Maria Saravinovksa v Krste

Supreme Court of NSW|2016-07-12|Before: Kunc J

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

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

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.
Chris or Krste Saravinovksi ("Chris") is the patriarch of the family. He was born in Macedonia in 1930.
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").
Chris migrated to Australia in 1963. Rada and the three boys joined him in 1966.
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.
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").
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.
Rada died in July 1993.
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.
The family was, and remains, split into two. On the one side is Chris, supported by Bill and Louie. On the other side are Maria and George, supported by their children. The implacable hostility of each alliance towards the other was made clear by the evidence and by what I was able to observe in the court room. Maria and George (but not Chris) called third parties such as old family friends to provide what was submitted the Court should accept as credible, independent evidence in support of their cases.
By statement of claim filed on 11 November 2011 Maria commenced proceedings which, in their final form, sought orders against Chris under the Property (Relationships) Act 1984 (NSW) (the "PRA") that he pay a just and equitable amount to her and, under the PRA or by reference to principles of estoppel, that he transfer to her what might be described, at least until December 2009, as having been the Saravinovski family home ("Maria's Case").
By summons filed on 17 February 2012 and statement of claim filed on 5 April 2012, Chris sues George for the repayment of $800,000 that Chris alleges is owing and secured over one of the properties. He also seeks interest on that sum calculated from 2003 ("Chris' Case").
By cross-claim filed in Chris' Case on 29 June 2012 as subsequently amended, George cross-claims against Chris seeking an account of the money which George says he paid to Chris between 1972 and 2009, a declaration that Chris holds certain property on trust for him and, among other things, equitable damages for detrimentally relying on representations made by Chris ("George's Case").
In relation to George's Case the parties made the following agreement: 1. The issue of quantification of George's earnings that he asserts were given to, or under the control of Chris, will be addressed as part of a subsequent reference in these proceedings. 2. It would not be necessary in this phase of the hearing to challenge George in cross-examination on the aspects of his evidence going to quantification.
The agreement recorded in the previous paragraph reflects indications from the Court that if George was able to prove that he had, in fact, provided his earnings to Chris, the precise quantification of that amount would be referred out. In the result, that will not be necessary.
Quite apart from the factual and legal complexities, the conduct of the proceedings was far from straightforward. It is appropriate immediately to record that the case was marked by two further, unfortunate events.
First, it became apparent during what became the first part of the hearing that Chris had suffered a serious loss of his mental capacity. It was necessary to appoint Louie as Chris' tutor (Saravinovska v Saravinovski (No 5) [2015] NSWSC 128) ("Saravinovski (No 5)"). This occurred before Chris was cross-examined. The Court therefore had to consider in the same judgment how much of Chris' affidavit evidence remained admissible and how it should be treated when he could no longer be cross-examined.
Second, after he had given his evidence and while this judgment was reserved, George suddenly and unexpectedly died. No formal steps to regularise the parties to the proceedings have been taken consequent upon George's death, pending the delivery of these reasons.
These further general observations should be made. The hearing was originally fixed for 10 days. It ultimately occupied 34 hearing days. As a result of case management hearings before me it was eventually fixed for 15 days commencing on 14 October 2014. It began on the appointed day and continued until 7 November 2014, when it was apparent that it would still not finish. The hearing then continued between 10 February 2015 and 2 April 2015. The evidence just concluded in the allotted time. The Court was informed that George and Maria had exhausted their available finances to fund the litigation. Directions were made for the filing of extensive written submissions and the hearing concluded with addresses limited to one day on 5 June 2015.
A number of witnesses, including Maria, gave their evidence (including, by the Court's direction, viva voce in chief) through an interpreter. Maria was cross-examined for 8 days (the length being attributable in large part to the need for an interpreter) and George for 3 days. Because of his incapacity, Chris could not be cross-examined. 17 witnesses gave evidence with nearly all cross-examined. The trial bundle was 1309 pages long, of which 434 pages comprised affidavit evidence. There were 133 additional individual exhibits. The transcript numbers 2326 pages. The parties' final written submissions were 432 pages long and covered 44 issues which were raised on the pleadings. Every aspect of the history of the Saravinovski family over nearly fifty years that anyone thought might be of any relevance was thoroughly explored.
The proceedings have already given rise to the following judgments: 1. Saravinovski v Saravinovski [2014] NSWSC 1282 An application brought by George pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 22, r 22.1 for an order that Chris answer certain interrogatories in relation to George's cross-claim. The Court dismissed George's notice of motion. 1. Saravinovska v Saravinovski (No 2) [2014] NSWSC 1513 Objection to the tender of a document by Chris on the basis of client legal privilege by Maria. The Court allowed the tender of the document pursuant to s18 and s122 of the Evidence Act 1995 (NSW) (the "EA"). 1. Saravinovska v Saravinovski (No 3) [2014] NSWSC 1961 Objection to the admission of evidence contained in the affidavit of Chris sworn 4 June 2013 on the basis of relevance. The Court excluded the evidence under s135 of the EA for want of relevance to the substantive issues. 1. Saravinovska v Saravinovski (No 4) [2015] NSWSC 64 Order made appointing Louie as tutor for Chris. 1. Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 Application to remove Louie as Chris' tutor rejected. Chris' earlier affidavit evidence ruled admissible but affidavits sworn at a later date ruled inadmissible by reason of his lost capacity.
The preceding three paragraphs are not complaints or criticisms of the parties or their lawyers. The parties had the advantage, and the Court had the assistance, of highly experienced and effective counsel who themselves were supported by obviously diligent solicitors. Mr G A Sirtes of Senior Counsel, leading Ms A L Avery-Williams of Counsel, appeared for Maria and George and Ms E A Cheeseman of Senior Counsel, leading Ms J A English of Counsel, appeared for Chris. While each side fearlessly advanced their case, the Court acknowledges that, in accordance with the parties' obligations under s 56 of the Civil Procedure Act 2005 (NSW) (the "CPA"), there was much common sense co-operation between the parties' legal advisers that ensured a very difficult and emotionally charged dispute was dealt with as efficiently as possible.
The parties' submissions went into extraordinary detail about almost every factual matter. I have reviewed all of those submissions and many parts of the transcript carefully several times. However it is neither necessary nor desirable that, in particular, every factual dispute is resolved in these reasons. Accordingly, these reasons record those matters which I have relied upon (whether by acceptance or rejection) in reaching the Court's ultimate conclusions. Examples of matters which I do not think it is necessary to resolve (see paragraph [473] below) include arrangements for Chris' name day celebrations, the extent to which Louie was out of touch with Chris and the rest of the family, whether there was a tape recorded meeting between Chris, Maria and Belinda in a car and all of the minutiae of life under Chris' roof, including the degree of ill-feeling alleged to have existed between various family members.
The Court's conclusions may be summarised as follows.
Credit is the most important issue for the resolution of each of the proceedings. In the case of each member of the Saravinovski family (Chris, Maria, George, Bill, Louie, Bobby and Belinda), the Court is not satisfied that he or she is a reliable witness. Their evidence on any controversial matter is only accepted if it is inherently credible, independently corroborated by contemporaneous records or independent testimony or is otherwise against interest. In contrast to the members of the Saravinovski family, the Court accepts each of the independent (non-family) witnesses as having done the best they can to give truthful evidence to the best of their recollection.
In Maria's Case, the Court has determined that Maria is entitled under the PRA to an order adjusting Chris' property interests so that Maria obtains a 30% interest as tenant in common in what was the Saravinovski family home at No 5, Kogarah Bay ("No 5"). (In these reasons properties are identified only by their street number).
Chris' Case fails. The Court has found that the mortgage on which Chris sues George has no legal effect. It is therefore unnecessary to consider the various special defences pleaded by George.
George's Case also fails. The Court is not satisfied that George gave all his income to Chris or that Chris used funds from George to acquire any of the properties referred to in the proceedings.
The structure of these reasons is set out in paragraph [1] above. Because references to the various people and properties are to be found throughout what follows, for the assistance of the reader Schedule One contains a dramatis personae and Schedule Two sets out a consolidated history of each of the properties involved in the proceedings.

B. Findings of fact

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.
In 1963 Chris migrated to Australia. Rada and the three boys joined him in 1966.
Maria was born in Macedonia on 14 July 1967.
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").
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.
In 1975 George completed the Higher School Certificate at James Cook Boys High School.
On 22 February 1977 the CSBA's mortgage over No 22 was discharged.
Also in February 1977, George sat the matriculation examination for Sydney University.
On 18 September 1980 George became an Australian citizen.
On 11 December 1980 George commenced employment with the Stock Exchange as an Information Officer - Library Investor Services.
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.
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").
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).
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.
By transfer also dated 8 February 1984 Chris and Rada (with Mr Bryant acting for them), purchased No 428, Rockdale ("No 428") for $230,000 subject to a four year mortgage from the CSBA for $75,000.
Chris retired from Telstra in 1985 after Rada had suffered her stroke.
By transfer dated 29 April 1985 Louie (represented by Mr Bryant), then aged 22, purchased No 49, Rockdale ("No 49") for $75,000 subject to a seven year mortgage to the CSBA for $56,000.
There is a letter of 22 August 1985 which refers to Louie as being "of Sands' Real Estate".
Sometime in 1986, Bill commenced employment with St George Building Society (later St George Bank) ("St George").
In or about April 1986 Chris, Rada, George and Bill travelled to Macedonia. One of the purposes, if not the motivating purpose of that trip, was to find George a Macedonian wife. On Macedonian Easter Monday (5 May 1986) George was introduced to Maria. On 9 May 1986, George, then aged 30, married the 19 year old Maria in a civil ceremony in Macedonia. Maria had completed year 10 and was part way through her nursing studies when she married George.
In the course of the first and a subsequent conversation between Maria and Chris in Macedonia before Maria married George, Chris said to Maria words to the effect of: 1. They had come to Macedonia to find a wife for George. 2. He (Chris) was a very well off Macedonian in Australia, owning houses and a shop. 3. If Maria married George and came to Australia and looked after Chris, and especially Rada, who had had a stroke, she (Maria) would not have to work and he (Chris) would ensure that Maria had everything she needed.
Chris did not say to Maria words to the effect that he would give her one of his properties. (As to the findings in this and the preceding paragraph see paragraphs [308] to [329] below).
I have watched several video extracts taken during the 1986 trip to Macedonia. These included: 1. The young Maria walking up an unsealed road with Rada and Chris and another woman to what appeared to be a small farm. Rada appeared to be being offered a steadying arm by the other woman. At the end of the sequence Maria has her arms around Rada. Maria appears to be very much a teenage ingenue. 2. A scene where the family are playing with a kitten. Rada puts the kitten on her head. She does not appear to be in any way impaired. Chris sits next to her, appearing very much larger than life. 3. Rada and Chris walking down a street together. Rada does not appear to have any difficulty walking, although she does guard her right hand. 4. Chris, Rada, George and a little girl climbing along a waterfront and climbing up a rock. Rada is able to climb up the rock with no more than what one would regard as normal assistance to an older person from George who is on the rock with Chris and the little girl. 5. The group moving along a boardwalk next the sea. Rada runs along for a few paces before climbing three steps without apparent difficulty and with only courteous assistance from Chris who is standing at the top of the steps. There is subsequently a shot of Rada, Chris and George with the little girl waving to the camera. Rada takes the little girl from Chris' arms and, without apparent difficulty, holds her in her (Rada's) arms. 6. Rada sitting astride a small, stationary horse. The horse is being held by someone, Chris is next to her and Maria is nearby with two other women. There is no footage of Rada getting on or off the horse or with the horse moving. Rada is certainly able to sit on the stationary horse without assistance, sitting astride what appears to be a not particularly comfortable wooden saddle. 7. A scene of a family meal with Chris at the head of the table and Rada on his right. The camera focuses on Rada. She has no difficulty feeding herself and while, again, she appears to be guarding her right hand, she uses it to hold what appears to be the spring onion that she is eating. There is a slight droop on the right side of her mouth, but it is difficult to assess its extent because she is chewing on food at the time. 8. A scene with Chris lying on a bed with someone, probably Rada, throwing clothes at him. The other half of that sequence shows Chris in a living room sitting on a sofa with his arm around a young relative. The young Maria sits at a table nearby with a female relative. At the very end of the sequence Rada comes in and is seen to be picking up a handful of bedding in both arms without any apparent difficulty.
Maria migrated to Australia in 1986 as a member of the Saravinovski family.
On 20 November 1986 George ceased his employment at the Sydney Stock Exchange.
Maria and George's Australian wedding took place on 23 November 1986. I have watched several extracts of video footage from that occasion, including: 1. The celebratory dancing in the rear of No 45, including George and Chris leading the dancing and then Chris giving cash to the musicians as the guests danced around them in a circle. At one point Rada joins the circle and appears to move without difficulty as the circle of dancers slowly turns around the musicians. 2. The food being served (plates of chicken and salad) in what the Court infers is No 45, by people who do not appear to be professional waiters. 3. Maria standing with Chris and another gentleman receiving gifts in what appears to be the front yard of No 45. 4. Chris and Rada making their official entrance at the wedding reception. Rada appears to walk normally and does not require any assistance. 5. General shots of the scene at the wedding reception. This includes a very large wedding cake comprising of two, three layer cakes side by side with a further three layer cake above those, resulting in nine layers. There is a top table with 14 or 16 people at it. There is a six piece band on a stage behind the main table and a large hall with many tables in it, although it is impossible to estimate how many people might be there. The camera does not pan across the entire room, but my estimate of what appears to be about two thirds of the room shows what could be up to 200 people. A total attendance of around 300 people is therefore possible.
Maria and George gave Chris and Rada two grandchildren: Belinda Saravinovska (born 1987) ("Belinda") and Bobby Saravinovski (born 1991) ("Bobby").
By transfer dated 23 November 1987 Chris and Rada purchased No 5, Kogarah Bay ("No 5") for $220,000 unencumbered. Mr Bryant acted for Chris and Rada. The auction advertisement for the property described it as "a magnificent location with potential for a two storey residence of exceptional views".
By transfer dated 12 February 1988, No 22 was transferred from George and Bill to Bill alone for a recorded consideration of $57,500. Bill and George appear to have signed the transfer which is also signed by Mr Bryant as Bill's solicitor. The transfer was registered on 12 March 1988. George admitted he did not receive any of that consideration. The Court cannot determine to whom (if anyone) the recorded consideration was paid.
On 10 March 1988 (registered 12 April 1988) Bill mortgaged No 22 under a seven year mortgage to the CSBA for $70,000. The Court cannot determine to whom (if anyone) any of these funds were paid.
Also by a mortgage dated 10 March 1988 and registered on 5 April 1988, George gave a seven year mortgage to the CSBA over No 14 to secure a $70,000 advance made to George and Maria. Maria acknowledged her and George's signature as mortgagor and debtor on the mortgage, but said that at that time she could not read English and that no one had translated or explained the document to her.
By a transfer dated 18 March 1988 Chris and Rada purchased No 414 for $220,000. The transfer is signed by Mr Bryant as their solicitor. By a mortgage dated 10 March 1988 over No 414 Chris (now described as retired) and Rada mortgaged that property to secure a $115,000 loan for six years to the CSBA. Both the transfer and the mortgage of No 414 were registered on 12 April 1988. No 414 is used as the premises of Chris Realty, a real estate agency operated at various times by different members of the Saravinovski family.
By discharge of mortgage dated 21 March 1988 and registered on 12 April 1988 the CSBA discharged the mortgage which George and Bill had given to it over No 22.
By discharge of mortgage dated 21 March 1988 and registered on 5 April 1988 the CSBA discharged the mortgage which Chris and Rada had given to it over No 428.
By an undated transfer but registered on 5 April 1988, Chris and Rada transferred No 14 (which was given as George's address) to George for recorded consideration of $120,000. The transfer is signed by Chris and Rada, with their signatures witnessed by Mr Bryant. Mr Bryant signed the transfer as solicitor for George. George admitted that he did not pay anything for the transfer to him of No 14.
On 17 February 1989 Bill mortgaged No 22 to St George for an unspecified amount. Bill's signature on the mortgage is witnessed by Mr Bryant.
On 17 April 1989 the CSBA discharged the mortgage which Bill had given it over No 22 on 10 March 1988.
A notice of assessment from the Australian Taxation Office ("ATO") records that George's taxable income for the year ended 30 June 1991 was $25,071.
Bobby was christened in 1991. I have watched several extracts from video footage of that event, including: 1. A long pan across the top table and a couple of tables of those attending. Maria is nicely dressed, wearing a hat and jewellery while holding Bobby. Chris and Rada sit next to her. Rada has aged considerably compared to how she appeared in the videos of George and Maria's wedding nearly five years before. 2. Two sequences of Rada dancing at the reception after the christening. The dancing consists of a reasonably slow rotation around the tables by a group of people holdings hands and moving sideways. While Rada certainly appears able to get up and keep up with the group, there are sections where she appears to be more pulled along than moving freely of her own volition. She appears to be an older and noticeably less mobile person than she was at George and Maria's wedding nearly five years before. 3. While Maria, George and Chris dance behind her, Rada sits at the top table holding the baby Bobby with no apparent difficultly. 4. Further dancing in which Rada participates with enthusiasm but still appears as though she is being more pulled along by Chris than anything else. Chris leads the dancing as the centre of attention, including very publicly taking out his wallet and waving it around and then depositing cash at the feet of the musicians on the stage behind the top table, before rejoining the dancing which is then led by Rada. She does appear to tire slightly as the dance comes full circle. She guards her right hand when it is not being used. The venue for the christening is smaller than the venue for Maria and George's wedding reception. Doing the best I can, it appears that the two tables at the back sat 16 people at each, there were also 10 tables of 8 people and a U-shaped top table that had approximately 20 people sitting around it. This gives a total attendance of about 130 people.
I have also viewed a recording of about 1 hour 20 minutes in length taken at Bobby's christening, extracts of which have been referred to in the preceding subparagraphs. Other than observing that in front of the official table there was a very large christening cake (about one metre long and 50 or 60 centimetres wide), only minor additional observations need to be made by virtue of viewing the whole tape to supplement particular observations made in the preceding subparagraphs. These are that George also goes up on stage at one point and somewhat ostentatiously gives cash to one of the musicians. Later Chris is again seen giving money to one of the musicians, as do other guests.
By a discharge dated 5 September 1991 the CSBA discharged Louie's mortgage (granted in 1985) over No 49.
On 6 September 1991 St George discharged its mortgage over Bill's property at No 22.
On 16 October 1991 the CBA discharged its mortgage over George's property at No 14.
The Court cannot determine the source of funds which brought about the discharges of mortgage referred to in the preceding three paragraphs.
On 12 May 1992 at Kogarah Local Court, Maria was convicted of false pretences and larceny and fined $200 on each charge.
An ATO notice of assessment records that George's taxable income for the year ending 30 June 1992 was $26,572.
In 1992 Bill married Marina Simonovska ("Marina") in Macedonia with a ceremony sometime in 1993 in Australia. The marriage lasted only about six months and they separated in mid-1993.
On 7 September 1992 Bill mortgaged No 22 to Chris and Rada, acknowledging receipt of the principal sum of $250,000. The document contains material omissions. There is no interest provision. The covenant for repayment is left blank. Bill's signature on the mortgage is witnessed by Mr Bryant. Chris signs the mortgage twice, once in his own right and once as attorney for Rada. By reason of the matters set out in paragraphs [133] to [137] and [144] to [153] below and the proximity of this mortgage to Bill's marriage, the Court infers that the mortgage was intended to be deployed against any future claims by Bill's wife.
In early 1993 Bill married Marina in an Australian ceremony.
There is in evidence a photograph of Rada and Chris arriving at Bill and Marina's wedding reception. There was much argument in these proceedings as to how ill Rada was on that occasion. The Court concludes that she was quite sick, not by reference to her appearance, but because the photo includes a woman who was identified as a nurse who had been retained to look after Rada. It is clear that family members, presumably Chris, thought that Rada was sufficiently ill that she might require a nurse at the festivities.
By transfer dated April 1993 Chris and Rada purchased Unit 3, Marrickville ("Unit 3") for $255,000 subject to a mortgage for $30,000 to the Commonwealth Bank of Australia (the "CBA"). The transfer was signed by Mr Bryant as solicitor for the transferees.
An ATO notice of assessment records George's taxable income for the year ended 30 June 1993 was $29,990.
Shortly before Rada died, Marina left Bill.
Rada died on 29 July 1993 at the age of 59. "Chronic renal failure years" is given as one of the causes of death on Rada's death certificate.
Rada was buried in a plot which is also intended for Chris. Chris arranged for the erection of a substantial headstone over her grave which included an extensive inscription which concluded "… Chris and his family: sons George, Bill and Louie, daughter in law Maria and grandchildren Belinda and Bobby". The Court concludes that it is a sign of the depth of the falling out within the family that sometime later (presumably after 2 December 2009) Chris arranged for a new headstone to be placed over Rada's grave, the inscription of which included "… Chris and his family" but all the individual names have been removed.
An invoice dated 21 December 1993 for a security system at No 5 is in evidence addressed to Chris and Louie care of Southern Sydney Real Estate at No 414.
An ATO notice of assessment records George's taxable income for the year ended 30 June 1994 as $35,726.
On 11 September 1994 George completed an ANZ Agents' Authority form authorising Chris to act on his behalf with ANZ.
On 28 June 1995 Chris sold Unit 3 for $319,000. Mr Bryant witnessed Chris' signature on the transfer.
An ATO notice of assessment records George's taxable income for the year ended 30 June 1995 as $33,795.
On 7 September 1995 KR & Sons Pty Limited ("KR&S") was registered. Its registered office and principal place of business was recorded as No 5. Chris, George, Bill and Louie were inaugural directors of the company. This accords with the company's name which was intended to represent "Kris, Rada and sons". The original shareholdings were Chris with 700 shares and each of George, Bill and Louie with 100 shares. When Bill and Louie ceased to be directors, it appears that they transferred their shares to Chris. George (now his estate) continues to hold 100 shares in KR&S.
On 3 November 1995 KR&S granted a fixed and floating charge to the CBA.
By transfer dated 22 December 1995 KR&S Pty Limited purchased shop premises at No 509, Rockdale ("No 509") for $520,000 subject to a mortgage of $364,000 to the CBA. Mr Bryant signed the transfer as solicitor for the transferee.
One of the pieces of video footage I have watched shows a meal at No 45 dated by the parties as 1996. Chris is sitting at the head of the table, which is filled with a very large quantity of food. Three guests are sitting at the table. They are relatives of Maria's. On the other side of the table are four dining chairs still in their plastic covers. George is taking the video. A very young Bobby and Belinda wander in and out of the shot. Maria comes into the picture to serve the guests. However, she is not sitting at the table. Despite the very large quantity of food, the table appears only to be set for Chris and the three guests.
The meal referred to in the preceding paragraph appears to have been during the day. There is also footage of a similarly set up meal with the same participants, but this time in the evening. Again, Chris and his guests sit at the table which is replete with food (although not as much as at the meal referred to in the preceding paragraph). At the end of the sequence Maria can be seen hovering near the kitchen. In a further sequence of the same meal, one of the children takes the camera and shows George and Maria standing by the table as Chris and the guests eat. Later, Maria can be seen sitting on a side table as the meal continues. The sequence ends with a young Belinda holding up to the camera a primary school merit certificate which she had won. She stands off to one side as Chris asks her "Do you love me for real or because I give you things or because I am your grandfather?". Belinda replies "I love my grandfather".
In January 1996 Bobby turned five. I watched some short footage of Bobby's 5th birthday in the garage at No 45. George was taking the video. Maria was at the table serving Bobby, Belinda and, seated on the other side of the table, Chris and Bill. Maria then sits down and has some food seated next to Bobby.
On 28 March 1996 Chris gave a mortgage over No 428. The mortgage was stamped to a value of $430,000.
At this point in the chronology it is necessary to refer to an unexplained document. The document is a mortgage over No 7, Kogarah Bay ("No 7") which, while largely incomplete as to its details, refers to the repayment of the principal sum on an unspecified date in 1996. The mortgage is signed by George and purports to acknowledge receipt of $180,000. The mortgagors are described as George and Bill. Chris is described as the mortgagee. Mr Bryant's firm is listed as the lodging firm.
Chris' affidavit evidence was he discovered this mortgage looking through bank packets at Mr Bryant's request. Chris could not explain the document. No 7 was not in fact purchased until 23 January 1998. The document is otherwise undated and George's signature is not witnessed. It was submitted for Maria that this document demonstrates mortgages being concocted and shows that George would sign whatever was put in front of him, especially if he was asked to do so by his father.
An ATO notice of assessment records George's taxable income for the year ended 30 June 1996 as $30,613.
Construction of No 5 took place in and about 1996.
When the extended family moved into No 5 there was a housewarming party on 27 January 1997. I was shown several pieces of video footage of the housewarming party and note the following: 1. The video made it clear that the house at No 5 is a very substantial home. From the street it presents as a two storey house, including a double garage on the ground floor level next to the main entrance door. There is a wraparound balcony supported by thick columns around the first floor facing the street. The upstairs balcony was festooned with bunting and some balloons. 2. The ground floor interior has terrazzo style flooring and what appears to be new, expensive timber and other furnishings in the living room and dining room, leading into a very large and well-appointed kitchen. There is a mix of what appears to be terrazzo marble tiling and also parquetry flooring. There is the central staircase that leads to the first floor. 3. From the rear, the house is a three storey home. The back garden, at the lowest level, has stairs leading down to it from the house. For the occasion of the housewarming, several long tables have been set up under a marquee seating 40 or 50 people on the lawn. There is a large amount of food and drinks on the tables and the barbeque is going in the background. Louie can be seen standing near the barbeque. George's voice can be heard on the tape explaining that he is making the video to be sent to relatives overseas.
As part of the housewarming, there is a lengthy sequence showing every room of the house and the members of the family being blessed by a Macedonian Orthodox archbishop. Chris leads the party up the central circular staircase so that the living quarters upstairs comprising several bedrooms can be blessed. There is an elaborate stained glass cupola in the roof above the staircase. Maria can be seen standing back respectfully as Chris leads the ecclesiastics through the house. Maria clears the table after the ceremony. Finally, at the end of the sequence Maria is seen carrying a large Kentucky Fried Chicken box and a plate of food back into the house from the outdoor area.
In 1997 Louie moved out of No 5.
Louie ceased to be a director of KR&S on 10 April 1997.
On 21 May 1997 Louie mortgaged No 49 to GIO Building Society Limited. The mortgage was stamped to a value of $160,000. Louie's address on the mortgage is given at a location in Hillsdale.
Bill's group certificate for the year ended 30 June 1997 in respect of his employment with St George Bank discloses a gross salary of $30,921.
An ATO notice of assessment records George's taxable income for the year ending 30 June 1997 as $34,680.
In August 1997, Mr Bryant as Chris' solicitor, attended to the filing of a caveat by Chris over No 49. The caveat claimed an interest pursuant to an unregistered mortgage between Louie as mortgagor and Chris as mortgagee dated 16 June 1997. This mortgage was called for during the course of the hearing but was not produced.
On 11 November 1997 Chris completed an authority with the Commonwealth Bank to operate the KR&S account. Chris was the sole authorised signatory for that account.
On 21 November 1997 Bill and George completed an ANZ Home Loan Application to purchase No 7. Their solicitor is listed as Mr Bryant. Both of them are described as living in the family home at No 5 and having previously lived for 30 years at No 45. Bill's occupation is given as a construction officer working for St George. George's occupation is given as a clerk working at Yellow Pages. The purchase price for No 7 is given as $460,000 with additional costs of $23,000. The application asserts that George and Bill would be providing their "own funds" of $183,000 and that they were seeking a loan of $300,000. In the section for disclosure of liabilities, no reference is made to Bill's 1992 mortgage to Chris over No 22 (see paragraph [78] above). Bill also acknowledged in cross-examination that, contrary to what was said in the loan application, he did not have cash savings at that time of anything like $360,000. Curiously, $360,000 is the sale price of No 45 (see paragraph [113] below).
With effect from 8 December 1997 George held a real estate agent's licence. The licence gave his address as No 14. It was submitted for Maria that the timing of this licence coincided with Louie leaving the family. It was said that Chris needed George to help with Chris Realty.
By transfer dated 22 December 1997 Chris sold the first family home at No 45 for $360,000. Mr Bryant witnessed Chris' signature on the transfer.
By transfer dated 23 January 1998 Bill and George purchased No 7 as tenants in common in equal shares for $470,000. The transfer is signed by Mr Bryant as solicitor for the transferees. The transfer still records Bill and George as living at No 45, notwithstanding that property had been sold a few weeks earlier. By a mortgage made on 29 December 1997 Bill and George mortgaged No 7 to the ANZ for $350,000. By reason of the proximity of this purchase to the sale of No 45, the Court finds that Chris provided the balance of the purchase price ($120,000) to Bill and George.
By transfer dated 20 May 1998 Louie sold No 49 for $274,000. Mr Bryant witnessed Louie's signature on the transfer.
On 20 May 1998 Louie (the "owner") and Chris (the "caveator") entered into a deed of release which included: WHEREAS The owner is the registered proprietor of property known as No 49, Rockdale being the whole of the land comprised in Certificate of Title Folio Identifier 27/7585 AND WHEREAS the caveator has claimed certain moneys to be owing by the owner to the caveator and has secured repayment of same by stamped mortgage executed by the owner and caveat registered 3319751 on the title of the said property AND WHEREAS the owner has denied liability for repayment of those moneys to the caveator AND WHEREAS the owner has claimed from the caveator and his associated family company K.R. & Sons Pty. Limited moneys owing from previous transactions and business operated as Southern Sydney Real Estate at Rockdale in the said State AND WHEREAS the owner is due to complete a Contract for the sale of the said property, No 49, Rockdale AND WHEREAS the parties have reached agreement as to the distribution of payment of the balance of sale proceeds and for the withdrawal of the said caveat. … 4. In consideration of the withdrawal of the said caveat, the owner hereby acknowledges as follows:- (a) The owner shall have no further claim against the caveator or members of the caveator's family nor the Company K.R. & Sons Pty. Limited nor the said business Southern Sydney Real Estate; (b) The owner shall not claim further moneys to be advanced by the caveator's family, the said Company or the said business; (c) The owner shall indemnify and keep indemnified the caveator, the caveator's family and K.R. & Sons Pty. Limited for any claim that the owner may make for moneys claimed to be due to the owner. (d) The owner has received $100,000.00 from the caveator and this sum is in full settlement of any claim the owner has against the caveator, the caveator's family, K.R. & Sons Pty Ltd and future claims against the caveator's estate.
An ATO notice of assessment records George's taxable income for the year ended 30 June 1998 as $36,098.00.
On 21 April 1999 St George discharged its mortgage over Chris' property at No 428.
George's tax return for the year ending 30 June 2000 discloses PAYE income from employers such as Red Rooster of $33,391, gross income for Chris Realty of $30,120 (which after expenses was $3,603) and records Maria's taxable income for that year as $4,700.
A group certificate from Chris Realty for the year ended 30 June 2000 in respect of Maria records her income as being $12,000. George admitted this group certificate was false and had been produced by him to assist Maria in a personal injury claim (see paragraph [497] below).
By discharge of mortgage dated 9 August 2000 Chris and Rada, whose signatures were witnessed by Mr Bryant, discharged the mortgage which had been given to them by Bill over No 22. However, the discharge was never registered. Chris appears to have signed this discharge twice and his signature is witnessed by Mr Bryant.
George's tax return for 30 June 2001 discloses PAYE income (primarily from Red Rooster) of $46,905, gross income from Chris Realty of $28,100 (which after expenses yielded net income of $2,954) and records Maria's taxable income for that period as $2,990.
A document signed by George on Chris Realty letterhead purports to record that for the 12 months ending 30 June 2001 "Mary Saravinovska whilst employed as a Receptionist for the period has earned $31,200 gross wages".
As with the group certificate referred to in paragraph [120] above. George admitted that this document had been concocted by him (see paragraph [497] below).
On 10 December 2001 Maria suffered an accident (the "2001 accident"). Maria was disembarking from a bus on her way to Rockdale Plaza. Her right foot was caught for a few minutes by the closed bus door. While her left leg remained on the ground, her right leg was trapped. She suffered injuries to her foot and lumbar spine. She was first given physiotherapy treatment on 24 December 2001.
On 21 December 2001 Bill, describing himself as office manager of Chris Realty, signed a letter on the business' letterhead "To whom it may concern" stating that "Mary Saravinovska of No 5 is employed by Chris Realty for 40 hours per week. Mary's wage is $600 gross per week." This is also a false document produced by Bill for the purposes of Maria's personal injury claim arising from the 2001 accident. The Court rejects as a completely implausible fabrication Bill's evidence that he relied on George for the veracity of that statement (see paragraph [525] below).
In a motor vehicle personal injury claim form completed by Belinda and Maria verified by Maria's statutory declaration made on 27 December 2001, Maria said she was employed 40 hours per week at Chris Realty as a receptionist with usual weekly earnings of $600. Bill was the contact person at Chris Realty which Maria gave to her doctor. That statement about her employment and earnings was false.
By discharge of mortgage dated 11 January 2002 the CSBA discharged the mortgage which it had over No 414.
On 2 April 2002 a consultant orthopaedic surgeon (Dr Guirgis) gave Maria an initial medical certificate stating that she was unfit for work from 2 April 2002 to 2 May 2002 "due to back and right foot injuries".
On 11 April 2002 a Motor Accidents Authority ("MAA") physiotherapy treatment review notes that Maria gave her current work status as "not return to work" and describes her current functional status as "unable to do home duties e.g. cleaning".
On 24 June 2002 the CTP insurer approved an initial 10 hydrotherapy sessions for Maria.
In 2002 Bill married his second wife, Valentina Josifova ("Valentina"). They have two children: Christopher (born in 2002) and Stephen (Born in 2007).
On 24 June 2002 Mr Bryant wrote to Bill at No 7 (although there was no suggestion Bill was living there at the time): Re: Proposed prenuptial agreement and title information We prefer to previous correspondence and advise that we have now obtained title searches for the property at XXX Street and Kogarah Bay. The title search for [22] XXX Street indicates that the mortgage to both your parents is still on the title. We originally thought that the Commonwealth Bank was to discharge those mortgages but that mortgage is still in place. You might need to make some further enquiries about that situation. In relation to the Kogarah Bay property (No 7), this is held with your brother George in equal shares as tenants in common. There is also a mortgage to ANZ Bank on the title of that property. We will await your further instructions regarding the above.
George's tax return for 30 June 2002 discloses gross PAYE income (primarily from Red Rooster) of $36,740, gross income from Chris Realty of $42,240 (which after expenses yielded net income of $5,800) and no longer records Maria's taxable income.
In a fax sent on 19 July 2002 to an unnamed recipient but which the Court infers to have been Mr Bryant, Bill wrote: I have spoken to Valentina Josifova (she will be my partner). She said she would be prepared to sign any documents to state that she has no interest in No 22, Rockdale, No 7 Kogarah Bay or any assets owned KR&S No 509 Rockdale. She acknowledges that she has not contributed to any of these properties nor has she any rights to them in the future. Valentina's address is the same as mine which is No 5 Kogarah Bay. Could you please have a look at drafting a statement to that effect by her.
In a document apparently signed by her on 24 July 2002, Valentina states: I Valentina Josifova of No 5 Kogarah Bay accept that I have not contributed nor have any claims over the assets now or in the future over No 22, Banksia or No 7 Kogarah Bay. I have no claims against any assets or shares owned by KR&S now or any claims in the future. Bill Saravinovski had these assets prior to our relationship and has paid all my living expenses.
On 26 July 2002 Mr Bryant wrote to Bill at No 5 enclosing a deed of acknowledgement for Valentina to sign, substantially to the same effect as the document reproduced in the preceding paragraph. The property referred to in the draft deed is No 22, No 7, and shares in KR&S. Maria and George submitted that this represented the entirety of Bill's then assets.
On 13 August 2002 the CTP insurer approved payment for a three month gym program as part of Maria's rehabilitation.
There is in evidence a series of bank statements for George's passbook account commencing on September 2002 to May 2010. A table was provided to the Court of some of those records between 2004 and 2009 indicating withdrawals from George's account made by Chris and those made by George to the extent withdrawal slips were available. An analysis of that is revealing. Over that period of time, Chris withdrew a total of $63,206 from George's account and George withdrew $261,245 from his account. However, those totals are misleading in the sense that in each of those years Chris made more withdrawals than George, particularly in 2007, 2008 and 2009. For example, in 2008, Chris made 43 withdrawals (totalling $17,150) and George made 10 withdrawals (totalling $32,226). George's total figure is higher owing to several large single withdrawals such as $32,000 in 2006, $35,700 in 2007, $27,000 in 2008 and the withdrawal of $111,061 in 2009.
On 6 November 2002 Bill ceased to be a director of KR&S.
On 27 April 2003 Chris was involved in a motor vehicle accident in respect of which he made a third party claim ("Chris' accident"). According to the particulars of his claim (prepared by the same solicitors who had acted for Maria in relation to her claim), Chris had been left with 46 different disabilities.
George's tax return for the year ending 30 June 2003 discloses gross PAYE income (all from Red Rooster) of $34,523 and gross income from Chris Realty of $8,025 (with a net loss after expenses of $9,429).
Chris' tax return for the year ending 30 June 2003 discloses total taxable income of $30,722. This comprised his "main salary" as a clerk paid by KR&S of $7,500, Commonwealth superannuation of $12,937, net rental from No 428 of $9,665 and $620 interest from ANZ and CBA.
On 7 July 2003 Bill and George signed a mortgage over No 7 in favour of Chris said to secure an indebtedness of $1,000,000 (the "2003 Mortgage"). This is the mortgage on which Chris sues George. The 2003 Mortgage was duly stamped on 4 September 2003.
Both Bill and George acknowledged in evidence that the 2003 Mortgage bore their signatures. Those signatures were witnessed by Mr Bryant. The form also had provision for Mr Bryant to sign as the mortgagee's solicitor, although the copy in evidence is unsigned for the mortgagee.
The 2003 Mortgage incorporates an annexure. The annexure contains material omissions which are reproduced in what follows (handwritten insertions appear in italics): ANNEXURE A ANNEXURE TO MORTGAGE DATED FROM CHRIS SARAVINVOSKI TO BILL SARAVINOVSKI and GEORGE SARAVINOVSKI The mortgagor hereby acknowledges receipt of the principal sum of One Million Dollars ($1,000,000.00) and in consideration thereof hereby:- … (b) Covenants with the mortgagee as follows:- Firstly - The mortgagor will pay to the mortgagee the principal sum, or so much thereof as shall remain unpaid, on the 7th day of JULY 2008 Secondly - The mortgagor will pay interest on the principal sum or on so much thereof as for the time being shall remain unpaid, and upon any judgment or order in which this or the preceding covenant may become merged, at the rate of 8 per centum ( %) per annum as follows, namely - By equal quarterly payments on the days of the months of in each and every year until the principal sum shall be fully paid and satisfied, the first of such payments computed from the day of to be made on the day of next; Provided always, and it is hereby agreed and declared, that if the mortgagor shall on every day on which interest is hereinbefore made payable under this security, or within fourteen days after each of such days respectively, pay to the mortgagee interest on the principal sum or on so much thereof as shall for the time being remain unpaid at the rate of 6 per centum (6%) per annum, and shall also duly observe and perform all and every the covenants on the mortgagor's part herein contained or implied then the mortgagee shall accept interest on the said principal sum or on so much thereof as shall for the time being remain unpaid at the rate of per centum ( %) per annum in lieu of per centum ( %) per annum for every quarter for which such interest shall be paid to the mortgagees within such fourteen days as aforesaid.
It is George's case that he never received $1,000,000 from Chris. There was no real dispute that Mr Bryant had been involved in arriving at the figure of $1,000,000.
Also by a mortgage executed on 7 July 2003 Bill mortgaged No 22 to Chris ("Bill's New Mortgage"). Like the 2003 Mortgage, Bill's signature is witnessed by Mr Bryant. However, notwithstanding provision for Mr Bryant to sign on behalf of the mortgagee, the copy in evidence is unsigned by the mortgagee. This mortgage also incorporates Annexure A, which is in the same terms as Annexure A to the 2003 Mortgage, with three important differences. First, the amount acknowledged as being received by Bill is $600,000. Second, the covenants in relation to the date for repayment and for interest are completely blank, so that they appear as: Firstly - The mortgagor will pay to the mortgagee the principal sum, or so much thereof as shall remain unpaid, on the day of Secondly - The mortgagor will pay interest on the principal sum or on so much thereof as for the time being shall remain unpaid, and upon any judgment or order in which this or the preceding covenant may become merged, at the rate of per centum ( %) per annum as follows, namely - By equal quarterly payments on the days of the months of in each and every year until the principal sum shall be fully paid and satisfied, the first of such payments computed from the day of to be made on the day of next; Provided always, and it is hereby agreed and declared, that if the mortgagor shall on every day on which interest is hereinbefore made payable under this security, or within fourteen days after each of such days respectively, pay to the mortgagee interest on the principal sum or on so much thereof as shall for the time being remain unpaid at the rate of per centum ( %) per annum, and shall also duly observe and perform all and every the covenants on the mortgagor's part herein contained or implied then the mortgagee shall accept interest on the said principal sum or on so much thereof as shall for the time being remain unpaid at the rate of per centum ( %) per annum in lieu of per centum ( %) per annum for every quarter for which such interest shall be paid to the mortgagees within such fourteen days as aforesaid.
Third, Annexure A is not signed by anyone on behalf of either Bill as mortgagor or Chris as mortgagee.
In evidence in the Court Book with the 2003 Mortgage and Bill's New Mortgage there is also an undated discharge of mortgage over No 22. That refers to the registration number of the mortgage initially for $250,000 which Bill gave Chris and Rada in 1992 (see paragraph [78] above). Because of the similarity of the forms and the typefaces on all three documents, the Court has no hesitation in inferring that this discharge of mortgage was prepared at the same time as the 2003 Mortgage and Bill's New Mortgage. This discharge is undated but signed by Chris and witnessed by Mr Bryant.
The 2003 Mortgage was stamped on 4 September 2003. Bill's New Mortgage was also duly stamped on that day. However, the receipt from the Office of State Revenue refers to "a previous amount" of $250,000 and a "new amount" of $600,000 and refers to a "refinance". That treatment of Bill's New Mortgage follows from a statutory declaration which Mr Bryant swore on 27 August 2003, obviously for the purposes of stamping: 1. I am the Solicitor for Bill Saravinovski the mortgagor named in Mortgage dated 7th July 2003 for a consideration of $600,000.00. 2. I confirm that the said Mortgage lodged herewith for stamping is partly the refinancing of a balance outstanding under an existing loan security ("the previous loan security"). 3. The previous loan security was secured by a Mortgage registered number XXX from the said Bill Saravinovski to Chris Saravinovski and Rada Saravinovski as mortgagees securing an advance of $250,000.00. A copy of the said previous loan security Mortgage document is attached hereto. 4. The advance made under the refinancing is secured by the Mortgage between Bill Saravinovski and Chris Saravinovski lodged herewith for a loan consideration of $600,000.00. 5. The property used as security for the previous loan security is identical with the property used as security for the advance made under the refinancing namely the land comprised in Certificate of Title Folio Identifier XXX being property known as No 22, Rockdale. 6. The borrower named in the previous loan security, namely Bill Saravinovski, is identical with the borrower named in the refinancing. 7. Rada Saravinovski, one of the mortgagees named in the previous loan security, died on the 29th July, 1993; Chris Saravinovski, the mortgagee named in both the previous loan security and the Mortgage for the refinancing, is the surviving joint tenant of the said Mortgage. 8. The maximum amount secured under the refinance loan security is $600,000.00.
On 11 September 2003 Mr Bryant wrote to "Messrs C, B and G Saravinovski, c/ Chris Realty, No 414". That letter includes: We confirm that we have now completed the stamping procedures for the two mortgages referred to above. In relation to the property at No 22 a total of $1,400 stamp duty was paid to secure a refinance in the sum of $600,000. This was the duty payable after allowing for the earlier mortgage of $250,000 which this supersedes. In relation to the mortgage over No 7 this was stamped at a value of $1,000,000 with stamp duty payable in the sum of $3,941. We enclose herewith copies of the stamped mortgages, the originals of which will be placed in a safe custody packet pending receipt of further instructions. These mortgages can be registered on the title of both properties if you wish. However, this will require the consent of the current mortgagees and you will need to let us have your further instructions if you wish to take that step. However the mortgages are valid as far as any court proceedings are concerned and would be treated a (sic) evidence of the legitimacy of the loan should that ever become necessary.
This letter is significant for three reasons. First, it refers to what was done in relation to No 22 as a "refinance". Second, it refers to the mortgage over No 7 being stamped "at a value" rather than referring to a contemporaneous advance. Third, the last sentence quoted puts beyond doubt that the mortgages were entered into with an eye to future court proceedings and to be evidence of the "legitimacy" of "the loan", although it is difficult to identify exactly to what "the loan" is intended to refer.
In a report dated 30 December 2003 addressed to Maria's personal injury solicitor, a consultant orthopaedic surgeon concluded: The patient remains unfit for activities that would require applying stresses to the spine and right leg. She is in need for home help with the heavier type of home chores on a 3 hour/day per day, 3 days/week basis.
In a report dated 12 January 2004, an orthopaedic surgeon retained by the CTP insurer in relation to the 2001 accident recorded: WORK HISTORY I note that she worked as a receptionist in a Real Estate office at the time I last saw her and she was working at the time but she informs me that because of ongoing and increasing symptoms she had to stop work about six months ago and has not worked since then. She is not looking for work at the present time. … Ms Saravinovska's husband informs me that the treating specialist has told him that she needs an operation to "re-set her spine" and that the "disc is broken and that there is a problem with her nerves".
Bill's son Christopher Jnr was christened in March 2004. I have reviewed several extracts of a video of the christening and reception. This included: 1. Chris walking around the church followed by Bobby, Belinda and a well-dressed Maria; 2. Maria helping to change Christopher Jnr after the christening; 3. Chris making a formal entry to the post-christening reception accompanied by George, Maria, Bobby and Belinda; 4. Chris leading the dancing at the reception with Maria and Belinda also dancing in the line while George holds the young Christopher off to one side.
Chris is always very much taking a leading role at the centre of things, clearly the head of the family. He appears to be suffering no physical impediments whether caused by Chris' accident or otherwise.
On 20 April 2004 George completed another authority enabling Chris to operate the former's account with ANZ.
On 23 April 2004 Bill, describing himself as "Office Manager - Chris Realty" wrote to Maria's personal injury solicitors. That letter included statements that "Mary started her employment 4/2/2000" and "ceased working 2/7/03 (please note that since the accident she had been a (sic) restricted light duties calling into the office for few hours a day) her income was reduced due to the accident". That letter was a fabrication by Bill (see paragraphs [126] above and [525] below).
On 13 May 2004 Maria's solicitors arranged for her to see another doctor concerning her injury. That doctor records Maria as saying (and the Court finds she said): Restriction of Activity She is no longer able to do household duties as normal. She is not able to do heavy lifting, cleaning, bending. She relies on her daughter's assistance to do the vacuuming. In the kitchen she is unable to do any heavy work.
On 19 May 2004 Maria saw a consultant psychologist, who recorded Maria as saying (and the Court finds she said): Mrs Saravinovska stated that her life was significantly changed by the effects of the accident. She stated that she could not carry out many of the activities and chores that she used to do prior to the accident, for example: self-care and dressing, cleaning, gardening, washing, cooking, hanging the laundry, carrying heavy shopping bags, prolonged sitting or standing or driving or walking, and social outings.
On 4 June 2004 Maria saw a rehabilitation specialist for the purposes of an MAA assessment. The doctor's report of that attendance records Maria as saying (and the Court finds that she said): She commenced full-time employment as an Office Administrator/Property Officer with "Chris Realty" in the year 2000 but resigned from this position in July 2003 and has not undertaken any further formalised employment since that time.
On 29 June 2004 Maria saw a psychiatrist for the purposes of the MAA assessment. The psychiatrist's report records (and the Court finds Maria said): Mrs Saravinovska was employed on a full time basis as a Secretary in a Real Estate Agency at Rockdale. She worked there over a four-year period until 11 months ago. … Further, Mrs Saravinovska is tearful when she thinks about her predicament. She noted that she cannot look after her family to her satisfaction and she relies upon her daughter for help with ordinary household chores such as making the bed, cleaning and dusting as well as cooking. Mrs Saravinovska exclaimed "What can I do?".
George's tax return for the year ending 30 June 2004 discloses gross PAYE income (all from Red Rooster) of $41,346 and gross income from Chris Realty of $28,510 (which after expenses yielded net income of $3,404).
Chris' tax return for the year ending 30 June 2004 discloses gross taxable income of as $41,594 ($9,750 from KR&S; $13,328 from Commonwealth superannuation; $14,211 net rental from No 428; $4,288 interest from ANZ and CBA).
On 24 March 2005 an MAA medical assessment service report in relation to Maria records her as saying (and the Court finds she said) that "she now requires assistance with housework" and that "Mrs Saravinovska was working as a full time Real Estate secretary at the time of the accident". The various statements attributed to Maria in the preceding paragraphs made to the medical professionals were false (see generally as to Maria's credit paragraphs [474] and following below).
On 17 June 2005 ANZ discharged its mortgage over No 7. The Court infers from that the mortgage sum of $350,000 plus interest was repaid over the seven year life of the mortgage but cannot determine by whom it was paid.
On 25 June 2005 Bill wrote to Chris' solicitors in connection with Chris' claim arising from Chris' accident. The letter included: Chris was employed for 40 hours a week prior to the accident and was paid a listing fee of 20% on any properties he would list for Sale. Should Chris sell the property he was paid 50% of the selling fee (which includes the listing fee) our office would charge. Chris would also be paid 50% of any leasing fees our office would get on any leasing transactions he acted on. Payment would be made to Chris or to his company KR&S at the end of the transaction. The Court has serious doubts about the truth of anything in this letter (see paragraph [519] below).
George's tax return for the year ending 30 June 2005 disclosed gross PAYE income (all from Red Rooster) of $54,311 and gross income from Chris Realty of $17,029 (a loss after expenses of $19,751).
Chris' tax return for the year ending 30 June 2005 discloses gross taxable income of $48,960 ($12,000 from KR&S; $13,616 from Commonwealth superannuation; $13,302 net rental from No 428; $9,644 interest from ANZ and CBA).
On 7 July 2005 Chris underwent a daily living assessment in the presence of George in connection with Chris' insurance claim arising from Chris' accident. Again, the Court has serious doubts about the reliability of what Chris is recorded as saying in this document. The report records (and the Court finds that Chris told the assessor): Current Activities Mr Saravinovski reported he struggles to remain independent. He continues to perform paper work and activities in the real estate office owned by his son. He no longer takes clients to view property. He attempts to perform his own personal cares (sic) but occasionally requires assistance from his son and granddaughter. He attempted to perform some property maintenance but found he was unable to due to the pain and restricted movement in his neck and shoulder. He relies heavily on his son and granddaughter for assistance with domestic tasks. He continues with his presidency of the community dance group but is unable to travel with them to festivals and competitions as he did in the past. He reported being very frustrated about his situation. … Pre-injury status Mr Saravinovski reported independence in all activities of daily living prior to his accident. He described himself to be an active, outgoing person. He worked full-time in the family real estate business. He owned several properties on which he did his own maintenance, including climbing ladders to reach high areas. He was involved in community activities and was president of a Community Dance Group for which he had received a citizenship award. He drove independently without restrictions. He cleaned and washed his car weekly and polished it every three months, as he thought it was important in his business to have a well-presented car. He reported he was responsible for all home maintenance, gardening and mowing. He did his own laundry and ironing and cleaned his own room and ensuite. He assisted his daughter in law with the family grocery shopping and house cleaning when he was able to as his daughter in law had been injured in an accident three years prior to his and could not perform more domestic duties for their very large home by herself. He took great pride in the family home as he and his wife had spent many years designing it and planning for it prior to her death.
Between 14 and 22 July 2005 Maria was hospitalised at St George Hospital suffering from chronic low back pain. The discharge summary records: Mrs Saravinovska is a 38 year old woman who presented to St George Emergency with low back pain radiating down both legs. She has had chronic back pain since 2001 following minor trauma, but had experienced an acute exacerbation. She was admitted for bed rest and analgesia.
There is in evidence a rent receipt book which demonstrates that between 23 July 2005 and 30 September 2006, Maria collected fortnightly rental payments from the tenants of No 7. The receipt dates do not match with deposits into either George's bank account or Maria's bank account that is in evidence. The payments were in cash and do not appear to have been banked.
On 3 October 2005 Belinda signed a statement in connection with Maria's 2001 accident.
On 3 October 2005 George gave a statement in relation to Maria's 2001 accident.
There is a document dated 8 November 2005 addressed to George congratulating him on receiving the Red Rooster Shield of Excellence. George admitted that he forged this document.
On 14 December 2005 Bill provided a signed statement in connection with Chris' claim arising from Chris' accident. Again, given what the Court has found to be Bill's production of false documents, the Court has serious doubts about the reliability of what is said in this document. In his statement, Bill describes himself as "senior salesman with Chris Realty, progress payments officer with St George Bank". His statement includes (emphasis added): Over the past twenty years I have worked as a real estate agent and I also work with the St George Bank. I have been a counselor (sic) for Rockdale Council for the last 23 years and I am currently the Deputy Mayor. I am married and have an infant son. My family and I reside in the family home with my father Chris Saravinovski and my brother Bill and his family [this is clearly an error and should read "George"]. … As far as I can recall, my father has always worked and we have worked together in the family business since Chris started operating. The real estate agency "Chris Realty" is operated by my father, my brother George and myself. My brother George is the licensee. In addition to working in the family business I am also employed by St George Bank as a progress payments officer. I have been with the bank for over twenty years. I usually work in the real estate office Mondays to Fridays between 1-2 pm and Saturdays from about 8.30am to 7.00pm. I occasionally work on Sundays from about 9.00 to 1.00pm. … The real estate business survives from its long term clients for whom we handle rental properties. We ceased the rent roll in about 1998 and retained only a few long term clients who have between 5-6 properties. The business is usually by way of referral and walk in clients requesting to buy or rent a particular area. We therefore do a letter box drop to obtain a property which we may list and show. … At home my father essentially maintained the garden. He mowed the lawn and also mowed the lawn next door. He maintained the vegetable garden which he shared with my sister in law Mary … Inside the home my sister in law Mary used to do most of the cleaning. However my father with help her with dusting, cooking and weeding which he did manually as he did not like to use weed killers. He also did his own maintenance and I do not recall ever having the need to call a tradesman to work around the home. He constructed the shed, he would do his own carpentry work, concreting, guttering and painting. He essentially is a "Jack of All Trades".
There is in evidence bank statements for Maria's account with the Commonwealth Bank between 3 January 2006 and 15 January 2011. This shows regular credits into the account from Red Rooster. Those payments appear to be, with only a handful of exceptions (e.g. a deposit of $15,000 on 15 June 2010 which was withdrawn on the same day), the only source of payments into that account. By reference to the payees recorded in the account such as Coles, 7Eleven, McDonalds, Lowes, Priceline and the like, the Court infers that Maria met ordinary personal expenses from that account.
On 6 April 2006 Maria saw the CTP insurer's doctor. That doctor's report (which the Court finds accurately records what Maria told the doctor) includes: At the time that I assessed her, she said that she was reliant on her husband's wages. In addition to working as a real estate agent, he also works as a store manager at a restaurant … Mrs Saravinovska's history seemed to me to be medically implausible. She continually conveyed a sense that she was exaggerating and embellishing her difficulties. This made the interpretation of her symptoms extremely difficult. … At the time that I examined Mrs Saravinovska, she complained of a number of symptoms of depression. She also said that she was very fearful about buses and would cry every time a bus drove past. I found the latter symptoms to be medically difficult to explain.
On 13 April 2006 George withdrew $32,000 from his ANZ passbook account. It is said this went into his V2 account.
A deed of release made on 19 May 2006 records a payment by the CTP insurer to Maria of $150,000 in respect of the 2001 accident. Maria's solicitor's trust account ledger shows that, after payment of costs and disbursements, Maria received $84,402.05 from the settlement. Maria says she spent this on a family trip to Macedonia and otherwise on herself and her family.
On 28 June 2006 there is a withdrawal of $6,000 from George's passbook account he said related to a trip to Macedonia.
On 30 June 2006 the CBA discharged the mortgage which KR&S had given over No 509.
On 30 June 2006, Maria opened a cash investment account with the Commonwealth Bank of Australia ("CBA") with her CTP insurance payment.
George's tax return for the year ending 30 June 2006 discloses gross PAYE income (all from Red Rooster) of $45,837 and gross income from Chris Realty of $10,900 (which after expenses yielded net income of $586).
Chris' tax return for the year ending 30 June 2006 discloses gross taxable income of $50,976 ($4,407 from KR&S; $13,979 Commonwealth superannuation; $18,346 net rental from No 428; $13,650 interest from ANZ and CBA).
On 11 July 2006 Maria withdrew $16,000 from the proceeds of her CTP insurance payment. There is no independently verifiable evidence as to what occurred to the balance of $68,554.67.
On 20 November 2006 there is a withdrawal of $11,000 from George's passbook account which he said was for the purchase of a car.
On 28 April 2007 Chris was involved in a motor vehicle accident in respect of which he made a third party claim. Chris' version of events was that the other car reversed into his vehicle. The insurer denied liability, suggesting that it was Chris who had "rear ended" the other vehicle. Chris' third party claim arising from the accident was rejected because the insurer accepted the other driver's version of events. It is notable that while Chris' claim form (which was completed by Bill) asserted various injuries, there was evidence from the St George Hospital Emergency Department that examination of Chris on the day of the accident disclosed no injuries. In the employment details section of the claim form it stated that Chris was in the full time employment of Chris Realty, usually working 50 hours per week. Again, the Court has serious doubts about the truth of anything Bill produced for Chris in connection with this incident.
George's tax return for the year ending 30 June 2007 discloses gross PAYE income (all from Red Rooster) of $52,496 and gross income from Chris Realty of $18,172 (which after expenses yielded net income of $328).
Chris' tax return for the year ending 30 June 2007 discloses gross taxable income of $72,409 ($11,482 from KR&S; $14,466 from Commonwealth superannuation; net rental of $25,902 from 242 Princes Highway; $20,141 in interest from ANZ and CBA).
On 18 July 2007 there was a withdrawal from George's passbook account of $20,200.
On 9 November 2007 Mr Bryant wrote to Bill concerning what was described as a "proposed transfer of title" in relation to No 7: 9 November, 2007 Mr Bill Saravinovski … RE: No 7, KOGARAH BAY - PROPOSED TRANSFER OF TITLE We have been consulted by Mr Chris Saravinovski, your father, regarding a proposal for a transfer of title in the above property. We understand that there have been some discussions between you, your brother George, and Mr Saravinovski regarding this transfer. Mr Saravinovski tells us that the proposal is for George to purchase your half share in the property which is currently owned by both of you equally. In detail the proposal is as follows:- 1. There is a current valuation of the property which indicates a figure for stamp duty purposes in the sum of $650,000.00. 2. Mr Saravinovski believes that the market value of the property would be in the order of $750,000.00; 3. The suggestion is that George pay to your father the sum of $200,000.00 in reduction of the various loans that he has made to both of you in respect of this property and other properties; 4. George would pay you a balance of $275,000.00 which represents your half share in the equity of the property once Mr Saravinovski's loan has been reduced by $200,000.00. If you agree with this proposal we can prepare the necessary Transfer documents from you to George with George arranging payment of stamp duty for the value of the share being transferred which will be shown as $325,000.00. We assume that George will also obtain bank finance to proceed with the purchase from you.
It was submitted for George and Maria that this letter demonstrated that George and Bill were pawns in Chris' hands. This was said to be evidenced by the following matters. It was curious that Chris was consulting Mr Bryant about dealings in the property ostensibly owned by Bill and George. The proposal is an uncommercial one because George is being asked to pay $475,000 for a half share worth, on Chris' stated view, less than that. No mention is made in the letter concerning the discharge of the 2003 Mortgage which Bill and George had given in 2003 to Chris over No 7 (see paragraphs [144] and following above). It might be expected that such a proposal would include, at least, Bill being discharged from his liability to Chris under that mortgage as part of the proposed transaction. The letter makes no mention of repaying the $1,000,000 which is the subject of the 2003 Mortgage and there is no reason why should George be paying $200,000 for loans made to both him and Bill.
George's tax return for the year ending 30 June 2008 discloses gross PAYE income (all from Red Rooster) of $68,272 and gross income of $16,183 from Chris Realty (which yielded net income of $967 after expenses).
Chris' tax return for the year ending 30 June 2008 discloses gross taxable income of $71,568 ($36,758 from interest from ANZ and CBA; $34,567 net rental from 242 Princes Highway; nothing from superannuation or KR&S).
In 2009 Louie married Cathy Taylor ("Cathy"). Their twins, Nicholas and Alexander, were born in November 2009.
On 16 March 2009 George opened a Streamline E-access Account with the CBA. Statements were in evidence for the period from 16 March 2009 to 30 April 2012. With the exception of a deposit on 20 April 2012 of $6,000 the account rarely had more than a few hundred dollars in it and appears to have been used for ordinary personal items.
On 3 May 2009, George was present during a robbery at Red Rooster, where he had worked for the previous nine and a half years.
George's tax return for the year ending 30 June 2009 discloses gross PAYE income (all from Red Rooster) of $59,211 and gross income of $8,150 from Chris Realty (yielding a loss of $7,858 after expenses).
Chris' tax return for the year ending 30 June 2009 discloses gross taxable income of $104,234 ($15,472 Commonwealth super; $48,757 net rental from No 428; $39,821 interest from ANZ and CBA).
On 24 July 2009 Mr Bryant wrote to George, Bill and Chris care of Chris Realty concerning the transfer of title on No 7: We have received the updated Valuation Report for the above property. The valuation, as you were aware, is $650,000. We have now prepared a Transfer for execution by both George and Bill to transfer title out of the two names into George's name alone. The consideration expressed in the Transfer is $325,000, which is the value of the half being transferred. Stamp duty will need to be paid on that value, which we estimate to be $10,135. A copy of the Transfer prepared by us is now being sent to the ANZ Bank, as instructed. We look forward to your further instructions regarding the payment of funds and any other documents that need to be executed by the three of you to give effect to the proposed Transfer.
On 21 August 2009 George's passbook account shows a deposit (said to be from his V2 investment account) of $114,146.95. This is withdrawn on the same day in the sum of $111,051. George said this was for the purchase of Bill's interest in No 7 and the money was paid to Chris. The Court accepts that evidence as correct because it is corroborated by what appears in the next paragraph.
Mr Bryant's trust ledger concerning the transfer in title to No 7 was in evidence. It records the client as being Chris. The ledger refers to $111,051 being received on 21 August 2009 from George "A/C stamp duty and purchase money on TSFR". It goes on to record a disbursement on 24 August 2009 of $10,135 to the Office of State Revenue on account of stamp duty and a payment on 27 August 2009 to Chris of $100,906 described as "A/C amount due".
Settlement in relation to the change of ownership in No 7 took place on 25 August 2009. The transfer recites a consideration of $325,000 to Bill. However, George gave a mortgage over No 7 to ANZ securing an advance of just under $375,000. Mr Bryant's letter of 24 August 2009 directs that the mortgage advance be paid as follows: 1. Bank cheque in favour of Bill $275,000. 2. Bank cheque in favour of Chris $99,094.
Copies of those cheques are in evidence. In addition, there is in evidence a cheque dated 27 August 2009 from Mr Bryant's trust account in favour of Chris for $100,906. In other words, on settlement Chris received $200,000 from George. The mortgage to ANZ remains on the title of No 7. Mr Bryant signed the transfer as George's solicitor.
In September 2009 George suffered a stroke and was hospitalised for two weeks.
On 2 September 2009 contracts were exchanged for the purchase of No 11, Liverpool ("No 11"). The purchaser on the contract was originally described as Chris. However, on the copy of the contract as exchanged, the word "Chris" had been deleted and "Louie" substituted by hand. A few days earlier, Mr Bryant had written to the vendor's solicitors saying: We thank you for your letter of 24 August and have obtained our client's further instructions. Our client wishes to proceed in the name of Louie Saravinovski as part of the private arrangement with the family. Can you please amend your contract to reflect this.
On 8 September 2009 George resigned from Red Rooster citing his ongoing physiological and psychological problems arising from his being present at the robbery in May 2009 (see paragraph [199] above).
On 11 September 2009 Mr Bryant wrote to George, Bill and Chris care of Chris Realty reporting on the transaction in relation to settlement of No 7. That letter including (it not always being clear who "you" in the letter refers to): We confirm this matter was settled with your Bank on 25 August 2009 … We note that the balance of funds was paid in by you to make the payments as instructed by you. The transfer will be registered by the Bank together with its mortgage documents. The Certificate of Title will be re-issued to the Bank showing George as the registered proprietor subject to the Bank's mortgage. The Bank will retain the Certificate of Title until you re-sell the Property or pay out the mortgage. … We note as a condition of your loan you will have arranged insurance over the property noting the Bank's interest as first mortgagee. We note also that the payments have now been made to Bill and Chris in accordance with your instructions as to the sums payable pursuant to your arrangement.
The letter makes no reference to the 2003 Mortgage.
Mr Bryant's trust account shows that on 7 October 2009 Chris paid $331,300 which was described as "a/c balance purchase money and ADJS". It is clear that Chris provided the funds to purchase No 11.
By transfer dated 8 October 2009 Louie purchased No 11, Liverpool for $367,000. Mr Bryant signed the transfer as Louie's solicitor. By mortgage of the same date, Louie mortgaged No 11 to Chris for the full purchase price of $367,000. Mr Bryant witnessed Louie's signature on that mortgage and signed as solicitor for the mortgagee. The terms of the mortgage were the same pro forma as the 2003 Mortgage and Bill's New Mortgage (see paragraphs [146] and [148] above) leaving the repayment date blank but otherwise providing (italics signify what was handwritten in) and signed by Louie and Mr Bryant: ANNEXURE A ANNEXURE TO MORTGAGE DATED FROM CHRIS SARAVINVOSKI TO LOUIE SARAVINOVSKI TO CHRIS SARAVINOVSKI The mortgagor hereby acknowledges receipt of the principal sum of Dollars ($367,000.00) and in consideration thereof hereby:- … (b) Covenants with the mortgagee as follows:- Firstly - The mortgagor will pay to the mortgagees the principal sum, or so much thereof as shall remain unpaid, on the 20 Secondly - The mortgagor will pay interest on the principal sum or on so much thereof as for the time being shall remain unpaid, and upon any judgment or order in which this or the preceding covenant may become merged, at the rate of ten per centum (10%) per annum as follows, namely - By equal quarterly payments on the 8th days of the months of each month. in each and every year until the principal sum shall be fully paid and satisfied, the first of such payments computed from the 8th day of November 2009 to be made on the 8th day of December next; Provided always, and it is hereby agreed and declared, that if the mortgagor shall on every day on which interest is hereinbefore made payable under this security, or within fourteen days after each of such days respectively, pay to the mortgagees interest on the principal sum or on so much thereof as shall for the time being remain unpaid at the rate of seven per centum (7%) per annum, and shall also duly observe and perform all and every the covenants on the mortgagor's part herein contained or implied then the mortgagee shall accept interest on the said principal sum or on so much thereof as shall for the time being remain unpaid at the rate of seven per centum (7%) per annum in lieu of ten per centum (10%) per annum for every quarter for which such interest shall be paid to the mortgagees within such fourteen days as aforesaid. Thirdly - The mortgagor will observe the provisions set forth in the Memorandum filed in the Land Titles Office as Number Q860000, which provisions are deemed to be incorporated herein.
By reason of their proximity in time, the Court infers that the transaction in relation to No 7 was to put Chris in funds to purchase No 11, albeit in Louie's name but with Louie having no equity in the property.
Chris was hospitalised in the Department of Cardiology at St George Hospital between 23 and 26 November 2009. He had pneumonia and heart problems. The discharge summary noted that he was likely to require valve replacement "in the near future".
Sometime between when Chris returned to No 5 from hospital and 2 December 2009 a violent argument broke out between Chris, George and Maria. The upshot of the argument was that Chris demanded Maria, George, Belinda and Bobby leave No 5. They did so in the presence of police on 2 December 2009. This finding is further discussed in paragraphs [602] to [608] below. Their departure brought to an end a twenty three year period during which the Court finds (see paragraphs [381]-[400] and [459] below) Maria was primarily responsible for and provided the substantial majority of domestic support and personal care to Chris.
The events at No 5 on 2 December 2009 are recorded in a Police report. TIME/DATE: 6.00pm on 2/12/2009 LOC: No 5 Kogarah Bay VICTIM 1: Chris SARAVINOVSKI (Father) … VICTIM 2: George SARAVINOVSKI (Son) … … Attended rear of 414 Princes Hwy Rockdale and spoke to victim 1 and P/R (other son). .. Then attended No 5 to sort incident out. … Victim 1 and victim 2 in this matter are father and son. Victim 1 owns the house at No 5 Kogarah Bay and victim 2 has lived there for over the last two years with his wife and two adult children and does not pay rent. There has been some minor disagreements over the years but no reports to police. Over the last few weeks victim 1 who is 79 years old has been in and out of hospital being treated for heart issues. Victim 1 was released from hospital a few days ago and did not want to go home unless victim 2 and his family moved out as he didn't want the stress. After a few days of arguing the P/R who is another son of victim 1 has called police who soon attended and spoke to him and victim 1 at the rear of 414 Princes Hwy Rockdale. After this all parties attended No 5 Kogarah Bay in the presence of police and after some time victim 2 and his family moved some of there (sic) items out of the house and gave the keys back to victim 1. Victim 1 and 2 in the presence of police arranged a time to come tomorrow 3/12/09 and pick up the rest of victim 2's family's property. No violence just drawn out family dispute, which was temporary resolved with victim 2 and his family moving out. …
The events at No 5 on 4 December 2009 are recorded in a police report. It says "The victims consist of a Macedonian family spreading three generations. The youngest person involved is a granddaughter and the oldest is the 79 year old grandfather". It describes the situation as "an on-going family dispute which has come to police attention in early December". The report sets out the police version of events: About 12.45pm on Friday 4 December 2009 Police attended No 5, Kogarah Bay to prevent a breach of the peace. Upon arrival Police identified two parties, George, Mary and Belinda, and Louie. Louie was acting on behalf of his father Chris. George and Louie are brothers. George, Mary and Belinda resided at No 5, Kogarah Bay with George's father Chris up until 2 December 2009. Police had been called to the location to prevent a breach of the peace while George, Mary and Belinda removed there (sic) property from the location. Police remained at the location until 2:30pm when it was determined that further porperty (sic) could only be removed upon obtaining a court order. At this point Mary has become upset with Louie as he refused to reopen the property the following day to allow George, Mary and Belinda to remove the rest of their property. A loud verbal altercation has taken place at this point. Sgt Grant has attended as the situation has continued to get louder. All parties have continued to yell at each other and blame the other party for the situation. Louie has become verbally abusive towards Sgt Grant talking over the top of Sgt Grant demanding that the other parties be charged. By this time Chris and Bill had arrived and sided with Louie. Sgt Grant informed Louie, Bill and Chris that attending Police were present to prevent a breach of the peace and that they could attend Kogarah Police station at the end of the incident and a report would be taken. On a number of occasions Louie and Bill informed Sgt Grant that they would call Superintendent Helen Begg if he did not arrest the other party. At this point Chris has withdrawn consent for Police and George, Mary and Belinda to be within the location. Police escorted George, Mary and Belinda from the house. George was informed that he would need to obtain an order from the court to get the rest of his property. George, Mary and Belinda left shortly after this. Police left the scene a short time later. Due to the fact that both parties were making allegations about the other party Police are unable to determine who the actual offenders are as such no AVO's were applied for.
On Monday, 7 December 2009, Belinda completed a formal Notice of Demand addressed to Chris requiring him to deliver up various household and personal items including computers, jewellery, videotapes, kitchen equipment and utensils and clothing.
On 24 February 2010 Mr Bryant wrote to George and Maria's solicitors, including: [Chris] Saravinovski has instructed us to put the following matters to your client: 1. Your client and his family lived in our client's home at No 5 rent free for a number of years. The understanding between the parties was that your clients would provide care and assistance to our client if he became ill or disabled with age; 2. Our client did not suffer any significant disabilities or illness until recently. At that point he sought assistance in the form of transport to and from medical appointments from your client and his family; 3. Your clients refused to supply that assistance when requested. Our client was forced to rely on two other sons, one of whom resides at Liverpool which is quite impractical in the circumstances; 4. Our client would like to state as a matter of record that he did not "evict" or force your client and his family out of the home. He put to them that if they were prepared to provide assistance and some care for him after he returned home from hospital for convalescence they were welcome to stay as they had always done; 5. Your client and his family refused the offer and instead made demands to be paid rental income from note of our client's shops. The argument basically escalated from there; 6. Our client notes that he has always been prepared to extend generosity to your client and his family if they were prepared to provide a reasonable level of care and assistance for him in the home. If no one is prepared to provide that care and assistance to him, he will have to consider amendments to his Will and disposition of assets in his estate.
On 21 March 2010 Chris was admitted to St Vincent's Private Hospital. On the admission sheet he listed Louie as his next of kin.
Maria recorded a conversation with Chris in the hospital (the "hospital tape"). The conversation was largely conducted in Macedonian. The Court is not satisfied that Chris knew he was being recorded and goes further to find that he did not know (see paragraphs [609]-[622] below). By reference to an agreed translation, the conversation included: Chris: take one from there indistinctive … are you going to leave … indistinctive … whatever you like but I do not like it that our family has fallen apart like this, I don't like it, I cry more you know, it makes me cry, then you told me that you won't take me and I got angry, … indistinctive … I may have made a mistake too, …indistinctive… … George: We had a lot of trust in Lube, you know what did Maria paint for him Chris: "Don't say such things, I don't want to listen to such things, I say if you can look after me, I'm going to pay for your house … George: tell Gordon what you will do Maria: inaudible keeps trying to talk over Chris: Maria don't tell me these things now I don't want to listen to them. If you can look after me, the way we lived before. I'll pay your house how much it costs you I'll pay it I was telling Maria before, I'll give something to the crow …indistinctive… If you can look after me, understand?, I'll pay for your house, we'll go to Gordon…indistinctive…you'll sign and I'll sign, I will not ask you for the money if you look after me". …indistinctive… … Chris: "…indistinctive…I don't know but…indistinctive…when Maria told me I'm not taking you to the doctor, I was getting upset". …indistinctive… Maria: "…indistinctive…We were arguing but the two of them was not supposed to come and get involved, indistinctive…" Chris: I got upset Maria: they shouldn't have got involved George: they shouldn't have got involved Maria: inaudible Chris: "Now if you like, or if you don't like me Ljube takes me many times but I prefer to be with you more" … Chris: "…indistinctive…now you see…indistinctive…how much you owe 350, 360, I'll pay whatever you owe"? I think 360 with the interest …indistinctive…Maria still talking. George: we are only paying interest George: "…indistinctive…when we bought the house I think we gave Bill more money Chris: what George: to Bill too much money for 5 years $275,000. how can Bill have Maria: "It's alright, It's alright, we don't complain …indistinctive…" George: I didn't consider … Maria: …… George: I was entitled Maria: from us George: maybe $130,000 like a share Maria: from you given God will take it from him no worry be quiet you Chris" if you're happy I don't want you to talk to me about them not good or bad. Maria: "…indistinctive…it's ok they threw us out…indistinctive…they'll be slaughtering each other, wait…remember my word" What's going to be with them.. inaudible. Chris: "If you want to forget about that, you'll return. We will kick Lube out gradually, …indistinctive…his belongings are still in Casula, he comes takes me everywhere, sisters went to Kogarah, …indistinctive…when nurses here are finished, I'll tell Ljube you go to Casula and I'll come to Casula and then I can tell him I'll sell the house and I'll go to George…indistinctive…" Maria: "there's not a problem, why you should be afraid of Ljube? , …indistinctive…" George: "We had a big trust in Ljube, …indistinctive…we don't trust Bill that much, but Ljube…indistinctive…" … Chris: …by both sides mistakes have been made, …indistinctive…I'm your father if you like or if you don't like I'll …indistinctive… again and now Ljube hasn't told me that the doesn't like me I'm a little bit not keen to go to Casula. The house is big, I'll sell it if you don't come back. Maria: tell Gordon George: tell Gordon Maria: tell Gordon George: yeh tell Gordon Chris: inaudible - he will not object only what I tell him George: Uhh Chris: "but Maria goes to work, …indistinctive… so who is going to look after me?" Maria: uhh George: what? Chris: you're going to work Maria: who? Doesn't matter George: if she has to look after you she won't go to work Chis: …indistinctive…I'll give you…nearly 400 thousand Maria: I don't have to go to work. Doesn't matter. Chris: Close to $400,000 will be given to you or 350, as much as you owe, 360 thousand, you cannot make that amount of money in 15 years." George: "You tell this to the lawyer …indistinctive… we'll tell him …indistinctive…" … Maria: Lube I'll sign you tell him I'm not scared that he is dead, he made a big mistake to hit me, bash me Chris: look Maria so that the (Maria keeps talking over) I'd like to tell you so everything is forgotten. Maria: everybody is amazed … Male Voice: "But Maria I don't want this to be renewed (Maria continues inaudibly to speak over) How it was it was Mari: No Chris: youse made mistakes and so did I Maria: No No No George: you must not chase us out like this, Chris: I've asked Maria would you take me on Monday she said no I'm not taking you. George: you kicked us out how can we take you … Chris: …indistinctive…if you intend to look after me than stop this, …indistinctive… it's better you don't keep telling me. It's better for it to be forgotten. You don't have to have conversations but if you keep talking to me about who made mistakes or what mistakes it's best new… say … what you can say … start fresh … Chris: "…indistinctive…you were at the computer when I asked you would you take me because I asked you if you could take me to get my tablets at Rockdale you said no, & refused, you were kind of angry, …indistinctive……indistinctive…" Maria: "no, no, indistinctive we were eating when we had an argument with the crow [this refers to George] over food that cursed food George: rissoles Maria: wait wait you have to sign for the money for the pool we had lunch, …indistinctive… Ljube had arrived, …indistinctive… said we'll got to Maroubra and then to …indistinctive… when we came back home, …indistinctive……indistinctive…you …indistinctive…started yelling, I could hear everything …indistinctive… and then the argument erupted, …indistinctive… you started yelling …indistinctive… piss off, …indistinctive…" Chris: No he said that I ate all the rissoles Maria: I was listening to him, I was going to hand the clothes and I came up. I said why are they playing with you and you're putting the trolley in his boot… that pig your brother that's what I said… I said you should die and go to your mother because of what they do to you… that's what I said. The argument then started. … Chris: and these things you're telling me I don't want to hear any more, what happened, happened, it's all gone now just forget it, …indistinctive… I was upset when Maria said she wasn't going to take me, I won't make a wedding, I was wondering why, what was the matter, …indistinctive……indistinctive…I didn't put chains, you stayed because you wanted to stay, because you were good, nobody would stay if he doesn't want to, Ljube would leave if he doesn't want to stay, he would leave like Valentina did. …indistinctive……indistinctive…" … Chris: "…indistinctive that passed I would have told him get fucked …indistinctive…Risto Neshkovski was approved his house and he gave us to to sell his villa you know, but he gave it to someone else and not a big deal, …indistinctive…you can delete it …indistinctive… you see, if we reconcile, we'll quit those matters and we'll start living new, the 350 or whatever you're paying off the house, …indistinctive…we'll go to Gordon, …indistinctive…you'll pay it off right away, …indistinctive… but if you kick me out," George: "it is better if you tell the lawyer…indistinctive" Chris" "I'll tell the lawyer we'll go together we'll both sign, and both of them must not know. …indistinctive…the house I'll say I don't know where I'm going to live, I don't live in Casula, I'd like to be with Belinda and Bobby, …indistinctive…indistinctive…… Maria: "no, no I want to be clear if you think that you'll live with … you can give him the house…indistinctive…there's no problem for that, when you sign it, there's no problem from me…indistinctive…" … Chris: I don't want anything to happen, you see Maria, we've lived as we lived and, but I don't want you to mix with Ljube I don't want you to mix with Bill, …indistinctive…one thing I'll tell you straight it is not good that you're cursing Rada, I apologize but it's not nice, Rada was very good (Maria again talks over the top) and I feel sorry for Rada … Chris: when I die, all I can do now is to sell all of the houses, and shops and to burn the money, …indistinctive…indistinctive…to tell you the truth I bought Bill's house, George knows, all of them were going to school, then we bought George's house and I paid it off, …indistinctive… … Maria: Nah if your life is better with him live with him, this means that I'm not taking you everywhere, …indistinctive…" Chris: "no, no, I don't like Ljube to take me around, I like you better, …indistinctive…" Maria" "if your life is better with him then live with him, that means you've forgotten that for two months I've been getting up at 5 am every morning, you're insulting me, that means that I don't take you everywhere, you've forgotten that, …indistinctive…, Chris: "I don't like it with Ljube, I like it better with you to take me, …indistinctive…but I'm telling you, …indistinctive…like you know about the licence that Bill took his licence out, …indistinctive… … Chris: no, no Maria let them go and get fucked. I can't disown them (inaudible Maria) …it's written there, the house is for the Crow, have shares, what you call it, Maria: (talking over)(indistinctive) Chris: I'm giving you 300 or 400, 350 or 360, how much you owe, money. George: where's the house signed over - nowhere Chris: it is written, which house (Maria indistinctive talks over) George: how which house? Chris: Kogarah Bay house. There is a will. George: where is it written? George: that's nothing, you can change it anytime Chris: that's how it is for them, Louie & Bill George: how? They have a share in the house? Chris: no, no, no not a share in the house. Maria: the Crow lost his health working for them and they lost a brother. George: yeah, I was working for them. Maria: the Crow did not lose brothers. George: they've lost me Chris: the agency is signed to Ljube. Dominos is signed to Bill. I'm not taking them to the grave…indistinctive…the house is signed to you, and it can be sold for 3 million or more…indistinctive. … Chris: I don't know what you're going to tell me. I feeling dizzy I don't if I come to you I don't want these matters to be repeated, a mistake has been made and it's done and finish, …indistinctive…none has to come, not Bill, not Lube not you, nobody, …indistinctive…I know all of my 3 children are mine they're not somebody elses…indistinctive……indistinctive…" … Maria: I'm not coming if you tell me inaudible Chris: only if you like to say whatever happened, happened it's all gone now, inaudible I've been taking care of him and he has been taking care of me, …indistinctive…I don't give $3 to anybody but I give you a lot, $350,000 now days is very hard to earn, to tell you the truth, I've been saving them for years and years, …indistinctive…and don't tell Rade or Nuamka nobody nobody. They'll chop me George: "who" Chris: "the brothers" …indistinctive…indistinctive…but I'm telling you, you're not going to tell them that I've given you the money, …indistinctive…" Maria: inaudible. They are making push up so George doesn't get anything. We weren't doing that Chris: I'm telling you that you shouldn't tell them if I gave you money I've told them whoever looks after me gets the house … Chris: "you'll go back and will not be repeating this problems otherwise I'll die. I don't want to hear them mistakes may have been made from both sides, to tell you the truth you're good but some time you're getting upset for …indistinctive…" George: "and you're getting upset for nothing, …indistinctive… for a meat ball, …indistinctive……indistinctive…if you don't like this, it is my house, …indistinctive…" … Chris: "you see, those things not to be mentioned if you like me to come, if you ever talk to me about Ljube, about Bill and how all that happened, I'll be dead when we agree on this, here's the money for the house, not Bill nor Ljube would know anything…indistinctive…we'll go to the lawyer together Gordon and we'll sign all of us, you understand, these money I'm giving to George is to look after me, I do not ask of him any interest, no nothing else, do you understand?, …indistinctive…do you understand, You say I'm not giving you the house but I'll give you the money, so you can pay for it…indistinctive…you'll be getting weekly one thousand for the house, …indistinctive…we could rent the house $600 a week, …in XXX street George: …even more it has new kitchen, large kitchen Chris: You and Maria don't have to work. Did Bobby study for an agent George: yes George: A certificate Chris: but he hasn't got to open a business George & Maria: he hasn't got the experience Chris: …indistinctive…the Crow could get a licence, if you don't want to work at the office you could open one at Ramsgate, I'll put the office for rent…indistinctive…the house is signed in your name, …indistinctive…from the agency, I don't feel like not giving …indistinctive…my father in Bitola…indistinctive…" Maria: "but it is different, when you don't look after someone, it's different, …indistinctive…if Ljube has been looking after you give him the house, …indistinctive… I don't object Chris: I didn't say I have it to him. Maria: Give it to him Chris: I swear to God Ljube hasn't asked me to give it to him, …indistinctive…I'm offering it to you, so not to give it to Ljube, I must give it to somebody, I must give it if he will look after me I must, what should I do, but I feel more comfortable with you, but if you talk to me about the mistake that occurred, I'll die, don't talk to me about it the mistakes please forget it, …indistinctive…we'll go to…indistinctive…to eta, we'll go to other restaurants to eat, me you, George and your family, …indistinctive. You don't like them you don't like them…doesn't matter if we can…indistinctive…I don't like Valentina…indistinctive…"
On 20 May 2010 George was seen by a psychiatrist in connection with his workers compensation claim arising from the robbery at Red Rooster a year earlier. The psychiatrist records George telling him (and the Court finds George said): His personality he said was caring and hard working. He considers himself a friendly man and able to mix. In particular he said that he was always under the influence of his father. He says that he was always obedient to his father's wishes and in many ways appears to have been excessively by the man and developed a very compliant relationship with him.
The psychiatrist summarised his assessment of George: He has a compliant and biddable personality which has led him to being overly obliging in working to the detriment of himself. This appears to be a personality trait evident in other relationships including family relationships. On examination on 25.11.09 he presented with symptoms consistent with a diagnosis of post-traumatic stress disorder. He presented as a credible historian.
In late July and early August 2010, Maria attended her doctor on four occasions in relation to pain and numbness in her left hand. This was diagnosed as left carpal tunnel syndrome and she was advised to use a splint.
On 15 December 2011 (one month after Maria had begun Maria's Case and one day before its first return date) Chris lodged a caveat over No 7 relying upon the 2003 Mortgage. The nature of the estate or interest claimed was described in the caveat as "pursuant to unregistered mortgage in respect of loan advance of $1,000,000 from caveator to registered proprietor and Bill Saravinovski". Chris' signature on the caveat was witnessed by Mr Bryant, whose firm was given as the address for service of any lapsing notice. George issued a lapsing notice which led to the commencement of Chris' Case.
By reference to a rent receipt book which is in evidence, the Court finds that between 25 October 2011 and 19 April 2014 Maria, either weekly or fortnightly, collected rent from the tenants of No 7.
In 2012 or 2013 George received $350,000 in settlement of his workers compensation claim arising from the 2009 robbery at Red Rooster.
On 12 December 2012 either Chris or Louie (the valuation refers to being under instruction from "Mr Saravinovski") obtained a certificate of valuation for No 11 of $370,000.
On 13 December 2012 No 11 was transferred by Louie to Chris on a valuation of $370,000.
On 13 May 2013 Maria made a claim for workers compensation for injuries said to arise from "continuous and repetitive work in the laundry" at the nursing home at which she was then employed as a "general service officer". Although signed by Maria, the claim form was completed by Belinda.
On 24 June 2013 Maria wrote to the workers compensation insurer complaining that allegedly promised workers compensation insurance payments had not been received.
On 17 August 2013 Maria signed a letter to the workers compensation insurer complaining that her weekly compensation benefits had been incorrectly calculated.
On 17 August 2013 George filled out a further NSW Workcover injury claim form for Maria in respect of her alleged injury at the nursing home. Maria signed the form. It claimed an additional injury from about 14 April 2013 to her lower back caused by "lifting bags, pushing trolley". It was explained in the form why she did not report the injury immediately, namely "the pain was initially minor and increased until it grew severe in April 2013".
For the purposes of investigating her claim of a lower back injury, Maria provided a signed statement on 24 January 2014. In that statement she said "Prior to this particular injury to my lower back I have never suffered from an injury to my lower back in the past". In the light of the 2001 accident, that statement is false.
On 29 January 2014 Maria attended an orthopaedic surgeon for the purposes of a workers compensation examination. The orthopaedic surgeon reported (and the Court finds that Maria told him) that "Ms Saravinovska notes no previous history of injury or episodes of pain at her lumbar spine". That statement cannot be correct having regard to the 2001 accident. The orthopaedic surgeon concluded that "It is highly likely that Ms Saravinovska is exaggerating a functional disability for secondary gain".
On 9 March 2014 George was involved in a motor vehicle accident. He completed an accident notification form, presumably for insurance purposes. On that form he gave his weekly earnings (which the Court understands George misunderstood to be annual earnings) of $52,000 and his duties as "real estate agent - self employed".
On 18 August 2014 GIO CTP claims informed George that his accident claim was being resolved for a payment of $5,000, of which all but $250.10 was for past medical and treatment expenses.

C. Resolution of Chris' Case

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.
Some parts of the statement of claim and George's amended defence are reproduced in paragraphs [245] to [246] below.
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.
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.
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.
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.
Chris' pleading then goes on to allege what is set out in paragraphs [591] to [593] below and is repeated here for convenience: 17. In 2003, the defendant and Bill Saravinovski agreed orally to grant the plaintiff a mortgage over the property to secure payment to the plaintiff of the sum of $1,000,000.000 (the principal sum). Particulars The plaintiff refers to paragraph 26 of his affidavit made 5 March 2012. 18. The consideration for principal sum included the transfers to the defendant and Bill Saravinovski of the properties referred to in paragraphs 4 and 9 above, the cost of the trip and wedding receptions referred to in paragraph 6 above, the monetary contribution made by the plaintiff to the defendant and Bill Saravinovski in paragraphs 13, 14 and 15 above and the transfer or allotment to the defendant of the shares referred to in paragraph 16 above. 19. The said sum of $1,000,000.00 was calculated by Gordon Bryant and disclosed to defendant (sic) and Bill Saravinovski at the time of the discussion referred to and particularised in paragraph 17. 20. Pursuant to the agreement referred to in paragraph 17, the defendant and Bill Saravinovski executed the mortgage. Particulars The mortgage is annexure D to the affidavit of the plaintiff sworn 7 February 2012.
Although also reproduced later in these reasons, George's amended defence to those paragraphs is also set out here for convenience: 1. In answer to the whole of the Statement of Claim the Defendant says: a. the Defendant is not indebted to the Plaintiff as alleged or at all; b. there is no binding mortgage between the Defendant and the Plaintiff; c. there is no binding charge on the property as alleged or at all; and d. the Plaintiff was given money weekly by the Defendant, being the wages he received after deduction of tax instalments (including overtime payments, bonuses, leave entitlements), for all his working life until 2009 to be invested for the benefit of the Defendant and the Plaintiff has not account to the Defendant for the money. … 12. The Defendant denies paragraph 17 of the Statement of Claim. 13. The Defendant denies paragraph 18 of the Statement of Claim. 14. The Defendant denies paragraph 19 of the Statement of Claim. 15. In answer to paragraphs 17 to 23 of the Statement of Claim the Defendant: a. admits he signed the mortgage document but says there was no intention of the parties to create a legal relationship of creditor and debtor between the parties for a debt of $1,000,000.00 or an obligation to pay interest, or at all, and b. further or in the alternative there was no consideration for the mortgage or a debt.
George's fundamental point was that the various alleged benefits were not pleaded as giving rise to obligations for repayment by George (or for that matter, Bill) and that all the pleading alleged was that they were now called in aid as alleged consideration in respect of the amount of $1,000,000 which had been calculated by Mr Bryant and which had found its way into the 2003 Mortgage.
There is no doubt that the case that was then set out in the opening outline of submissions filed for Chris bore only a passing resemblance to the case pleaded: 112. Each of the properties and financial benefits referred to above was provided on the following terms, as jointly understood and agreed by Chris, George and Bill: (a) The provision of each property and benefit constituted a loan by Chris to George and/or Bill (as the case may be) in the amount of: (i) the expressed consideration, in respect of the property transfers; (ii) the expenses paid, in respect of the travel, weddings, repairs, restoration and mortgage instalments; and (iii) the value at the time of the transfer of the shares in K R & Sons Pty Ltd. (b) George and Bill were each under an obligation to Chris to: (i) repay the amounts loaned to them; and (ii) pay interest in an amount equal to the interest that would have accumulated had George and Bill borrowed money from commercial sources to pay for the various properties and benefits; (c) Chris would be entitled to call on the loans at any time and require payment of the full amounts outstanding (including interest). 113. Accordingly, prior to the execution of the Mortgage in July 2003, each of George and Bill had a loan from Chris which was repayable at call and subject to a floating interest rate reflecting prevailing interest rates offered by commercial lenders from time to time. 114. The balances owing on the loans, and the supporting interest calculations were not recorded in a formal ledger. The exact amounts of each expense paid for by Chris were also not documented in every case. The precise balance owing under each loan was therefore not identified at any particular time prior to the execution of the Mortgage (although it was at all times ascertainable within a modest degree of tolerance). 115. Through the execution of the Mortgage (with the annexed acknowledgement of "receipt of the principal sum of One Million Dollars"), the parties clarified and crystallised the precise amount outstanding on the loans made by Chris to Bill and George. In light of the absence of formal records or ledgers, this joint contemporaneous agreement of all parties represents the best evidence now available of the true amount that was outstanding at the time of the Mortgage and of the terms on which the parties agreed to be bound by at that time. 116. The evidence therefore establishes that George and Bill had outstanding loans from Chris totalling $1 million at the time of execution of the Mortgage on 7 July 2003.
The only fixed point in this sea of competing allegations was that George and Bill accepted that each of them had signed the 2003 Mortgage.
Notwithstanding the pleading point taken at the outset of the hearing, the hearing was conducted in relation to Chris' Case substantially on the basis of the allegations made in Chris' outline of submissions as well as numerous other arguments that were presented, including purportedly by reference to each parties' understanding of the case raised by the statement of claim and the amended defence. This part of what was an already very complicated set of proceedings became a classic example of a case run by the parties on the basis of the issues they presented at trial and as they sought to argue them rather than by strict adherence to the pleadings. The case having been run in that way, in accordance with principle the Court is required to adjudicate upon the case the parties argued. By acquiescing in the case in that fashion, the original objection taken on the first day by George's counsel was pyrrhic in the sense that it was undoubtedly technically correct but ultimately had no practical effect.
With no disrespect intended to the ingenious arguments raised by the parties, Chris' Case fails for these, relatively straightforward, reasons.
Insofar as Chris' Case is an action upon the 2003 Mortgage simpliciter, the liminal submission made on behalf of George that Chris has failed to prove payment must be correct. As is observed in Fisher and Lightwood's Law of Mortgage, 3rd Australian Ed, Lexis Nexis Butterworths, 2014, at [16.39], "The payment of the advance need not generally be proved, unless the fact is put in issue on pleadings, the security being sufficient evidence of such payment … Where the fact is pleaded and no money was actually lent, the mortgage is worthless". The Court is not satisfied on the balance of probabilities that the 2003 Mortgage secures any advance to George. It therefore has no effect.
It was not even suggested for Chris that George and Bill had in fact received a payment of $1,000,000 in consideration of which they had granted the 2003 Mortgage. The result of the 2003 Mortgage being worthless could only be avoided by giving it effect through some collateral agreement or other cause of action. Although not expressed as such, the way in which Chris' Case was ultimately sought to be argued on his behalf depended upon the Court finding some other agreement in relation to the 2003 Mortgage or, perhaps putting it slightly differently, of which the 2003 Mortgage was a part. Chris failed to make good any such agreement.
Insofar as Chris relied on the allegations in paragraph 17, 18 and 19 of his statement of claim, for the reasons set out in paragraph [596] below he has failed to prove those facts on the balance of probabilities. Chris bore the onus of proving those facts. For the reasons set out below, the Court will not accept Chris' or Bill's evidence unless it is corroborated by independent sources, inherently credible or otherwise against interest. On that basis, there is no evidence from either Chris or Bill which the Court will accept to prove those facts. Nor is there an admission against interest from George upon which the Court could rely.
In addition to the difficulties identified in the previous paragraph, for the reasons set out in paragraphs [595] to [599] below, the Court draws an inference in accordance with Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ("Jones v Dunkel") against Chris because he failed to call Mr Bryant, who was obviously closely involved in the relevant events. The effect of the Jones v Dunkel inference in this context is to fortify the Court in its lack of satisfaction about the facts alleged by Chris because the Court has concluded that Mr Bryant could not have said anything to assist Chris' Case in relation to the 2003 Mortgage.
In reaching this conclusion, George's evidence, given in the context of his allegations that he was giving Chris all his money, that Chris said to him "Anything that's concerning you, you have to pay for it. There is no such thing as a free anything. You have to pay at the end of it" is too vague and general to be used to conclude that George understood that he would have to repay the alleged benefits to Chris.
If the case made in the outline of submissions filed for Chris is treated as a pleading, then it fails for the same reasons set out in paragraphs [252] to [256] above. There is no credible evidence on which the Court can be satisfied on the balance of probabilities that the various agreements and understandings in relation to the so-called benefits existed. In addition to the matters referred to in the preceding paragraphs the Court also relies on five matters.
First, the Court is further fortified in this conclusion in relation to some of the benefits by the inherent probabilities and Chris' own evidence. For example, given the view that the Court has formed of Chris being the kind of man who was determined to show the world how successful he was, it is inconceivable that his payment for everyone to go to Macedonia in 1986 or the subsequent wedding receptions in Macedonia and Australia were intended by him to be anything other than examples of prodigious largesse. While it may have later suited him to assert that Bill and, especially in the context of this litigation, George owed him money in respect of those benefits, the Court has no doubt that at the time they were conferred none of the parties perceived them as giving rise to anything other than enhancing Bill and George's sense of filial loyalty to Chris.
Second, Chris' own affidavit evidence in relation to the transfers of No 22 and No 14 was that he was giving the properties to each of his sons to "give them a start". In context, that is inconsistent with the imposition of obligations or the existence of understandings of the kind alleged by Chris in his outline of submissions.
Third, the material omissions in the form of the 2003 Mortgage are inconsistent with a finding that the parties had an agreement to be bound by it.
Fourth, the existence of the 2003 Mortgage is not referred to in the correspondence from Mr Bryant in November 2007 (at paragraph [193] above) concerning the transfer of Bill's interest in No 7 to George. The obvious inferences are that either everyone (including Mr Bryant) had forgotten about it or they understood it was not binding inter se but was only to be deployed against a departing spouse. On any view its omission supports an inference that there was no agreement or understanding about the effect of the 2003 Mortgage of the kind alleged by Chris because it would be something the Court would have expected to be at least raised as part of the proposed transfer.
Fifth, in the hospital tape Chris makes no mention of forgiving outstanding debts. Given the offers Chris makes to Maria and George to pay out the mortgage owing on No 7, it would be expected that Chris would also be offering to forgive substantial debts (if he really thought there were any) owing to him by George. The Court does not accept Chris' submission that Chris was referring to then outstanding personal debts when he said "I'll pay for your house, we'll go to Gordon … you'll sign and I'll sign, I will not ask you for the money if you look after me". The context makes it clear he is referring to not asking to be repaid the money he is there offering to pay out George's mortgage over No 7.
For these reasons, Chris has failed to satisfy the Court that either in its own terms or as part of some broader, binding legal arrangement, the 2003 Mortgage gives him any rights against George or over the property at No 7. In those circumstances, while it is not legally relevant but because it was the subject of argument, the Court will express its view about the reality behind the 2003 Mortgage. The Court accepts George's submission that the 2003 Mortgage, whether it be legally effective or ineffective, was conceived by Chris as a protective measure against the possibility, in particular, of Bill's marriage to Valentina ending in divorce and was only intended to be deployed against a departing wife. It was a repeat of his conduct in 1992 (see paragraph [78] above). This conclusion is consistent with Bill not disclosing the existence of his 1993 mortgage to Chris over No 22 in the 1997 ANZ Home Loan application (paragraph [111] above).
Finally, this result means that it is unnecessary for the Court to deal with the special estoppel defences raised by George in answer to Chris' Case.

D. Resolution of George's Case

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".
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.
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

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.
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.
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.
Maria gave no evidence of being present when Chris made any relevant representations to George. She did give some evidence about what she said Chris had told her that he (Chris) would give George.
The highest George's evidence rose was, first, generally (T762:44-T763:20): Q. How did you receive your pay from your first job when you were 15? A. I received money in cash. Q. What did you do with that money? A. I gave that money to my father, Chris. Q. All of it? A. All of it. Q. Why did you give it to your father? A. I gave it to my father because he wanted that money. Q. What did he say to you? A. He said to me he's going to look after it and he's going to use it for the benefit of the family and myself as well. Q. Did he speak to you in English or in Macedonian? A. He spoke to me in Macedonian. Q. Did he say anything to you in Macedonian about money? A. Yes, he did. He said - it's like in English you can say that it's a big pot. You - everyone puts in and it all accumulates in money terms and he uses that money to buy the houses or shops or pays mortgages. So this is where people pooled in their money as a family. Q. So this is what he said to you in Macedonian? A. That's right.
In relation to what the parties referred to as the "butcher's shop", being the premises at No 509 owned by KR&S, George's evidence was (T769:5-28): Q. Are you able to tell his Honour how it is you know you made a contribution? A. I made a contribution like from my wages and plus with the rent money and also over time like I paid my father, whether he took all the wedding money that we had, extra money. We had christenings, we gave him the money. He might say that he paid for it all but in actual fact, if it was anything to do with me, he would be taking it out of my own money because that was his belief‑‑ Q. Just let me pause there. A. Yeah. Q. How do you know he was taking it out of your own money? A. Because he said to me verbally, "Anything that's concerning you, you have to pay for it. There's no such thing as a free anything. You have to pay at the end of it." And it seemed that at that stage, that he said to me, "I'm buying this shop", the rest of them didn't cooperate. I was the only one to chip any money out of my wages and I was working two, three jobs and I believe in the work ethic you have to work hard and save and contribute, you know. Q. Did he say anything to you as to who would benefit from the purchase of the shop? A. Yes. He said that, "Whoever" ‑ he said to me in a general way, "Whoever contributes to the shop and helps in the payment of the mortgage, they're going ‑ they're the ones that are going to benefit most."
So it is that even if the Court were able to rely on Maria and George's evidence, in and of itself it does not establish the alleged representations. It is therefore necessary to examine whether any independent evidence is available to support George's case. In relation to that question, proof of the fact that George had in fact given his father all his income was said to be critical both to demonstrating that the alleged representations had been made (it being asked rhetorically, "Why would George have given his father all his income if such representations had not been made?") and to demonstrate compliance with the alleged representations.
To demonstrate that George had in fact paid all his income to his father from when George first started working in the 1970s up to 2009, George relied on four matters: 1. His own and Maria's evidence. 2. The evidence of independent witnesses based on statements made by Chris. 3. The "intrinsic merit" in George's claim which arises from an analysis of the property position of each of Chris and George. It was submitted that "a comparison of the asset position between Chris and George, vs their employment position, makes it plain that Chris could not have built his property portfolio in support of the household unless he was receiving George's income". 4. The current shareholding in KR&S.
For reasons set out in paragraphs [474] to [499] below, the first of these is not taken into account by the Court unless the relevant facts can be established independently of that evidence. Nor does the fact that George (now, his estate) continues to have a 10% interest in KR&S demonstrate that George gave all his income to Chris. George accepted in evidence that he had not paid anything for that 10% interest. In and of itself it says nothing about what contribution George may or may not have made. It is therefore necessary to consider the evidence of the independent witnesses relied on by George and what was referred to in the submissions made on his behalf as the "intrinsic merit" of his claim based upon comparing their respective property ownership.
Turning to the independent witnesses, Rade Zajakovski ("Rade") and Nikola Solakovski ("Nikola") gave evidence relevant to this topic.
Rade said that he heard Chris say "my children give me their money". The Court notes this is inconsistent with George's case which was very much put on the basis that Bill and Louie made little or no contribution and that it was George, as the obedient son, who provided his money to his father.
Rade also said that he accompanied Chris to the bank regularly and saw that Chris had a number of passbooks, including for an account in George's name. That is consistent with the evidence that Chris was a signatory on at least some of George's accounts and made payments from George's account into George's mortgage account.
Rade also gives evidence that Chris said to him "George gives me all his money. George does not want to spend his money, he wants to invest it and so gives it to me". Two comments should be made about this evidence. First, it is inconsistent with George's own evidence that he had to pay Chris for expenses relating to him (George) and his family. Second, and more important for present purposes, it begs the question, even if it is true, of what Chris did with the money. There is evidence, for example, that Chris applied George's money to the mortgage which George and Bill had for No 22.
Nikola's evidence was that Chris said to him on more than one occasion "I am looking after my kids. They have to give me their pays". Again, this is to some extent inconsistent with George's case that it was primarily George who was expected to hand over his pay.
Considering the evidence of Rade and Nikola, the Court concludes that unless it is corroborated by a far larger and more detailed body of evidence, it is too vague and general for the Court to rely on it to make the sweeping factual finding sought by George.
Finally, it is necessary to consider the parties' competing analyses of George and Chris' financial positions over the years. Those analyses are set out in Schedules 3 and 4 of this judgment. It must be recalled that, in considering those analyses, the proposition which George advances is that the Court should be satisfied that Chris could not have built his property portfolio unless he received George's income.
In looking at George's submissions (set out in Schedule 3), the question is whether the Court is satisfied on the balance of probabilities by that (and any other material, which in the present case means the evidence of the independent witnesses) that Chris applied funds from George to purchase properties not in George's name or was enabled to do so by having his own funds made available by domestic contributions from George. In relation to this latter possibility, for the purposes of the present argument the Court will not take into account that any such domestic contributions could, in a sense, be treated as rent payable to Chris for George's occupation of the Saravinovski family home because it was common ground that George and his family never paid anything that was characterised by the parties as rent.
A criticism was made of Chris' approach to the litigation for failing to demonstrate how he (Chris) had acquired the various properties from his own funds. That criticism, while understandable, is not well made. George bore the onus of proof on this question.
Another general submission made on behalf of George was that if George was in control of his own finances and able to pay down the mortgages over his properties so quickly, why didn't he continue to build his property portfolio? The absence of inherently reliable evidence from George and Maria about their lifestyle and expenditure (other than some limited banking records) makes it impossible for the Court to give this rhetorical submission any weight. George's own submissions accept that his income figures do not include the proportions of rental he received from No 14 or later No 7. At relevant times that income was presumably being applied to pay down mortgages in George's name. The state of the evidence does not permit the Court to have any real persuasion that whatever income George earned was given to Chris rather than, as would be the natural inference, being applied to pay off mortgages and meet his own family's expenses (including to the extent, if it occurred, that he reimbursed Chris for expenses in relation to his (George's) family).
Similarly, and for reasons which I will now develop, George's submissions do not enable me to reach a state of actual satisfaction on the balance of probabilities that Chris must have received and applied all of George's income in the way George submits because, without it, it is clear that Chris could not have built up his property portfolio. In my view, George's submissions are not so compelling and when considered against Chris' submissions paint an equally plausible picture (perhaps more plausible) that Chris was able to achieve what he did by frugal living and astute property investment, including applying the rental income from his commercial properties to build his property portfolio.
Looking at the period from 1986 to 1993, a fundamental difficulty with George's approach is that there are no tax returns or other evidence of Chris' income. Perhaps even more importantly, there is no evidence of his and Rada's savings. Everything I have seen and heard about Chris and his family leaves me with the firm impression that Chris lived frugally (in contrast to generous displays on public, family occasions). It is a readily available inference which the Court draws that he concentrated on saving money to purchase property. Similarly, for the first five years, there is no evidence of George's declared income. It is just not evident, let alone obvious, for the 1986 to 1993 period that Chris applied or needed any income of George's. For example, in 1986 there is no reason to think that the mortgage repayments on No 428 of $1,728.00 per month were not able to be met from the rental income. Furthermore, there is no evidence of the amount of the rental income from No 14 or No 5. Similarly, for the time it was briefly held between 1993 and 1995, there is no evidence of the income that would have been received from Unit 3, which was purchased in April 1993 for $255,000 subject to a mortgage of only $30,000.
For the 1986 to 1993 period it appears just as likely (if not more so) on the material relied on by George that Chris was able to do what he did without recourse to George's money.
Turning to 1994, No 428 was unencumbered and presumably producing rental income. Insofar as George suggests that Chris must have been paying mortgage repayments on No 414, the original 1988 mortgage for that property was only for six years. Although not formally discharged by the CSBA until 2002, the Court infers that by 1994 the mortgage was substantially (if not completely) paid off. Insofar as George relies on Chris and Rada having a liability under a mortgage for Unit 3, that mortgage was only $30,000. While George's submission is understandable, the material does not go far enough to persuade the Court of its correctness.
In 1995 Unit 3 was sold for a $64,000 profit (subject to whatever was left of the $30,000 mortgage). It is entirely conceivable that some, if not all, of that amount was devoted towards the construction costs at No 5. Rental income was being received from No 428, which was unencumbered. While KR&S purchased No 509 in that year, there is no reason to think the rental income for the property did not meet, substantially or in its entirety, the repayments on the $364,000 mortgage (the purchase price being $520,000). In considering this evidence, I have not overlooked the question of where the balance of the funds for the purchase of No 509 came from. The difficulty for George is that the evidence is just not sufficiently complete to enable the Court to be confident to draw any inference that George's funds were used or enabled Chris to free up any other income that he had.
Similar comments can be made about 1996 and 1997. No 509 was encumbered, but tenanted. No 428 was also tenanted, but was encumbered again in March 1996 for $440,000. The Court infers that the major reason for that mortgage was to assist with the construction costs at No 5. The difficulty for George is that in the absence of precise income figures for Chris from rental or other sources, the submission that George wants to make is just not obviously made out. Nor, in my view, is George's evidence of his own income in those particular years, for example, sufficient to cast an evidentiary onus on Chris to explain how he funded his activities in those years so that some adverse inference could be drawn from Chris' failure to adduce such evidence.
A further difficulty for George in considering 1997 and 1998 is the fact that on 22 December 1997 No 45 was sold for $360,000. It had been purchased in 1966 for $12,000 subject to a 10 year mortgage of $7,750. Although there is no evidence of that mortgage being discharged, given that Chris was employed during that period, and taking note of his apparent frugality, the Court has no difficulty in inferring that the mortgage was paid off within the 10 year period or less. Thus, the evidence is clear that in late 1997 Chris received $360,000 from the sale of the first family home.
No 7 was purchased by Bill and George on 23 January 1998. The proximity in time between the completion of the sale of No 45 and the purchase of No 7 provides the basis on which the Court infers where Chris got the $120,000 which he provided to assist Bill and George in the purchase of No 7. The Court is fortified in its conclusion that Chris advanced Bill and George the deposit by their acquiescence, especially George's, about the arrangements surrounding George acquiring Bill's share in No 7 in 2009 (see paragraphs [202] to [210] above). Insofar as the balance of Chris' financial position is concerned, it can be noted that No 428, while encumbered, was tenanted. While No 509 was now mortgaged, it was also tenanted. In any event, subject to whatever further rental assistance Chris was giving Bill and George in relation to No 7, he still had more than $200,000 left over from the proceeds of the sale of No 45. In those circumstances, it is not obvious that Chris either used or needed any of George's declared income for 1998 of $36,098 for the purposes of his property acquisitions or was facilitated to make payments that he would not otherwise have been able to make by having recourse to contributions from George. In reaching this conclusion, I have not overlooked the question of any outstanding costs of construction of No 5. The difficulty is that the evidence does not permit a concluded view as to what the actual cost was (different witnesses gave different sums) and it is impossible for the Court to determine whether the balance of the proceeds from No 45 went to, for example, paying off additional construction costs or, a year later, in discharging the mortgage over No 428 in April 1999.
In 1999 No 428 (which was tenanted) became unencumbered. Therefore all of the income from that property (whatever it was) became available to Chris. Insofar as there was still a mortgage over No 509, it was also tenanted. Again, in the absence of more detailed evidence about the actual amounts of money involved, the Court is not persuaded by George's assertion that it necessarily follows that Chris needed or used George's income.
In 2002 the mortgage over No 414 was discharged. The remaining mortgage in Chris' property portfolio was over No 509 (owned by KR&S), which was tenanted. Chris was receiving rental income (the amount not being in evidence) from No 428. The necessity for Chris to have recourse to George's income is not apparent.
From 2003 to 2009 George's submissions had the advantage of there being evidence of the declared income of both Chris and George. Chris' only mortgage (in fact KR&S' for this period) was over the premises at No 509. That mortgage was discharged in 2006. ANZ's mortgage over No 7 to Bill and George was discharged in June 2005. The mortgage over No 509 was discharged in 2006. The picture from 2004 to 2009 is of Chris' income from interest and other sources increasing considerably and ultimately being double that of George in 2009. The Court cannot infer during this period from the bare facts of their comparative income that Chris was taking advantage of George's income.
Finally, in 2009 Chris received $200,000 from George. Whether or not George had any legal liability to make that payment to Chris is not to the point. There is sufficient evidence, including Chris' original assistance to Bill and George when they purchased No 7 in January 1998, for the Court to conclude that, legally obliged or not, George would have had every reason to accept that he had received benefits from his father (not derived from taking George's income) that warranted a payment to his father of $200,000.
The foregoing demonstrates that the material advanced by George is, in and of itself, not sufficient to persuade the Court that George gave all his money to Chris or that Chris used or was helped by George's money to acquire properties not in George's name. That is sufficient to dispose of George's case in relation to the representations insofar as George submits that they can be inferred from George's alleged payments to his father or compliance with the alleged representations demonstrated by that same alleged conduct. Furthermore, the Court accepts Chris' submissions that, in the terms alleged, both representations (but especially the "greater share representation") are far too vague to engage the principles of estoppel.
On this aspect of the case it is only necessary for the Court to refer briefly to the detailed analysis advanced by Chris which is set out in Schedule 4 of these reasons. Without necessarily accepting or ruling upon every detail of those submissions, in their totality they fortify the Court in its conclusion that there is a sufficiently plausible alternative version of events which, when weighed in the balance, impeaches the likelihood of George's version to the point that the Court is not satisfied on the balance of probabilities of the facts which George has sought to prove as to the financial dealings between himself and Chris. Without being exhaustive, the Court accepts Chris' submissions that: 1. There is insufficient evidence to support George's allegations of paying his father funds from 1972 to 1986. 2. George was probably the sole signatory to and operated his CBA bank accounts, including having opened in his own name term deposits in trust for Bobby and Belinda and his own CBA smart access account. 3. George's ANZ bank accounts (referred to in Chris' submissions as the 775 account and the V2 account) were in George's name alone. Those accounts received George's income and, until the repayment of the ANZ mortgage in relation to No 7, moneys from the 775 account were paid into George and Bill's ANZ mortgage account. While no withdrawals were made by Chris from the V2 account, Chris did make withdrawals from the 775 account which were paid into George and Bill's mortgage account. 4. George's independent access to his own accounts and the frequency of the withdrawals which he made is inconsistent with George's suggestion that his financial affairs were controlled by Chris. Insofar as Chris (or George) was making withdrawals from the ANZ accounts after the mortgage over No 7 had been discharged, the Court accepts as an equally (if not more) likely explanation that if those moneys were received by Chris, it was to defray expenses incurred in respect of George and his family living with Chris, or they were applied by George to his and his own family's purposes. 5. The evidence does not permit the Court to reach a conclusion as to what happened to the money raised by George on No 22 and No 14. However, the Court accepts that insofar as those moneys were paid by George to Chris ($23,000 in January 1984 in respect of No 22 and $70,000 in March 1998 in respect of No 14), those moneys were paid for valuable consideration, the properties having been transferred by Chris and Rada. 6. The Court's conclusion in relation to the $200,000 paid by George to Chris in August 2009 is set out in paragraph [206] above. Having regard to the overall result in relation to George's case, it is unnecessary for the Court to reach a conclusion as to whether the amount of $200,000 was completely referable to George or whether $50,000 of that sum was referable to a payment by Bill to Chris.

George's common intention constructive trust

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".
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.
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).
For the same reasons that the Court has rejected George's claim relying on the alleged representations, the Court finds that George has failed to establish the facts from which the Court could infer that there was a joint relationship or common intention between him and Chris that George should have a beneficial interest in those properties acquired by Chris in the name of himself and Rada or in the name of KR&S. George's arguments are premised on the Court accepting that he gave all his income to his father between 1972 and 2009 which Chris used to finance the pool of properties and cash which he and KR&S now own. The Court is not satisfied of either of the elements of that factual submission. George's attempt to invoke equitable relief on the basis of Chris' alleged unconscionable conduct therefore fails.

Estoppel - Maria's submissions

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).
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

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

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.
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.
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".
Chris' defence to Maria's further amended statement of claim expressly denied "that he made any representations to [Maria] as alleged in relation to No 5 or any other property owned by the Defendant as alleged in paragraph 31 of the further amended statement of claim".
Because of the view which the Court has taken about the reliability of Maria's evidence, it is convenient at this point to set out the other evidence, such as it is, about what passed between Chris and Maria.
George's evidence was (T775:3-18): Q. Do you recall for his Honour what you recall Chris saying to her? A. Yes. It ended up him explaining himself that he is-- Q. What did he say? A. --he is very well off in Sydney and he owns like a shop and houses and he said he needs someone to look after him and his wife and the whole family because the - he told them my mother wasn't in good health and he needed someone to look after him and whoever looked after him and wife would never have to work again and if they looked after my mother well he was prepared to give anything to look after my mother. Q. Did he say anything about assets? A. Yes he said assets yeah, assets - he was one of the most wealthiest person in Australia, like a Macedonian, and he said that he is willing to give if someone looks - like Maria - looked after him and if she is willing to do it then he would promise her at the end of it that she would be entitled to assets.
Rade's evidence in his affidavit of 5 November 2014 was: 19. Chris also told me at Chris' house, one month before the Australian wedding ceremony, in speaking about his trip to Macedonia "I told Maria and Maria's parents we are very wealthy and if Maria looks after Rada and all the family Maria will get what Rada has as her share and give Maria something of mine".
While the court ultimately accepts the position put by Chris on this question, the reasons for doing so are not entirely identical with his submissions. Mindful of the conclusion which I have reached in relation to Maria's reliability, I have sought to assess her evidence in relation to the alleged representations by reference to all of the other available evidence and what from common experience seems likely, on the balance of probabilities, to have been the case.
Before setting out the reasons why the Court does not accept that Chris represented in terms that Maria would receive any of his properties, one other aspect of the objective evidence which the Court has taken into account needs to be noted. That evidence is, by way of background, what property Chris owned in 1986 (either alone or with Rada). There were three such properties: 1. No 45, purchased in 1966; 2. No 14, purchased in 1981; and 3. the commercial premises at No 428, purchased in 1984.
In addition, assuming that, at least in his own mind, Chris regarded as his own the other properties which he says he paid for, two additional properties need to be added to the list: 1. No 22, purchased by Chris and Rada in 1974 and transferred to George and Bill in 1984; 2. No 49, purchased by Louie in 1985.
There are eight reasons why Maria has failed to satisfy the Court that whatever Chris said to her in 1986 in Macedonia included a representation to the effect that she alleged that he would give her one of his properties.
First, an estoppel claim based on the alleged representations was not included in her original statement of claim, which was confined to her claim under the PRA.
Second, Maria's affidavit sworn 24 July 2012 (which while not read in her case was, as to the relevant part, tendered against her by Chris) gave this account: 14. I met George when he and my neighbour visited my home. George's cousin knew my neighbour. A few hours after I met George I was introduced to his father. I recall Chris saying to me. Chris: "He [George] is a good man, he is working hard. I have a couple of shops. If you look after my wife who is very sick and my other two sons and me I'll give you everything you want and you won't have to work. We have come to Macedonia so George could meet a good girl like you. As you can see Rada is unwell, she's had a stroke."
It counts heavily against Maria that such an early affidavit says nothing about a promise of property.
Third, the Court has accepted (see paragraph [564] below) that Rade is a witness whose evidence can be relied upon. However, his account of what Chris told him makes no reference to a specific representation as to property being given to Maria. Rade's evidence is set out in paragraph [314] above.
Fourth, if the Court was minded to accept George's evidence as reliable without corroboration (which it is not - see paragraph [498] below), George's version (on the assumption that it was to be believed) also says nothing about a specific gift of property or properties.
Fifth, it is also significant that if such a specific representation had occurred, it would have been so important to Maria that it is more probable than not that she would have made mention of it in the hospital tape. There is no mention of such a representation in the hospital tape. That omission tells against the reliability of Maria's recollection. The force of that conclusion is even stronger if it is assumed, for the sake of argument and as the Court has found (see paragraph [622] below), that the hospital tape was an attempt by Maria and George to "stitch up" or "verbal" Chris. If that was their intention, then the omission of what is now said to be such a significant matter is all the more striking.
Sixth, based on the various videotapes and other evidence such as the hospital tape, I have no doubt whatsoever that Chris was a paterfamilias who sought to buy or ensure the loyalty of family members with money. A particularly striking example of Chris' own recognition of that as his modus operandi is his videotaped conversation with the young Belinda set out in paragraph [95] above. However, it is equally clear that he was determined to protect what he saw as family assets from subsequent claims by the wives of his sons. So much is clear from his taking mortgages over their properties (see, for example, paragraph [78] above). It would have been quite inconsistent for Chris in 1986 to have offered one of his own properties to a prospective daughter in law, a fortiori to one who he had only just met, even as part of extracting some promise from her to care for himself and Rada.
Consistently with that assessment, and significantly for determining whether he would have ever represented to Maria that he would give her one of his properties, when Chris and Rada transferred No 14 in 1988, it was only to George rather than to Maria and George. There is no evidence that Maria complained either then or at any other time until the commencement of these proceedings that Chris had failed to honour an express representation that he would transfer to her one of his properties in return for her caring for himself and Rada.
Seventh, there is no evidence to suggest that Maria needed that much persuading that it is credible to have offered her a property, as opposed to the entirely credible, in the circumstances, representations that she would have a better life in Australia and would not have to work in return for providing care. In the end, it seems unlikely in the circumstances that Chris either would have had to, or would have gone so far as, to offer one of his hard earned properties to a 19 year old girl whom he had just met.
Eighth, I do not think you can use the various offers made in the hospital tape as evidence of what Chris might have done in 1986. The circumstances in which Chris found himself in 2010, at the time of the hospital tape, were completely different to those in 1986. By 2010 he had a clear and present need for domestic assistance and specific offers of payment of money and bequeathing No 5 are entirely consistent with that. In practical terms, Chris was in the position of weakness in 2010. In 1986, even assuming that he was looking to find someone for George who would look after him and Rada, he was in a position of strength because the Court is satisfied that he had no immediate or pressing need for such assistance.
On the other hand, Chris' Case was conducted on an equally incredible basis that denied he said anything to encourage Maria to come to Australia. In all the circumstances, there seems to be little doubt that a major (if not the only) purpose of the trip to Macedonia was to find George a wife. The video evidence alone demonstrates, even in 1986, that Chris was a proud and bombastic head of his family. It accords entirely with the probabilities, given the reason for the visit to Macedonia and Chris' personality, that he would deploy his inordinate pride in what he saw as his material success in Australia to persuade a young woman to marry his son, virtually sight unseen. For this reason, the Court is satisfied on the balance of probabilities that Chris said something to Maria along the lines of the evidence in her first affidavit (see paragraph [320] above), using words to the effect of: 1. They had come to Macedonia to find a wife for George. 2. He (Chris) was a very well off Macedonian in Australia, owning houses and a shop. 3. If Maria married George and came to Australia and looked after Chris, and especially Rada, who had had a stroke, she (Maria) would not have to work and he (Chris) would ensure that Maria had everything she needed.
Notwithstanding the views the Court has expressed about Maria's reliability as a witness (see paragraph [487] below), the Court's non-acceptance of her version of what Chris said to her is not to be understood as a finding (and the Court does not find) that her evidence on this point was deliberately misleading. Maria clearly believes that she is entitled to something from Chris including, quite possibly, No 5. Consistent with that belief, which manifested itself in the witness box as both passionate and obsessive, it is appropriate that the Court records that it is satisfied that, in all probability, Maria has persuaded herself that Chris represented to her that he would give her one of his properties.
Maria's estoppel case therefore fails because she has not made out the fundamental representation upon which she says she relied. However, even if that conclusion were wrong and the Court had accepted Maria's evidence as set out in paragraph [310] above, her claim would still have failed. That is because, in those circumstances, the Court is of the view that a representation that "I am going to give you one of my properties", rather than referring to a specific and identifiable property, was not sufficiently clear and unequivocal to support an estoppel claim: Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 435-437 (per Mason and Deane JJ). The result might be different if the identity of the property was objectively ascertainable from other facts. That is not this case.
Quite apart from the difficulty of not identifying a particular property (or referring to criteria by which a particular property could be identified), the language of "I am going to" more naturally bespeaks a statement of present intention rather than having a promissory character: see, for example, Ashton v Pratt [2015] NSWCA 12 at [134]-[136] per Bathurst CJ (McColl and Meagher JJA agreeing); Wilcox v Wilcox [2012] NSWSC 1138 at [7]; and Palagiano v Mankarios [2011] NSWSC 61 at [15].

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

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.
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.
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.
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). …
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

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.
Maria called in aid the evidence of the independent witnesses Rade, Pavlina Zajakovska ("Pavlina"), Nikola, Slavko Sjoriforski ("Slavko") and Cveta Stojcova ("Cveta").
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.
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.
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.
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.
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.
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

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.
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).
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.
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.
Next, Chris submitted that for the relevant period the Saravinovski household comprised multiple generations of the family living under the one roof. It was necessary to be careful to ascertain what Maria did for Chris as opposed to the others living in the house, in particular her husband and children. It was submitted that the evidence demonstrated that domestic work undertaken by Maria was almost wholly directed to herself and to her immediate family. Domestic tasks that she may have undertaken for the benefit of Chris were minimal and indirect.
The Court does not accept that submission. Chris' reliance on the fact that other members of the Saravinovski family, in particular Maria's own family, were also the beneficiaries of Maria's domestic support is not supported by the proper construction of s 5(1)(b). It does not say "each of whom provides only the other with domestic support and personal care". The statutory language directs attention to whether or not Maria provided Chris with domestic support and personal care. Other than in circumstances referred to in s 5(2), Maria's motivation for doing so or Chris' place in the hierarchy of her attention in, for example, cooking a meal is entirely irrelevant. The fact that Maria may have been, simultaneously, providing domestic support to other family members does not detract, for the purposes of s 5(1)(b), from the proposition that she was providing domestic support to Chris at the same time and by the same conduct (e.g. cooking the family meal).
Finally, Chris submitted that, if the Court was satisfied that Maria had provided Chris with domestic support and personal care, there was no close personal relationship for the purposes of the PRA because Maria had done so "for fee or reward" within the meaning of s 5(2)(a) of the PRA. This argument had two, independent, bases.
The first was that if the Court accepted Maria's estoppel claim, then Maria's acting on the expectation that Chris would make good his representation of providing her with one of his properties constituted a "reward".
Alternatively, it was submitted that even if Maria's equitable claim was not accepted, it was clear that whatever she did for Chris was in return for him extending to her and her immediate family advantages such as board, lodging and financial support such as paying for christenings, parties, trips and all their other needs.
The first basis may be immediately dismissed. It depended on the Court accepting Maria's estoppel case. The Court has not done so and it is therefore unnecessary for the Court to consider whether a party who provides domestic and personal support on the faith of a representation by the beneficiary of that support that he or she would confer some benefit is a "reward" for the purposes of the PRA.
Chris' second basis requires more extensive consideration.
Maria submitted that an arrangement for the provision of domestic support and personal care for "fee or reward" was a commercial or business relationship between the parties living together. She said this was not the character of the relationship between her and Chris. In support of that proposition Maria relied on this observation by Lindsay J in Skarica v Toska [2014] NSWSC 34 ("Skarica"): 45. And what they did, one for the other, was in pursuit of "domestic" arrangements, not "for fee [and/or] reward" within the meaning of s 3(4)(a) of the Succession Act. Theirs was not a commercial relationship, however mercenary the plaintiff may be said to have been in his self-serving manoeuvres.
In response, it was submitted for Chris that to characterise Maria and Chris' relationship as a private one rather than a business or commercial one was not to the point and ignored the language of s 5(2)(a) of the PRA. It was submitted that Maria's analysis fell into the error identified by the High Court in The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 at 421 that it "is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words".
Chris' submission depended upon the analysis of the word "reward" by the High Court in Commissioner of Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 CLR 449 ("Charles Moore") to the effect that "reward" was wider than "fee" and that something being done in the expectation of some advantage is done "for reward". Chris' written submissions put that "whatever Maria did for Chris was in return for him extending to her and also to her advantage, to her immediate family, board, lodging, support (paying for christenings, parties, social gatherings with their friends and relatives, overseas trips, and all their needs) for the entirety of the relevant period".
Chris' submission is, to this extent, correct, in that the Court must focus on the actual words of the statute. In the present case the relevant words are "a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support or personal care for fee or reward". Section 5 was introduced into the PRA by the Property (Relationships) Legislation Amendment Act 1999 (NSW). The Explanatory Note for the Bill in relation to what became s 5 of the PRA states "It is not the intention of the Bill to create rights and obligations between persons who merely share accommodation or in circumstances where one person's providing care to another is by way of employment or in the course of acting on behalf of a charitable organisation".
It is true that statutes have often had recourse to the language of providing a service "for fee or reward" in connection with employment relationships, retainers (such as of professionals), master and servant and the like. However, in my opinion, on its proper construction the expression "for fee or reward" clearly includes, but cannot be confined to, a relationship of employment.
The Second Reading Speech (Legislative Council, 13 May 1999, Hansard p 229) included: Second, the Bill specifically excludes from its ambit relationships which may otherwise be regarded as close personal relationships in which the care services rendered are provided in return for a fee or reward, or in the carer's capacity as a servant or agent of another, or an organisation, including a government of (sic) government agency, body corporate or a charitable or benevolent organisation.
In Charles Moore, the respondent was one of several department stores in Adelaide. Gibbs J (as his Honour then was) set out the relevant facts (at 459): The respondents, in the course of their business of store keepers, extend credit to their customers. The total volume of credit provided in this way is large. Although the respondents are in active competition with each other, they exchange credit information on a reciprocal basis. This is done in various ways. First, and most important, is the exchange of information by telephone. When a customer who seeks credit at one store already has a credit account with another, an employee of the former store will telephone the latter, and request, and be given orally, a report on the way in which the customer has conducted his account … The respondents cooperate in this way because they find that it is to their commercial advantage to do so. If a store will not provide information it will not be given information by others. The telephone reports are a prompt and comparatively reliable means of obtaining the information necessary to decide whether credit should be extended to a new customer, and if so to what extent, and are of real benefit to the respondents in the conduct of their retail business.
The question in the High Court was whether each of the respondents was a "reporting agency" under the relevant South Australian legislation, which included a definition of "a person or body of persons that, for fee or reward, furnishes consumer reports to traders".
Chris' submission relied upon observations made by two of three majority judges. Gibbs J said (at 462): The sole question for decision is whether the reports are furnished "for fee or reward". The words "fee or reward" do not in my opinion form one composite phrase - they are disjunctive. "Reward" is a wider word than "fee", and is not restricted to a payment in money. Any return or recompense for a service is a reward within the ordinary meaning of the word. … There can be no doubt that to fall within the definition the reports must be furnished pursuant to an arrangement of a business kind, but there is nothing to suggest that there need be a contractual arrangement. The word "for" denotes motive or purpose; the person comes within the definition only if he furnishes consumer reports to traders for the purpose, or in the expectation, of obtaining some fee or reward.
Chris also cited the following passage from the judgment of Stephen J (at 468-9 but, significantly, omitting from the passage quoted in his submissions the words which I have included in italics): Giving full weight to the need to interpret "reward" in the light not only of the definition in which it occurs but also of the broader context afforded by the legislation as a whole, I conclude that the commercial advantage which impels each participating store to join in supplying to its competitors that flow of information which the Act describes as "consumer reports" is a reward for the purposes of the definition of "reporting agency". I see it as no objection that the monetary value of the commercial advantage which participating stores hope to, and do in fact, derive, is incapable of precise quantification; nor does the word "reward", according to ordinary usage, necessarily involve the recipient in having any legally enforceable right to receive the advantage which it describes; still less need that advantage take the form of cash or its immediate equivalent in order to be a "reward". An act may, I think, be performed "for reward" if there exists an expectation that it will be productive of some sensible advantage; that advantage need not come directly from the person deriving the immediate benefit of the act performed so long as it is the anticipated outcome of the performing of that act. The context in which "for reward" occurs strongly suggests that the reward must be part of some commercial transaction and must involve what Bray CJ describes as "some commercially valuable benefit or advantage", a requirement which is clearly satisfied in the present case. In a sense an act "done for reward" is the antithesis of the making of a gift, which Owen J spoke of in Federal Commission of Taxation v McPhail (1968) 117 CLR 111 at pp115-116, as occurring when in return nothing "of material advantage to the disponor" is received. When, on the contrary, something of such advantage is contemplated as being received in return the act done readily enough answers the description of being done for reward.
Although not cited on behalf of Chris, the observations of the third judge in the majority, Mason J (as his Honour then was), should be added for completeness (at 476): I agree that the expected receipt of reciprocal reports relating to its customers by a respondent who furnishes a report enables it to be said that the report is furnished "for reward". On the findings of fact and the evidence, a report is furnished because there is in existence a common and reciprocal practice relating to the giving of reports with the consequence that a store furnishing a report confidently believes that it will receive reports relating to its customers. That is the reason or motive for furnishing a report. But for the expectation that it would receive a valuable benefit in the form of reciprocal reports, a department store would not provide a competitor with the information about a customer. When a service is provided in the course of commercial operations or as a matter of business or commercial practice, in the expectation, reasonably based, that a benefit will be received in consequence of the provision of the service, the service is provided "for reward", even though there is no legal obligation to furnish it and no legal right to compel its provision.
The High Court's decision in Charles Moore was distinguished by the New South Wales Court of Appeal in Parsons v Southern Tableland and South Coast Racing Association [1978] 1 NSWLR 47. In that case the Court was considering the phrase "engaged to ride … for fee or reward in any horse … race" under workers compensation legislation. The Court distinguished Charles Moore and held that what was required under the legislation was an agreement to ride for valuable consideration, that is to say a legally enforceable contract. The decision is of no assistance in the present case because the Court relied on the use of the word "engaged" to find that the expression involved a promise to ride in return for consideration in money or money's worth.
There has been very little judicial consideration of s 5(2)(a) of the PRA.
There are inconsistent decisions of McLaughlin AsJ. In Woodland v Rodriguez [2004] NSWSC 1167, Master McLaughlin (as his Honour then was) said: 56 However, it is submitted on behalf of the Defendant that, since the Deceased was being paid a carer's pension, then whatever domestic support or personal care he was providing for the Plaintiff was being provided for fee or reward. In this regard I would firstly observe that there was no direct evidence that the Deceased was, in fact, being paid a carer's pension, let alone evidence of the nature or the amount of such pension. In the absence of clear and persuasive evidence in that regard, this submission cannot succeed. 57 If, however, it be accepted that the Deceased was, in fact, being paid a carer's pension, it then becomes necessary to consider the effect of such a pension in the light of the foregoing provision of section 5(2) of the Property (Relationships) Act. I have not been taken to any authorities concerning the construction to be placed upon the preclusion contained in paragraph (a) of section 5(2) from the definition of a domestic relationship. Although the preclusion is in its terms unlimited, it would seem to me unlikely that it was the intention of the Legislature to preclude a person who would otherwise without doubt come into the category of living in a close personal relationship (for example, a niece looking after her aunt, or a stepchild looking after a stepparent, or a grandchild looking after a grandparent), merely on account of the fact that the person who was providing the other with domestic support and personal care was in receipt of some form of pension from the social security authorities, such as Centrelink. I can fully understand the preclusion in the case of, for example, a nurse or a housekeeper who is being paid directly, or even indirectly, by the person for whom the domestic support and personal care are provided.
However, three years later in Grech v Walsh [2007] NSWSC 302, his Honour (apparently without having been referred to his earlier decision) said: 90. Subsection (2) of section 5 of the Property (Relationship) Act, expressly excludes from the definition of a close personal relationship in subsection (1)(b) a person who provides domestic support and personal care to the other person for fee or reward (paragraph (a)), or on behalf of an organisation (including a government agency) (paragraph (b)). In the instant case, although Mr Grech was not paid directly by the Deceased, he was receiving a carer's pension paid to him by a government agency, Centrelink. Whatever care Mr Grech was providing for the Deceased (such care being minimal, incompetent and irresponsible, and heedless of the physical well-being or the health of the Deceased) he was properly recompensed for. …
The most considered discussion is to be found in the decision of Bryson AJ in White v O'Neill [2010] NSWSC 1193 ("White"): 46 In so deciding I have assumed that the receipt by the plaintiff of a Carer's Allowance from Centrelink does not fall within the exclusion in s 5(2) which when defining a domestic relationship and a close personal relationship excludes a relationship "...between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or ...". 47 A Carer's Allowance is a statutory entitlement under Part 2.19 of the Social Security Act 1991 (Cth) in the facts and circumstances prescribed by Part 2.19. The facts and circumstances are prescribed in complex terms: see s 954A; but at their centre care and attention must be received from the person entitled to the allowance - s 954A(2), and may be received for wages, but not necessarily so: s 954A(1)(f). Receipt of a Carer's Allowance from the Commonwealth is not in my opinion an instance where a person "...provides ...domestic support and personal care ...for fee or reward" because there is no direct relation between the Carer's Allowance and the provision of support and care of the kind which the words used connote: they connote a contractual arrangement in which the fee or reward is produced by the provision of support and care. Neither "fee" nor "reward" is apposite for reference to entitlement to a social security payment: the Commonwealth does not contract or arrange to pay a fee, and does not give a reward, but makes the payment if and because the statutory provisions are fulfilled. The separate dealing in s 5(2)(b) with government benefits suggests that they are a different subject to the "fee or reward" in s 5(2)(a). A different view appears to have been acted on by McLaughlin AsJ in Grech v Walsh [2007] NSWSC 302 at [90] and [101] but without supporting reasoning or detailed address to the terms of legislation. His Honour's obiter dicta in Woodland v Rodriguez [2004] NSWC 1167 at [57] support the conclusion I have reached.
Finally, a conspectus of the few authorities leads to the dictum relied upon by Maria in the judgment of Lindsay J in Skarica. His Honour said (apparently without having had any other authority cited to him): 45. And what they did, one for the other, was in pursuit of "domestic" arrangements, not "for fee [and/or] reward" within the meaning of s 3(4)(a) of the Succession Act. Theirs was not a commercial relationship, however mercenary the plaintiff may be said to have been in his self-serving manoeuvres. 46. The fact that, for a short time before the deceased's death (between 24 October 2011 and 17 January 2012 or thereabouts), he received a "carer's allowance" from the Australian Government (Centrelink) does not require a finding that he provided "support and personal care for fee [and/or] reward". It is common ground that he received six fortnightly payments of a carer's pension. His receipt of them does not require that an essentially private relationship be characterised as a business relationship. 47. Viewed objectively, and in all the circumstances, the provision of domestic support and personal care by the plaintiff to the deceased cannot fairly, or reasonably, be characterised as having been provided "for" fee and/or reward.
The error in Chris' argument is that it focuses on "reward" rather than "for". There can be no doubt that, for example, free board and lodging could, in appropriate circumstances, be a "reward". The question is whether what was done had been undertaken "for … reward". The judgment of Bryson J in White (implicitly) and of Lindsay J in Skarica (explicitly) focuses attention on the word "for".
In the context of s 5(2)(a), the preposition "for" means "in consideration of, or in return for" (Macquarie Australian Dictionary, online edition). By reference to that definition, I respectfully agree (to this extent) with Bryson AJ's conclusion in White that on its proper construction the expression "… provides … domestic support and personal care … for fee or reward" requires a "direct relation" between the fee or reward and the provision of support and care. The factual question for the Court, to adopt Bryson AJ's language, is whether "the fee or reward is produced by the provision of support or care". The relationship must be causative or, putting it another way, be a quid pro quo. This requirement was captured in the observation of Mason J in Charles Moore (at 476) that "But for the expectation that it would receive a valuable benefit in the form of reciprocal reports, a department store would not provide a competitor with information about a customer".
For the foregoing reasons, a party wishing to rely on s 5(2)(a) must satisfy the Court that there is a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care for the purpose of eliciting the identified fee or reward. So understood, such an arrangement might be seen as the origin of, or motive for, what would otherwise be a close personal relationship under the PRA. It is to be contrasted with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship.
It is common human experience that a close personal relationship will involve an expectation of mutual benefit and support in each party. An example of such a benefit is the provision of free accommodation to the other person in the relationship who provides domestic support and personal care. However, while the free accommodation is undoubtedly a "reward", where it and the provision of domestic support and personal care are manifestations of the close personal relationship rather than the immediate and advised motivation for it, s 5(2)(a) will not be engaged.
For completeness, I should record where, with the utmost respect, I differ from the views expressed by Bryson AJ and Lindsay J. In relation to Bryson AJ's reference to a "contractual arrangement", in my respectful opinion the language of s 5(2)(a) does not require there to be a legally enforceable arrangement, although obviously such an arrangement would satisfy the section. Similarly, if (which I readily accept is not entirely clear) by referring to a "commercial relationship" in Skarica, Lindsay J was intending to say that only what could be characterised as "commercial" relationships fell within s 5(2)(a), then I respectfully disagree. While the commercial provision of domestic support and personal care would almost certainly involve a contractual arrangement and obviously be sufficient to satisfy the section, it is not necessary. In my view, inviting an enquiry as to whether the relevant relationship was "commercial", "business" or "private" is a distraction from the task of applying the words of s 5(2)(a) themselves.
Considering the evidence set out in paragraphs [382] and following, below, the Court is satisfied that there was no direct relation of the kind referred to in the preceding paragraphs between Maria providing domestic support and personal care to Chris and the various advantages identified by Chris in his submissions as having been conferred on Maria and her family. Those advantages were manifestations or indicia of the close personal relationship between Maria and Chris, but they were not the consideration (in the sense of quid pro quo) for the provision of that domestic support and personal care by Maria to Chris.

Maria's PRA claim - close personal relationship - resolution

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.
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.
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.
The statement is contained in this passage of the hospital tape (emphasis added): Chris: Maria don't tell me these things now I don't want to listen to them. If you can look after me, the way we lived before. I'll pay your house how much it costs you I'll pay it I was telling Maria before, I'll give something to the crow …indistinctive… If you can look after me, understand?, I'll pay for your house, we'll go to Gordon…indistinctive…you'll sign and I'll sign, I will not ask you for the money if you look after me".
The court infers from what Chris is recorded as saying that Maria did look after Chris and, given the nature of the offer which he makes to her, that "looking after" was looking after him completely. She had done so before because that was "the way we lived before". Chris was trying to restore the status quo ante.
The foregoing conclusion is also supported by these words of Chris to Maria recorded in the hospital tape (emphasis added): Chris: … I was upset when Maria said she wasn't going to take me, I won't make a wedding, I was wondering why, what was the matter, …indistinctive……indistinctive…I didn't put chains, you stayed because you wanted to stay, because you were good, nobody would stay if he doesn't want to, Ljube would leave if he doesn't want to stay, he would leave like Valentina did.
The importance of what Maria did for Chris is also demonstrated by the his strong desire for reconciliation and his genuine remorse evidenced in the hospital tape.
The Court accepts Rade's evidence that: 1. After Maria and George were married in 1986 he commenced going to the Saravinovski home at Rockdale on a regular basis, going there once or twice a week. 2. Similarly, he would go to the Saravinovski home at No 5. 3. In both houses he observed that Maria had the role of home maker. He observed her washing and cleaning at both No 45 and No 5, together with ironing, cooking and working from time to time in the garden. 4. Apart from Maria, he did not observe any other women doing work around the house. 5. From the early 1990s Chris regularly said to him about Maria: "Maria is very good, she cooks and cleans and looks after me" and "George is very lucky. You cannot find a woman like Maria very often" and "Maria is very capable". 6. When the new house at No 5 was being built, he visited the site from time to time with Chris and observed Maria on site doing chores. This included Maria doing physical work such as moving bags of cement and moving bricks as well as noting that Maria had a role in choosing materials for the house, which Chris said he (Chris) left for Maria to deal with. 7. He observed Maria change Chris' dressings in hospital when he had a hip replacement. 8. He observed Maria help Chris by giving him medication and heard Chris say "If I forget to take my pills Maria always reminds me". 9. He recalled Chris saying things to him of Maria such as "She is like my daughter. None of my sons would have taken care of me", "I have a very good daughter in law", "Maria does everything. No one else treats me like this" and "Maria is one in a million". 10. Chris said to Rade not very long after they met words to the effect of "I want to find a wife for George and for Bill. I need a daughter in law to look after the family" and later "I'm looking for a wife for my sons". 11. In 1986, before he went to Macedonia, Chris said to Rade "You will see even though there is no one here I am going to get George a wife who is a nurse or doctor from Macedonia. That is what I need". 12. Before going to Macedonia in 1986 Chris also said the girl he was looking for to marry George could only be from Macedonia because he wanted a housewife (in Macedonian "domakinka"), a woman who would look after Rada, himself and the entire family. 13. He had seen Maria cutting Chris' toenails on several occasions and that when she was at the real estate agency Chris would send her to get his medication. 14. The way Maria looked after Chris gave an impression to onlookers that she was actually his wife and not his daughter in law.
The Court accepts the evidence of Pavlina that: 1. She taught Maria how to cook and showed her other things such as cleaning, washing and ironing. 2. That she observed that Maria took the role of the woman of the Saravinovski household. 3. That when Bill married his first wife, Marina, Maria was the main person preparing the food and cleaning the house for the celebration. 4. When Pavlina visited the Saravinovski home she observed that Maria was looking after all the members of the household, which included Chris, Rada, Bill and Louie. Her evidence was that she visited the Saravinovski home many times after Maria and George were married. 5. To her observation, Maria kept the house at No 45 immaculately clean, as she did the large new house built at No 5. 6. Chris had told her "She's like my daughter. She's looking after me. She's putting my socks [on] my shoes. She's cutting my toenails." 7. Maria was always at Chris' side at social functions.
The Court accepts Nikola's evidence that: 1. Between 1986 and when Rada died in 1993, Nikola and his wife visited Chris and Rada once a week or so. During those visits it was Maria who served the food and drinks. 2. After Rada's death Chris said to him (Nikola) from time to time, "I'm lucky to have Maria to look after me" and "Maria is very good at looking after the house". 3. When he visited both No 45 and No 5 (although his visits to the latter were less frequent), they were both well-kept homes.
The Court accepts Slavko's evidence that: 1. When he visited the Saravinovski household while Rada was alive, Maria did most of the work looking after guests. 2. On visits to both No 45 after Rada's death (approximately four times a year) and after the Saravinovski family had moved to No 5 (from time to time), he observed Maria doing work around the house, work which he described as traditionally done by the woman of the home. 3. On one occasion he arrived to find Maria sweeping the carpet. 4. When visiting both No 45 and No 5, Chris would say things like "We are very lucky to have a daughter in law like Maria", "Maria works very hard" and "Maria keeps the house really clean". 5. Maria, to his observation, looked after the new home at No 5. On his visits to that house, Maria served the food and drink to guests. Whenever he visited the Saravinovski home Maria appeared to him to be the woman of the house.
The Court accepts Cveta's evidence that: 1. On visits to the Saravinovski home at No 5, Maria prepared all the food and served all the food to guests. 2. She observed Maria to work around the house at No 5, which to her observation was always kept very clean. 3. Chris told her on a couple of occasions that "I treat Maria like my daughter", "She does everything, cooks, cleans. She goes to the agency. She looked after me and the family" and "She's washed my feet, put on my socks, put cream on my hip." 4. Chris had also told her that Maria cooked for him, washed for him, did the dishwashing, ironing, cleaning, went to the agency, cleaned the agency and that she did everything he needed.
The video and photographic evidence support this conclusion. The video evidence comprises the housewarming at No 5 showing Maria carrying a box of KFC chicken (see paragraph [103] above), the meals for Maria's relatives (see paragraphs [94] and [95] above) and the footage of Christopher's christening in March 2004 showing Maria sitting next to Chris at the head table, not any of his sons. The photographic evidence is pictures of family functions (Exhibits 99D and 100D) showing Maria standing next to Chris.
The next matter the Court relies on is the inherent likelihood of the situation, supported by the evidence in paragraph [387] above that Chris wanted a housewife for George. In 1986 the Court is satisfied that Rada was not incapable but had clearly suffered a stroke. The Court is satisfied on the basis of the video evidence from the trip to Macedonia in 1986 that Rada had made a good recovery suffering only some difficulty with her right hand and a slight drooping on the right side of her mouth which may have affected her speech. However, notwithstanding that Rada was not then seriously incapacitated, it is entirely natural that Chris, both as a concerned husband wanting to reduce the workload of his wife and as a man who clearly expected to be waited on, would have wanted his son to marry someone who was, in effect, going to become the main home maker in the Saravinovski household. Furthermore, I formed the clear impression that, similarly to Chris and with no disrespect, both Bill and Louie were not men who expected to contribute to the domestic tasks of a household. Even if Chris could look after himself, it is clear to the Court from the video and other evidence that he thought of himself as the provider and head of the household who in return would have expected to be cared for by the woman of the house.
Similarly to the preceding point, the Court also takes into account that Maria's young age, her lack of regular employment and her position in the household all support the inference that she did most, if not all, of the domestic work during the time she had lived under Chris' roof. In reaching that conclusion, I have not overlooked the evidence about brief periods of employment, including at the nursing home which gave rise to one of her personal injury claims. Such employment would not have impeded her role as principal home maker. Similarly, insofar as she helped out at Chris Realty, the Court is satisfied her participation was as much part of what might be termed the "hobby" operation of the agency as the Court is satisfied was Chris' and other family members' involvement.
The Court accepts that a Jones v Dunkel inference should be drawn in the case of Chris' failure to call Valentina, Bill's second wife who lived in the Saravinovski household between 2002 to 2005 or 2006. No explanation was given for her absence. At least in relation to the period when Valentina lived in the Saravinovski household, the Court infers that her evidence would not have assisted Chris in his attempts to traverse Maria's evidence about the extent of the domestic support and personal care she provided. Accordingly, in accordance with Jones v Dunkel, the Court is fortified in drawing the inference which it has set out in paragraph [381] above to the extent it includes when Valentina lived in the household.
All of the matters set out in paragraphs [382] to [395] above provide independent corroboration of the essential features of the evidence given by Maria, George, Bobby and Belinda about the nature and extent of the domestic support and personal care which Maria provided to Chris while Maria and George's family lived under Chris' roof. Therefore, and notwithstanding but consistently with the findings the Court has made about their evidence generally (see paragraphs [474] and following, below), the Court has placed some (but, in and of itself, not decisive) weight on their evidence. However in doing so, the Court has also discounted their evidence by reason of the likelihood of exaggeration (particularly in the case of Maria) and interest or partiality in the outcome.
Accordingly, the Court accepts that Maria began doing domestic tasks for Chris from when the family was living in a villa in Macedonia after Maria and George were married in that country. It also accepts that while she did not necessarily do (as she claimed, with some exceptions) virtually every piece of cooking, cleaning, washing, going shopping with Chris, taking out the garbage and every other domestic chore, she did most of it (see further paragraph [459] below). Given the varying ages and occupants of the household over time, Maria's evidence that she prepared breakfast not every day but maybe three times a week is inherently credible. The claim in relation to lunches and dinners needs to be discounted, so that the Court is satisfied that she cooked most, if not necessarily all, of the lunches when Chris had a cooked lunch and dinner. These findings relate to the entire period that Maria lived with Chris at both No 45 and No 5. Similarly, while again perhaps not to the extent she claimed, the Court accepts that Maria provided some meals and otherwise assisted, with other family members, with lighter tasks related to the construction of No 5.
The Court also accepts that Maria, on most Saturdays, undertook a thorough general clean of the new family home at No 5. That home is undoubtedly very large. While the Court considers that Maria's evidence that the task took her from 6.00am until 9.00pm is an exaggeration, the Court is satisfied from the video evidence of No 5 that it would have occupied the greater part of the day.
In relation to personal care of Chris, while again the Court is not satisfied it was as often or as extensive as Maria claimed, it is accepted that between 1986 and 2009 Maria did assist Chris with his personal care as and when required. Relying on the course of ordinary human experience, this would have increased at times of illness, once Rada had died and generally as Chris grew older. The personal care which the Court finds Maria rendered to Chris over time (but not so intermittent or insignificant as to be de minimis) included measuring his blood pressure and blood sugar, cutting his toenails, helping him with his socks and shoes, laying out his clothes, going shopping with him for clothes, preparing his bag for swimming, looking after him after his hip replacement and hernia surgery, taking him to the doctor, rehabilitation and other medical appointments, changing bandages, reminding him to take tablets, and giving him medication and eye drops.
George, Belinda and Bobby each gave evidence of Maria providing domestic support and personal care of the kind referred to in the preceding paragraphs. As with Maria's evidence, the Court has taken their evidence of these matters into account, but with reduced weight so that in and of itself it would not be decisive of the issue.
For the reasons given in paragraphs [500] to [541] below, the Court does not take into account or accept Chris', Louie's and Bill's attempts to deny and minimise Maria's contribution to Chris' domestic support and personal care.

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

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.
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.
In Kardos v Sarbutt [2006] NSWCA 11 ("Kardos"), Brereton J sitting in the Court of Appeal (Basten JA and Hunt AJA agreeing) said: 29 The exercise of jurisdiction under s 20 involves three main steps. The first is the identification and valuation of the property of the parties, which determines the "divisible pool of property" - that is, "the property of the parties to the relationship or either of them" referred to in s 20 which may be the subject of an adjustive property order under that section. The second is the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20, and typically though not invariably results in an apportionment between the parties on a percentage basis of the overall contributions of the types referred to in s 20 of each of them, made to the date of hearing. The third is the determination of what order is required sufficiently to recognise and compensate the applicant's contributions, and typically results in an order which leaves the applicant with that percentage identified in the second step of the divisible property identified in the first step. This is a simplification of the four step approach first formulated by Powell J in D v McA (1986) 11 Fam LR 214, (1986) DFC 95-030 [see also Roy v Sturgeon (1986) 11 NSWLR 454, (1986) 11 Fam LR 271, (1986) DFC 95-031; Wilcock v Sain (1986) 11 Fam LR 302, (1986) DFC 95-040; Evans v Marmont [1997] NSWSC 331, (1997) 42 NSWLR 760, (1997) DFC 94-184; Jones v Grech [2001] NSWCA 208, (2001) 27 Fam LR 711, (2001) DFC 95-234; [2001] NSWCA 208]. 30 As to the first step, the exercise of the identification and valuation of the property of the parties is undertaken typically, though not invariably, as at the date of trial [see Parker v Parker (1993) 16 Fam LR 863; (1993) DFC 95-139; Wells v Wells (1977) 29 FLR 383; (1977) 4 Fam LR 57; (1977) FLC 90-285, though sometimes as at the date of separation [Cozanitis v Cozanitis (1979) 34 FLR 523n, (1978) 4 Fam LR 709, (1978) 4 Fam LR 709, (1979) FLC 90-643]. The starting point is that ordinarily property is valued as at the date of trial [Williams & Williams (1984) 9 Fam LR 798, (1984) FLC 91-541; Hauff & Hauff [1986] FamCA 16; (1986) Fam LR 1076; (1986) FLC 91-747]. The primary reason for this is that the jurisdiction under s 20 is to adjust interests with respect to "the property of the parties to the relationship or either of them" and speaks from the date at which the jurisdiction is exercised, so that what is in issue is the property of the parties and each of them at the date of trial. Establishing the divisible pool at any other date may lead to failure to have regard to relevant assets available for division, or to the bringing into account of property no longer available. Thus in Woodland & Todd (2005) 33 Fam LR 177; (2005) FLC 93-217; [2005] FamCA 161, in which the property of the parties - which had been worth $873,000 when the husband and wife divided it between them in 1997 under an informal agreement which did not deprive the court of jurisdiction - had increased in value to $2.5 million when the matter came to trial years later, the Full Court of the Family Court held that the primary judge had erred in treating the case as concerning an asset pool as at the date of the informal agreement in 1997, and was required to address an asset pool that existed at the time of the hearing, not at the time of the prior agreement. 31 Although usually the preferable approach is to value property as at the date of trial, giving where appropriate separate and special consideration to contributions to value made between separation and trial, nonetheless the ultimate task of evaluating the respective contributions of the parties may sometimes be facilitated by adopting the date of separation for identifying and valuing the property, particularly when there have not been ongoing contributions by one party which have benefited the other since separation. Thus the Full Court of the Family Court has said (in respect of proceedings under the Family Law Act, s 79, which for present purposes are akin to proceedings under the Property (Relationships) Act, s 20 that although ordinarily the parties' property is to be valued at the date of trial, in a particular case there may be reasons to justify another date, which might be the date of separation [Omacini & Omacini (2005) 33 Fam LR 134; (2005) FLC 93-218; [2005] FamCa195. 32 As to the second step, a number of principles have been established relating to the evaluation and balancing of the respective contributions of the parties of the types referred to in s 20. 33 First, where there is a division of roles in the relationship between the homemaker and parent on one hand and the breadwinner on the other, contributions of a de facto partner as a homemaker and parent are not to be regarded as inferior in any way to the financial contributions made by the other partner [Black v Black (1991) 15 Fam LR 109; (1991) DFC 95-113; Evans v Marmont]. The approach endorsed by the High Court to the evaluation of contributions under the Family Law Act 1975 (Cth) in Mallet v Mallet [1984] HCA 21, (1984) 156 CLR 605 is applicable to the evaluation of contributions under the Property (Relationships) Act [Jones v Grech, [33]-[35] (Davies AJA)]:- In Mallet v Mallet [1984] HCA 21, (1984) 156 CLR 605 at 635-636, Wilson J, after referring to a number of judgments of the Family Court of Australia in which that Court had adopted the notion of "equality is equity" as a convenient starting point to s79(4)(b) of the Family Law Act, 1975 (Cth), went on to say:- "In the earliest of these cases, Rolfe [(1977) 5 Fam LR 146 at 148] ..., Evatt CJ referred to s79(4)(b), saying: 'The purpose of s 79(4)(b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.' With all respect, I agree with her Honour's exposition of the purpose of the paragraph subject to one reservation. The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. ... Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall 'take into account' any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application." The general thrust of his Honour's exposition found support in the observations of other members of the Court: Mason J at p623-p625, Deane J at p639-p641 and Dawson J at p645-p646. One point that their Honours made in relation to matrimonial relationships was that the relationship ordinarily involves "a practical union of both lives and property" and that the acquisition of assets, such as a matrimonial home, can be seen as representing "the fruits of a totality of efforts of wage earning, homemaking and mutual support" (per Deane J at p640-p641). At p625, Mason J pointed out that there may be an equality of contribution if "the efforts of the wife in her role were the equal of the husband in his". However, the facts of the particular case must always be examined. The passage from the reasons of Wilson J set out above shows how this examination may be made. The same general considerations apply to a de facto relationship, for that is a relationship of living together as husband and wife on a bona fide domestic basis. Such a relationship also ordinarily involves a practical union of lives and property. The two factors specified in s 20(1), financial and non-financial contributions and contributions made in the capacity of homemaker or parent, reflect the considerations to which their Honours gave weight in Mallet v Mallet. 34 It is to be observed that, insofar as it was said in Mallet that the Family Law Act requires that the contribution of a wife as homemaker and parent be seen as an indirect contribution to the acquisition, conservation, or improvement of the property of the parties, that is no longer necessary since the 1983 amendments to the Family Law Act; nor has it ever been necessary for the purposes of the Property (Relationships) Act, s 20(1)(b) , which does not require that the contributions there referred to be contributions to the acquisition, conservation, or improvement of property. 35 Secondly, contributions made before cohabitation commences are relevant contributions for the purposes of s 20 [McDonald v Stelzer [2000] NSWCA 302, (2000) 27 Fam LR 304, (2001) DFC 95-233; [2000] NSWCA 302, [28]-[32] (Sheller JA), [34]-[36], [39] (Priestley JA); Jones v Grech, [24] (Davies AJA), [81]-[82] (Ipp AJA)], as are contributions made after separation and before trial [Foster v Evans (1997) DFC 95-193, 77,681; see also Jones v Grech, [79] (Ipp AJA)]. 36 Thirdly, in proceedings under s 20. the court is not required to undertake a reductionist process analogous to the taking of partnership accounts by examining every alleged "contribution" of the kinds described in the section with a view to putting a monetary value on each in order to reach an accounting balance one way or the other, then to be eliminated by the requisite financial adjustment; rather, the court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind [Davey v Lee (1990) 13 Fam LR 688, (1990) DFC 95-084 (McLelland J)]. 37 Some contributions are readily capable of evaluation in monetary terms. Others - such as those made in the capacity of homemaker and parent - are not. Because some assets depreciate in value, and because parties incur living expenses, the pool of property available for division will usually be less than the sum of the financial contributions, and more so when allowance is made for the value of the non-financial contributions. This means that the type of accounting approach which McLelland J discouraged in Davey v Lee runs the risk that, by focussing on the valuing of individual contributions item by item, not only will the overall picture be lost, but serious injustice can be done, particularly by devaluing those contributions which are not readily capable of evaluation in monetary terms. On the other hand, the "fruits of a totality of efforts of wage earning, homemaking and mutual support" referred to by Deane J in Mallet do not usually encompass property which each party had before the relationship, or which either party introduced not by way of their mutual efforts at wage earning, homemaking and mutual support, but independently through gift or inheritance from third parties. 38 As to the third step - the determination of what order is required in order sufficiently to recognise and compensate the applicant's contributions - the court is concerned with what is just and equitable having regard to, and only to, the respective contributions of the parties of the type referred to in s 20, and there is no warrant for regard to other factors such as the respective means and needs of the parties, which are made relevant to equivalent applications under the Family Law Act by s 79(4)(3) of that Act, an equivalent of which is conspicuously absent from the Property (Relationships) Act, and the omission of which was deliberate, as appears from the Law Reform Commission's report of June 1983: Report on De Facto Relationships, No 36 of 1983, to which the draft Bill was an appendix, and from which the policy underlying the legislation appears [Wallace v Stanford (1995) 37 NSWLR 1; (1995) 19 Fam LR 430; Evans v Marmont, 81].
In Hayes, McColl JA (with whom Beazley JA (as her Honour then was) agreed) said at paragraphs [107] and [108]: 107 Exercising the discretion under s 20 required the primary judge to identify and (so far as possible) value the contributions that are being taken into account and identify and (so far as possible) value the property concerning which it is open to the court to make an adjustment. The final step in the process of arriving at an order is to make a "holistic value judgment", that is to say, to decide what adjustment of property seems just and equitable having regard to the contributions identified in s 20(1)(a) and (b): Manns v Kennedy (at [64]). 108 While the Court has "a broad discretion" in determining the approach to adopt in considering what order to make under s 20, two approaches are usually referred to, global and asset-by-asset: Saric v Steward [2006] NSWCA 260 (at [63]) per McColl JA (Handley and Santow JJA agreeing); Kardos v Sarbutt (at [51]); Bilous v Mudaliar [2006] NSWCA 38 at [42] per Ipp JA (Giles and McColl JJA agreeing). Care must be taken when either is adopted to conduct that might be described as a cross-checking process as described by Ipp JA in Bilous (at [43]): "43 If a global approach is adopted, regard must still be had to the origin and nature of the different assets. If an asset-by-asset approach is adopted, care must be taken to avoid the risk of undervaluing domestic and non-financial contributions and regard must be had to the overall result: Kardos v Sarbutt at [51] and [54]. 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 to the parties and make differing apportionments in relation to the interests of the parties in different assets."
In the same judgment, Einstein J made observations to like effect: 195 It is well established that the Court's task in an application under s 20 of the Act is to identify and (so far as is possible) value the contributions of the parties to the relationship, and to use its best endeavours to value the property: the Court being empowered, where appropriate, to adjust the parties' interests in the property in a just and equitable manner: Howlett v Neilson [2005] NSWCA 149; Saric v Steward [2006] NSWCA 260; Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360. 196 The task that s 20 requires, involves the Court making "a holistic value judgment in the exercise of a discretionary power of a very general kind" (per McClelland J in Davey v Lee, supra, at 689; cited in Manns v Kennedy [2007] NSWCA 217 at [62] per Campbell JA; Santow JA and Bryson AJA agreeing). See also Kardos v Sarbutt [2006] NSWCA 11 at [36]. 197 In Howlett v Neilson [27]-[28], Hodgson JA observed that the task of identifying and evaluating the respective contributions of the parties for the purpose of s 20 was not a narrow or purely mathematical process.
In Sharpless v McKibbon [2007] NSWSC 1498 ("Sharpless") after referring to what Wilson J had said in Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 603, Brereton J said: 70 However, that approach has evolved in the context of marriages and quasi-marriages involving a social and economic partnership between domestic partners or, as it was put in Mallet, "a practical union of lives and property". It is applicable where there is an allocation of roles in the relationship between the homemaker and parent on one hand and the breadwinner on the other, so that one (by assuming the domestic responsibilities) may be said to have freed the other to generate income, so that the income is the product of their joint endeavours in different fields. 71 The inclusion within the Act of "close personal relationships" has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a "close personal relationship" not amounting to a de facto relationship. "Close personal relationships" within the definition cover a wide range of relationships, and typically do not involve "a practical union of lives and property". In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed.
His Honour further expounded upon his observations in paragraph [71] of Sharpless while sitting as a member of the Court of Appeal in Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260 ("Burgess"). His Honour said (with Beazley JA (as her Honour then was) and Tobias JA generally agreeing): 11 The point of that passage was that the contributions in a de facto relationship occur in the context that the parties are by definition living together as a couple, whereas contributions in a close personal relationship do not necessarily have that feature. In the case of a de facto relationship there will usually, if not inevitably, be a social and economic partnership, whereas in a close personal relationship there will not necessarily be so. Sharpless was a case in which after the de facto relationship had ceased there was no such social and economic partnership. But the range of close personal relationships is wide, from those that are quasi marriages, to those that bear no similarity to a marriage at all (for example, where the relationship might be one 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. Sharpless does not state that a close personal relationship could never involve those characteristics of a social and economic partnership which make what was described in that case as the approach in Mallet v Mallett [1984] HCA 21; (1984) 156 CLR 603 an appropriate one.

Maria's Case -"the divisible property"

The Court is able to commence its consideration of this topic by reference to certain matters which were common ground.
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.
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.
No party applied to make additional or amended submissions arising from George's death while this judgment was reserved.
Finally, the parties were in agreement about Chris' and Maria's property at the commencement of the relationship in 1986.
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.
For her part, in 1986 Maria held no real property assets in her own name. George (together with Bill, as joint tenants) held No 22 subject to a $56,000 mortgage to the CSBA.
As at the date of the hearing, Chris held the following assets: 1. No 5 (unencumbered). 2. No 414 (unencumbered). 3. No 428 (unencumbered). 4. No 11 (nothing turned on the fact that as at 2 December 2009 Chris was the owner of this property in equity only, having provided the entirety of the purchase price). 5. A 90% shareholding in KR&S, which itself owned No 509 (unencumbered).
As at the date of hearing, George (and therefore, for the purposes of this aspect of the proceedings, Maria) held: 1. No 14; 2. No 7. This is subject to a registered mortgage to the ANZ Bank but there is no evidence as to the state of indebtedness. In determining Chris' Case the Court has rejected Chris' claim to an equitable mortgage in his favour over this property. 3. A 10% shareholding in KR&S which itself own No 509 (unencumbered).
Also in relation to the divisible pool, there were assertions between the parties concerning cash at bank including rental received by KR&S, income earned by Chris Realty and rents obtained on No 428 and No 11. There was no evidence of what these amounts might be and the Court does not take them into account.
Because of the view which the Court has ultimately taken of Maria's rights under the PRA, it is unnecessary for the Court to determine two matters which the parties put in issue.
The first is the validity of the mortgage which Bill gave to Chris in 2003 for a total amount of $600,000. If it is valid, then Chris' assets as at the date of the hearing would include his equitable interest to that amount in No 22.
Second, there was a dispute between the parties in relation to the ownership of Chris Realty at the date of the hearing. It was suggested for Chris that this was George's business. Maria submitted that it was Chris'. There is evidence in the hospital tape that at that time the business had ceased trading. There is also evidence that Bill currently operates the business.

Maria's Case - contributions

By reference to the principles set out in paragraphs [402] and following, above, consideration of this question requires two general observations to be made.
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.
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.
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.
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.
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.
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.
Even if it be assumed in Maria's favour that she did a lot of unpaid work in the interests of Chris Realty, the answer to the second question does not assist her case. George's tax returns make it clear that from 1997 to 2009 the business was treated as George's because he was licensee (irrespective of what influence Chris may have exercised over what happened in the business). George received the benefit of the income and the expenses from that business. So, even assuming Maria did provide unpaid services to Chris Realty, the Court accepts Chris' submission that such work, at least after 1997, was for the economic benefit of George rather than Chris and so could not be a contribution to Chris' financial resources for the purposes of s 20(1)(a) of the PRA.
Prior to 1997 the business was operated by Louie as licensee trading as South Sydney Real Estate. Although there is no direct evidence, based on what occurred when George was licensee, the Court infers that the economic benefit of the business would have been accounted to Louie. Even if that is incorrect, it is clear that Chris Realty was more a "hobby" than a business run in earnest and, based on the figures when George was licensee, the economic benefit from the business was not great.
Maria also relied on what she described in her submissions as her contribution in caring for Rada. Conformably with its findings concerning Maria's role as the homemaker in the Saravinovski family home, the Court accepts that Maria cared for Rada. However, that care is irrelevant for the purposes of assessing her contribution under the PRA for two reasons. First, it was care directed to Rada and not Chris. Second, because Chris' wealth generating activities related to the purchase and leasing of properties after he retired from paid employment in 1985, it cannot be said that by caring for Rada, Maria put Chris in a position he would not otherwise have been in to undertake income generating activities based on his personal exertion. If that had been the case, it is possible such care for Rada could have constituted non-financial contributions made indirectly for the purposes of s 20(1)(a) of the PRA. However, that is not this case.
Next, Maria claimed her contribution in relation to the construction of No 5. She gave evidence that she contributed to the conservation and improvement of No 5 through non-financial contributions such as cooking at the construction site, cleaning there, doing some digging, moving bricks, cement and sand. The Court accepts that, given her role as homemaker, it is inherently likely that Maria did some cooking at the construction site and that she assisted with selection of fittings and furnishings for No 5. This last matter is corroborated by Rade's evidence of Chris telling him "I leave these things for Maria to deal with". This rings entirely true. In the absence of Rada it is consistent with ordinary human experience that a man of Chris' generation who saw himself as the paterfamilias would have looked to a woman who was acting in the role of homemaker to perform such tasks.
Rade's evidence also provides some corroboration in observing Maria on site making food and doing chores at the No 5 site. He also saw her doing physical work such as moving bags of cement and moving bricks. Thus, the Court also accepts that she did, from time to time, undertake such tasks. However, not even Maria suggested that she was in the position of a full time voluntary builder's labourer. The Court is satisfied that she did do some physical work in the context of the building of No 5 such that it constituted a direct, non-financial contribution to the improvement of Chris' property, but that, while not de minimis, it was more likely to have been incidental to her attendance there for the purpose of providing meals.
Pausing there, the Court's findings in relation to Maria's financial and non-financial contribution for the purposes of s 21(a) of the PRA may be summarised as: 1. She did not make any financial contribution to the acquisition of property by Chris. 2. She made some non-financial contribution to the improvement of No 5 during its construction phase by providing meals on site and doing some incidental light labouring work. 3. In her role as principal homemaker, Maria made a direct, non-financial contribution to the conservation of No 45 and then No 5 through her cleaning and similar activities which related to the physical maintenance of those properties. However, for example, cooking meals, while part of homemaking, does not fall within s 21(a).
It is next necessary to consider Chris' financial or non-financial contributions to Maria's (relevantly George's) property for the purposes of s 21(a). Three properties must be noted.
First, George admitted in his amended defence to Chris' Case that while Chris and Rada had transferred No 14 to him for a stated consideration of $120,000, he (George) had paid nothing for it.
Second, George accepted that he had not paid for his 10% shareholding in KR&S. While that shareholding may have a value, the Court has no valuation evidence in relation to it. In weighing the benefit to George of that shareholding, the Court takes into account that there is no evidence of him ever having received a dividend from KR&S and that in the commercial world it is well understood that a minority shareholding in a closely held family company may have little or no value. Even without the observation referred to in the preceding sentence, the evidence does not permit the Court to go beyond acknowledging that George has the shareholding but not attributing any specific value to it.
Third, when Bill and George purchased No 7 in January 1998, it was for $470,000 in equal shares subject to a mortgage to ANZ for $350,000. There was a dispute between the parties as to who paid the balance of the purchase price of $120,000. For the reasons set out in paragraph [114] above, the Court finds that Chris paid that deposit for Bill and George.
In relation to No 7 there is no independent evidence corroborating Chris' allegation that he paid for improvements to the roof, bathrooms, kitchen and landscaping at No 7. Accordingly, the Court makes no finding in relation to this. Similarly, because there is no independently verifiable evidence, the Court does not accept and makes no finding that Chris helped Bill and George pay for the mortgage which they took out in relation to No 7. In particular, the Court does not accept that the submissions put on behalf of Chris set out in Schedule 4 make it sufficiently clear to enable the Court to make a finding that Chris assisted Bill and George with the mortgage over No 7.
Finally, in relation to No 7, George had to take out a $375,000 mortgage when Bill's half interest in No 7 was transferred to him. Chris received $200,000 ($100,000 coming from somewhere other than the mortgage) and Bill received $275,000. For present purposes it is not necessary for the Court to determine the argument that was raised whether $50,000 of the $200,000 paid by George is referable to Bill. The mortgage to the ANZ remains on the title, but there is no evidence as how much is owing under it. The Court has dismissed Chris' Case in relation to the 2003 Mortgage, with the result that Chris has no interest in No 7.
Next, it was submitted for Chris that he made indirect non-financial contributions to one or both of the acquisition and/or conservation of No 14 and No 7 by allowing George and his family to live under his roof and by paying for all provisions and living expenses. In the absence of independent, verifiable evidence, the Court does not accept that Chris paid for all groceries and living expenses for all of those living under his roof.
On the other hand, there was no dispute that George and his family never paid what the parties then or now characterised as rent for living at either No 45 or No 5. George's case was he paid the equivalent of rent by providing to his father all of his wages but the Court has not made that finding. It follows that, at a high level of generality, the Court accepts that, on the facts as proven, Chris made an indirect non-financial contribution (over and above not requiring payment for No 14) of the kind he alleges to George's interest in No 14 and No 7. That contribution was making available to George funds that would have been payable in rent, had he not lived in one of the properties, to be applied to No 14 and No 7. However, there was no evidence about the value of such notional rent foregone and the lack of independent verifiable evidence concerning how the parties spent their money means that the Court cannot put a value on it. No submission was made to support a particular value for that benefit.
Turning to the parties' respective welfare contributions for the purposes of s 21(b) of the PRA, Maria's contributions to Chris as homemaker, provider of personal care and public consort (this last, a form of emotional support) are set out in paragraphs [382] to [400] above.
Chris submitted that his welfare contributions to Maria and, having regard to s 20(1)(b)(ii), Belinda and Bobby were: 1. Providing free accommodation to her and her children at No 45 and No 5. The response to this on behalf of Maria accepted that no payments had been made, as such, by George and family in respect of the accommodation provided to them by Chris. The Court finds this to be the case: see paragraph [442] above. 2. Paying for all the upkeep, utilities and outgoings associated with the Saravinovski family residences. There is no independently verifiable evidence in support of this and the Court declines to make such a finding. 3. Paying for groceries consumed by Maria and her children. There is no independently verifiable evidence of this and the Court declines to make that finding. 4. Both when they were in primary school and up to about year 8 or 9 Chris drove Belinda and Bobby to school. He would sometimes give Bobby money for the school canteen. Evidence to that effect was proffered by Bobby and Belinda and the Court accepts it as evidence against interest. 5. From time to time Chris drove Belinda and Bobby to Macedonian dancing rehearsals and performances. The Court accepts this as inherently likely and finds accordingly. 6. Because Maria was at home as opposed to working, neither Bobby nor Belinda was placed in day care or other school care and Maria was there to look after them. The Court accepts that to be the case. However, the Court does not accept the fact that Maria was at home and able to do that was relevantly a contribution by Chris to the welfare of Maria or the children for the purposes of s 20(1)(b).
The Court accepts, as against interest, Maria's evidence that her father stayed rent and board free at No 5 for around three months in around 2003 and Maria's mother and father stayed there rent and board free for a period of around 3 or 4 months in around 2008 at the time of Belinda's 21st birthday. The Court accepts that, albeit perhaps somewhat remotely, in allowing Maria's relatives to stay, Chris contributed to Maria's welfare and that of her children.
It was submitted that Chris had paid for Maria's wedding receptions in Macedonia and Australia. While there was no independent, verifiable evidence of this and the source of the funds was disputed by Maria's side of the record, the Court finds it inherently likely that Chris did pay for those receptions. As the Court has elsewhere observed, there can be no doubt on the basis of the video footage and other evidence which the Court has seen, that Chris would have insisted on paying for such things to demonstrate his economic success in Australia and his role as family patriarch. For the same reasons, the Court also accepts that Chris paid for the celebrations surrounding the christening of Bobby and Belinda.
Finally, Maria gave evidence, which the Court accepts as being against interest, that Chris paid for himself, Maria, George, Belinda and Bobby to go on a trip to Macedonia in about 1994 or 1995. Similarly, the Court accepts Maria's evidence that Chris paid for Belinda's travel as part of a family holiday back to Macedonia in 2006.

Maria's Case - adjustment of interests

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.
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.
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."
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".
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".
Turning to the facts, I consider that the starting point is to recognise these matters: 1. There was no "practical union of lives and property". 2. Maria's role did not "free up" Chris to undertake his property generating activities. 3. Maria (and George) have failed to satisfy the Court that their funds were used by Chris or otherwise enabled him to purchase the properties he now owns.
Taking the matters identified in the preceding paragraph into account, and having regard to the respective contributions of the parties which they have proven recorded in paragraphs [422] to [447] above, I cannot see how it could be said to be just and equitable to adjust Maria's and Chris' interests in a way which gives Maria an interest in any of the properties Chris acquired other than the Saravinovski family home. It is to the family home that her contribution has a connection. For 23 years it was either No 45 or No 5 which was the focal point of Maria's contributions as homemaker, carer and public consort to Chris. She cared for Chris in the ways that have been identified and maintained those homes. Having regard to the various contributions of the parties which have been identified above, the real question in this case is whether there should be any adjustment so as to give Maria an interest in No 5. For the reasons which follow it seems to me just and equitable having regard to the contributions identified above that there be such an adjustment so that Maria is given a 30% interest as tenant in common with Chris in No 5.
If the family home becomes the focus of attention, the question becomes whether, as at the hearing date, her contributions have been sufficiently recognised and compensated in the circumstances in which she finds herself when allowance is made for Chris' contributions to her. Those circumstances, viewed globally, are that she has no interest in the family home in which she lived and played a significant role for 23 years but has received from Chris (via George) the benefit of No 14.
In making the comparison set out in the preceding paragraph I have not overlooked the other contributions that have been identified earlier. However, I consider that comparison to be the determinative one. In particular, insofar as Chris also gave (relevantly) George the deposit for No 7 ($60,000), any credit to which Chris may have been entitled for that benefit was cancelled out by George paying Chris $200,000 (or $150,000, it doesn't matter for these purposes) as part of the arrangements when George acquired Bill's share in No 7 (see paragraphs [202] to [210] above).
The Court's fundamental conclusion is that having only No 14 as a benefit is not a sufficient recognition and compensation for Maria's contributions over 23 years even when Chris' other proven contributions are taken into account. A just and equitable recognition and compensation can be achieved by giving Maria an interest in No 5 as the current family home (succeeding No 45). However, in the circumstances of this case Maria's interest should be something less than 50%.
Had this been a case of a "practical union of lives and property" where Maria's contribution had "freed up" Chris to build up his property assets, the authorities would have supported a 50% interest being awarded to Maria (all other things being equal). While I am not to be taken as suggesting that there cannot be a close personal relationship case where a 50% division of interests was just and equitable, it is not this case. In any view, two matters require an adjustment to less than 50% to bring about a just and equitable result.
First, for reasons fully set out in paragraphs [381] to [400] above, the Court is not satisfied that, for the entirety of the 23 years, Maria was completely responsible for all tasks as homemaker, carer and consort. While it is satisfied that she was primarily responsible for and undertook the substantial majority of those tasks over a 23 year period, some discount is required for Maria's exaggeration and factors such as the help from Belinda which the Court accepts must have been given as Belinda grew older and, in particular, during what the Court finds was a period of up to a year that Maria would in fact have been materially impaired as she recovered from her 2001 accident. This finding is based on Maria's own concessions of how much she told doctors were exaggerations and the description in her 2005 hospital discharge summary of her injury from the 2001 accident as "minor trauma" (see paragraph [172] above). While in the ordinary course over 23 years the Court would have expected all members of the family from time to time to have assisted with domestic and caring tasks for Chris, the Court has particularly mentioned Belinda's role. This is because, with no disrespect and as has already been noted, the Court has no doubt that the Saravinovski household was one where the men did not, and were not expected to, play a significant role in domestic affairs.
Second, a further discount is then required to take into account all of the contributions that have been identified above which Chris made to the benefit of Maria and George, in particular the significant benefit of No 14 and occupation of the family homes without charge.
For these reasons it does seem to the Court just and equitable that Maria receive an interest in No 5, but less than 50%. That figure is 30%.

F. Legal principles as to fact finding and credit

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".
In approaching the task of fact finding, particularly where credit is a significant issue, the Court has applied ten principles.
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.
Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in 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: 48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: ● the nature of the cause of action or defence; ● the nature of the subject matter of the proceeding; and ● the gravity of the matters alleged. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).
Third, there is the statutory successor of the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the EA: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.
Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.
Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1: 118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.
Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: 155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].
Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 (citations omitted): The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109 .
Ninth, for reasons set out in Saravinovski (No 5) at [76] and following, the Court gave leave for certain of Chris' affidavits to be relied upon, notwithstanding that his loss of mental capacity meant that he could not be cross-examined. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: 111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5].
Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: 187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations.

Maria

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.
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.
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.
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.
The response on behalf of Maria may be summarised as: 1. It was "irrational and simplistic" to suggest that her admitted dishonesty in relation to the compensation claims could be translated to a finding of dishonesty as to her claim in these proceedings. It was one thing to "bung it on" in front of a doctor as opposed to "lie under oath in the solemnity of a court room, before a judge and face the scrutiny of cross-examination in relation to the substance of her claim". 2. Similar criticisms of dishonesty and unreliability could be made, in varying degrees, against Chris, Bill and Louie. 3. Some things, such as her evidence in relation to her bank account and the payment of Belinda's wages into it, were understandable and innocent memory lapses or confusions. 4. Maria did not understand what was happening at the time of the offences or her conviction. The fine of $200 made it clear that the court did not consider Maria's offences to be grave and they were not. 5. Chris had encouraged her to lie and exaggerate to maximise her compensation claims.
Of the matters raised in Maria's defence, the suggestion that similar findings should be made against Chris, Louie and Bill (as to which see paragraphs [500] and following below) can be immediately disregarded. The submission, even if well made, does not assist in making a finding about Maria's credibility. It primarily demonstrates the depth of antipathy between the parties. The comparative credibility or otherwise of Chris, Louie and Bill plays no part in the Court's conclusions about Maria's credit.
A similar observation needs to be made in relation to Maria's evidence that, insofar as she exaggerated and lied in relation to her compensation claims (particularly after the 2001 accident), she was put up to it by Chris. Having regard to everything which I have seen and heard of the Saravinovski family, that answer strikes me as very plausible. For example, Bill was clearly prepared to make up false records on Chris Realty letterhead to help Maria's inflated claims (see paragraph [126] above). However, in circumstances where Chris was unable to give evidence and answer that allegation in the witness box, the Court expressly makes no finding as to the truth or falsity of that allegation. However, if it were true, then it still does not reflect at all well on Maria's integrity that she should accede to such a suggestion if it had been made. Maria's recourse to the allegation that Chris put her up to it implicitly accepts the moral blameworthiness for her conduct but seeks to share that blameworthiness around rather than to accept responsibility for it and demonstrate remorse.
By her own admission Maria exaggerated and lied over a period of years in connection with her compensation claims, particularly nearly a five year period in relation to the 2001 accident. That conduct is the basic reason for the Court's conclusion that Maria's evidence is generally not able to be accepted unless it is inherently credible or corroborated by contemporary documents or other independent testimony or is otherwise against interest. However, that conclusion is also dependent upon the matters set out in the next two paragraphs.
Maria's course of conduct in relation to her compensation claims is an important specific matter. In some cases, a witnesses' candid admission of a lie or other deception can, conceivably, bolster that witnesses' credit in relation to other matters. It all depends on the circumstances of the particular case. However, this is not such a case. Many of Maria's concessions about exaggeration and lying were not freely or easily given. She resisted acknowledging her wrongdoing in circumstances where it was obvious to everyone in court that resistance was unsustainable. Nor were her concessions made with any apparent sense of remorse. Rather, they were often accompanied by expressions of grievance and self-justification. In the circumstances of this case, Maria's candour about her deception in relation to her compensation claims cannot be the basis of a favourable finding for her on other issues.
Moving from the specific to the more general, having watched Maria give evidence over a number of days both in chief and under cross-examination, and having observed her demeanour during the proceedings generally, there is no doubt that Maria is an emotional and voluble person. I do not accept Chris' submission that her crying in the witness box was fabricated. I am satisfied that reflected her emotional state at the time. It would be to succumb to stereotyping to find that the Court ought to be slower to believe an emotional or flamboyant witness than the witness who maintained a "stiff upper lip". I am satisfied that much of Maria's demeanour in the witness box was a reflection of her emotional personality. I do not take it into account in my conclusions concerning her credit other than to observe that it complicated the task of assessing Maria's evidence.
However, quite apart from what appeared to be her natural personality, two other matters were very clear. First, Maria had a large and unconcealed sense of grievance against Chris based upon her deep resentment of having been, as she perceived it, evicted or thrown out of No 5. In and of itself, as is discussed in paragraphs [602] to [608] below, the Court is satisfied that her sense of grievance was justified. Chris did throw Maria and her family out of No 5, but this was a decision which, as is demonstrated by the hospital tape, he regretted as a "mistake" and had sought to remedy to no avail. Maria was, and continued to be, too outraged at what had occurred to countenance a reconciliation. The difficulty for Maria was that her unremitting sense of grievance meant that she was unable to make concessions when they were obviously called for and it coloured the entirety of her evidence. The Court could not be satisfied that she was trying to give her evidence to the best of her ability in an honest and straightforward way.
Second, almost certainly driven by her sense of grievance, it was clear that Maria was prone to exaggeration and dramatisation which went far beyond what might have been attributable to her personality or could be understood as exaggeration for the purposes of emphasis. Courts are well familiar with the phenomenon that some witnesses, whether for reasons of personality or culture, use exaggeration as a form of emphasis. However, Maria's conduct in the witness box made it clear that her propensity to exaggerate went far beyond that. I am satisfied that for Maria lies were a form of justifiable exaggeration. She sought to rationalise her approach in answers such as "I was not lying. I was exaggerating" (T386.45).
The Court is satisfied that Maria had persuaded herself that what to the objective observer would be seen as untrue could be justified as an exaggeration. However, that is not to conclude that all of her evidence should be rejected without taking into account other evidence in relation to the particular fact. The difficulty for Maria is that, even assuming in her favour that she may not have been consistently giving deliberately untruthful evidence, the Court cannot be satisfied that, taken by itself, her recollection is likely to be accurate given the passage of time, the antipathy which she now feels and her tendency to exaggerate. What may well be kernels of truth are subsumed in the noise of her anger and hyperbole. One example will suffice, where the assertion of the fundamental fact that Maria provided care to Rada is lost in Maria's florid description of Rada in 1991 which cannot be reconciled with objective evidence such as the film of Rada at Christopher's christening: Q. It is your evidence that in the second half of 1991 that your mother‑in‑law needed what you describe as 24 hour care, is that correct? A. WITNESS: Correct. Q. When you use the phrase "24 hour care" what do you mean by that? A. INTERPRETER: By saying that I want to say that she was defecating in herself, she was smearing it everywhere including herself and the clothes and the blankets and I had to get her dressed, I had to wash her and she also had a tube, I had to follow her everywhere if she - in case she went to the toilet because she would drink water from the toilet bowl. The moment she would move I had to follow her. The sponges from the sink I had to hide those because she would get them, she would squeeze them and drink the water from them. I had to - I was giving her a bath, I would dress her up. Q. Have you finished your answer? A. WITNESS: Finish. Q. You say that the evidence you have just is a true description to his Honour of how your mother-in-law was in the second half of 1991? A. INTERPRETER: Her situation started getting worse from 1990. I could also say 1989 but for certain 1990 and it just got worse progressively. Q. Had you finished? A. WITNESS: Finish. Q. So do you say now that you are certain that from 1990 through the first half of 1991 and into the second half of 1991 that the situation you have described with your mother-in-law applied through that whole period? A. INTERPRETER: It was like that and it stayed that way until she had passed away.
For these reasons the Court does not go so far as to conclude that all of Maria's evidence is untrue. However, she is not a reliable witness. Her evidence will only be accepted where it is inherently credible or corroborated by contemporary documents or other independent testimony or is otherwise against interest.

George

Chris' attack on George's credit was only slightly less detailed than his attack on Maria's credit. It was nevertheless equally devastating.
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."
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".
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.
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.
In making the submission that the Court should find George was not a witness of truth, Chris pointed to matters such as: 1. George fabricated documentary evidence intended to support his case. 2. George sought to further his case by proffering other fictitious evidence after he was caught out (in particular a Video 8 tape), as to which see paragraphs [624] below and following. 3. He gave exaggerated and implausible responses that were often invented in the witness box. 4. He was complicit in Maria's lies and deceit relating to her 2001 compensation claim over an extended period and the lodgement of her 2013 claims. 5. He completed a false and misleading claim form in relation to his own compulsory third party claim in 2014 and failed to concede appropriately that he had done so. 6. His demeanour in the witness box.
In addition to the matter put on George's behalf in paragraph [489] above (which the Court has accepted), his response included: 1. That the documents which he admitted fabricating went to peripheral matters and were merely intended to substantiate things which had in fact occurred. 2. Insofar as George had assisted Maria's compensation claim by, for example, preparing documents said to be from Chris Realty, Bill had done exactly the same thing for both Maria and Chris in relation to their compensation claims (this response can immediately be put aside for the same reasons set out in paragraph [479] above). 3. Statements to insurers and ticking boxes on compensation claim forms were quite different from submitting oneself to giving evidence in cross-examination before a judge in Supreme Court proceedings.
It is instructive to consider the documents which George admitted forging. The first was a handwritten memorandum addressed to "Payroll" on "Yellow Pages Australia" letterhead and dated 8 February 1988. It said "My Commonwealth Bank manager requires a statement of income. We need this for a loan to buy a shop in Rockdale". The second forged document is a "Certificate of Earnings" purportedly dated 10 February 1988 giving George's position as "Editor" and earnings of $542.33 gross per week. The Court does not regard those documents as peripheral to George's claim. They were clearly intended to support his case that he provided his income to Chris.
The next two documents were "an employee of the month award" dated 5 May 1988 and certificate of completion dated 1 August 1988 for a "Management development program Level II". George gave evidence that he had in fact received such an award and had attended such a program. The level of skill in forging these documents is fairly captured in Senior Counsel for George's counsel's own word of "childish".
Two other documents prepared by George were false. One was a statement of earnings on Chris Realty letterhead and signed by George as "Manager" stating that for the year ending 30 June 2001 "Mary Saravinovska while employed as a receptionist for the period has earned $31,200 gross wages". George's own evidence was that when he subsequently became aware that the insurer did not accept evidence from businesses, he went on to complete and sign a false group certificate for Maria asserting a gross annual taxable income of $12,000.
Support for and loyalty to one's spouse are usually admirable qualities. That is not the case when it manifests itself in deception. As with Maria, the Court does not find that all of George's evidence was false. Rather, by reference to the matters referred to in the preceding paragraphs (and without making any specific findings on other specific criticisms made by Chris of George's evidence), the Court is satisfied that George was not a reliable witness. His evidence is not to be accepted unless it is inherently credible or supported by independent testimony, contemporaneous documents or is otherwise against interest.
Finally, in relation to George, the question of who, as between him and Maria was the instigator of the lies and exaggerations for which she ultimately accepted responsibility was not really explored in evidence. However, to the extent that Maria may have asked him to do these things (about which the Court makes no finding), the Court has no doubt that George's nature was such that he would have complied.

Chris

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.
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.
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.
Reliance was also placed on the observations of Hallen J set out in paragraph [472] above.
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.
Campbell J excluded evidence which fell into what he had described as the third category. There is undoubtedly such evidence in Chris' affidavits which the Court has permitted to be read. Having been admitted, George and Maria submitted that, by analogy with the approach adopted by Campbell J, the Court should entirely discount Chris' evidence to the extent it is in dispute and not covered by another witness or apparently reliable contemporaneous documentary evidence.
Maria and George made two further submissions in relation to Chris' credit.
First, they drew attention to the fact that Chris did give some limited evidence in chief and was briefly cross-examined. They submitted that he was by no means completely senile and that the expert evidence was that Chris could say what he wanted. They submitted that greater weight should be placed on Chris' limited evidence in the witness box.
The second was that Chris' evidence ought to be discounted because the Court could be satisfied, even in the absence of cross-examination, that Chris was not a witness of credit.
The attack on Chris' credit was based primarily on a number of documents that were provided to insurers in respect of claims for motor vehicle compensation for accidents said to have been suffered by Chris in 2003 and 2007. In both of those matters Chris was represented by the same solicitors (Milicevic Solicitors) who acted for Maria in her compensation claim. The Court has no doubt that, if Chris had been cross-examined, these documents would have formed a large part of the cross-examination in the same way that Maria's compensation claim documents did in her evidence.
Inconsistencies between those documents and other evidence which Maria and George drew to attention included: 1. In one of his insurance claims Chris gives the impression of working 7.00am to 7.00pm at Chris Realty for 15 years, 40-50 hours a week, on a full time basis between 6 and 7 days a week, since leaving his employment at Telecom. In the present case his evidence is that he worked part time in real estate and that he did not work 7.00am to 7.00pm because he would drive Belinda and Bobby to school in the morning. 2. Various statements and medical reports relating to Chris after Chris' accident are completely at odds with Bill's evidence that Chris' health was robust at all times after that accident. Maria and George submitted this demonstrated that Chris was exaggerating exactly the same way that Maria did. 3. Chris' statement in the 2003 claim of various pain, difficulty driving, headaches, difficultly walking and the like were inconsistent with his claim in these proceedings that he was always in the best of health and did not need any assistance from Maria. 4. Statements attributed to Chris in medical and psychological reports during 2005 concerning physical and psychological difficulties that he said he was suffering were not to be believed for at least two reasons. First, it was very similar to the language from Maria's own compensation claim, which she said had been encouraged by Chris. More directly, his statements about his physical condition in 2005 were directly at odds with the video evidence of Chris dancing vigorously at baby Christopher's christening in March 2004. When this inconsistency was put to Bill, Bill suggested that it was not until after the christening that Chris' condition deteriorated. The Court accepts that evidence of Bill's was a spontaneous fiction conceived when he was confronted with the difference between what Chris apparently told the doctors and the evidence of the film of the christening. 5. Chris made statements to medical professionals in 2005 to the effect, for example, that he could not perform "any heavy domestic tasks such as cleaning windows and floors, shopping or hanging laundry". It was submitted this was directly inconsistent with his affidavit evidence that he maintained his own garden and he was and had always been self-sufficient. 6. Chris' claim to the insurer that he had had, prior to Chris' accident, worked 40-50 hours a week was inconsistent with Bill's evidence that Chris Realty was more in the nature of a family hobby and social opportunity for Chris than a seriously run business. Maria and George submitted the impression which Chris sought to give in connection with his compensation claim that Chris Realty was a substantial real estate business that required lengthy hours of attention from Chris had been falsified by Bill's own evidence. Chris had made a similar claim for lost income as a result of the 2007 accident where again, contrary to the picture painted by Bill, Chris said he worked 50 hours a week at Chris Realty.
Maria and George also submitted that the agreement alleged in Mr Bryant's letter of 24 February 2010 (see paragraph [220] above) that Maria and George would live rent free at No 5 in return for caring for him in sickness or old age was nowhere to be found in Chris' evidence and was inconsistent with his case at trial that there were no such arrangements or undertakings.
Three arguments were made on behalf of Chris to meet Maria and George's submissions about his credit, each of which will be considered in turn: 1. Chris' credit was not relevant. 2. It was not necessary to make findings about Chris' credit; and 3. Chris' evidence had been corroborated on the central issues in any event.
It was first said on behalf of Chris that, in relation to Maria's Case and George's Case, if Maria and George were disbelieved then no question of having to consider Chris' credit arose. This was not a case where the Court had to choose who to believe as between two available alternatives. In my view that submission paints too bright a line. While it may largely be correct, even in a case such as the present where Maria and George's evidence may be considered unreliable without recourse to other matters, the Court's assessment of any particular piece of Maria and George's evidence may be rationally affected by whether or not it is credibly denied or whether there is, in effect, no denial because of the discounting of any such denial by Chris.
It was next submitted that, even if the Court did find Chris' evidence unreliable, he had made out his defence to George's Case by recourse to matters unconnected with his credit.
Insofar as the necessity to make any findings at all about Chris' credit was concerned, it was submitted for Chris that the Court should be slow to make credit findings that are not necessary to resolve the real issues in dispute. It was sufficient for Chris' evidence to be dealt with by way of such discount as the Court considered appropriate without making any specific findings as to Chris' credit. In particular, in circumstances where Maria and George had succeeded in having Chris' later affidavits struck out on the basis of his mental incapacity, it would be unfair for Maria to be able to rely on anything that Chris said in his brief examination and cross-examination. The only finding available on the medical evidence was that Chris' oral evidence was also unreliable. It would also be unfair to make critical findings against Chris in circumstances where, through no fault of his own, he had not been able to be cross-examined and meet matters which were now being put adversely to his credit.
Finally, it was submitted for Chris that the hospital tape corroborated his evidence (and that of Bill and Louie) in respect of both Maria's Case and George's Case.
Whether it is described as a matter of discount, weight or credit, the Court is well satisfied that, taken by itself, Chris' evidence must be treated as unreliable. This conclusion flows from two matters.
First, as a matter of principle, in the absence of him being available for cross-examination the evidence must be significantly discounted. The closer that evidence comes to a central issue, the more significant that discount must be so as to reflect the prejudice suffered by Maria and George for not being able to cross-examine Chris.
Second, the Court cannot completely put aside the effect of the attack on Chris' credit based on statements he made during the course of his compensation claims when compared to the case now sought to be made on his behalf. While it must be correct that the Court should be slow in making an adverse credit finding where he was not able to be given the opportunity to meet the matters that would undoubtedly have been raised with him in cross-examination, the Court is nevertheless entitled to bring its own experience to bear in looking at the inconsistencies and considering possible explanations. That is not to proceed on a speculative basis. Rather, the Court concludes that the material tendered in connection with Chris' compensation claim must give rise to a very serious question about Chris' credit, a question that is unable to be finally determined by reason of Chris' incapacity. However, when that serious question is combined with the discount required to be applied to untested evidence as a matter of principle, the Court reaches the conclusion expressed above.
The practical effect of the matters set out in the preceding paragraph is that Chris' evidence will be treated by the Court in exactly the same way as Maria's and George's. In other words, Chris' evidence (including his denials) will not be accepted unless it is inherently credible or supported by contemporaneous documentary or other independent evidence or is otherwise against interest.
With one exception, I accept the submission put on behalf of Chris that no reliance should be placed on Chris' limited evidence in chief and cross-examination. Insofar as its content is concerned, accepting Dr Rosenfeld's evidence the Court must conclude that in general that evidence is likely to be unreliable. However, the exception relates to Chris' demeanour and his description of himself as "the boss and the number one man" (T1281.12) (the transcript records him saying "I am the boss", but my recorded response of "You are not the boss and the number one man" reflects my recollection that that is how Chris described himself).
While Dr Rosenfeld clearly concluded that Chris was suffering from vascular dementia, nothing in his evidence suggests that I am not entitled to take into account Chris' demeanour and that answer by way of further corroboration (and nothing more than that) of a view I have clearly formed about Chris. That view is based, among other things, on watching the various videotapes of Chris on family occasions. Those tapes, as confirmed by his statement to which I have made reference, leave me in no doubt that Chris was the dominant and domineering patriarchal figure in the Saravinovski household. He was in charge and wanted everyone to see that he was in charge. The Court has no doubt that Chris would have reacted vehemently to any conduct that challenged his authority as head of the household and chief provider, including being a provider of properties for his sons.

Bill

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.
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.
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.
They also drew attention to the fact that Bill refused to make concessions or acknowledge previous untruths and that his memory appeared to be entirely selective. For example, while he could not remember matters such as his own income at various times or how he had spent $70,000 in 1988, he was able specifically to recall George spending $28,000 on hair loss treatments in 1984.
Finally, during the course of cross-examination, Bill volunteered that he was now "best friends" with a Mr Michael Nagy of Rockdale Council, a gentleman who had taken out an apprehended violence order against Louie. Maria and George tendered an affidavit from Mr Nagy denying that he was best friends with Bill. Mr Nagy was not required for cross-examination.
In response to the criticisms made of Bill, the submissions made in relation to Chris concerning the lack of necessity to make credit findings and the relevance of the hospital tape as corroboration were referred to.
The Court accepts that Maria and George's criticisms of Bill as a witness as set out in the preceding paragraphs are well founded. In observing Bill I had no confidence that he had come to Court to give truthful evidence to the best of his ability. He seemed determined only to advance Chris' cause and not to depart from anything that could help his father. Whether or not he was encouraged to do so by any other family member, the Court is also satisfied that he was prepared to write letters on behalf of Chris Realty providing information in support of both Maria's and Chris' compensation claims that he knew to be false.
At the conclusion of Bill's evidence I was left with the clear impression that, for his own prospective benefit, he had firmly decided to side with Chris and Louie. His primary focus was on defeating Maria's and George's claims rather than giving evidence of the truth of events to the best of his recollection and ability. The Court will only have regard to Bill's evidence where it is inherently credible, supported by contemporaneous documentary or other independent evidence or is otherwise against interest.

Louie

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.
First, Louie's evidence in relation to the eviction shifted throughout the course of his affidavits and again in oral testimony.
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.
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.
Third, Louie sought to rely on an unsigned document bearing a fax header dated 1 June 2005 which related to a planning dispute concerning the property next door to No 7. At the time Louie gave this evidence, none of these matters had been put to George. A call was made for the file in relation to the planning dispute and it transpired that every other document in that file was dated from 2008. Maria and George submitted that there was overwhelming evidence from every other document in that file that the relevant events occurred in 2008 and that the only conclusion was that the date on Louie's fax machine was wrong and that the document had in fact been prepared in 2008 but had been proffered to the Court to provide the false impression that he was involved in the family in 2005.
Fourth, the submission was made that Louie had lied under oath in claiming that he had been at the christening of baby Christopher in 2004. The Court viewed footage of the christening which, at various times, appeared to show the entirety of the church and those present. Louie was not shown to be present. In the course of giving evidence Louie claimed that he had only attended briefly at the church service because he was ill. Bill had earlier given evidence to the Court that Louie had left early due to illness. The evidence about Louie's alleged illness was not contained in any of the ten affidavits which Louie and Bill had collectively sworn in the proceedings. Louie claimed to have had a gall bladder infection whereas Bill claimed that Louie left early as he was sick with a stomach pain and the flu. While Louie claims to have been at "the back" of the church, he is nowhere to be seen in video footage.
Fifth, Louie's memory was selective. While claiming that the antiquity of the events meant that he could no longer recall things such as how much he had accrued towards the purchase of No 49 in 1985, he said he could recall specifically the percentage of commission that Chris was paid in the 1980s.
Sixth, Maria and George submitted that the Court should conclude that Louie was a person who would take whatever steps were necessary to protect his position and interests. That submission was based on evidence that he had made death threats to a councillor on Rockdale Council, to Maria and to Pavlina.
Seventh, it was said that there was evidence which Louie had inadequately explained which suggested he had at some stage conducted a vending machine business and sold real estate through Chris Realty while simultaneously receiving a Centrelink benefit. The Court was invited to disbelieve Louie's explanation that in relation to both the vending machine business and the sale of apartments through Chris Realty he did not receive any income and that his role was simply to take messages.
It is significant that Chris' side of the record did not address submissions particularly intended to respond to the criticisms made of Louie, but rather sought to deflect attention to the inadequacies of George and Maria's case. Chris repeated his submissions in relation to the necessity of making credit findings in this case and the importance of the hospital tape as corroboration of Chris' Case as supported by Bill and Louie's evidence.
The Court's conclusion in relation to Louie as a witness is identical to the conclusion already expressed above in relation to Bill. Maria and George's criticisms of Louie as a witness are correct. At the conclusion of Louie's evidence I had come to the view that, like his brother Bill, Louie came to defend Chris' (and, inferentially, his own) position rather than to try to give truthful evidence of events insofar as he was able to do so. The Court will only have regard to Louie's evidence where it is inherently credible, supported by independent documentary or other evidence or is otherwise against interest.

Belinda

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.
Chris made an extensive and detailed attack on Belinda's credit over some 21 pages of written submissions. The attack fell into three parts.
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.
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.
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.
Belinda conceded under cross-examination that the impression given by her statement, and many of the particulars set out in the statement, were false. Belinda made that concession more readily about some parts of her statement than others. Chris submitted that the fact of the false statement itself, when combined with some of Belinda's prevarications about the statement in the witness box, suggested that her evidence was either untruthful or otherwise could not be relied upon unless against George and Maria's interests or otherwise corroborated by independent evidence.
The third part of Chris' criticisms of Belinda's evidence was to the effect that it was variously exaggerated, inherently improbable and false or misleading. Chris' submissions set out numerous examples in support of this proposition. The essential thrust of this criticism was that Belinda's evidence was completely implausible insofar as it sought to paint a picture of a bleak, Cinderella like childhood in which Belinda's family lived under the dictatorial oppression of Chris. One example relied upon for this submission was the contrast between Belinda's affidavit evidence that when she turned 16 Chris forbade her from going to any parties and her evidence, when confronted with photographs, that on at least two different occasions in the same year she went to Chinatown on her own with friends, including with a boy who later became her boyfriend.
It was submitted for George and Maria that Belinda should be accepted as a witness of truth. They contended that she had given her evidence responsibly and carefully. She was employed in a law firm and studied criminology. It was said that in those circumstances the Court should be well satisfied that her demeanour and approach to giving evidence were consistent with someone who understood the solemnity of the oath and the Court's process.
George and Maria submitted that her credit should not be impugned on the basis that she was their daughter. She was as much also Chris' granddaughter.
Maria and George submitted that Belinda's concessions concerning the unsworn statement which she had made in relation to her mother's 2001 accident had been candidly made. This was contrasted with what they said was Bill's discreditable failure to make any concessions that any of the matters in his statement of 2005 in relation to Chris' accident were untrue. While that submission may be correct about Bill, it does not help in assessing Belinda's credibility, other than to repeat a theme in Maria and George's case that any adverse view of Maria and George and their witnesses had to be relatively insubstantial when compared to what was said to be the far worse conduct of Chris, Louie and Bill.
Maria and George submitted that it would be unfair to characterise all of Belinda's evidence as unreliable on the basis of false statements made in support of her mother's case when she was only 17 years old. She was now 27, working as a legal receptionist in a law office and undertaking part time studies in criminology. It was submitted that, by reason of those matters, the Court should be well satisfied that she understood the seriousness of what was now happening and the overriding importance of the fact that she tell the truth. The fact that, for example, she readily acknowledged that she maintained feelings of anger towards Louie and Bill reflected well on her as a witness of truth.
The Court has concluded that while Belinda was not a knowingly untruthful witness, nevertheless her evidence cannot be relied upon in relation to matters in controversy. In a sense that is through no fault of her own. In forming this view, the Court accepts Maria and George's submission that Belinda's credit is not destroyed by her admissions in relation to the statement which she made in 2003. Youth, inexperience and a desire to help her mother may explain, but do not justify, that conduct. However, the Court also accepts Chris' submission that it is not what she did in 2003 that matters, but rather how she dealt with those matters in the witness box that should concern the Court. As to a number of aspects of her 2003 statement she prevaricated and gave inconsistent evidence before ultimately conceding that it was incorrect. I was left with the impression that she knew what she had done was wrong, she was conscious now of the importance of telling the truth but was torn between the consequences of telling the truth and the impact it might have on her parents' case.
Belinda has lived with her parents both before and after the departure from No 5. It is clear that the circumstances of the family on leaving No 5 left a deep impression on her. She obviously harbours considerable resentment towards Chris, Louie and Bill. Belinda has undoubtedly spent many years in the company of her parents as they relived what they perceived to be their deep grievances against Chris.
The Court concludes that Belinda has probably persuaded herself of the truth of the evidence which she gave about life under Chris' roof. However, her relative youth and impressionability at the time of those events, the depth of her feeling against Chris, Louie and Bill and her natural desire to try to support her parents underpin the Court's conclusion that while not deliberately untruthful, Belinda's recollection was so heavily coloured by those matters that, in the absence of independent corroboration, it cannot be safely relied upon. The exception to this general conclusion is evidence which is against the interests of her parents or evidence which is inherently credible or otherwise independently supported by contemporaneous documents or credible viva voce evidence.

Bobby

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.
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.
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.
The Court is not satisfied that Bobby gave deliberately false evidence or was not doing his best to give truthful evidence. Nevertheless his evidence on contested matters should be treated with caution unless it is against the interests of his parents, is inherently credible or is otherwise supported by contemporaneous records or other independent testimony. There are five reasons for this conclusion: 1. Bobby's youth during most of the relevant events. 2. His undisguised animosity towards Louie which was apparent, amongst other things, from his answer in the witness box while looking at Louie referring to "some people that are just greedy and want to take everything" (T2150:38-39). 3. His admittedly poor memory. 4. His own obvious upset at the circumstances in which the family left No 5, an emotional reaction made entirely understandable precisely because, as the Court has found (see paragraph [607] below), it was initiated by Chris, for whom Bobby clearly had affection. 5. Bobby lived and continues to live with his parents. He has undoubtedly been exposed to much discussion about the events which are the subject of these proceedings and has lived, and shares, his parents' sense of outrage at what has occurred.
All of the matters referred to in the preceding paragraph explain those aspects of Bobby's evidence which Chris, rightly in the Court's view, identifies as being exaggerated and in the nature of advocacy. That conclusion does not mean the evidence is to be disregarded, but rather the Court will approach such evidence with caution precisely because it appears to be the product of Bobby's anger at what has occurred and his entirely understandable desire to support his parents.

Rade

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.
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.
Maria and George's responses to Chris' submissions included: 1. Rade was not a partisan witness. His former friendship with Chris did not detract from the fact that, having known the family through Chris, he was well placed to give evidence about what he had seen during the course of that long relationship with the Saravinovski family. 2. There was a serious inconsistency in suggesting that Rade had a significant grievance against Chris and Louie because of alleged death threats. It was submitted that "either Chris concedes that threats were not made in which case Rade had no reason to have any grievance and the general attack on Rade evaporates or they concede that death threats were made which informed Rade's grievance but, equally, is an admission that Maria and George were evicted, which Chris also seems to deny". 3. Insofar as Rade's second affidavit contained matters that were not set out in his first affidavit, this was to be explained because Rade's evidence was intended to be given orally. This order was subsequently revoked in an endeavour to shorten what had already become a very long hearing and Rade filed his second affidavit. 4. Rade's explanation of the inconsistency between his two affidavits as being that the first affidavit had not been written down correctly ought to be accepted. There was evidence that the interpreter who had been used in the preparation of Rade's first affidavit was difficult to understand. If that be so, then when added to Rade's own obvious diffidence and mumbling style of speech, it was unsurprising that an error had been made.
The Court accepts Rade as a witness of truth. Rade presented in the witness box as a quiet and simple man who clearly felt very uncomfortable on two accounts. First, given Rade's longstanding friendship with Chris (Rade features prominently in a number of videos of Saravinovski family occasions which the Court saw), the Court accepts that he did not want to take sides. He was clearly uncomfortable having to do so. Second, it was apparent from some of the difficulties that the interpreter had during the course of Rade giving his evidence in the witness box, that Rade found it difficult to express himself even in his native Macedonian in what he was obviously experiencing as the strange and discomfiting atmosphere of the courtroom. However, despite those matters, I formed the strong view that Rade was doing his very best to tell the truth as he recalled it.
The Court does not accept Chris' submission that Rade was partisan in his evidence. The fact that he candidly acknowledged that he thought Chris had treated George and Maria and their family badly does not make him a partisan witness. The Court's impression was that Rade's disapproval of what had occurred certainly motivated him to overcome his reluctance to be involved and to give evidence in Maria and George's case but was not motivating him to tell untruths. On the contrary, the apparently truthful evidence which he was giving in support of Maria and George gave a clear basis for why he thought they had been badly dealt with by Chris.
The Court accepts Rade's evidence about the threats he had received from Louie. They are consistent with the anger that both fed and was fed by the argument which had led to Maria's and George's departure from No 5. However, I do not accept that they form the basis of any grievance that coloured Rade's evidence, given that Rade himself said that he did not take them seriously because Louie "used to speak in a loud voice, sometimes saying foolish things" (T1228:11-12). It is entirely understandable that Pavlina was very upset at the time. It is distressingly typical of so much of the tit for tat evidence between the Saravinovski family members that infects these proceedings that Rade's evidence of Louie's threat was met by evidence from Bill and Louie - which the Court does not accept - that it was Rade who engaged in threatening conduct at various times.
Insofar as there were some inconstancies and additional material in Rade's second affidavit as opposed to his first, the Court accepts Maria and George's submission recorded in paragraph [563] above.
Finally, a number of the matters to which Chris points as being implausible or exaggerated in Rade's evidence (such as his answers "there are thousands, millions of things that I would tell. There's not enough room on the paper to explain every single detail" (T1249:27-28) and "How can I express myself, I don't have a clue about anything that happened to me, and why all these questions. I don't have a clue about this. Never have a clue. They all conscience leading to nothing, nothing to do with everything" his last answer under cross-examination - (T1252:6-9)) did not demonstrate dishonesty or fabrication. Rather, it was obvious to me that they were the product of Rade's frustration at the difficulty he was having in making himself understood (even giving his evidence in Macedonian) and how difficult and confronting he found the whole process of giving evidence to be. It was clear to me that he would much rather have had nothing to do with the present litigation. The fact that he chose to, as someone with nothing to gain from the proceedings, fortifies the Court in its assessment of him as someone who was doing his best to tell the truth as he recalled it.

Pavlina

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.
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.
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.
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.
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.
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.
Pavlina had no interest to tell anything other than the truth, to the best of her recollection. The Court is satisfied that she did so.

Maria and George's other witnesses

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.
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.
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.
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.
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.
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.
In watching Cveta's cross-examination unfold, I did not form the view that she was an advocate rather than a witness. A complicating factor in assessing Cveta's evidence in the witness box was that she had indicated to those calling her that she felt able to give her evidence in English, with the interpreter present in case there was something with which she needed assistance. With no disrespect to Cveta, I came to the view that her assessment of her own ability to speak English may have been a little optimistic. On some critical matters, the interpreter was used.
Cveta was an emotional witness, but some of that emotion seemed to me to be driven by her determination to make her points in English and a feeling that she did not think she was being as well understood as she wanted. Chris' submission is correct insofar as it highlights that Cveta's oral evidence did become emotional and discursive. Material was introduced and emphasised that did not appear in her affidavit. There was undoubtedly an air of exaggeration about some of it. However, I am satisfied that, to the extent it was exaggerated, that was not symptomatic of underlying falsity. In that respect, Cveta's evidence must be distinguished from Maria's where, as the Court has found, in the absence of independent corroboration the Court cannot safely determine where the lines between emotion, emphasis, exaggeration and falsehood fell. The Court accepts as reliable Cveta's affidavit evidence but has discounted her oral evidence in the sense that, while accepting the basic truthfulness of the propositions which she advanced, matters such as the extent and frequency of what she observed are to be read down in the light of her exaggerated expression, particularly in the second half of her oral evidence.

Witnesses not called by Chris

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.
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.
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.
It was put on behalf of Chris that the rule in Jones v Dunkel does not apply where the witness not called is the party's solicitor. It is sufficient to note what is said in Cross on Evidence, 10th Australian edition, 2016 Lexis Nexis Butterworth, at [1215]: Fourthly, the rule in Jones v Dunkel does not apply where the witness not called is the party's solicitor, at least with the evidence which is in consequence not given is privileged and the privilege has not been waived. This is because if the solicitor gave evidence on the subject of privileged communication the privilege would be lost, and the court will not permit the destruction of the privilege by this back door.
With one important exception, Maria and George were unable to point to any evidence that Mr Bryant might give that would not have been the subject of privilege. Maria and George responded to Chris' argument by saying: 1. If the evidence was privileged, Chris could have waived it. 2. In paragraph 19 of Chris' statement of claim concerning the 2003 Mortgage, Chris alleged "the said sum of $1,000,000 was calculated by Gordon Bryant". It was submitted that was a waiver of privilege.
The Court does not accept the first answer. Implicit in it is the suggestion that an adverse inference can be drawn by reason of a party's failure to waive privilege. That is not correct: Cooper v Hobbs [2013] NSWCA 70 at [62] per McColl JA; Meagher JA and Bergin CJ in Eq agreeing.
The second answer is correct, but gives rise to a question which the parties did not address in detail as to the extent of the waiver. To understand why the Court considers client legal privilege was lost, it is necessary to set out the relevant pleadings.
Chris' statement of claim alleged: 17. In 2003, the defendant and Bill Saravinovski agreed orally to grant the plaintiff a mortgage over the property to secure payment to the plaintiff of the sum of $1,000,000.000 (the principal sum). Particulars The plaintiff refers to paragraph 26 of his affidavit made 5 March 2012. 18. The consideration for principal sum included the transfers to the defendant and Bill Saravinovski of the properties referred to in paragraphs 4 and 9 above, the cost of the trip and wedding receptions referred to in paragraph 6 above, the monetary contribution made by the plaintiff to the defendant and Bill Saravinovski in paragraphs 13, 14 and 15 above and the transfer or allotment to the defendant of the shares referred to in paragraph 16 above. 19. The said sum of $1,000,000.00 was calculated by Gordon Bryant and disclosed to defendant and Bill Saravinovski at the time of the discussion referred to and particularised in paragraph 17. 20. Pursuant to the agreement referred to in paragraph 17, the defendant and Bill Saravinovski executed the mortgage. Particulars The mortgage is annexure D to the affidavit of the plaintiff sworn 7 February 2012.
Paragraph 26 of Chris' affidavit of 5 March 2012 (particularised in paragraph 17 of Chris' statement of claim) states: In 2003 I spoke to the defendant and Bill. I said "I helped you a lot over the years with money and property and paying things for you. I want you to sign a mortgage to protect my money. I've spoken to Gordon and he and I looked at how much I'd given you and interest. We think a million dollars between the two of you is a fair amount". Bill and the defendant said words like "Yes, that sounds fine, we'll sign it".
George's amended defence pleaded to the relevant paragraphs of Chris' statement of claim: 12. The Defendant denies paragraph 17 of the Statement of Claim. 13. The Defendant denies paragraph 18 of the Statement of Claim. 14. The Defendant denies paragraph 19 of the Statement of Claim. 15. In answer to paragraphs 17 to 23 of the Statement of Claim the Defendant: a. admits he signed the mortgage document but says there was no intention of the parties to create a legal relationship of creditor and debtor between the parties for a debt of $1,000,000.00 or an obligation to pay interest, or at all, and b. further or in the alternative there was no consideration for the mortgage or a debt.
Beyond a passing reference in final address to the proposition that the first question was whether Mr Bryant's calculation was privileged at all, that argument was not developed by George. The Court makes no finding about that but proceeds on the assumption, which George also appeared to be prepared to make, that the issue was one of waiver.
The Court accepts George's submission that the pleading "the said sum of $1,000,000.00 was calculated by Gordon Bryant" constituted knowing disclosure for the purposes of s 122 of the EA so that client legal privilege would not apply to evidence of Mr Bryant's calculation. Section 125 of the EA would broaden the penumbra of that waiver to include evidence of how the calculation was arrived at. Any doubt about the waiver is dispelled when paragraph 26 of Chris' affidavit is also taken into account. Chris' evidence clearly waives whatever passed between him and Mr Bryant and evidence of why they ("we think") reached the conclusion that they did.
Chris' affidavit evidence does not prove either paragraph 18 or 19 of Chris' statement of claim. George's amended defence put in issue the whole question of consideration. In those circumstances, the Court has no difficulty concluding for the purposes of the rule in Jones v Dunkel that Chris could reasonably have been expected to call Mr Bryant to prove those parts of his case. On one view of Chris' Case as pleaded, the matter goes beyond reasonable expectation and rises to necessity if Chris was to prove those allegations. There is no doubt that Mr Bryant was at all relevant times available to give evidence and was firmly in Chris' camp. No explanation was given for the failure to call Mr Bryant, other than to submit that the explanation was provided by the fact that anything Mr Bryant could have said would be subject to client legal privilege. At least in relation to the specific matters dealt with in the preceding paragraphs, that explanation is invalid.
Three further points need to be made in relation to the application of client legal privilege to Mr Bryant's evidence.
First, there is a question whether what I have referred to as the penumbra of waiver is confined to the calculation of the $1,000,000.00 including how that sum was calculated by reference to alleged consideration or whether it extends to communications between Mr Bryant and Chris (and others) concerning the 2003 Mortgage generally. That is a matter governed by s 126 of the EA. In my view, because the amount of the 2003 Mortgage is so central to the entire alleged transaction said to be embodied in that mortgage or said to be given effect to by that mortgage, all communications concerning that transaction would be "reasonably necessary to enable a proper understanding of the communication or document" concerning the calculation of the amount of the 2003 Mortgage. Therefore, the Court is satisfied that the waiver extends to all communications Mr Bryant had that would otherwise be privileged in connection with the 2003 Mortgage. If that conclusion is correct, in circumstances where the validity of the entire transaction is attacked by George, the Court is only fortified in its conclusion that Mr Bryant is someone who it could reasonably have been expected Chris should have called.
It follows that the Court will draw a Jones v Dunkel inference in relation to the 2003 Mortgage (both specifically as to the calculation of and consideration for the amount of that mortgage and, more generally, the entire transaction itself) against Chris that Mr Bryant could not have given evidence that would have assisted Chris' Case in relation to the 2003 Mortgage.
The second further observation which must be made is that the Court's conclusion in relation to the waiver of privilege concerning the 2003 Mortgage does not lead to the result that privilege has been waived in relation to Mr Bryant's communications concerning all the other transactions in which he was involved that feature in these proceedings. George and Maria have been unable to demonstrate any other specific example concerning another transaction where the course of evidence or pleading demonstrates a waiver of privilege by Chris. Therefore, in relation to all those other transactions, privilege is intact and that provides a sufficient explanation for Mr Bryant not being called in relation to those transactions. Any Jones v Dunkel inference arising from the failure to call Mr Bryant is therefore confined only to the dispute between Chris and George in relation to the 2003 Mortgage.
The third matter is that it was submitted for Chris that even if there had been a waiver of privilege in relation to Mr Bryant's calculation of the $1,000,000, there was still an explanation for not calling Mr Bryant. That explanation was he would have been liable for cross-examination on all issues by reason of his having been called. The Court does not accept that submission. Calling Mr Bryant did not in and of itself waive privilege on all other issues. He could still have claimed privilege on those issues even if he was open to examination on his calculation and the 2003 Mortgage.

The departure from No 5

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.
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.
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.
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.
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 argument culminated, the Court finds, in Chris saying something to the effect that he was going to Chris Realty and he would not return until Maria and her family were gone. Whatever the words he may have used, the Court is satisfied that Chris required Maria and her family to leave No 5.
The finding in the previous paragraph is ultimately based on these matters: 1. After the argument, Chris must have gone to Chris Realty and stayed there. So much may be inferred from the police report of 2 December 2009 starting with the police meeting Chris and Louie at the rear of Chris Realty. 2. The same police report says of Chris that "He did not want to go home unless [George] and his family moved out as he didn't want the stress". 3. Notwithstanding the view that the Court has taken of the likely self-serving nature of anything that George and Maria say on the hospital tape, while Chris cavils with a number of things which they put to him he does not deny their characterisation that he "kicked" them out. 4. Both Pavlina and Rade, who the Court has accepted as reliable witnesses, give evidence of hearing Chris say to Pavlina in the conversation that he had "kicked out" Maria and her family.

The hospital tape

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).
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.
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.
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.
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.
Maria does not give evidence that she expressly sought Chris' consent at the hospital to record the conversation.
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.
The Court does not accept Maria's and George's evidence as reliable. There is no corroborating, independent evidence. The only reliable evidence is the hospital tape itself. On the basis of the hospital tape the Court finds not only that Maria and George have failed to demonstrate that Chris knew he was being recorded but also finds that he did not know he was being recorded.
There are four reasons why the Court is satisfied that Chris did not know that he was being recorded.
First, the recording itself starts more than a minute before Maria and George find Chris while they sound as though they are walking the halls of the hospital looking for him. They walked into Chris' room with the phone recording.
Second, and following from the first point, there is nothing recorded when they eventually find Chris, or at any time during the recorded conversation, where they tell him that the conversation is being recorded, if only to get on record his consent allegedly given in the earlier phone call between him and Maria. This would have been a very simple thing to do and its absence is telling. It is consistent with surreptitious recording.
Third, it seems likely that in a conversation of such length Chris would have made some reference to the fact of it being recorded had he known that was being done.
Fourth, even if George was holding the phone as he said, the Court does not accept that a man of Chris' age, especially recovering in hospital, would have understood it was being used as a recording device.
It follows from these findings that there are three points to be made about how the Court has used the hospital tape for the purposes of its fact finding exercise: 1. By the time of the visit to the hospital, Maria and George had already consulted the solicitors who ultimately acted for them in these proceedings. The Court infers that they had already received some advice about their rights and had some idea of the legal issues as between them and Chris. In those circumstances, the Court accepts Chris' submission that the hospital tape was an evidence gathering exercise by Maria and George. As such, the Court will discount what Maria and George are recorded as saying on the tape as almost certainly being self-serving. 2. Because Chris did not know he was being recorded, the Court accepts that his statements recorded on the hospital tape are likely to be truthful and uncoloured by a prospect of being deployed in evidence in future legal proceedings. 3. Particularly in circumstances where Maria and George had already been to see their solicitors and the Court has found that the hospital tape was created to assist their case, their silence in the hospital tape about factual matters which have now assumed very great significance in these proceedings tells against them. There are two obvious examples. First is Maria's failure to say anything about the promises which she now says Chris made to her in Macedonia upon which she relied to marry George and to come to Australia. Second, George makes no reference to his assertion that he had given all his money over many years to his father on the assumption that he would have the benefit of the properties bought with his money. Many of Maria and George's comments and questions to Chris on the hospital tape are directed to Maria's case brought under the PRA. It is notable that was the only case she initially brought. The silence in the hospital tape about other matters which are now said to be highly significant is deafening. It compels the conclusion that those matters were either unimportant to Maria and George or they knew that if they put them to Chris it would not assist their case because he would deny them. Such failures to complain in the hospital date fortify the Court in its rejection of those parts of Maria's Case and George's Case.

I. Three interlocutory applications

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

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").
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.
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.
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.
During his further cross-examination the two relevant parts of the DVD made from the Video 8 tape were played to George. Immediately after seeing those sections, George gave this evidence (T2058:12-T2059:21): WITNESS: I've got an explanation your Honour. I can tell you straight away. HIS HONOUR Q. Yes. A. I have the video camera on, the high definition, the sound of the TV was up, there was no direct connection to the sound. Maria is sitting on the couch, I'm sort of recording or sitting on the chair and the sound, my sound has come through the living room onto the video camera at the same time as it's recording the TV, that's what the explanation is. I know already it's happened before. CHEESEMAN Q. And the reference to "It's phenomenal 800 pages" is a reference to the transcript in these proceedings isn't it? A. Yeah probably like there's a huge amount of readings and things. I don't know why I made the comment like that because I can't remember what I said, you know. It could be anything, you know, but the actual sound thing is from the camera. It was picking up everything, the TV, and I had to put the volume up and there's people chatting at the back, I said "Look keep the voices down, and we need to make a copy" you know. Q. Okay, and what I don't understand is how the only way we've got access to that is because it was on that video 8 and that you tell his Honour is the original that came from your camera that has been played, copied to your SD card but not otherwise that's the original? A. That's the original that's it. Q. How does it have your voice on it in 2015? A. If it's got the - but have you played that to check whether that's the case, I can tell you straight away-- HIS HONOUR: I'm sorry Ms Cheeseman I don't understand that to be the effect of Mr Saravinovski's evidence. What he was describing was the process whereby he made that DVD which-- CHEESEMAN: Your Honour that's the DVD that my instructing solicitors have made after the call by a third party your Honour. HIS HONOUR: I see well-- CHEESEMAN: And we made it - it was made by the third party from that tape the witness has in the box that he says is the original and definitively has said came from the camera and hasn't been altered since. HIS HONOUR: Well then if that's right then I have misunderstood. WITNESS: There's no alteration on that. HIS HONOUR Q. How does your voice get onto that tape? A. Well I can tell you that the DVD, if it's the DVD, the sound, you need to play that and compare it and tell me because ..(not transcribable).. that's happened. CHEESEMAN: In which case the most efficient course your Honour would be to have the old camera brought in. WITNESS: I can bring in the camera tomorrow if you want to look.
The Video 8 tape was ultimately able to be played to George on what was intended to be the last day of the taking of evidence at the hearing (19 March 2015: day 31). When the Video 8 tape was played to George, the two black sections and his voice where on it. The following exchange then ensued (T2206:5-T2207:31): Q. What did you hear yourself say? A. It's a reference to 800 pages. Q. Did you hear yourself say the word "phenomenal"? A. I remember talking something like that and it comes to memory what it's about, but I'm thinking what it's about, I know, probably the age of the kids. Q. On Tuesday when we played that to you I said to you this question: "Q. And the reference to 'It's phenomenal 800 pages', is a reference to the transcript in these proceedings isn't it? A. Yeah probably like there's a huge amount of readings and things. I don't know why I made a comment like that because I can't remember what I said you know, could be anything, you know, but the actual sound is from the camera. It was picking up everything, the TV, and I had to put the volume up and there's people chatting at the back. I said 'Look keep the voices down and we need to make a copy you know'." That was your answer to the question? A. Well that, that was at that stage but I recall now, if I can explain to you-- Q. Before you do that-- A. Yes. Q. --I'm going to suggest to you that you are changing your evidence because you now realise you have to explain why-- A. That's right because I didn't hear it properly. Q. --because you have to explain that it is on the original tape, correct? A. It's on the original tape yes but I can explain to you that sometimes when the lens cap was on, after filming the kids, put the lens cap - I didn't switch off the camera sometimes and there's things like that happening, you know. Then like the camera is still on recording sometimes a few seconds later. This is not a professional camera, like it's - it records-- Q. Before you go on-- A. Yeah. Q. --on that tangent, you say that you now have a recollection of what you were discussing-- A. That's right, I want to explain to you. Q. --back in the 1990s when you had the lens cap on? A. That's right, I can tell you vividly. Q. So could you please explain what you now say you have a direct memory of discussing? A. Yes that's right. I was discussing your Honour, I was doing a special project for the marketing people and it was statistical, counting things for the marketing people. In 1995, 96, that's when I see from the age of the two of them, that I was doing a special marketing job. It involved counting pages and that sounds to me familiar because I was doing a special project for them, taking work home and counting statistical things for the yellow pages I was doing for the marketing people, and as I said, explained to Ms Cheeseman that when you switch off the camera sometimes you don't switch off the recording, you put the lens cap on and the thing is - when you switch it off it still goes on for a few - one second or two. But there's a distinction between recording it live like with a HD camera and also with the actual live recording which is here and it's momentarily produced the glitches you can see in the tape. There's no editing involved. Q. I just put it directly that the answer that you've just given to his Honour is not the truth and-- A. It is the truth. Q. And that the words that are on the, what you tell us, is the original tape, came to be on the tape-- A. Wrong. Q. --because of what you did in producing that evidence in 2015? A. That - look you're assuming things. I did a lot of filming, I did not edit the tape because I did not have the facility. But that glitch there is produced at the time it was recorded. As you can see from the video the video itself is not very good film because your camera sometimes doesn't work properly and when you switch it off, you got the lens cap on which was the case and you hear the voices, but with the actual overall thing, I filmed it on the SD card from the TV.
George ultimately firmly denied that he had tampered with the Video 8 tape.
On the morning of 19 March 2015 Chris' solicitors had written to Maria and George's solicitors requesting the latters' consent to the uplifting of the Video 8 tape for the purpose of determining questions in relation to its authenticity, identity or admissibility within the meaning of s 167 of the EA. For the purposes of the argument before me, that request was taken to have been refused, thereby engaging s 169 of the EA, which provides: 169 Failure or refusal to comply with requests (1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders: (a) an order directing the party to comply with the request, (b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166, (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence, (d) such order with respect to adjournment or costs as is just. (2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed. (3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with. (4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if: (a) the document or thing to be produced is not available to the party, or (b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or (c) the person to be called as a witness is not available. (5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account: (a) the importance in the proceeding of the evidence in relation to which the request was made, and (b) whether there is likely to be a dispute about the matter to which the evidence relates, and (c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and (d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and (e) if the request relates to evidence of a previous representation-whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and (f) in the case of a request referred to in paragraph (g) of the definition of "request" in section 166-whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and (g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and (h) the nature of the proceeding.
Alternatively, the application was made under UCPR Part 23, r 23.8: 23.8 Inspection of property (1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following: (a) the inspection of any property, (b) the taking of samples of any property, (c) the making of any observation of any property, (d) the trying of any experiment on or with any property, (e) the observation of any process. (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property. (3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made. (4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995. (5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection). (6) In this rule, "property" includes any land and any document or other chattel, whether in the ownership or possession of a party or not.
By reason of UCPR Part 23, r 23.8(4), reliance on that rule is necessarily in the alternative to the application primarily being under s 169 of the EA.
The submissions put on behalf of Chris were: 1. The presence of the blanks on the Video 8 tape and George's voice apparently referring to the current proceedings cast serious doubt over the authenticity of the Video 8 tape. 2. Credit was possibly the most serious issue in the case. In those circumstances, Chris ought to be entitled to demonstrate that the Video 8 tape was yet another example of evidence tampering by George. 3. If the expert evidence demonstrated tampering, then it would form the basis of a further submission seeking to impeach other evidence (being screen captures from other video recordings) relied upon by George and Maria. 4. There was no prejudice to George and Maria by the application because: 1. Chris recognised that if the expert's report was to be relied upon, a further application would have to be made both for leave to reopen his case and for leave to rely on the expert's report. 2. It was Chris' side who was spending the money on the expert. 3. It all might come to nothing. 1. The expert's report could be obtained during the time when the parties were preparing their written submissions so that there would be no additional delay if leave was to be sought to reopen and rely on the expert's report, because that could be done before the date fixed for final argument.
Senior Counsel for Maria and George tendered an affidavit from his instructing solicitor to the effect that his clients had run out of funds to maintain the litigation and that they would be prejudiced if the case was not brought to an end within the time that had finally been limited (being the completion of evidence on that day and then the preparation and exchange of extensive written submissions with only one day for oral submissions being fixed several weeks later). It was submitted: 1. The application went to a peripheral matter of credit. George had already candidly accepted that he had manufactured some evidence. The blanks that had been identified were not during the part of the Video 8 tape that recorded the housewarming party and there was no suggestion that the section dealing with the housewarming party had been in any way doctored. 2. Because the question only went to credit rather than a substantive matter in issue in the proceedings, there was a very real doubt that the Court would grant leave to reopen for a further expert's report to be admitted into evidence, particularly having regard to UCPR Part 31, r 31.17(b), which referred to the need "to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings". 3. Taking special note of Maria and George's financial circumstances, the Court will not exercise its discretion under s 169 of the EA either generally or due specifically to concerns of expense and delay under s 169(5)(g). Alternatively, relief would not be granted under UCPR Part 23, r 23.8 because to do so would be to not give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (see s 56(2) of the CPA).
Having considered those arguments, I came to the conclusion that Chris' application should be granted on terms. Those terms were recorded in the transcript (T2226:1-10): HIS HONOUR: What do you say, Ms Cheeseman, to it being a condition of acceding to your application that the costs of and incidental to the inquiry that you've referred to, namely, I have in mind the expert's fees, the lawyers' fees, every cent that is run up in relation to this examination of the authenticity of the tape, up to and including the point of the filing of any application, be your client's costs, irrespective of the outcome with a capacity to revisit that order if and when you make the application? So what I have in mind is that, If you go ahead and do this and there's no application to reopen then, whatever the outcome of this case, the costs of that excursion will be visited only upon your clients.
For the following reasons I formed the view that appropriate relief could be granted under s 169 of the EA. It was therefore not necessary to consider UCPR Part 23, r 23.8.
I would not have been prepared to permit the examination of the Video 8 tape to take place if its sole purpose was to generate another piece of evidence upon which to attack George's credit. Having regard to the admissions which George had already made about fabricating documents, evidence of yet another example of fabrication was too peripheral, particularly given the late stage at which the matter had arisen. However, because it was suggested that if the expert evidence bore out the concerns of Chris' side of the record it would also be used to mount a challenge to other pieces of evidence, I was satisfied for the purposes of s 169(5)(a) that the evidence was of sufficient importance in the proceeding.
Because of the presence of the two black sections on the Video 8 tape and, more importantly, the presence of George's voice possibly (although I refrain from expressly deciding) referring to the present proceedings and the inconsistent nature of George's explanations from day to day, I was satisfied that there was a reasonable doubt as to the authenticity of the Video 8 tape for the purposes of s 169(5)(c) of the EA.
Finally, because, in the first instance, the costs of the exercise were to borne by Chris and a report could be provided during the time the parties were preparing written submissions, I was not satisfied that compliance with the request to provide the Video 8 tape for forensic examination would involve undue expense or delay or was not reasonably practical for the purposes of s 169(5)(g) of the EA.
The matters referred to in the previous three paragraphs satisfied me that Maria's and George's refusal to comply with the request for access and testing of the Video 8 tape had been without reasonable cause, notwithstanding the very short timeframe in which the request had been made. I therefore determined that an order should be made under s 169(1)(a) of the EA directing compliance with the request. However, the lateness of the request, the evidence of Maria and George's financial circumstances in relation to the litigation and the possibility, properly conceded by Senior Counsel for Chris, that the examination may come to nothing were the considerations which persuaded me that it would be just under s 169(1)(d) to make a special order as to costs, being the imposition of the condition referred to in paragraph [636] above. The intention of that condition was to ensure that, if in fact nothing came of the exercise, irrespective of the outcome of the proceedings the costs of the exercise should be borne by Chris.
In the events which happened, Chris' side of the record was not prepared to proceed with the application on the basis of the costs condition which I had foreshadowed. In those circumstances, the application was refused.

Maria's amendment application

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.
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.
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.
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.
The submissions on behalf of Chris opposing the amendment were: 1. The proposed amendment represented a significant departure from the way in which Maria framed the representation case against Chris. The amendment, if allowed, would result in the substantive representations as to Chris' alleged promise to give Maria "his house" (in amended form "property" which is to be understood as No 5) to be framed as an express oral representation instead of an implied representation based on cultural context. 2. The application was late and it caused consequential prejudice to the way in which Chris had conducted his defence of the case. In particular, Chris had defended the specific allegation. The amendment application should have been made at the conclusion of Maria's evidence in chief.
The Court allowed the amendment for the following reasons.
Amendment is governed by s 64 of the CPA, which relevantly provides: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. …
Given that the amendment was intended to capture precisely the evidence which Maria had ultimately given, it was a "necessary amendment" for the purposes of s 64(2) of the CPA because it was necessary for the purpose of determining the real questions raised by the proceedings. Therefore, the amendment had to be allowed unless there was a more powerful, countervailing consideration raised by the matters set out in s 58 of the CPA, to which s 64(2) is expressly subject.
Sections 56-58 of the CPA provide: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
The starting point is s 58, which by s 58(2) requires the Court to have regard to ss 56 and 57 and permits (but does not require) the Court to have regard to the matters set out in s 58(2)(b).
Insofar as s 56 is concerned, the requirement for "just, quick and cheap", it had only been suggested that "just" was relevant for the purposes of the present application. There has been no submission that allowing the amendment will cause delay or an increase in expense. The Court accepted Maria's submission that it would not be a just outcome for the case to be dealt with otherwise than by reference to the evidence which she had ultimately given. As is next developed, there was no countervailing injustice to Chris.
The Court was unable to identify any contrary indication to the grant of the amendment within the matters identified by s 57.
The matters primarily relied upon by Chris in opposing the amendment fell to be considered under s 58(2)(b)(vi). The Court was satisfied that there would be a significant degree of injustice to Maria if the amendment was not allowed in circumstances where, on examination, substantially for the reasons advanced by Maria, there was no corresponding injustice or prejudice to Chris. That lack of prejudice was demonstrated by: 1. In the course of argument Senior Counsel for Chris, when pressed by the Court, was unable to identify how she would have conducted the case differently, had, for example, the amendment been made at the conclusion of Maria's evidence or what other prejudice her client might suffer. Maria had been extensively challenged in cross-examination on both the evidence that she had given in the witness box and earlier versions of the representations on which she had relied. The Court was unable to identify any forensic disadvantage to which Chris would be subjected if the amendment were allowed. 2. The Court accepted Maria's submission that the lack of prejudice was only highlighted by the fact that Chris and Bill had flatly denied that Chris had made any representation or inducement to Maria in Macedonia. While it might be technically correct to say that Chris had strictly met the case which had been pleaded against him, he had done so by presenting a case which strenuously denied anything of the kind (as opposed to the specific words alleged) had been said to Maria. 3. While there had been delay in bringing the application, the delay did not cause any prejudice to Chris.

Use of Chris' 22 December 2014 affidavit

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.
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.
The paragraphs of the 22 December affidavit Chris sought leave to use were: A54 I disagree with Maria's account of the events leading up to the serious falling out we had in late November/early December 2009 and her account of what happened during the falling out. A55 My recollection is that the argument did not have anything to do with the fact that George was off work. I was not particularly concerned about the financial impact of him being off work at that stage. A56 I recall that the argument started when George came home and said to me: "You pig. You have eaten all the rissoles!" A57 We began to argue and I went to my bedroom to get away from the argument. A58 Later that same night I said to Maria and George "I left my tablets at the office. Can someone go and get them for me? At this stage I had recently been in hospital and felt that I should not drive. George and Maria both refused. I then said: "I have a doctor's appointment next Monday. Who can take me to the doctor?" Maria said: "I'm not taking you to the doctor." George said: "Sign over your properties if you want us to get your tablets or take you to the doctor's on Monday." A59 I became very upset at these comments and I felt intimidated. That is why I went away from the house for a while. A60 I initially went to the real estate office late that night and I called Louie. He came and picked me up and I went and stayed at his house for a few days.
The fundamental submission for Chris was based upon this piece of Dr Rosenfeld's evidence (T1527:42-T1528:4): Q. What concern would you have, having seen him, as to the veracity of recollections that he would have set forth, for example, three days before he came and saw you? A. Sorry, what concern - Q. What concern would you have about the veracity of his recollections in evidence as contained in this evidence, having been sworn three days before he saw you? A. The only concern that I would have in the context of what I found generally would be that there was some contemporaneous witness accounts that those events actually occurred or some other backing up of that story. Because as I said, elements of those things may have occurred and depending on how many times he's gone over the events in his mind, I think they can become embedded. Q. Would suggestibility, for example, by other family members play a role in that? A. Absolutely, yes.
Emphasis was also placed on this passage of Dr Rosenfeld's evidence (T1527:20-35): Q. Can you explain how that's reconcilable? A. Well, pretty much because as I said, there are aspects in biographical memory that if they were very significant and made a great impression on you or more importantly, if you have gone over them and over and over them, just as his ability to recall apple, table and coin because we went over it 50 times, he probably now will remember it for a long time. If you recall, if you go over things, they do get embedded into your memory and then they're the later things to be lost. And particularly, so for instance, in some people who are suffering from dementia who go over and over these ideas that are in their mind because they were so significant and prominent, they can almost become ingrained to the point that it takes over a lot of other things.
On the basis of that evidence it was submitted that the paragraphs which were the subject of the application were likely to be reliable because they were corroborated. Such corroboration was said to come from Chris' affidavits that had been admitted, Maria's evidence and parts of the hospital tape.
In addition to that allegedly corroborating evidence, Chris' submissions also recalled evidence from Dr Rosenfeld of what Chris had told him (Dr Rosenfeld) in response to questions about why he was now living with a different son. Dr Rosenfeld's evidence was (T1523:28-45): Q. His Honour asked you a question which, in relation to what was the capacity of Chris to answer questions, to which you responded "He could answer simple questions" but I think you added "so long as they were framed in a way that concerned his best interests" or something along those lines. Can you explain to me what you meant by that answer and also perhaps give an example of the kind of question you would mean? A. So, for example, we were talking about who was living with him and he told me that he was living with his other son before and my quotations are given in the context that I was quoting him and his English wasn't very great and he was talking to me directly, not through the solicitor, through the interpreter. So I asked him who was living with him and he said that George and his family moved out and I didn't write down exactly, but he said something about sign over properties and he was talking about his son saying "Give it to me" and then they moved away, so I was just quoting him. And then I asked him, well what's your view on these sort of things, and he says "I have three sons, not for one. I worked very hard" then he went off and told me about his three shops in Rockdale et cetera, so he went off and discussed those sorts of things, so it was a very tangential conversation. Sorry, go on.
It was submitted that the corroborative evidence, including what Chris had said to Dr Rosenfeld about the events which led to Maria and George's family leaving No 5, was sufficient corroboration to suggest that the particular paragraphs in question were likely to be reliable and should be admitted. It was submitted that the additional evidence did not open up a new area of factual context between the parties and had been the subject of responses from George and Maria. Finally, any inability to cross-examine Chris on this aspect of the matter could be adequately addressed by the Court applying an appropriate discount to the weight attributed to the evidence in the subject paragraphs.
Maria and George opposed the admission of those paragraphs of the 22 December affidavit. They drew attention to the context of the time in which it was sworn, namely five years after the disagreement in question, three years after Maria's proceedings were commenced, two years after his last affidavit dealing with the relevant events and three months before his diagnosis of vascular dementia by Dr Rosenfeld on 16 February 2015. It was submitted that Chris' affidavit did not lose the character of unreliability simply because some statements contained within it were similar to evidence contained in Chris' earlier affidavits.
Maria and George next drew attention to Dr Rosenfeld's evidence that, in the doctor's view, Chris was no longer a reliable witness for historical events (T1528:21-39): HIS HONOUR: Q. Sorry, picking up on your last answer to Mr Sirtes, professor, I take it in terms of your concern being to have some sort of corroboration, that's just consistent with your view that in and of itself, he's really no longer a reliable witness for historical events? A. That's right. SIRTES Q. Are you able to provide any retrospective opinion as to how long that reliability would be impaired sufficiently for you to adhere to that view? A. I'm just, I'm just hypothesising when I answer that question but it would be, as I said, relative to how far back you go in time but as we know from the history, he was very ill and was very likely suffering similar problems at least a year ago. Q. It could be longer? A. It could be longer.
Maria and George made four additional submissions.
First, they submitted that Chris had given evidence of the relevant events in his two affidavits which had been admitted into evidence. In terms of proximity to those events, the earlier affidavits were likely to be more reliable than his most recent affidavit.
Second, it was submitted that what was said in the 22 December affidavit was not really corroborated by the matters to which Chris' submissions had referred because the material in his latest affidavit was substantially more detailed than the allegedly corroborative evidence and given in direct speech. They submitted that Chris' detailed recollections in the 22 December affidavit had to be viewed against Chris' evidence in cross-examination on 11 February 2015 (T1279:46-T1280:44): SIRTES Q. Now, the affidavit that you swore yesterday dealt with your recollection of some of the events that you say took place in late November 2009, that's correct, isn't it? A. WITNESS: No, you not my side, you his side. He, solicitor belong to my son, not to me. I got problem 85, 85 nobody to look after me. I don't know what to do. Nobody look after me. HIS HONOUR Q. I'm going to try again. Please listen to Mr Sirtes' question. You told me a moment ago that you thought you were able to answer his questions, so let's see if you can. Please listen carefully to the question. SIRTES: Mr Interpreter, can you turn the affidavit to page 3 for me, please. Q. Now, you can read some English, can't you? A. INTERPRETER: No. A. WITNESS: Before yes, not now. Q. So I'm just going to ask the interpreter to interpret the heading about two-thirds of the way down page 3. SIRTES: Can you show Mr Saravinovski the English and translate it for him, please. INTERPRETER: Which? HIS HONOUR: The words, "Events leading-- SIRTES: "Events leading up to George and Maria moving out." Q. Now, you accept, don't you, that you have in this affidavit you've signed yesterday set forth some of the things that occurred? As you sit here today, do you tell his Honour that you recollect some of the events that happened in November and December 2009 leading up to George and Maria and their family leaving No 5? A. WITNESS: Go, go ..(not transcribable).. nobody look after me now. HIS HONOUR Q. Do you remember what happened in November 2009 when George and Maria moved out of No 5? A. WITNESS: No, I can't remember ..(not transcribable).. what the problem. He say to me ..(not transcribable).. property in his name. I say ..(not transcribable).. for my wife, nobody. My children after passed away, he can take it by law. Now I can't ..(not transcribable).. 85, I've got problem, I'm sick, you know. My son take me to Court, not my son. I give him two home, he take me to Court. What I can? Now 85, I'm sick. Sorry, I never been to Court all my life here.
Third, Maria and George submitted that when the detailed evidence in his 22 December affidavit was compared to his evidence less than two months later, and mindful of Dr Rosenfeld's evidence that Chris had been suffering from vascular dementia for some time, the Court could not be satisfied that the evidence in the 22 December affidavit was not the product of something suggested to Chris at the time it was sworn or that something had been suggested to him so repeatedly that it had become ingrained.
Fourth, it was submitted that the issue of the circumstances surrounding Maria and George's family's departure from No 5 was an important one in the proceedings. Chris had never given evidence in the detail which appeared in his 22 December affidavit compared to his evidence in his earlier affidavits. Given that Chris could not be cross-examined about those paragraphs of his 22 December affidavit, there was significant prejudice to Maria and George. Applying a discount to that evidence would not adequately address the issue of prejudice or reflect the Court's general conclusions about the reliability of the 22 December affidavit generally.
During the course of argument I particularly invited Senior Counsel for Chris to address the stark contrast between the clarity of Chris' evidence in his 22 December affidavit when compared to his evidence in the witness box. The answer was to rely on Dr Rosenfeld's evidence that people with vascular dementia such as Chris had good days and bad days.
Reliance on the possibility of good and bad days was insufficient to overcome the Court's concerns about the reliability of the 22 December affidavit for the reasons set out in Saravinovski (No 5). I refused Chris' application to read those paragraphs in his 22 December affidavit because I accepted Maria and George's submissions set out in paragraphs [664] to [670] above. On the question of prejudice I also took into account that the prejudice to George and Maria of not being able to cross-examine Chris about his precise evidence given in those paragraphs of his 22 December affidavit far outweighed the prejudice to Chris by the non-admission of that evidence, because Chris was still left with all of the evidence that had been admitted of the relevant events which had been described as "corroborative" for the purposes of the present application.

J. Conclusion

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.
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

Property (Relationships) Legislation Amendment Act 1999(NSW)

Trade Practices Act 1974(Cth)

(1986) 11 Fam LR 214

(1986) 11 Fam LR 271

(1986) 11 Fam LR 302

(2001) 27 Fam LR 711

(1993) 16 Fam LR 863

(2005) 33 Fam LR 177

(2005) 33 Fam LR 134

(1991) 15 Fam LR 109

(2000) 27 Fam LR 304

(1990) 13 Fam LR 688

(1995) 19 Fam LR 430

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