Maria's credit is one of the central issues in these proceedings. She was cross-examined for eight days (although at least half that length is attributable to the use of an interpreter). The fundamental issue in assessing Maria's credit arose from her own admission that she had exaggerated and lied to examining doctors and others in relation to her compensation claims after her 2001 accident and in connection with her 2013 workers compensation claims.
2. Maria (and her legal advisers) faced an acute forensic dilemma in these proceedings. In an endeavour to maximise her compensation claim Maria made what she now concedes were false statements about her degree of incapacity as a result of the 2001 accident. What she had told the doctors and others was inimical to the case that she now makes as to how much domestic assistance she provided to Chris. For her present claim to have any prospect of being accepted, it was necessary for her to disavow her statements in connection with her compensation claims. She did so.
3. Maria's conduct in relation to the compensation claims and a number of other matters formed the basis of an unrelenting attack on her credit by Chris. 48 pages of Chris' written submissions were devoted to a closely reasoned analysis of her evidence in support of the submission that her credibility was completely destroyed and that the Court should not accept any of her evidence unless it was independently supported or against her interest. While the Court does not accept every criticism made of Maria's evidence (for example, in relation to alleged falsification of certain photographs, her evidence about the circumstances in which she executed the mortgage over No 14 and the significance to be attached to her conviction for dishonesty offences), the substantial majority of Chris' criticisms of Maria's evidence in relation to her credibility are well founded. Rather than making what will already be an overly long set of reasons even longer by recounting each of the criticisms in detail, the Court will set out the essential reasons for the conclusions it has reached about Maria's credit.
4. By way of summary (and in relation to the compensation claims supported by an extensive analysis of those matters which Maria herself admitted were at least "exaggerations"), Chris made the following submissions in support of an adverse finding in relation to the Maria's credit: 1. Maria's evidence was irreconcilable with the contemporaneous evidence and often consisted of irrational and implausible attempts to advocate her own cause. 2. She misled the Court in relation to the descriptions she gave under oath in respect of photos that were tendered in her case. 3. She has a proven track record for deceit in pursuit of claims for money. 4. Between 2001 and 2006 she set out intentionally to mislead and deceive numerous medical practitioners who were assessing the nature and extent of her condition after the 2001 accident. 5. In 2013 she falsely completed claims forms and gave false information (including in her signed statement) relating to workers compensation claims and sought to mislead the investigators investigating those matters. 6. She has been convicted of offences of dishonesty. 7. Her demeanour in the witness box.

George

1. Chris' attack on George's credit was only slightly less detailed than his attack on Maria's credit. It was nevertheless equally devastating.
2. Among various concessions that George made, with varying degrees of willingness concerning the truth of his evidence and his conduct, the starting point must be his acceptance that he had fabricated five documents that had found their way into the court book. The Court will turn to these in a moment. However, against that background, his own counsels' submissions on the question of credit included: "Without wishing to disparage or demean George at all, from the three days he spent in cross-examination, the Court can conclude that George is a simple minded man. The Court ought find George to be naïve, subservient and big hearted but completely guileless. George is not smart enough to have entered the witness box and made up his evidence. Even his concoctions were childish."
3. Having observed George give his evidence and also his demeanour generally during the proceedings, and wishing no disrespect to his memory, the Court accepts the description proffered of his credibility by his own legal team. The Court's impression is exactly that of the psychiatrist referred to in paragraph [224] above, who found George to have a "compliant and biddable personality".
4. However, the conclusions expressed in the previous paragraphs are not the end of the matter. The Court is concerned with the reliability, or lack thereof, of his evidence. The fact that it may be unreliable because, assuming for the sake of argument in George's favour, that he was innocent, pliable and guileless, while perhaps providing some moral mitigation for his conduct, does not detract from the conclusion that his evidence was nevertheless unreliable.
5. When confronted with difficulties in his evidence, George took refuge in the proposition that he was supporting his wife and that what they were doing were no more than exaggerations. One example arises from cross-examination on a statutory declaration which George completed for Maria in connection with her 2001 accident where he included that Maria was working for 40 hours a week and earning $600 a week at Chris Realty. George admitted that was untrue. When confronted with that proposition George replied at (T834:29-T835:9): A. My answer is in relation, that was an estimate we had to give, estimate, and it may look like that, yes she wasn't earning that money, and also I would like to say that I was exaggerating on behalf of Maria, I'll admit to that. It's exaggerating. She wasn't earning that but they asked like for a "What would she be earning" and that was an estimate. And also I would like to ask his Honour to forgive me for doing that. And I was merely supporting my wife at the time, we didn't have any money you know, that we could use, and also we were egged on by someone else, my father, to say "Look this is your moment, you should, you should, you know exaggerate and make it possible for your wife to get something for"-- Q. Mr Saravinovski-- A. Yeah. Q. --your answer, in short, is that when the information was included in relation to how many hours a week-- A. Yeah. Q. --and how much Maria was earning at Chris Realty leading up to the accident-- A. Yes. Q. --in 2001, is your answer that you knew it was untrue, yes or no? A. Yes that was untrue. Q. And it was deliberately included? A. Yes. Q. It was included for the purpose of maximising any claim that Maria had against the insurer? A. That is right, yes.

Chris

1. Maria and George attacked Chris' credit with as much intensity as he had attacked theirs. However, the position in relation to Chris' evidence was complicated by his loss of capacity and the Court's determination that he was "unavailable" within the meaning of the EA: see Saravinovski (No 5). The Court granted leave for four of his affidavits to be read in his absence. In following that course, the Court nevertheless recognised that, through no fault of their own, Maria and George had suffered a considerable forensic disadvantage by not being able to cross-examine Chris, particularly in circumstances where they themselves had been cross-examined at length.
2. Maria and George submitted that the Court ought to give a discount to so much of Chris' affidavit evidence as was permitted to be read and, in particular, a significant discount in the case of his later affidavits of 4 June 2013 and 16 September 2013. This latter submission was based upon the fact that Dr Rosenfeld's diagnosis of Chris' vascular dementia depended, in part, on an MRI dated November 2013 and that Dr Rosenfeld had opined that the condition would have transpired over a number of years.
3. In support of their discounting submission they drew attention to the observation of Mahoney JA in Klein v Law Society of NSW (Court of Appeal NSW), 4 September 1987, unreported: The fact that a witness has not been cross-examined has conventionally been seen, and properly seen, as a reason why the witnesses' evidence should be taken with reserve. In Braithwaite v Kearns 34 BEAV 202, Romilly MR, in giving leave for the use of an affidavit by a person who, by reason of paralysis, was unable and incapable to attend and be cross-examined, said: "I must allow it to be read, and must judge of it. But I pay little attention to the affidavit of a person who has not, when required, submitted to a cross-examination." Each case must, of course, be weighed on its merits and in its context. But experience has shown that it is proper to treat with considerable reserve evidence, or the inferences from evidence, which has not been subjected to cross-examination.
4. Reliance was also placed on the observations of Hallen J set out in paragraph [472] above.
5. Maria and George also submitted that the Court should follow the same approach adopted by Campbell J (as his Honour then was) in Vella v Wah Lai Investments (Australia) Pty Ltd [2004] NSWSC 583. A Ms Hui had sworn affidavits in those proceedings but, at the time of hearing, was not available to attend for cross-examination. His Honour said: 5 The topics on which Ms Hui gives evidence in her three affidavits fall into various categories. There are some of them which are not controversial at all, and where the affidavit merely provides a formal means of proof. There are others where the evidence which she gives covers topics which have been covered by other witnesses in the case. There is a third category of evidence, however, where the evidence which she gives relates to her own dealings on behalf of Wah Lai. … 7 The evidence which Ms Hui gives on the third of the types of topic which I have identified is evidence which, it seems to me, could not practicably be received and accorded little weight or reduced weight on the basis that Ms Hui had not been cross-examined. The matters which fall within this third category are ones where the Court either accepts that a particular state of affairs is so, or does not, and whether the Court accepts that that particular state of affairs is so is likely to be affected by whether there has been cross-examination on the evidence. It would be unfairly prejudicial to the plaintiff for Ms Hui's evidence to be received but not cross-examined on. In these circumstances, I am not prepared to allow evidence in the third category to be given, when Ms Hui is not made available to be cross-examined.

Bill

1. Maria and George submitted that Bill was an unsatisfactory witness who would simply say whatever he thought was helpful to Chris' Case. They drew attention to the very high likelihood (which the Court accepts is correct) that Bill and Louie (as Chris' guardians and powers of attorneys) had a real interest to ensure Maria's and George's claims were defeated to preserve Chris' estate for their benefit as his likely heirs.
2. Maria and George drew attention to the fact that Bill had been a councillor of Rockdale City Council since 1983 and had been mayor six times since that date. In those circumstances the Court could be assured that he would be experienced in public affairs and legal documents. Any discreditable behaviour on Bill's part could not be explained away as the product of youth or inexperience.
3. They submitted that there were a number of implausible aspects of Bill's evidence, including: 1. His evidence concerning his involvement in Maria's compensation claim, including preparation of letters on Chris Realty letterhead stating that Maria worked 40 hours per week and earned $600 gross per week, as well as making other statements such as "please note that since the accident she had been restricted (sic) light duties calling at the office for a few hours a day". His assertion that he signed the letters relying on George for their veracity is inconsistent with his evidence that he looked after the administration of Chris Realty. He wrote a similar letter in support of Chris' compensation claim asserting that Chris was employed for 40 hours a week prior to Chris' accident. 2. The inconsistency between Bill's evidence that Chris was in good health so that he did not need Maria's domestic assistance, when contrasted with the claim he had signed in support of Chris' compensation claim that Chris was suffering from numerous physical problems, which was itself at odds with the video of Chris dancing at a wedding in December 2003 and baby Christopher's christening in 2004. 3. Bill's volunteering (not having included it in any of his five affidavits) the "nonsensical" testimony as to why his second wife, Valentina, was prepared to sign a pre-nuptial agreement in 2003 (including, for no apparent reason, disavowing an interest in KR&S). His explanation that this was done "at the instance of [Maria and George], [who] were constantly harassing my wife and saw her as a threat and that is why the letter was drafted by my wife" (T1474:40-42) was obviously a spur of the moment fiction in the witness box. The Court agrees with that characterisation. 4. The reasons he claimed to have signed a mortgage in favour of Chris in 1992, being an agreement to secure benefits Chris had given Bill since the latter's teenage years. 5. The reasons he gave as to why he and Valentina ceased living at No 5 (primarily difficulties with Maria). His evidence was at odds with that of Cveta, with documentary evidence, with the history of persons living with Chris and, so it was said, contrary to the dictates of common sense.

Louie

1. Maria and George made a strong attack on Louie's credit, particularly insofar as he claimed to be able to give evidence about life in the Saravinovski household between 1997 and 2007. They submitted that Louie was guarded about saying anything or making any concessions which might advantage Maria or George. Louie, like Bill, was almost certainly a beneficiary under Chris' will and had every reason to ensure that Chris' estate was not diminished by any success for Maria and George in these proceedings. They drew attention to a number of aspects of Louie's evidence, including the following seven matters.
2. First, Louie's evidence in relation to the eviction shifted throughout the course of his affidavits and again in oral testimony.
3. Second, the course of Louie's evidence in relation to the 1998 deed of release (see paragraph [116] above) did him no credit. He gave inconsistent evidence as to whether or not it bore his signature, although he ultimately accepted that it did on page 2. He first claimed that he could not remember if a caveat had been lodged on No 49, but then remembered a conversation about its removal. There was then a debate about the authenticity of the deed. The Court finds that debate resolved in favour of its authenticity because Senior Counsel for Chris was given an opportunity to take instructions from Mr Bryant, her instructing solicitor. Mr Bryant had also apparently witnessed the deed. Mr Bryant was present for most of the hearing. Adequate opportunity was given to Chris to challenge the authenticity of the deed and it was not taken up. In the circumstances the Court is satisfied that the deed is authentic.
4. Taking Louie's shifting evidence about the deed and the fact that the deed clearly demonstrates there was a dispute over money between Louie and Chris, Maria and George submitted that the Court could not be satisfied that Louie was in contact with his family between 1997 and 2007. In 1997 Louie appears to have left the business of South Sydney Real Estate and George was installed as licensee of Chris Realty. Louie resigned as a director of KR&S on 10 April 1997, having relinquished his shares in 1996. The Court was invited to find that Louie had lied in claiming to have remained close to his father at all times after 1997 and lied in his sworn oral testimony in claiming never to have had any dispute with Chris around 1997 to 1998.

Belinda

1. Belinda was 27 years old at the time she gave her evidence. She had always, and was still, living at home with George and Maria. She was in full time employment in a solicitor's office and was studying part time for a Bachelor of Arts in criminology and justice through Griffith University.
2. Chris made an extensive and detailed attack on Belinda's credit over some 21 pages of written submissions. The attack fell into three parts.
3. First, it was submitted that, by her own admission, Belinda had said she would do whatever it was in her power to support her parents in succeeding in their claims against Chris "because it's the truth". That motivation led her evidence to be untruthful. She had as much to gain from these proceedings as Maria and George. Furthermore, it was suggested that she played a bigger role in the proceedings than by simply providing evidence, including in the preparation of the case. One example was attending Kogarah Local Court after George's family had left No 5 in order to obtain a Notice of Demand form, as well as attending on their solicitor with her parents following the meeting that she said she had with Chris and her mother in a car in early 2010, during which meeting it was alleged that Chris had asked them to come back and made various offers to them.
4. It was also submitted that Belinda was an advocate from the witness box and harboured a very high level of grievance against Chris, Louie and Bill. Examples of the latter were said to include her inability to describe the circumstances of her family leaving No 5 as anything other than "an eviction" and conceding that she maintained a feeling of anger towards Bill and Louie. She had even run on a ticket with her father and Rade against Bill in the 2012 local government elections.
5. The second element of Chris' criticism of Belinda's credibility was based upon the statement which Belinda signed on 3 October 2005 in connection with Maria's 2001 accident. The statement was apparently prepared by Maria's solicitor on, the Court infers, Belinda's instructions. It is sufficient for present purposes to note, by way of summary, that Belinda's statement paints a picture of Maria being substantially unable to perform many household duties as a result of the injuries she was alleged to have suffered in the 2001 accident. Belinda's statement gives the impression that Belinda had largely stepped in to perform many, if not most, of those tasks that it was said had previously been undertaken by Maria.

Bobby

1. Chris criticised Bobby's evidence on the same bases as those which he deployed in relation to Belinda's evidence. The only exception was that, unlike his sister, there was no evidence of any document signed by Bobby which was inconsistent with the evidence he was giving in these proceedings. Nevertheless, it was submitted in considerable detail over 14 written pages of submissions that Bobby had the motivation to support his parents' case (including, which he denied, some potential to benefit from any victory by them), his grievances against Chris and Louie and exaggerated or implausible evidence meant that Bobby's evidence was not to be relied upon. In addition, emphasis was placed on Bobby's own admission that he had "a really hopeless memory" (T2155:34-35). Among the inconsistencies relied upon were Bobby's evidence of having, on the one hand, a good relationship with and loving Chris with, on the other hand, evidence similar to Belinda's of the parsimonious and oppressive circumstances in which they lived under Chris' domineering presence.
2. Maria and George submitted that Bobby has given his evidence in a way which clearly demonstrated that he was doing his best to give evidence accurately and honestly under oath. He had readily accepted that, because of his youth, he could not recall much about the house at No 45. However, in 1997 when the family moved to No 5, Bobby was in primary school. It was submitted that he lived at No 5 for over 10 years and the Court should accept that, in those circumstances, his account of life at No 5 was likely to be accurate. These concessions about what he could not recall were plausible, understandable and reflected well on his evidence.
3. The Court does not accept Chris' submission that, in and of itself, there was a fatal inconsistency between Bobby's evidence that he loved Chris and the picture that Bobby sought to paint of life at No 5. My impression of Bobby in the witness box was that he was doing the best to tell the truth as he recalled it. The inconsistency relied upon by Chris does not necessarily bespeak a lack of truth. For example, one of Bobby's answers referred to by Chris but not fully reproduced in his written submissions struck the Court as entirely plausible and truthful (T2099:19-22): Q: And when you say that you got on reasonably well with Chris, what do you mean by that? A: He was a good grandfather. Like, I was close to my grandfather. I do love my grandfather. When he used to get tempered I used to get really scared.

Rade

1. Rade was born in Macedonia and migrated to Australia in 1968. He had worked as a machine operator and was retired by the time he gave evidence. He had been a friend of Chris' since the 1970s. That friendship apparently came to an end as a result of the circumstances surrounding Maria and George's family leaving No 5. The closeness of his, and his wife Pavlina's, relationship with the Saravinovski family was evidenced by the fact that they were godparents to Maria and George as part of Macedonian tradition when Maria and George were married, and subsequently godparents to Belinda and Bobby.
2. Chris submitted that Rade's evidence should not be accepted because Rade was in a partisan position, held a grievance against Chris, Bill and Louie and gave inconsistent and implausible evidence. Matters relied upon in support of those submissions included: 1. Rade and Pavlina's position as godparents to Maria, George, Bobby and Belinda. 2. Despite saying that he was telling the truth and that he did not want to take sides (a matter which Chris strongly contested), Rade believed that Chris had treated Maria and George unfairly. 3. Rade had run for election on an independent ticket with George and Belinda against Bill in the 2012 local council elections. 4. Chris, Louie and Bill all alleged that following the breakdown in the relationship between Chris, on the one hand, and George and Maria on the other, Rade had made threatening phone calls and made threatening gestures towards Chris, Bill and Louie. 5. Rade's second affidavit (prepared after Maria's cross-examination) alleged, for the first time, that Chris had asked him to be a false witness in relation to an accident in 1997 as well as evidence of Chris calling Pavlina to tell her (Chris) had "kicked out" Maria, with Louie being heard making a threat to Rade and Pavlina's family if they harboured Maria. 6. When giving oral evidence, Rade sought to advocate on behalf of George and Maria, giving non-responsive answers to questions in which he sought to advance their interests in the proceedings. 7. Rade's second affidavit raises a number of matters of which no mention was made in his first affidavit and which contradicted his first affidavit. A significant inconsistency between the two, it was submitted, was Rade's changing evidence about whether or not a meeting had in fact occurred with a girl and her family from Wollongong to whom Rade was seeking to introduce George.

Pavlina

1. Pavlina was also born in Macedonia. She came to Australia in 1972 at the age of 21 to marry Rade. Before coming to Australia she had only ever seen a photo of him.
2. The Court accepts Pavlina as a witness of truth. She had no reason to be otherwise and gave every appearance of trying to answer the questions asked of her honestly and seriously.
3. Chris made the same submissions of partisanship and grievance against Pavlina as were made on his behalf against Rade. They are rejected for the same reasons. In rejecting them, I have not overlooked Rade's evidence that Pavlina was very upset by Louie's threat at the time Maria and George left No 5. However, there was nothing about Pavlina's evidence or her demeanour in the witness box that suggested she was motivated by any grievance against Chris or Louie.
4. The Court has considered in detail the written criticisms made of Pavlina's evidence. Two major criticisms were that Pavlina's evidence of Rada's physical condition at various times was not consistent with the video evidence and that some of her affidavit evidence gave the impression that it was based on what she had seen whereas, in fact, it based on either what Maria or Chris had told her.
5. As to the first criticism Pavlina's general recollections of Rada's health were not inconsistent with the picture that emerged from other evidence, including videos and photographs. Pavlina painted a picture of a slow and then more rapid deterioration in Rada's health. She acknowledged under cross-examination that the point at which she recalled Rada having difficulties walking was in fact before Bill's wedding in 1993, a few months before Rada died. The Court accepts that evidence. It is not inconsistent with the photograph of Rada walking into Bill's wedding holding Chris' arm and is corroborated by the presence of a nurse as part of the wedding party.
6. Nor does the Court accept that Pavlina's concessions under cross‑examination that she was reporting what others told her support a finding of dishonesty or advocacy for Maria and George. Particularly where instructions are being given through an interpreter, it is the Court's experience that this is an area where, unless great care is taken in the way that questions are asked of a witness such as Pavlina, answers may be given suggesting direct observation when what is in fact being described as reported conduct. When such points of clarification were put to Pavlina in the witness box, she unhesitatingly acceded to their correctness.

Maria and George's other witnesses

1. The parties dealt with the credit of Maria and George's four other witnesses as a group. Subject to a slight reservation in relation to Cveta's evidence, the Court accepts the evidence of Slavko Josifovski ("Slavko"), Nikola, Snezana Caldrmoska ("Snezana") and Cveta as truthful and reliable.
2. None of these witnesses had any interest in the outcome of the proceedings and, subject to the qualification dealt with below in relation to Cveta, each of them appeared to be doing their best to give truthful evidence as well as they could. Their varying degrees of social and familial relationship to Maria and George are not, in and of themselves, reasons to cast doubt upon their evidence.
3. Subject to a particular complaint in relation to Cveta, Chris' primary submission in relation to these other witnesses was that care had to be taken in accepting their evidence because of the passage of time and the occasional nature of the events which they described. Moreover, precisely because those witnesses were only giving evidence of what they had seen on various occasions, it was submitted for Chris that the Court should be slow to draw an inference about day to day life in the Saravinovski household based upon the intermittent observations over a long period of time of these witnesses.
4. Viewing each of these witnesses in isolation, the Court accepts there is some force in the first of these submissions. The second submission is self-evidently correct. Nevertheless, the Court is of the view that (subject to the matter referred to below in relation to Cveta) the evidence of these witnesses is inherently reliable as forming part of the factual basis upon which Maria and George invite the Court to draw wider factual conclusions.
5. Cveta is not related to any of the parties to these proceedings and has no interest in the outcome. She was a close friend of Bill's wife Valentina, having known her in Macedonia and having assisted her to come to Australia when she (Valentina) wanted to get married to Bill. Bill accepted that Cveta was a close friend of Valentina's.
6. The criticism which Chris made of Cveta's evidence was that it should be treated with caution based on her demeanour in the witness box, including her becoming increasingly argumentative and emotional. It was submitted that, for example, her introduction into her oral evidence of instances of personal care of Chris by Maria that had not been referred to in her affidavit suggested that she was an advocate for Maria and George rather than a witness.

Witnesses not called by Chris

1. Chris served affidavits from four witnesses who were ultimately not called: Cathy (Louie's wife), Valentina (Bill's wife), Dr Vijeyarasa and Mr Khalil Ibrahim. The affidavits of those witnesses were included in the original court book and they appeared in the trial plan. It was only at the commencement of the third tranche of the hearing in March 2015 that the Court was informed that Chris was not calling any further witnesses. The failure to call those witnesses was not explained.
2. The Court accepts Maria and George's submission that, where the evidence of any of those witnesses might be expected to have been relevant to a particular issue, either or both of the inferences identified by Heydon, Crennan and Bell JJ as the majority in Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361 at 384 are available to be drawn by the Court: 63. The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.
3. Maria and George also criticised Chris' failure to call his solicitor, Mr Gordon Bryant. There can be no doubt that Mr Bryant was involved in all of the property and other transactions which feature in these proceedings. Mr Bryant was not the solicitor on the record for Chris in Chris' Case. However, he was the solicitor on the record for Chris in Maria's Case. He was present in Court for much of the hearing. No explanation was given for the failure to call Mr Bryant. In those circumstances, Maria and George submitted that the Court should draw an inference, in accordance with Jones v Dunkel, that Mr Bryant's testimony would not have been favourable to Chris' interests.

The departure from No 5

1. Human experience teaches that with many major, domestic conflagrations it is difficult for anyone, even the participants, to determine after the event "who started it". In any event, the immediate cause is often not the underlying cause. It is even harder for a Court to do so, many years later when the heat of the moment has passed into ingrained antagonism. The importance for these proceedings of determining whether or not Chris demanded that Maria, George and their family leave No 5, or whether they did so of their own initiative was its importance for Maria's case, in particular the question of whether Chris had resiled from his alleged representations. Because Maria has failed to satisfy the Court that the alleged representations were in fact made, it is not strictly necessary for the Court to come to a concluded view on the question. Nevertheless, because such argument was directed to it, the Court will set out its findings in the shortest possible form.
2. Because of the view which the Court has taken about the credit of the members of the Saravinovski family, the Court's consideration of this question has been based upon what little independent evidence there is and the limited common ground between the parties. For the reasons which follow, the Court is satisfied on the balance of probabilities that it was Chris who demanded that Maria and her family leave.
3. The key pieces of independent evidence are Pavlina's and Rade's evidence of what Chris told them had occurred, the hospital tape and the police reports. In addition to these, it was common ground that there had been a serious argument between Chris, Maria and George at No 5.
4. Having regard to the evidence which the Court considers to be reliable, it is impossible to determine when the critical argument took place other than it was sometime between Chris' return from St Vincent's Hospital on 28 November 2009 and the events recorded in the police report of 2 December 2009.
5. On the basis of the hospital tape the Court finds that the argument escalated through several accusations. George accused Chris of eating all the rissoles that had apparently been set aside for dinner. Maria refused a request from Chris to take him to Rockdale, presumably to Chris Realty, to get some tablets. In the course of the argument Chris further exacerbated Maria's ire by saying that he would not pay for a wedding for Belinda. The Court is satisfied that all of those matters were part of the accusations that undoubtedly flew between the parties during the course of the argument.

The hospital tape

1. There can be no doubt that the hospital tape is an important piece of evidence. It came into the case in an unusual way. It had not been served or referred to at any time before Maria's oral evidence. It was introduced in the course of her oral evidence without an accompanying translation. A translation was subsequently prepared and was agreed between the parties (Exhibit 35P).
2. Because the hospital tape emerged when it did, Chris' opportunity to respond to its contents came late in the proceedings. His affidavit which sought to do so was one of those for which consent to rely upon it was not given because of Chris' loss of capacity. Therefore, there is no direct evidence from Chris about the hospital tape.
3. A fundamental dispute between the parties related to why the hospital tape was made and whether or not Chris knew that he was being recorded. The parties, albeit perhaps for different forensic reasons, ultimately came to accept that Chris had invited Maria to the hospital to visit him. By reference to the terms of the hospital tape itself, the Court accepts Chris' submission that it demonstrates that one of the purposes of the visit, at least so far as Chris was concerned, was to attempt to reconcile with Maria and George but to do so in a way that did not completely sever his relationship with his other sons.
4. Maria and George gave evidence that the hospital tape had been made because they wanted to be able to prove to other people that they had visited Chris in hospital in case he denied it. Quite apart from the view which the Court has taken about Maria and George's credit, that explanation is inherently implausible.
5. Maria also gave evidence that: 1. When Chris rang Maria to ask her to come to the hospital he said "If you do not believe me you can record me. Come and see me, I might die." 2. When they were in the room with Chris, George was holding the phone in his left hand slightly out from his body where it could be seen by Chris.
6. Maria does not give evidence that she expressly sought Chris' consent at the hospital to record the conversation.
7. George's evidence was that: 1. He was present with Maria when Chris called and he could hear the conversation. He heard Maria ask Chris "Can we record it" and Maria told him (George) that Chris had said they could record it. 2. During the visit to Chris, George had his phone in the palm of his (George's) hand. 3. Despite asserting that Chris knew they were recording the conversation because "we showed him the phone", George acknowledged that he did not hear Maria say anything to Chris about recording the conversation while it was taking place.

I. Three interlocutory applications

1. During the course of the hearing I made rulings in relation to three interlocutory matters in relation to which I informed the parties that I would include my reasons in this judgment.

Access to the Video 8 tape

1. A dispute arose on the third last day of the taking of evidence (Tuesday, 17 March 2015, being the 29th day of the hearing) concerning the authenticity of video evidence which the Court had been shown of the housewarming party at No 5 (see paragraphs [102] to [103] above). That video had been provided in the form of a DVD. However, the DVD had itself been produced by George in response to a request from his solicitors for what George said was the original "Video 8" tape (referring to a kind of recording technology), which was the tape on which George said he had originally recorded the relevant events (the "Video 8 tape").
2. A call was made by Chris' legal representatives and they were provided with the Video 8 tape. They sent that entire Video 8 tape to a third party to have it transferred onto a DVD. When the DVD was played there were two sections, each of only 5 or 6 seconds, where the screen went black and a voice which sounded like George is heard saying "It's phenomenal 800 pages". The two black sections were on other parts of the Video 8 tape and did not affect the scene of the housewarming, which Senior Counsel for Maria and George informed me had been viewed by his Junior Counsel in its entirety and ran continuously for more than an hour.
3. On the basis of the black portions of the Video 8 tape, Senior Counsel for Chris made an application to tender the Video 8 tape and uplift it for the purposes of having an expert examine it and provide an opinion as to whether or not what had been produced by George as the original of the housewarming party video was in fact a document in the form of the Video 8 tape that George had manufactured for the purposes of the proceeding and was not the original at all. George and Maria opposed the application.
4. Before dealing with the application, the Court granted leave for George to be further cross-examined so that these matters could be put to him. That was done. His evidence was that he had been asked to provide a copy of the video of the housewarming. To do this he had played the Video 8 tape from the original device on which it had been recorded into his high definition television set. He had pointed a new, high definition camera at the screen and recorded what was shown onto an SD card. The SD card was then used to produce the DVD which had been shown to Louie during his cross-examination apparently showing the housewarming.

Maria's amendment application

1. After the conclusion of the evidence, 27 March 2015 was set aside to deal with a number of outstanding applications and rulings. Reasons are required to explain the resolution of two matters dealt with on that day.
2. The first concerns an application by Maria to amend her amended statement of claim. The relevant parts of her amended statement of claim (filed 12 March 2013) are: 30. Further and in the alternative as a second count the Plaintiff says the Defendant represented to the Plaintiff that the Defendant would give the Plaintiff property his house. 31. In 1986 the house was the Saravinovski family home at No 45, Kogarah. That house was later sold and When the family moved to No 5, Kogarah Bay, that house became the property which became the house the subject of the representations. 32. The representations pleaded in paragraph 30 were made on more than one occasion in Macedonia. PARTICULARS OF THE REPRESENTATIONS The representations were partly expressed orally and partly implied. a. To the extent that the representations were expressed orally. (i) The terms of the representations are set forth at T107.29-35 and T110.8-14 of the Transcript of hearing from 17 October 2014in paragraph 14 of the affidavit of the Plaintiff sworn 24 July 2012 and served in these proceedings. The representations were repeated on several occasions in Macedonia prior to the marriage of the Plaintiff and George Saravinovski.
3. It will be apparent from her proposed amendment (the relevant transcript extracts being set out in paragraph [310] above) that the purpose of the amendment was to conform Maria's pleading to the evidence which she in fact gave in the witness box. The balance of the particulars (set out in paragraph [309] above) remain unchanged.
4. Maria's submissions were: 1. It was appropriate for leave to be given to amend pleadings to accord with evidence that had emerged during the trial. Cases were to be determined on the evidence, not the pleadings. It would be unjust and unfair - contrary to s 56 of the CPA - for the case to be conducted other than by reference to her evidence, particularly when all the instructions she had given at various times were from someone whose first language was not English and who was recalling words that were said in 1986. 2. There could be no prejudice to Chris in circumstances where the thrust of his case throughout had been that he had not made any representations or inducements to Maria. 3. There could also be no prejudice because Senior Counsel for Chris had cross-examined Maria not only on the version of events which she had given in the witness box but also by testing it against earlier versions of what she had alleged had been said by Chris. 4. Maria's evidence which supported the amended pleadings had been given on 17 October 2014. While it was true that the proposed amendment had not been served till 19 March 2015, the delay was explicable on the basis that it was simply one matter among many moving parts in what had become an extremely complex piece of litigation. No prejudice had been caused by the delay because the case had been run by reference to the evidence which Maria had given in the witness box.

Use of Chris' 22 December 2014 affidavit

1. In Saravinovski (No 5) the Court declined leave to Chris to use his affidavit of 22 December 2014 (the "22 December affidavit"). The second matter dealt with by the Court at the hearing on 27 March 2015 for which reasons are required is Chris' application under UCPR Pt 35, r 35.2(3) to allow paragraphs [A54] to [A59] of the 22 December affidavit to be used. The Court refused that application and this section sets out the reasons for doing so.
2. There was no dispute between the parties that, in making its decision for which reasons are given in Saravinovski (No 5), the Court had reserved Chris liberty to apply to use particular parts of affidavits that had been rejected in total. The background to the present ruling is found in Saravinovski (No 5): 21. On 13 February 2015 the Court made orders with the consent of the parties appointing Associate Professor Tuly Rosenfeld, a specialist geriatrician, as a Court expert to examine Chris. Dr Rosenfeld examined Chris later on the same day. 22. In lieu of a written report Dr Rosenfeld gave his report to the Court viva voce on 16 February 2015. He was questioned by both parties. As a result of Dr Rosenfeld's evidence the parties accepted - and the Court finds - that Chris is now a person under legal incapacity for the purposes of UCPR Pt 7 r 7.18. 23. Based upon Dr Rosenfeld's evidence the Court also finds: (1) Chris suffers from vascular dementia. His condition is about half way between moderate and severe. (2) His illness is a significant one which affects his higher level cognitive function, short term memory and also reasoning to the extent that he is not able to reason fully with the benefit of memory and understanding. (3) His illness has been present and progressing gradually for at least three to four years. (4) Chris is and has been able to express strong views about matters relating to himself such as where he should live and what care he requires. However, he is unable to provide instructions about a complex matter such as these proceedings because he cannot process the context and information that would be necessary to do so. (5) His short term memory is very poor. His recollection of historical events is largely biographical, can only be recovered with time and difficulty and is not likely to be reliable. He is suggestible. (6) His ability to deal with questions will be better on some days than others. It is likely to be better when he is in a familiar environment and the questions are being asked by people he knows and trusts. … 92. The Court will not grant leave for Chris' Recent Affidavits to be used. This is because they were sworn so close in time to Dr Rosenfeld's diagnosis which has led to the conclusion that Chris is now a person under legal incapacity that the Court cannot be satisfied that those affidavits are unaffected by Chris' illness. This includes an inability to be satisfied that he properly understood what was being asked of him, that his answers were reliable or that they were unaffected by suggestion.

J. Conclusion

1. The result is that Chris' statement of claim and George's amended statement of cross-claim should be dismissed. In Maria's Case she is entitled to an order granting her a 30% interest as tenant in common in No 5. If probate has not been granted of George's estate, then an order will need to be made in these proceedings either appointing a representative of the estate or an administrator ad litem.
2. The Court will stand the proceedings over to give the parties an opportunity to agree a form of orders to give effect to these reasons. The parties will also be able to address on costs to the extent they are not able to be agreed. Schedule 1 Dramatis personae SARAVINOVSKI (9.44 KB, pdf) Schedule 2 - Properties (27.9 KB, pdf) Schedule 3 - George's submissions on contributions (73.2 KB, pdf) Schedule 4 - Chris' submissions on George's contributions (71.8 KB, pdf)

Amendments 13 July 2016 - Minor typographical errors in paras 367, 374, 375, 380, 403, 469, 585 and 587 13 July 2016 - Re-added Schedules 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: 26 July 2018