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[2025] NSWSC 396
plaintiff. The plaintiff established a testamentary contract, which the deceased breached by not making a Will or codicil giving effect to it. The cross-claim for repayment of $81,799 was dismissed in...
The Court found that Lynette promised Jennine half of her estate if Jennine moved to Port Macquarie and cared for her until she died. It accepted that Jennine did so, found the promise sufficiently clear and legally binding, and held that the Will’s failure to provide half the residue breached the contract. The Court did not fix the final amount in its reasons. It separately found that the $81,799 taken from Lynette’s account had been authorised, so Jennine did not have to repay it. Although the Court considered an alternative estoppel claim, it was not persuaded that estoppel justified enforcing the promise in full. The parties were to provide short minutes of order, including on costs.
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2,263 words · generated 02/10/2026
In Mills v Dodds [2025] NSWSC 396, Meek J considered competing claims arising from an alleged oral agreement between sisters. Lynette Paton had terminal metastatic bowel cancer. Jennine Mills said that, in a telephone conversation in October 2020, Lynette promised to leave her half of the estate if Jennine came to Port Macquarie, lived with her and cared for her until her death. Jennine travelled from Victoria during the COVID-19 pandemic, quarantined in Sydney and arrived in Port Macquarie on 19 November 2020. Except for a period of about six weeks in Victoria, she lived with and assisted Lynette until Lynette’s death on 5 September 2021 ([73]–[81], [272]–[275]).
6 cited instruments linked from this judgment.
Lynette’s Will, executed on 26 October 2020, did not provide half the residue to Jennine. It gave her personal effects, $20,000 and a motor vehicle. The residue was divided between the Hastings Cancer Trust, receiving 70%, and WIRES, receiving 30% ([28]–[31]). Karen Dodds, Lynette’s friend and executrix, denied that the alleged promise had been made or was enforceable. She also claimed that Jennine had to repay $81,799 withdrawn or transferred from Lynette’s bank account between 3 and 8 September 2021 ([3], [96]).
The Court accepted Jennine’s evidence of the promise and found a valid testamentary contract that Lynette breached. It also found that the withdrawals were authorised and dismissed the repayment claim in substance. The judgment considered estoppel as an alternative but was not persuaded that enforcing the promise in full was an appropriate estoppel remedy ([12]–[13], [624]–[626]).
The key factual question was whether the October conversation occurred as Jennine described it. The Court approached the evidence under the civil balance-of-probabilities standard, requiring “actual persuasion” rather than a mechanical comparison of competing stories ([103]–[106]). It recognised that claims against a deceased person’s estate require careful scrutiny, but said that scrutiny is not the same as treating a claim as presumptively fraudulent ([108]–[110]).
There was little contemporaneous documentary evidence of the alleged promise itself. The Court nevertheless accepted the gist of evidence from Jennine, her brother Glen and her husband Phillip about the conversations and their immediate aftermath ([188]–[221]). It considered the context important: Lynette’s terminal diagnosis, her wish to remain at home and the medical letters supporting Jennine’s compassionate travel into New South Wales. The letters dated 19 and 20 October 2020 described Jennine’s proposed role as Lynette’s carer ([74]–[75], [426]–[429]).
The defendant relied on evidence that Lynette had repeatedly expressed an intention to benefit cancer and wildlife charities, and on the terms of the Will. The Court accepted evidence that those were genuine testamentary intentions but did not regard them as decisive against a later promise to Jennine. It noted that the Will was made before Jennine arrived and before she had provided care. It also found that a testator’s discussion of a Will’s contents with a person does not become implausible merely because that person is not a beneficiary ([231]–[243]).
On certainty, the Court rejected the suggestion that “half of my estate” or “look after me” was too vague. It considered “half of my estate” straightforward. In context, care meant living with Lynette and providing household and personal assistance, broadly comparable to the care Lynette had provided to her partner Alan ([438]–[446]). The Court accepted evidence that Jennine undertook washing, cleaning, shopping, cooking, transport to appointments and, at times, help with showering and toileting ([452]–[475]).
The Court found that this care was legally sufficient consideration. It also found an objective intention to create legal relations. The relevant circumstances were serious: Lynette needed care for an uncertain period, the request involved a substantial testamentary benefit, and Jennine was being asked to leave her home and husband during a pandemic. The fact that their relationship was familial, or that Jennine also acted from love and a sense of duty, did not exclude contractual intention ([501]–[515]). The Court stated that “the two are [not] necessarily mutually exclusive” ([514]).
The Court therefore found that Lynette breached the contract by dying without making a codicil or new Will giving effect to the promise ([517]–[519]). It described damages as prima facie half the value of the residuary estate but did not calculate a final amount in the reasons ([519]).
The estoppel analysis was alternative. The Court found that most of the elements had been established, including a clear promise, reasonable reliance, the deceased’s knowledge or intention that Jennine would rely, and detriment. But it was not persuaded that the appropriate relief was to enforce the promise in full. It considered the proportionality of half the residue against the detriment and the $30,000 in gifts Jennine received during Lynette’s lifetime. No submission proposed a lesser amount that could meet the estoppel claim ([555]–[590]).
On the cross-claim, the Court accepted Jennine’s account that Lynette authorised withdrawals and transfers while in hospital. It rejected the contention that authorisation could arise only under the formal power of attorney, noting that the account-holder could separately authorise transactions ([609]–[615]). It also found that the challenge based on Lynette’s condition was not properly pleaded and, in any event, was not established by the evidence ([616]–[621]).
The judgment describes the relevant approach in New South Wales as applying ordinary contractual principles to testamentary promises. It contrasts that approach with New Zealand’s Law Reform (Testamentary Promises) Act 1949, which the judgment describes as statutory intervention for this type of claim ([415]–[420]). The judgment notes that such legislative intervention had not generally been adopted in New South Wales and suggests family provision legislation may be one explanation for that position ([419]). These are contextual observations, not a finding that the legislation governed this dispute.
For the contractual claim, the decision applies familiar requirements: agreement, certainty, consideration and intention to create legal relations. It treats the existence and terms of an oral contract as factual questions and permits consideration of surrounding circumstances and post-contractual conduct where those matters are in issue ([421]–[422]). The case’s importance lies in the fact-specific application of those requirements to a testamentary promise made between siblings in a family setting.
On intention, the judgment adopts the objective approach discussed in Ermogenous v Greek Orthodox Community of SA Inc: there is no automatic presumption that a family arrangement lacks legal effect, and the court considers what the parties’ words and conduct objectively conveyed in their circumstances ([476]–[477]). The Court applied that approach despite evidence that Jennine was motivated by affection and duty as well as by the promise ([513]–[515]).
The estoppel discussion recognises debate about the required assumption and remedy. Meek J accepted that it was not necessary to show that the plaintiff assumed a particular legal relationship existed or would exist. In any event, he found that Jennine assumed there was an oral contract ([530]–[536]). On remedy, the judgment discusses “minimum equity”, good conscience and proportionality, but does not settle the broader question of which remedial formulation governs all promissory estoppel cases. The Court decided only that it was not persuaded that enforcing the full promise was proportionate on these facts ([581]–[590]).
For evidence, the judgment states that there is no general rule that unchallenged evidence must be accepted ([113]). It explains that lack of cross-examination may support accepting evidence, but does not compel that result. The court must still consider the nature of the evidence, including whether it is illogical or inherently inconsistent ([114]–[119]). This is a practical evidentiary statement applied in assessing competing witness accounts, rather than a new statutory rule.
At [108], the Court said that claims against deceased estates are scrutinised carefully, but not approached as presumptively fraudulent. In plain English, careful testing of evidence is required, but the claimant is not automatically treated as dishonest simply because the alleged promisor cannot give evidence.
At [113], the Court said there is no rule that unchallenged evidence must be accepted. Put simply, a witness’s account does not become conclusive just because opposing counsel did not cross-examine them. The judge still assesses it against the whole record.
At [430], the Court characterised Lynette’s words as language of promise, and at [439] said the expression “half my estate” was not uncertain. In plain English, the Court considered the promised share identifiable, even though the value of the estate would only be known later.
At [475], the Court found that Jennine provided “real and relevantly ‘legally sufficient’ consideration” by moving to Port Macquarie and providing care. In plain English, unpaid domestic and personal care can be contractual consideration where the facts establish that it was requested as part of an agreement.
At [501], the Court stated: “Objectively, I consider that there was such an intention.” This is the express finding that the parties intended legal relations. The explanation at [502]–[515] emphasises the seriousness of the request, the care needed and the commitment involved, rather than relying on a presumption based on family status.
At [517], the Court said that the failure to make a codicil or new Will giving Jennine half the estate was a breach. In plain English, the Court treated the promise as a contractual obligation that the deceased failed to fulfil through her testamentary arrangements.
At [589], the Court said it was “unpersuaded that the minimum equity appropriate to do justice to the claim is to enforce the promise according to its terms.” This concerns estoppel, not the contractual finding. It means the Court did not consider that estoppel, by itself, justified awarding the full promised benefit in these circumstances.
At [623], the Court concluded that the authorised sums did not have to be repaid. In plain English, the cross-claim failed because the evidence established authority for the transactions.
The case is most relevant to disputes where a person alleges an oral promise of testamentary provision in return for care, companionship or domestic services. The facts that mattered here included an express promise, a specified share of the estate, a request that the promisee live with and care for the promisor, and performance of that request over a substantial period ([193]–[194], [452]–[475]).
It also shows how a court may assess an alleged agreement even where there is no written contract and contemporaneous documentation of the central conversation is limited. The Court relied on oral evidence alongside surrounding circumstances, including the medical letters, the timing of the Will, the parties’ conduct and evidence about the care provided ([74]–[81], [106]–[110], [426]–[429]).
The decision does not establish that every family promise to leave property creates a contract. Its reasoning depended on findings about what was said and the seriousness and context of the arrangement. The judgment expressly treats certainty and intention as matters dependent on the facts of each case ([441]–[446], [476]–[477]).
The cross-claim aspect may be relevant where an estate seeks restitution of funds moved by an attorney or family member. The judgment distinguishes authority under a formal power of attorney from separate express authorisation by the account-holder ([614]). The factual finding of oral authority was specific to the evidence accepted in this case.
The judgment was delivered on 28 April 2025. The supplied judgment contains no discussion of later court decisions treating Mills v Dodds as precedent, and no post-judgment history is provided. It is therefore not possible, from this source alone, to say whether later courts have followed, distinguished or otherwise treated the decision.
Within Mills v Dodds, Meek J relied on earlier authorities for the propositions applied. For contractual intention, the judgment discusses Ermogenous and rejects the use of automatic presumptions about domestic arrangements ([476]–[477]). For oral contract terms and surrounding circumstances, it cites King v Adams and Moore v Aubusson ([421]). For estoppel principles, it discusses Waltons Stores, Van Dyke v Sidhu, Sidhu v Van Dyke and Zugic ([520]–[586]). These are the authorities the judgment itself used; they do not establish how later courts have treated Mills.
The judgment leaves the precise amount of contractual damages to be addressed in the administration of the estate. It observed that the prima facie measure was half the value of the residuary estate, but did not fix a final figure ([38]–[39], [516]–[519]). The parties were directed to bring in short minutes of order, including on costs ([626]).
The judgment also leaves open the remedy that might have been available on the estoppel claim if the contractual claim had failed. Meek J was not persuaded that full enforcement was the minimum equity, but no alternative amount or form of relief was proposed ([589]–[591]). Because the contract claim succeeded, the Court did not need to resolve that remedial issue.
The judgment discusses whether promissory estoppel requires an assumption of a particular legal relationship and whether “minimum equity” remains the applicable remedial approach. It found no assumption was required, but also addressed the alternative possibility that Jennine assumed there was an oral contract. Its discussion of remedial principles records competing views without resolving the doctrine beyond the case’s outcome ([530]–[536], [581]–[590]).
Finally, the decision turns on factual findings about the precise promise, the care provided, intention and authorisation of withdrawals. The judgment does not provide a general rule that an oral testamentary promise will be enforced whenever care is given, or that an account-holder’s oral directions will always be sufficient to authorise later transactions. Its stated conclusions depend on the evidence and issues as litigated here.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mills v Dodds [2025] NSWSC 396
Hearing dates: 28-29 August 2024
Date of orders: 28 April 2025
Decision date: 28 April 2025
Jurisdiction: Equity
Before: Meek J
Decision: Determination that plaintiff’s contractual claim succeeds. Finding against cross-claim for recovery of monies. Parties to bring in short minutes of order.
Catchwords: SUCCESSION — Testamentary promise — Deceased who was battling cancer with a prognosis of 3-6 months to live approaches sister for care — Plaintiff (sister) claims that the deceased promised her half of her estate if she looked after her — In the context of the COVID-19 pandemic, the plaintiff moved from Ocean Grove in Victoria, first isolating in Sydney for 2 weeks, and then travelled to Port Macquarie where she lived with and took care of the deceased for some 10 months, returning to Victoria for a period of 6 weeks — There was no written contract or document reflecting the alleged promise and there was limited contemporaneous documentary evidence generally — Deceased’s Will does not give effect to the purported contract but rather only gives by way of provision to the plaintiff items of personal effect, $20,000 and a motor vehicle, with the residue of the estate being divided between a cancer trust and a wildlife charity — Defendant, who is the executrix and a friend of the deceased, disputes the alleged promise was made or, if made, that it is enforceable — Defendant’s counsel contends that the plaintiff and witnesses in her case (her brother and her husband) have each reconstructed memories of material evidence — Plaintiff’s counsel postulates a case that the deceased harboured negative feelings for the plaintiff for leaving the deceased to look after their sick mother on her own, which led her to plot her revenge against the plaintiff in the form of not honouring the alleged promise
CONTRACTS — Testamentary contract — Whether the deceased promised the plaintiff half of her estate if she looked after her — Deceased updated her Will one week after the alleged promise conversation but before the plaintiff arrived in Port Macquarie and did not make the alleged promised provision — Defendant’s witnesses assert the deceased never told them she was giving the plaintiff half of her estate — Submission by the defendant that these factors are inconsistent with the alleged promise conversation not accepted — Found that the alleged promise conversation occurred as asserted by the plaintiff and foreshadowed by the evidence of the deceased’s and plaintiff’s brother that the deceased mentioned her plan to offer the plaintiff the alleged promise — Found that the promise conversation constitutes an agreement — Submission that the terms of the agreement are not certain rejected — Submission that there was no real consideration rejected — Submission that there was no intention to create legal relations rejected — Held that there was a valid testamentary contract between the deceased and the plaintiff which was breached by the deceased
ESTOPPEL — Equitable estoppel — Found that there was a clear and unequivocal promise — Discussion of whether an existing or future legal relationship needs to be assumed — Held that no assumption is required by the plaintiff — Found, in any event, that the plaintiff assumed there was an oral contract — Whether the plaintiff acted reasonably in reliance on the promise — Submission that the plaintiff’s reliance was artificial and unrealistic rejected — Whether the deceased knew or intended that the plaintiff would act in reliance on the promise — Found that the deceased knew or intended for the plaintiff to act in reliance on the promise — Whether the plaintiff’s reliance on the promise was to her detriment — Discussion of financial and non-financial detriment — Submission that the plaintiff acted in reliance to her detriment accepted — Whether the deceased acted unconscionably in not honouring the promise — Unpersuaded that the minimum equity is to enforce the promise according to its terms — Held that equitable estoppel is not made out
RESTITUTION — Common counts — Claim for money had and received — Whether the plaintiff’s withdrawal of sums totalling $81,799 during the last days of the deceased’s life and after the deceased’s death were authorised by the deceased — Found that the payments were authorised in a conversation between the deceased and the plaintiff — Held there is no obligation for the plaintiff to pay the sums back into the estate
EVIDENCE — Unchallenged and uncontradicted evidence — Submission that evidence which is unchallenged and uncontradicted must be accepted or acted upon — Discussion of authorities — Held there is no general rule that such evidence must be accepted
EVIDENCE — Rule in Browne v Dunn — Alleged non-compliance with rule — Held no breach of the rule
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Law Reform (Testamentary Promises) Act 1949 (NZ)
Cases Cited: Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 13 ATR 825
Allison v Farrington, Hobbs v Farrington [2005] NSWSC 106
Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151
Application of Marais [2009] NSWSC 206
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Ashton v Pratt (No 2) [2012] NSWSC 3
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
Battenberg v Phillips [2020] NSWCA 249
Browne v Dunn (1894) 6 R 67
Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 87
Clayton v Clayton [2023] NSWSC 399
Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752
Coshott Family Pty Ltd v Lyons (2022) 110 NSWLR 44; [2022] NSWCA 216
Coss v Norman [2021] NSWSC 1464
DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) (2011) 83 NSWLR 728; [2011] NSWCA 348
Dulhunty v Dewhirst [2005] NSWSC 350
Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Evans v Levy [2011] NSWCA 125
Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172
Finlay v Mack [2001] NSWSC 443
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Galaxidis v Galaxidis [2004] NSWCA 111
Gill v Garrett [2020] NSWSC 795
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374
Horton v Jones (1935) 53 CLR 475; [1935] HCA 7
Juul v Northey [2010] NSWCA 211
King v Adams [2016] NSWSC 1798
Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11
Lucas v Salman [2022] NSWSC 1301
Marginson v Potter & Co (1976) 136 CLR 161; [1976] HCA 35
Maxwell v Maxwell [2022] NSWSC 1028
McBride v Sandland [No 1] (1918) 25 CLR 69; [1918] HCA 32
MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833
Moore v Aubusson [2020] NSWSC 1466
NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838
Norris v Pendino (Estate of Louise Edith Fernandez) (Supreme Court (NSW), Master Macready, 21 September 1995, unrep, BC9505523)
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51
Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605; [2015] NSWCA 313
Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353; [1969] HCA 29
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
[2020] NSWCA 220; (2020) 383 ALR 469
Rathswohl v Court [2021] NSWSC 356
Re Gonin [1979] Ch 16
Schaefer v Schuhmann [1972] AC 572
Sheahan v Woulff [1927] St R Qd 128
Shymko v Lach [2022] NSWSC 1096
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Silver v Dome Resources NL [2007] NSWSC 455; (2017) 62 ACSR 539
Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268
Slade v Brose [2024] NSWCA 197
Starr v Miller; Starr v Miller [2021] NSWSC 426
Steria Ltd v Hutchison [2006] EWCA Civ 1551
Stojanovski v Stoyanovski [2024] NSWSC 1582
Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755
Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293
The Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Thomas v Thomas (1842) 2 QB 851; 114 ER 851
Thorner v Major [2009] 3 All ER 945; [2009] UKHL 18; [2009] 1 WLR 776
Todd v Nichol [1957] SASR 72
Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769
Varma v Varma [2010] NSWSC 786; (2010) 6 ASTLR 152
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431
Weston v Hourn [2000] NSWSC 543
Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106
Texts Cited: Aitken, Lee, “Unscrambling ‘detriment’ — unjust enrichment, mistaken payments, and estoppel” (2014) 38(3) Australian Bar Review 269
Bryan, Michael, “Almost 25 years on: some reflections on Waltons v Maher” (2012) 6 Journal of Equity 131
Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis)
Edelman, James & Elise Bant, Unjust Enrichment (2nd ed, 2016, Bloomsbury Publishing)
Evans, Michael, Theresa Power & Joseph Power, Equity and Trusts (5th ed, 2024, LexisNexis)
Heydon, JD, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths)
Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis)
Macquarie Dictionary, online ed
Nield, Sarah, “‘If You Look After Me, I Will Leave You My Estate’: The Enforcement of Testamentary Promises in England and New Zealand” (2000) 20(1) Legal Studies 85
Ong, Denis S K, Ong on Equity (2011, Federation Press)
Restatement of the Law Third: Restitution and Unjust Enrichment (American Law Institute Publishers, 2011)
Sue, Eugène, Matilda, Or, The Memoirs of a Young Woman, (1843, J Winchester New World Press)
Category: Principal judgment
Parties: Jennine Catherine Mills (Plaintiff / Cross-Defendant)
Karen Ann Dodds (Defendant / Cross-Claimant)
Representation: Counsel:
M Maconachie with M Summerhayes (Plaintiff / Cross-Defendant)
D Yazdani (Defendant / Cross-Claimant)
Solicitors:
Priest Legal (Plaintiff / Cross-Defendant)
Donovan Oates Hannaford (Defendant / Cross-Claimant)
File Number(s): 2023/256033
HIS HONOUR: Revenge “served cold”, [1] by a duplicitous manipulating sister on one side [2] and a reconstructed memory contorting a mere expression of goodwill into a hoped for inheritance on the other side [3] are the main competing case theories advanced by counsel to explain certain perplexing events bearing upon a now disputed arrangement said to have been established between the plaintiff, Jennine Catherine Mills (Jennine or plaintiff), and her older sister, Lynette Rose Paton (deceased), in the context of the deceased’s terminal cancer diagnosis and advice that she had only a matter of months to live.
Jennine claims that, during a telephone conversation in October 2020, the deceased promised her that, if Jennine lived with and cared for the deceased until her death, the deceased would leave half of her estate to Jennine (alleged promise). Jennine travelled interstate, quarantined, lived with and she says cared for the deceased, yet the deceased did not make a Will to the effect asserted. Jennine sues the defendant, Karen Ann Dodds (Karen or defendant), the executrix of the deceased’s estate, to enforce the alleged promise by alternative claims based on a testamentary contract or equitable estoppel.
Karen, who on 15 February 2022 was granted probate of the deceased’s Will dated 26 October 2020 (Will), disputes the claim. Further, by her cross-claim for money had and received, Karen claims that certain withdrawals from the deceased’s bank account by Jennine in the days prior to and immediately following the deceased’s death, totalling $81,799, were unauthorised and ought to be paid to her as executrix of the deceased’s estate, with interest.
The above case theories did not ultimately reconcile in a convincing way all the materials and the quandaries in the evidence and in that sense were flawed. In the final analysis, I have rejected the notion that Jennine’s evidence on the critical issues was reconstructed. Similarly, the revenge theory did not withstand final scrutiny.
The defendant led evidence suggesting the deceased’s relationship with Jennine was not close, was marked with discord, [4] and had been earlier fractured by an alleged failure by Jennine to assist, financially or otherwise, the deceased in caring for their sick mother. Karen gives evidence that, at times, the deceased told her that she was “betrayed and hurt by Jennine”. [5]
In outlining the revenge theory, Mr Maconachie and Ms Summerhayes gathered in their outline of opening submissions [6] (POS), under the heading “Betrayal”, the various references in the affidavit material relied upon by the defendant setting out statements made by the deceased to certain of those witnesses and by them to her identifying aspects of the apparent discord. [7]
For reasons which I explain below, I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the cross-claim are not liable to be repaid by the plaintiff.
Having regard to my findings in relation to the testamentary contract, it is not strictly necessary for me to address the estoppel claims. However, in case I be incorrect in relation to my findings on the testamentary contract, I have addressed the estoppel claim. In summary, whilst I have found that most of the elements of the estoppel have been made out, I am ultimately not persuaded that the appropriate remedy is to enforce the promise according to its terms. Essentially, that is because I have concerns regarding the proportionality of the value of half of the estate as to the prejudice or detriment suffered.
The deceased, a retired police officer, [21] was born in July 1956 [22] and died on 5 September 2021, aged 65. [23] She had no children [24] and was predeceased by her partner Alan Dawson (Alan) (in September 2020, also aged 65) [25] and also by her parents Rose Ellen Paton [26] (in 1995) [27] and Frank Trevor Paton [28] (in 2010). [29] The deceased is survived by Jennine and her brother Glen Paton (Glen).
Jennine, the deceased’s elder sister, was born in September 1952 and is currently aged 72. [30] She retired from her career as an air hostess/flight attendant in 2018, [31] and is married to Phillip Mills (Phillip) who was a Contracted Maintenance Supervisor with Jetstar. [32] He was stood down from the position on 24 March 2020 (during Covid), was placed on JobKeeper receiving a small percentage of his regular pay, and received a final payout on or after 29 November 2020 consequent upon his position being made redundant. [33] They have no children (or at least none are referred to in the evidence).
Glen, a retired Wing Commander with the RAAF [34] was, at least for some period, or still is, married to Rosemary [35] and has two adult children, Freya Chantelle Paton (Freya) [36] and Gene Blake Paton (Gene). [37] Glen currently resides in Burleigh Heads, Queensland. [38]
Sadly, the deceased and some of her immediate family had been afflicted with disease. She had been diagnosed with metastatic colorectal cancer in or around 2012 which she battled for 9 years. [39] Alan died from metastatic bowel cancer which he had battled for 11 years. [40] Her mother had died from Motor Neurone Disease, in or around 1995. [41]
Whilst Jennine receives certain personal effects, a motor vehicle and a $20,000 legacy under the Will, she does not receive anything close to half of the residuary estate.
Karen, a retired real estate salesperson/property manager, [42] was a very close friend of Lynette, having known her since 2002 as they both resided at South West Rocks and, between 2002 and 2010, would see each other on an almost daily basis. [43] In 2010, Karen moved to Port Macquarie and would meet up with Lynette once a month. Despite not seeing each other as often, they remained close friends. [44]
Without intending any disrespect, it is convenient to refer to the parties and the various other protagonists by their given names, as they have done in the various affidavits, with the exception of Justin Levido, a solicitor, whom I will refer to as being Mr Levido.
On the hearing, Mr Maconachie of counsel appeared on behalf of Jennine with Ms Summerhayes of counsel. Mr Yazdani of counsel appeared on behalf of Karen. Counsel for both sides provided a written outline of submissions prior to the hearing and made oral closing submissions following the completion of evidence. For convenience, I will refer to the submissions on behalf of Jennine as submissions by Mr Maconachie.
I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the POS of Mr Maconachie and Ms Summerhayes and Mr Yazdani’s opening written submissions dated 21 August 2024 (DOS). There are numerous occasions in emails and letters within the Court Book where words are misspelt or mistakenly used. Where I quote from such material, I have left the mistaken wording within the quote.
Jennine relied on affidavits by herself (14 November 2023 and 9 April 2024), her husband Phillip Mills (15 November 2023 and 9 April 2024) and her brother Glen Paton (16 November 2023 and 10 April 2024).
Karen relied upon affidavits from:
herself – affirmed 8 December 2023 and 18 March 2024;
Pamela Little, retired public servant – a friend of the deceased (Pamela) affirmed 4 December 2023;
Ronald Deiter Fisher, real estate agent – a friend of the deceased (Ronald) affirmed 7 December 2023;
Helen Denise Molloy, retired registered nurse – a friend of the deceased (Helen) sworn 7 December 2023;
Jane Heatherington Cordin, paramedic – a friend of the deceased since 1989 (Jane) sworn 7 December 2023;
Justin Gerard Michael Levido, solicitor and principal of the law firm Levido Law + Property – who acted for the deceased in 2020-2021 (Mr Levido) sworn 8 December 2023;
Nada Mion (nee McDonald), retired Chief Inspector of Police – close friend of the deceased since 1980 (Nada) sworn 8 December 2023 and 18 March 2024; and
Kenneth Harold Dodds, retired land developer – Karen’s husband (Kenneth) affirmed 18 March 2024.
Other than Jane, Ronald and Mr Levido, all of the other deponents are retired.
According to the inventory of property, the deceased’s estate consists of the following assets: [45]
a strata unit in Home Street Port Macquarie, with an estimated value of $540,000;
monies in two Commonwealth Bank accounts (CBA) being a Smart Access Account and a NetBank Saver Account totalling $71,665.44;
an AHM health insurance death benefit of $1,500 and a $72.10 refund of recalculated paid health premiums;
superannuation estimated at $536,527.15;
a 2017 model Volkswagen Tiguan motor vehicle estimated at $26,350; and
furniture and personal effects with an estimated total value of $5,000.
Total: $1,181,114.69.
The deceased and some others described her strata title unit in Port Macquarie as her “Villa” [46] and I will refer to it as such.
By cl 2 of the Will, the deceased appointed Jennine as the sole executrix and trustee of her Will, provided that in the event that Jennine predeceased her or is unwilling or unable to act in that capacity, she appointed Karen as her alternative executrix and trustee.
By cl 3 of the Will, the deceased directed that the Villa is to be forthwith placed on the open market for sale using Port Macquarie First National Real Estate, with the property to be sold on a “walk in-walk out” basis as to major household items, furniture and appliances therein.
The following specific gifts and bequests were made:
certain wall mounted canvass prints are bequeathed to the treasurer or proper officer of The Hastings Cancer Trust (HCT) for the general purposes of HCT: cl 4;
any personal effects, including items of jewellery, personal adornment and/or ornament owned by the deceased are bequeathed to Jennine absolutely: cl 5;
the sum of $20,000 is bequeathed to each of the deceased’s niece, Freya, and nephew, Gene, absolutely: cl 6;
the sum of $20,000 is bequeathed to Tanya Laws (Tanya) absolutely: cl 7;
the sum of $20,000 and any motor vehicle owned by the deceased (being the 2017 model Volkswagen Tiguan) are bequeathed to Jennine absolutely: cl 8; and
the deceased’s sewing machine, Janome overlocker, Horn sewing machine cabinet and associated accessories, sewing books and items of fabric or thread are bequeathed to Liberty Domestic & Family Violence Specialist Services Inc (trading as Liberty Cottage) for its general purposes: cl 9.
By cl 10 of the Will, the residue of the deceased’s estate is divided as follows:
HCT is to receive a 70% share absolutely; and
the NSW Wildlife Information Rescue and Education Service Incorporated (WIRES) is to receive the remaining 30% share (free of all duties) “in aid of that Foundation and for their general purposes”.
By cl 11 of the Will, the trustee is given various powers, including to sell any asset of the estate which is not the subject of a specific gift, and to sell, call in and convert into money such part or parts of the estate and property as may not consist of money.
Various details regarding administration of the estate have been provided in the evidence. The Court Book records estate administration statements as at 10 January 2023, [47] and 31 March 2023. [48]
The defence, with a limited concession that the plaintiff lived with and assisted the deceased until her admission to hospital on 1 September 2021, [58] relevantly denies all aspects of the contractual claim and the estoppel claim. [59] The defence is otherwise unilluminating as to particulars and raises no positive defence to the claims.
The DOS was equally unilluminating in relation to defence of particular aspects of the plaintiff’s claims. Other than by reference to denial that the alleged contractual conversations occurred, [60] reference to the plaintiff’s “self-interest” [61] and reminders of the caution expressed in caselaw of approaching evidence regarding claims on deceaseds’ estates, [62] the DOS made no particular revelation regarding how the plaintiff’s contractual claim was being challenged. The approach taken as to the estoppel claim was only slightly more revealing in that the DOS, by reference to the six elements required for estoppel, essentially indicated that the Court should not be satisfied that any of the elements were made out [63] and noted that the words upon which the estoppel was said to be based were “too vague and uncertain to establish promissory estoppel”. [64]
The pleadings to support the cross-claim simply raise the issue that the alleged withdrawals and transfers were not authorised. [65] There was no real disclosure in the DOS of how the case of a lack of authorisation was put, indicating essentially that “there is no evidence that the deceased, at any point of time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account.” [66]
In the POS, the plaintiff’s counsel apprehended that Jennine’s claim was being defended on the basis that the deceased’s conduct was not consistent with the claimed contractual or equitable obligation. [67]
During Mr Maconachie’s opening, I made the observation that I understood that Mr Yazdani was pitching his case essentially on the basis that I should not accept the plaintiff’s evidence, though noting that I would have to wait and see how he developed his case. [68]
Mr Yazdani had opportunity to elaborate on the nature of the defence after Mr Maconachie’s opening at the commencement of the hearing, but simply indicated that there was “nothing really I wish to say by way of opening”, noting that I had the DOS and that he would be in a position to go through the evidence by way of closing submissions. [69]
In the above context, Mr Maconachie essentially understood the character of the defence as being an executrix who was a stranger to the principal conversation subject of the plaintiff’s claim, putting the plaintiff to proof. [70] As earlier noted, Mr Maconachie contended that there were contradictions which were a “dominant feature of the defendant’s case” [71] including, for example, in relation to the deceased’s state of health and need for care. [72]
Testamentary Contract
(a) Did the purported conversation between Jennine and the deceased in or about mid-October 2020 that she would receive half of the deceased’s residuary estate upon her death constitute an agreement? (b) If issue (a) is determined in the affirmative, are the terms of the agreement certain? (c) If issue (b) is determined in the affirmative, was there real consideration for the agreement? (d) If issue (c) is determined in the affirmative, was there an intention to create legal relations?
Equitable Estoppel
(a) Did the purported conversation between Jennine and the deceased in or about mid-October 2020 constitute a clear and unequivocal promise? (b) If issue (a) is determined in the affirmative, did the deceased’s promise cause Jennine reasonably to assume that a particular legal relationship existed between her and the deceased? (c) If issue (b) is determined in the affirmative, did Jennine act reasonably in reliance on the promise? (d) If issue (c) is determined in the affirmative, did the deceased know or intend that Jennine would act in reliance on the promise? (e) If issue (d) is determined in the affirmative, was Jennine’s reliance on the promise to her detriment? (f) If issue (e) is determined in the affirmative, did the deceased act unconscionably in not honouring the promise?
Money had and received
(a) Were the sums totalling $81,799 which were withdrawn by Jennine from the deceased’s CBA account between 3 September 2021 and 8 September 2021 authorised by the deceased? (b) If issue (a) is answered in the affirmative, [73] is Jennine obliged to pay back the sum of $81,799 together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) to Karen?
The estoppel case was pleaded in terms of the deceased making a representation, which she knew the plaintiff was relying upon, and which she did rely upon to her detriment, in circumstances in which it would be unconscionable for the deceased to resile from the representation and not to leave 50% of the value of her residuary estate to the plaintiff upon her death. [74]
Self-evidently, there are differences between various forms of estoppel, including estoppel by encouragement, estoppel by acquiescence and estoppel concerned with the exercise of rights arising from or said to arise from presently subsisting contractual (or legal) relations between the parties.
The terminology used in the POS was somewhat varied, referring to equitable estoppel, promissory estoppel and equitable estoppel by encouragement. [75]
The DOS consistently described the estoppel claim as “promissory estoppel” and used the expressions equitable estoppel and promissory estoppel interchangeably. [76]
In opening the case, Mr Maconachie expressly indicated that the reference in the pleading to the heading “Proprietary estoppel” should probably have read “Equitable estoppel”. [77] During submissions, Mr Yazdani consistently referenced “promissory estoppel”. [78] That eventually led me to seek to clarify the nature of the estoppel. Following some debate on the issue, all counsel appeared to settle on describing the estoppel as “promissory estoppel or equitable promissory estoppel”. [79]
The framing of the list of estoppel issues were drawn in a manner almost exactly reflecting Barrett JA’s wording in Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 (Van Dyke v Sidhu (CA)) at [40]. The High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke (HC)) described the relief sought in that case as being found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. [80] Barrett JA had observed that the above-mentioned elements had been relevantly drawn by the trial judge (Ward J) from various authorities, including relevantly Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (Waltons v Maher) per at 428-429. [81] The prevailing principles of promissory estoppel in Australia have been described by reference to that part of Brennan J’s judgment. [82]
Having regard to the framing of the list of issues using particular language to describe the elements of the estoppel, and the written and oral submissions, I propose to proceed with the understanding that the parties litigated on the basis that the estoppel being relied upon was “promissory estoppel” and the elements necessary to be established with are those set out in the list of issues.
Given that the parties’ claims in the proceedings are based upon significantly conflicting accounts of the relationship between Jennine and the deceased and the events which occurred in the months before the deceased’s death, it is helpful to set out a factual overview of matters. Most of what I record below under this factual overview is not the subject of any substantial dispute. However, some aspects gave rise to dispute and what I have recorded immediately below in that respect is simply to chronologically raise reference to the matter and I deal with the disputes regarding those issues further below.
In around 1980, the deceased commenced her career as a police officer with the New South Wales Police Force. [83]
Between approximately February to August 1991, the deceased took six months’ leave from the Police Force to look after her mother, who passed away that year. [84] According to Glen, the deceased was “in a position” to look after their mother, whilst he and Jennine were not. [85] For his part, Glen, who worked with the Royal Australian Air Force, was living in the RAAF Bases Williamtown and Point Cook and had a young family at the time of his mother’s illness. According to Jennine, the deceased had volunteered to look after their mother as she was close to her. [86] The deceased’s care for their mother during this time, and the perceived lack of support from her siblings, is the source of some controversy as to the deceased’s potential motives for having Jennine care for her later on. I will set out that controversy in more detail below.
In 1992, Jennine moved to live in Ocean Grove, Victoria, where she has continued to reside. [87]
In or around 1995, the deceased met Alan and sometime thereafter entered into a de facto relationship with him. [88]
In around 2009, Alan was diagnosed with metastatic bowel cancer. [89] It seems he had bowel surgery in November 2009 and then follow-up chemotherapy for six months. [90]
On 21 March 2012, the deceased attended the wedding of her niece Freya. In an email that she sent in June 2012 to a number of friends including Nada, she made the following comment which reveals some insight regarding her siblings Jennine and Glen: [91]
P.S. My niece's wedding on the 21st March was lovely, and I felt a bit frumpy in my hand-made cream long pants and second-hand top- but I don't think anyone noticed, they were all too blinded by Jennine's gold jewellery and glamorous attire! Freya(niece) looked more like a super-model than a doctor!, and you could sense the disappointment of both my brother Glen, and his weird wife Rosemary, that she has married Rob, a brick-layer! Ah, such is life.
In March 2012, it being unclear whether before or after the wedding, the deceased used a Bowel Cancer testing kit, submitted the completed test, and was subsequently informed that she had tested positive for metastatic colorectal cancer. [92] On 12 April 2012, she underwent an operation in which part of her bowel was removed. [93]
Some four days after Alan collected the deceased from Port Macquarie Private Hospital, he received testing results which showed the rapid growth of the tumour outside his bowel. He underwent surgery on 7 May 2012. Although the surgeons were unable to remove the tumour, they conducted a form of bypass surgery. [94]
On 25 May 2012, the deceased started a course of chemotherapy. [95] On 1 June 2012, a week later, Alan commenced chemotherapy. [96]
It appears that the deceased was discharged from the Police Force around that time on medical grounds. [97]
On 12 June 2012, some two months after that operation, the deceased sent an email to various recipients, essentially updating them on the events of those three months. [98]
In around 2013, the deceased and Alan moved from South West Rocks to Port Macquarie as they were both being treated for cancer and wanted to be closer to Port Macquarie Base Hospital. [99] The couple were under the care of Dr Stephen Begbie (Dr Begbie), an oncologist based in Port Macquarie. [100] Relevantly, Dr Begbie is also the founder and chairman of the HCT, and both the deceased and Alan were the beneficiaries of the charity’s work during their treatment.
On 14 September 2020, Alan died. [101]
Later that day at 4:47 PM, the deceased sent Jane a text as follows:
Our little grey Mouse has left this life of stress and worry to be at peace. He passed away at 4.15am today. xo
This is the message I sent Ron: Hello Ron, this is Lynette Paton. You met Alan (Dawson) and myself at 10/50-52 Home Street. I'll let you know that Alan passed away in his sleep in his own bed on Monday 14th September. I'm very pleased you got to meet him. However this message isn't about Alan. Firstly I hope you are making a speedy recovery. The reason for this text is I really need your advice about our villa - and not the selling of it. I want to bequeath it for accommodation for out of towners at the end of life who don't have the security and convenience of being near the services in town That's the basics. I'll be setting it up for myself for when I need it. I want to share it with many people going through this terrible time, so the patient and a few loved ones can enjoy this sunny little villa and it's proximity to town and services, at the most distressing time in their lives. I have already run the idea past Stephen Begbie and he thought it was a nice idea but could be difficult to apply. I suggested it would be run purely as accommodation, not as a medical facility. I know you have an off-sider you work with and I know this is unreasonable for me to text you on your private phone, however I feel some urgency in having this set up and written in my will and I'm not too sure how much longer I've got myself. I'm on the same treatment that Alan was on last; when this fails there's no more options except if a new trial pops up. Forgive me for the intrusion, but I felt that you were one of the best people to discuss this with. When you're well enough I would just love for you to come around here again with your workmate, so you can get a better understing of my great idea. If this is too much for you and you don't reply, I understand. [smile emoji] lynettepaton@gmall.com
On 14 October 2020, the deceased telephoned Mr Levido to discuss the assistance which he could provide in respect of Alan’s estate and the preparation of a Will and associated documents. [103]
By mid-October 2020, it was clear that the deceased’s condition was terminal and she was undergoing palliative chemotherapy. Whilst there are conflicting accounts as to the basis on which Jennine travelled from her home in Victoria to Port Macquarie, it is clear that by mid-October 2020, some arrangement had been made between the deceased and Jennine whereby Jennine would visit the deceased for “end of life support”.
On 19 October 2020, Dr Shuen Yi Long, a Medical Oncology Advanced Trainee (Dr Long) prepared a letter which was signed by Dr Begbie addressed to the NSW Ministry of Health, as follows: [104]
I am writing with regards to the above named patient who is currently under our care for management of metastatic bowel cancer. Lynette’s condition is terminal and she is currently undergoing palliative chemotherapy.
Lynette’s sister Mrs Jennine Catherine Mills has plans to visit Lynette for end-of-life support to take on a role as her carer during this difficult time. We appreciate your kind understanding with regards to Mrs Mills making an application for a compassionate entry permit into New South Wales.
Should there be any concerns from your end do not hesitate to get in touch.
Lynette has End Stage Metastatic Bowel Cancer, she is under Palliative Treatment. Her prognosis is six months. Can we please get an exemption for travel for her sister Mrs Jennine Catherine Mills, to travel from VIC to be with her as Lynette has no family in NSW.
On 20 October 2020, the deceased attended Mr Levido’s office and she provided him with instructions regarding the following: [106]
obtaining from the NSW Trustee and Guardian documents they were holding in safe custody for herself and Alan;
assisting with finalising Alan’s estate by registering a notice of death at the NSW Land Registry Services regarding the Villa; and
assisting with the preparation of new enduring power of attorney, appointment of enduring guardian and Will document.
On the morning of 26 October 2020, the deceased attended Mr Levido’s office and approved and executed an enduring power of attorney and appointment of enduring guardian, as well as the Will. [107] By the first two documents, the deceased granted an enduring power of attorney in favour of Jennine, and appointed Jennine as her enduring guardian. [108] Karen was made the deceased’s substitute enduring attorney and alternative enduring guardian.
In late October and November 2020, Nada stayed with the deceased. The first occasion was from 29 October 2020 to 1 November 2020 (i.e. about 3 to 4 days) and the second occasion being between 8-16 November 2020 (i.e. a little over a week). [109]
On 2 November 2020, Jennine’s COVID-19 New South Wales border entry permit application was approved. [110] The permit category noted on the border entry permit was described in the following terms: “Person entering for compassionate grounds, being the provision of end of life support or to attend a funeral or memorial service”. [111]
Between approximately 4-18 November 2020, Jennine was quarantining in Sydney. [112]
On 19 November 2020, Jennine arrived in Port Macquarie after spending a period of two weeks in quarantine in Sydney. [113] Apart from a period of time in February to March 2021 during which Jennine returned home to Victoria for a dental appointment, it is common ground that Jennine stayed with and assisted the deceased in Port Macquarie from November 2020 until the deceased’s death in September 2021. [114]
On 27 November 2020, Jennine and Karen attended Mr Levido’s office and accepted their respective appointments. [115]
On or about 7 December 2020, the deceased ceased chemotherapy but continued palliative and end of life support. [116]
On 7 December 2020, the deceased sent Jane a text as follows: [117]
Hello. Saw oncologist today. CT scan reveals spots on lungs have grown which means the drug has lost its effectiveness. Stopped taking the drugs because they'd do me more harm than good and would increase risk of infection. Will check in with the oncologist again in early February to see how I'm going - or earlier if anything tricky arises. There's no trials underway currently for advanced bowel cancer, and I'm not interested anyway. So no more chemo for me - yahoo. The cancer is very slow growing so no serious symptoms for the near future. Feeling good at the moment with no new aches or pains or breathlessness and still have a good appetite. Only an aching lower back bothering me. Otherwise will enjoy every day of my holiday which is life. Easier to send you this text than repeating story over and over, and telling you that l feel happy and am enjoying every minute of every day. Enjoying having Jennine here fussing over me like a sister/mummy does! [smile eyes emoji] xo
Having a nice time in Coffs Harbour. Jennine and I both bought a pair of shoes from Jacquie's!! Actually I bought them but we're both going to share them cos we’re both size 38. I also got a lovely colourful pair of light summery long pants for there. Had asian last night and booked in to ‘Fiasco’ for italian tonight. Lower back still annoying me and having to take pain killers. Got the physio on Friday. Signing out, Lynette xo
On 3 February 2021, the deceased sent Nada [118] and Karen [119] texts with much of the first part of the text almost identical in content. The concluding parts of the texts are different. I set out the texts below and have underlined the concluding parts of the texts, which are different.
The text the deceased sent to Nada [120] at 4:08pm stated as follows:
Hello [happy face emoji]. I'm going ok but my back's still has it's moments and I have to be super careful how I move. I've decided to get someone in to do the floor. I'II wash the sheets on the day they come to do the floor and have them make the bed too. Everything else I can do without hurting my back. Aside from the back thing, I feel well so if /when I start to succumb to other symptoms that are non-existent at the moment, then Jennine will come back again if not before. She's decided to go home next Tuesday for an indefinite time. She'll pretty well be on ‘stand by’, until I need her. Phil's getting upset that she's been gone for 3 months - he chucked a little boy tantrum! Poor Jennine was very upset. Anyway, I'll manage quite well on my own, especially now I've decided to get paid help. However I do need my little friend up here to play with!! So any time you feel like escaping the city, you know where to come! Jennine bought you a nice pair of terry scuffs (in your size) to …. [121]
Hello [happy face emoji] Hello [happy face emoji]. I'm going ok but my back’s still has it's moments and I have to be super careful how I move. I’ve decided to get someone in to do the floor. I'll wash the sheets on the day they come to do the floor and have them make the bed too. Everything else I can do without hurting my back. Aside from the back thing, I feel well so if/when I start to succumb to other symptoms that are non-existent at the moment, then Jennine will come back again if not before. She's decided to go home next Tuesday for an indefinite time. She'll pretty well be on 'stand by’, until I need her. Phil’s getting upset that she's been gone for 3 months - he chucked a little boy tantrum! Poor Jennine was very upset. Anyway. I'll manage quite well on my own, especially now I've decided to get paid help. Jennine would like us all to go out again before she goes home, so do you have a spare night or two? Nada will more than likely come up next week when she knows Jennine’s going home. I think she'll come back up at Easter with Richard. Anyway, that's what's happening at Home Street. [smile emoji] xo [123]
Hi Phil. I returned from physio this morning to find Jennine very distraught. I’m so sorry that my predicament has impinged on her happy life at home with you. From when Alan died in September, I truly believed I’d be following him much quicker than I anticipated, especially with my rapid weight loss and the overall way that I felt. It’s been two months now since I’ve ceased having the last chemo and so far I’ve not had any obvious symptoms that the cancer is progressing at any speed. I’ll be getting paid help soon to help me with chores that aren’t good for my back like the floors, but otherwise feel I’ll cope ok. There is a possibility that scar tissue from the original tumour is pulling on muscles connected to the front of my spine, and I wonder if that could be why my back isn’t making great progress. Scans don’t seem to be definitive but I’m happy if I only have to deal with a bad back. Luckily the tumours in my lungs are slow growing and I’ll have longer on this planet than I expected last November. I think I’ve put weight on too, so I’m happy about that. Jennine has been enormous help with sorting out so much stuff that was overwhelming me. I have felt guilty taking her away from her Ocean Grove life. It’s hard to believe it’s thirty years since she moved down south! Seeing her so torn and distressed this morning reminded me of just how really special she is, and how she wants to please all of us. I’m grateful she has such an understanding husband and friend in you. I really can’t tell how long I’ll be around, but I’m grateful for every day and feel very blessed to have such a caring sister. I feel so bad that my situation upsets her so much. Life is such a random thing and we all only have today. When things start getting nasty, I know she’ll be back here for me so that gives me great comfort. It’d be great to see your face up here too one day – we’re sure to find a special T-bone to put in it!!! I can hear Jennine talking to you in the next room – she’ll sleep better now. Sweet dreams Phil, good night [sleeping face emoji] [zzz emoji x3]
My dearest Lynette, I have been so tearful after reading your very heart felt message. I could not sleep without writing a reply. My beautiful soulmate & most bestest friend / wife is as you’ve known for a along time is a very very special person with an absolute heart of gold, I love her so deeply & hearing her in tears this morning tore at my sole. I would give absolutely anything to make things right for both of you…… miracles can happen & I prey that happens for you both. When I have spoken with you, it is like there is nothing wrong which is a true testament of your positivity & I sincerely believe that your positive approach & attitude will see you here for many many years to come. You are an amazing person with what you have endured & the same goes for Al. I could not begin to imagine the stress & pressures you have battled, especially during Al’s later stages. Your strength & fortitude is truly boundless and unimaginable. Life has many chapters and while the previous chapter tested you dearly, I am positive that this new chapter will see your worries eased to assist in stabilising your health. I sure something can be done about your back, maybe a cortisone injection or something to deaden the nerve in that area which will surely help see you return to a more normal quality of life. I know you have had some good days after Physio so hopefully a treatment as mentioned can see you have a lot more good days than bad. I truly wished we lived close by so that Jennine could keep a close watch on her very cherished little chook sister, she would be like your own little personal mother Teresa. My loving little CP is truly a saint in disguise with an enormous heart that just wants to please everyone. I also know that big passionate heart of hers has been hurting more than she has let on while helping & caring for you, I so wish I could take that pain away for her. You absolutely mean the world to her & so it is truly her love for you that will see you here for many more years to come. As much as it tears me up hearing her upset and being away from her I will never stop her from coming to see her so dearly cherished sister chook [chicken emoji]. Her happy cheerful & smiling person is what puts a smile on my T Bone chops [happy face emoji] and I have missed her so dearly for the past 3 months as to has many of her friends down. We will always be here for you chookster and I promise I will get my T Bone chops up to see you before long. Love T Bone [happy face emoji x3] Hopefully now I can get to [zzz emoji]
[Picture of a woman modelling a Fresh Print Long Sleeve Blouse reduced from $64.20 AUD to $39.30 AUD]
Just bought some tops for Jennine and me from fripley.com.
They use PayPal. [smiling face with smiling eyes emoji]
Wow they're really lovely. I remember looking at them with Jennine. Great colour too-you'll get lots of use out of them. We need to go out more so that we can wear all our new things!!! Jennine originally said she'll probably be home for about 6 weeks but I might summon her earlier, especially if funny things are going to start happening to me. I want to be well enough to go away and stuff [beaming face with smiling eyes emoji]. Funny thing she said - “I haven't missed Phillip at all. I know that sounds awful!” I can understand exactly what she means though. Men miss women more than vice versa. Enjoy the rest of your day. I will. [frog face emoji]
xo
Next Monday there's a few friends and family coming for a little party. Glen, Maria, Nada, Richard and my friend Jane, the paramedic. You're invited of course. Kick off time is 4 o'clock. We’re doing all the food. I'm telling everyone not to bring any food at all because there'll be no room in the fridge. Will have gluten-free things too. Just bring your own wine. xo
On 1 September 2021, the deceased had a “bad fall” and she was taken by ambulance to Wauchope District Memorial Hospital, where she remained until her passing. [128]
The deceased died at the Palliative Care Unit at Wauchope District Memorial Hospital on 5 September 2021. [129] Shortly thereafter, Jennine telephoned Mr Levido to inform him of the deceased’s death. [130]
Over a period of six days from 3 to 8 September 2021, it is common ground [131] that Jennine either withdrew or transferred sums on 10 occasions totalling $81,799 from the deceased’s Smart Access Account with the CBA to herself. [132] I will set this out below in dealing with the evidence regarding the impugned transactions.
Jennine subsequently transferred $30,000 from her account to Glen on 9 September 2021. [133]
On 10 September 2021, Mr Levido sent a letter to Jennine enclosing a copy of the Will and outlining various matters to be completed in relation to the deceased’s estate. [134]
On 15 September 2021, Jennine, Phillip and Glen attended Mr Levido’s office. [135] Mr Levido observes that, shortly into the conference, it became apparent that there was an “issue” with the contents of the Will, with Glen doing most of the talking. [136] Mr Levido states that “it was made clear to me that there was an expectation or feeling that Jennine Mills should have received a lot more than the entitlements set out in the Will, due to her looking after her sister and giving up a lot to do that in the last 6 to 12 months of her life.” [137]
On 20 September 2021, Glen returned to Jennine the $30,000 he received from her on the advice of Jennine’s solicitor that the payments may be disputed. [138]
On 22 September 2021, Jennine, Phillip, Karen and Kenneth had dinner together at a restaurant in Port Macquarie. Precisely what was said by the various attendees is, again, described in various conflicting accounts, as I set out in more detail below.
On 24 September 2021, Jennine signed a renunciation of probate. [139]
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.
The statutory standard requires “actual persuasion” of the occurrence or existence of a fact in issue, and not a mere mechanical comparison of the probabilities as between the competing accounts: Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47] per Gleeson JA (Bell CJ at [1] and Stern JA at [62] agreeing).
The frailty of human recollection is well-known, particularly where the issues in the proceedings focus on events and alleged statements made many years ago.
Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
Mr Yazdani submitted that “in view of the frailty of human memory, the inability of the deceased herself to give evidence and the plaintiff's self‑interest… more weight should be placed on contemporaneous documents where they are available, the objective surrounding circumstances and the inherent probabilities and improbabilities of events. Evidence of statements made by the deceased, particularly where they are disputed, ... must be examined carefully and treated with caution and, where possible, the Court should look for some corroboration”. [140]
The Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14.
Broadly speaking, it seems to me that Mr Yazdani’s description of approach is consistent with the authorities and the Court ought to assess the evidence essentially in accordance with it.
A particular difficulty in this case is that few contemporaneous documents bear directly upon the events in the approximately one year period between September 2020 and September 2021 when the deceased died and, with a limited exception of a few texts which purport to record some comments of relevant parties in the proceedings, there are no contemporaneous documents that bear directly upon the critical conversations said to have occurred between Jennine and the deceased giving rise to the claims on the statement of claim and cross-claim.
The deceased kept a form of notebook or diary which was tendered and marked exhibit P1. It is an A5 spiral-bound “Project Book” with a number of dividers. It appears to include a range of different content, including, for example, some notes of physiotherapy exercises, phone numbers of various medical persons and other friends and family members, various appointment dates and payments referable to that, food recipes and a poem. I will refer to it as the “Project Book”.
Mr Yazdani submitted on a number of occasions that the evidence of the defendant’s witnesses was unchallenged and ought to be accepted by me.
There is no rule of law that in all cases, or even “ordinarily”, evidence which is not the subject of cross‑examination must be accepted: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 per Beech-Jones JA at [36] (Brereton JA at [1] and Mitchelmore JA at [103] agreeing).
In Clayton v Clayton [2023] NSWSC 399, I addressed some remarks to the question of evidence that had not been cross-examined upon or was otherwise unchallenged. I stated at [84]-[92]:
- However, the decision to cross-examine is not dictated solely by questions of onus of proof. It is also impacted by questions of fairness to witnesses as established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67 (Browne v Dunn*)*.
- In Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 13 ATR 825, Hunt J stated at 16C-E as follows:
38 It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.
- In West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 (West v Mead), Campbell J (as his Honour then was) noted (in the context of the obligation of procedural fairness) that the circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: at [98].
- Further, his Honour noted that even where there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: at [99].
- For the purposes of the application of the rule in Browne v Dunn the case that a party is called upon to meet may be made evident by written opening submissions: e.g. Meissner v Lindsay [2016] NSWSC 790 at [80] per Robb J.
- The consequences of a failure to cross-examine may vary in any given case depending on the relevant circumstances: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [366]-[367] per Hallen J; Gooley at [1147]-[1158]. A trial judge is not required to accept evidence merely because it is unchallenged. The fact that evidence is unchallenged may provide a cogent reason for its acceptance. However, ultimately, it depends upon the nature of the evidence including, for example, whether the unchallenged evidence is ex facie illogical or inherently inconsistent: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293 at [130] per Beazley JA (as her Excellency then was), with whom Basten (as his Honour then was) and Macfarlan JJA agreed, citing Hull v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing).
- Nonetheless, according to the ordinary conventions of the adversarial system, when a party does not cross-examine on evidence relating to a significant issue in a case, that party is taken to concede the point: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 (Goodrich) at [117] per Ipp JA (Mason P at [1] and Tobias JA at [126] agreeing).
- On the other hand, it has been said that a cross-examiner’s job is not to make out a party’s case for her (or him). If the evidence is insufficient, it may be perfectly sensible for a cross-examiner not to provide an opportunity for the party to overcome the deficiencies: Evans v Levy [2011] NSWCA 125 (Evans v Levy) at [41]-[43] per Young JA (Campbell JA and Sackville AJA agreeing).
- Thus, where there is an absence of evidence from the party on a particular issue, the Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she (or he) did: Evans v Levy at [43] citing Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA.
A related evidentiary proposition is in respect of uncontradicted evidence. It is sometimes said that in general, uncontradicted evidence in an uncontested proceeding, if it is not improbable or unreasonable, it should be acted upon.
In Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 at 378, Sugerman J (Richardson and Macfarlan JJ agreeing at 380) stated:
Leaving aside questions of the witnesses demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon [141] …
A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself and must not be unreasonable
- As to the submission that the explanations proffered by the Respondents were “inherently improbable”, I note that evidence is said to be “inherently” or “glaringly” improbable where it is “contrary to compelling inferences of the case”, so “incredible and unreasonable that no reasonable person could accept it”, “inherently incredible”, “contrary to incontrovertible facts” or subject to “inherent contradictions” (see, for example, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29], [42], per Gleeson CJ, Gummow and Kirby JJ; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq*)* (1999) 73 ALJR 306; [1999] HCA 3 at [63]-[64], per Gaudron, Gummow and Hayne JJ; at [93], per Kirby J; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 (Brunskill) at 844, per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ; [1985] HCA 61; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff, per McHugh J, Mason CJ, Deane, Dawson and Gaudron JJ agreeing; [1990] HCA 47; Holman v Holman [1964] 5 FLR 406 (Holman) at 409, per Sugerman J, Richardson and Macfarlan JJ agreeing; and Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 at [49]-[50], per Handley AJA, Giles JA and Sackville AJA agreeing).
- Evidence is not glaringly improbable merely because there is conflicting testimony or conflict between compelling but not conclusive documentary evidence and other evidence (documentary or oral) (see Fox v Percy at [25]ff, per Gleeson CJ, Gummow and Kirby JJ; at [88], per McHugh J; Hecron Ltd v Cousins [1990] NSWCA 93). To accept that evidence is glaringly improbable is to acknowledge that it would constitute an injustice to accept it, such that, on appeal, the finding would be set aside. Evidence is typically shown to be glaringly improbable where it is contradicted by “uncontroverted facts” (such as uncontested oral testimony, or uncontested contemporaneous documents), or by compelling inferences of the case (such as may be drawn from the “inherent commercial probabilities”, or “objective commercial probabilities” of the facts).
- Where evidence is contested or contradicted, the inherent improbability of testimony given may be used as evidence against the credibility of the witness and, in some circumstances, as proof of the contrary conclusion (see J D Heydon, Cross on Evidence (10th ed, 2015, LexisNexis Butterworths) at [17600]). However, while demeanour may be used as part of the process of assessment of the evidence, it will not overcome any “incontrovertible facts”. One tool for assessing the improbability of evidence in a civil context is to consider the “inherent commercial probabilities” of the circumstances (Effem Foods Pty Limited v Lake Cumbeline Pty Limited [1999] HCA 15 at [16], per Gleeson CJ, Gaudron, Kirby and Hayne JJ).
How the above-mentioned general principles apply in any given case will depend upon the circumstances of the case in and the context in which the evidence arises.
The fact that context is important was recognised by Sugerman J who noted that his stated proposition (regarding uncontradicted evidence in an uncontested proceeding) suffices when none but the opposing party can be adversely affected but requires some qualification with respect to proceedings in divorce. [142]
Mr Maconachie referred to a number of instances in which he submitted that Mr Yazdani had not complied relevantly with the rule in Browne v Dunn (1893) 6 R 67 (Brown v Dunn).
The circumstances in which the rule in Brown**e v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [98] per Campbell J.
The rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version is in contest: see e.g. Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 (Gayle) at [117] per Leeming JA (Bell P and Gleeson JA agreeing at [1] and [4], respectively), citing J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) at [17445].
The rule is not applied mechanically. The very nature of the rule is such that what is sufficient in any given case to meet the requirements of procedural fairness will vary. Even when the rule applies so as to require a matter to be addressed in cross-examination, it should not be thought that the rule in Browne v Dunn requires that each individual inconsistency be put to the witness: Gayle at [123]-[128] per Leeming JA, clarifying comments of the Court of Appeal in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40].
Mr Yazdani submitted that I should find that the deceased was a trustworthy and honest person throughout her life. [148] He referenced the fact that Jennine had accepted that. [149]
There is evidence from Pamela that she considered the deceased ro be (relevantly) very honest. [150] In cross-examination, Jennine accepted that (from her perspective) the deceased was an honest and trustworthy person throughout her life. [151]
By and large, I accept that the deceased was honest and trustworthy. In that regard, as will be seen below, I reject the suggestions that the deceased was disingenuous in sending cards containing effusive and loving sentiments towards Jennine. As will be seen, I accept Jennine’s evidence regarding the alleged promise conversation with Jennine. The body of material whereby the deceased failed to make a Will in accordance with the promise, and other statements which are said to be counter to having made such a promise, does not necessarily lead to the conclusion that the deceased ceased to be, on the whole, an honest and trustworthy person.
It is unnecessary to make a concluded finding precisely identifying why the deceased did not make a Will in accordance with the alleged promise, although I have addressed some of the contended possibilities regarding that. However, I reject the case theory that in some way the deceased lured Jennine into thinking that she had promised leaving her half her estate for caring for her, whilst all along never intending to make good the promise, for the purpose of serving up revenge to address issues arising out of historic care for their mother.
Mr Yazdani also submitted that the deceased had a kind and caring nature and was always supporting the disadvantaged. [152] Mr Maconachie in opening disputed that submission, given the way that the deceased characterised her relationship with Jennine. [153] It is inessential to make any general finding regarding the deceased’s nature or whether she was “always supporting the disadvantaged”.
Mr Yazdani submitted she “was a very organised and driven person, obsessed with detail, very precise in her dealings with friends and family and was in control of her affairs right up until the end of August 2021, just prior to her final hospitalisation”. [154]
Kenneth gave evidence that the deceased was “obsessed with detail and very organised”. [155] I have little doubt that that was Kenneth’s experience of her. Precisely what Mr Yazdani contended flowed from that is unclear. To the extent that he sought to say that obsession with detail and organisation is contrary to the deceased having made the alleged promise without recording it in a formal way, I accept that it is one of a number of considerations that I have had regard to, but I do not accept that it is decisively contrary to success of the plaintiff’s case.
Mr Yazdani submitted that I should find that the deceased “was a selfless and compassionate woman, particularly towards the disadvantaged”, and that her selflessness and compassion was “given unsparingly to any animal which found its way into her life”. [156] There is really no need for me to embark upon those matters in any great detail. Jennine readily accepted in cross-examination that the deceased was a selfless and compassionate woman [157] and I do not doubt that, generally speaking, that was the case.
Underlying a degree of the evidence led by the defendant, as noted above, were strong elements, if not a theme, that the deceased’s relationship with each of Jennine and Glen was, up to October 2020, poor, sporadic and tinged with resentment borne out of issues attending the deceased’s care for their mother.
Some preliminary observations may be made.
First, the evidence of poor relationship was not universal to all of the defendant’s witnesses. The evidence led in the defendant’s case regarding discord was evidence from Karen, Nada, Jane and Kenneth. However, none of Pamela, [158] Ronald, [159] nor Helen, [160] gave any specific evidence suggesting that the deceased did not have a close relationship with Jennine or Glen. Further, Mr Levido does not give evidence of the deceased disparaging Jennine to him. [161]
Secondly, despite the evidence led in the defendant’s case regarding the deceased’s care for her mother and assertions that Jennine and Glen had not paid the deceased money they had promised to do so, Jennine was not cross-examined regarding those matters. Further, apart from brief questioning of Glen which I note below, he was not cross-examined in any detail about that.
The evidence which informed aspects of the case theories is set out below and I will address my findings in relation to the relationship as between the deceased and Jennine and the deceased and Glen.
Karen and two other deponents, being Jane and Nada, gave evidence of a past fracturing of a relationship between the deceased and Jennine.
Karen deposes that, on several occasions during the course of their friendship, the deceased had confided to her that she had had at times a “fractured relationship” with Jennine in the past. [162] She expressly denies that Jennine was close with the deceased, and deposes that she is aware of times when the deceased told her that she was “betrayed” and “hurt” by Jennine. [163] Specifically, Karen recalls the deceased speaking of her struggle with supporting her elderly mother with very little help from Jennine and Glen. Similar evidence is given by at least two other long-term friends of the deceased.
Nada [164] recalls the deceased telling her that she was “extremely hurt” when Jennine and Glen, knowing that the deceased was no longer receiving an income whilst on leave from the Police Force caring for their mother, each promised to give her $3,000 but then failed to honour the promise. [165] Nada deposes that “Lynette spoke of this often and could never reconcile their betrayal”.
Whilst Nada says that she often witnessed the relationship between Jennine and the deceased to be “conflicted” throughout most of their lives, she agrees the deceased’s relationship with her sister improved during the period leading up to her death. [166]
Upon being told by the deceased in November 2020 that Jennine was moving in with her, Jane recalls being surprised, as she had been led to believe by all accounts from the deceased that there were many times of “discord” throughout her relationship with Jennine. [167]
Jane gave evidence regarding the deceased’s care for her parents as follows: [168]
3. I was aware that Lynette was responsible for the full-time care of her late mother Rose Ellen Paton, who was diagnosed with Motor Neurone Disease in or around 1992 to 1995. Lynette took a leave of absence from the NSW Police Force during this time to look after her mother, telling me after her mother's passing that she had had very little assistance from her siblings.
4. I recall in conversations with Lynette over the course of approximately fifteen (15) years after her mother died, she advised me she later provided social and financial support to her late father Frank Trevor Paton in his final years, again with minimal support.
Jane stated that the “impression I was given by Lynette was that she and Jennine were reconnecting before her imminent death.” Jane made reference to text messages which I have set out above. [169]
Jane further stated: [170]
11. I specifically recall at the time that when Lynette informed me on or around November 2020 that Jennine was moving in with Lynette, I was surprised. This was because I had been led to believe by all accounts from Lynette, that there were many times of discord throughout her relationship with Jennine. I had met Jennine only once during my thirty-two (32) year friendship with Lynette during a ski holiday, that Lynette and I shared with Jennine and her partner at Perisher Valley.
12. I recall when Lynette was employed by the NSW Police Force, Jennine was employed as a flight attendant. On a few occasions Lynette told me that she would meet up with Jennine when Jennine flew into Sydney and had an overnight stay.
To my knowledge from my regular conversations with Lynette, Jennine and Lynette's relationship only became close following the passing of Alan from cancer on 14 September 2020. I recall Lynette telling me on or around 2005 that Jennine did not care for Alan, and her dislike for Alan was known. Lynette told me this on numerous occasions prior to Alan's passing in September 2020, Lynette and Jennine had very little contact and only saw each other approximately once a year and always without Alan present.
Kenneth recalls that, during a conversation with the deceased in 2019, she advised him that she was not very close to Jennine, due to an “incident” that had occurred between them several years prior. [172] He also deposes to Alan telling him that “Jennine and I can’t stand each other. I won’t have Jennine in my home”.
Jennine deposes that she and the deceased always had a “strong bond” and were very close throughout their lives. [173] She says that they spoke on the phone at least twice a week, and often daily. Mr Maconachie submitted that it is Jennine’s contention that she has only discovered after the deceased’s death that she had harboured resentment towards her, based on the accounts given by her long-time friends, which Jennine had no idea about. [174]
In support of her claim that their relationship was close, Jennine adduced evidence of five birthday cards which she had received from the deceased over the years. [175] Whilst the cards are not dated per se, one is clearly written for Jennine’s 62nd birthday (which pinpoints the writing of the card in September 2014), and Alan is included in the sign-off for three of them. The handwritten messages on the cards consistently begin with addresses such as “To My Darling Sister” or “To a very special person on her birthday”. In one card, the deceased writes that she is “grateful that you’ve been there throughout my life”. [176] In another, she writes to Jennine that “You’re a wonderful sister, and a beautiful person”. [177] In the card for Jennine’s 62nd birthday, the deceased also indicates that she had gotten her a present, which she had spent some time thinking about. [178]
Jennine also deposes that, prior to November 2020, she visited the deceased on numerous occasions throughout their lives. During such trips, she says that they stayed in hotels as Alan had told Jennine that he did not want anyone staying at their house. [179] For that reason, Jennine says that she did not like Alan, and she understood that Alan did not like her.
The sisters also went on a number of overseas holidays together in Mexico, the USA (mainland) and Hawaii. [180]
From Phillip’s perspective, he says that it was “abundantly clear” that the sisters had a “very close and loving bond”. [181] He says that, following Alan’s cancer diagnosis, Jennine and the deceased spoke daily.
Jennine, in her reply to Nada’s evidence, stated: [182]
I agree that Lynette took 6 months leave from the police force to look after our mother who died in 1991. Lynette looked after mum from around February 1991 to August 1991. …
I also went up to visit my father in North Haven on numerous occasions before he moved into the nursing home, and I also visited him in the nursing home as well.
I agree that Lynette looked after my mother. She volunteered to do it as she was close to my mother. I travelled to Morisset to assist whenever I had time off to look after my mother and help my father so that Lynette could go home to her partner Ken in San Remo. Sometimes we both stayed there together, as mum and dad liked us both being there.
4. Paragraph 20 Nada Mion's statement is incorrect regarding the promised $3,000 to compensate Lynette for her loss of income. I agree that there was a promise to by both Jennine and I to pay Lynette the sum of $3,000 each. Jennine and I both honoured our promise and gave Lynette $3,000 each on the day after my mother's funeral, which was 14 August 1991, not 1995 as stated in the affidavit.
5. In regard to Lynette sacrificing her career, my understanding from discussions with Lynette was that she was very happy in her current position in the Composite Photo ID Department, where she felt she was making an enormous contribution to victims of crime. Lynette told me that she wanted to stay put, rather that take on the more stressful work undertaken by Senior Constables, and that she never wanted a promotion to Sergeant for the same reasons. I do not now recall any specific conversation about those matters.
6. Lynette also looked after my father until his death. It was my understanding from my discussions with Lynette that she was happy to undertake this duty, because of her location. I do not now recall any specific conversation about her reasons for looking after our father.
7. At the time Lynette looked after my father, she had been discharged from the Police Force on medical grounds. It is my understanding that Lynette did not relocate to be with my father but moved to Port Macquarie for her partner and self, and to avail.
..
10. At the time of my mother's illness I lived in RMF Bases Williamtown and Point Cook. I had a young family and a demanding military job, and it was not always easy to visit my mother. I did visit her on several occasions with my family and alone, whenever I could. However, I frequently rang my mother and Lynette, particularly when Lynette was looking after her. Lynette was in a position to look after my mother whereas Jennine and I were not. Lynette also had the personality or demeanour to manage a sick mother, whereas I would have been hopeless, and Jennine I don't believe would have coped well. After my mother died both Jennine and I financially compensated Lynette with a sum of $3,000 each.
To My Darling Sister Jennine,
wishing you a very happy, happy
happy Birthday, and a wonderful
year ahead. lots of love
from Lynette & Alan
xxxxoooo [187]
To My Darling Sister,
Happy Birthday and
best wishes for a fabulous
year ahead.
love from
Lynette & Al
xxxxoooo [188]
To a very special person on
her birthday,
happy birthday dear Jennine.
I hope you have a wonderful
year ahead, being sixty two!!
best wishes, and love
always,
Lynette & Alan
xxxooo
P.S. Hope you like your present; I
got brain-strain trying to think of
something you’d like [smiley or happy face] [189]
To My Dear Sister,
wishing you every happiness
for your birthday
You’re a wonderful sister,
and a beautiful person.
Be happy always
lots of love from
Lynette xxxx [190]
To My Darling Sister Jennine,
[printed text]
thinking of you on your
special day, and grateful
that you have been there
throughout my life.
all my love,
Lynette
Xo [191]
Overall, I consider that the relationship between the deceased and Jennine was, at least as at early October 2020, a sufficiently good and stable relationship for the deceased to turn to her sister in a time of need. [192] Five points may be made.
First, it seems highly unlikely that the deceased would have committed the role of a carer to a sibling with whom she was in conflict at the time of the caring request.
Secondly, within a very short space of time after Jennine had arrived at Port Macquarie and prior to her having any lengthy opportunity to undertake caring for Jennine, the deceased attended upon Mr Levido with Jennine and made Jennine the executor of her Will, her attorney and guardian under appointments of an enduring power of attorney [193] and enduring guardian. [194] In the case of each of those documents, the defendant Karen was a substitute executor, attorney and guardian, as distinct from holding those positions jointly (or jointly and severally). Each of those positions are positions of trust, at least colloquially speaking, and it seems highly unlikely that the deceased would have reposed such trust in Jennine if their relationship was fractured or the deceased harboured resentment towards her sister.
Thirdly, bearing in mind the significance of looking to contemporaneous documentary material, to my mind, none of the (albeit limited) correspondence in the Court Book which emanates from the deceased, appears to reflect a fractured or troubled relationship as between the deceased and Jennine. On the contrary, where Jennine is mentioned, broadly speaking, it is in positive or at least cordial terms. The texts tendered which became exhibits D1, D2 and D3 provide some, albeit, in the scheme of things extremely minor snapshot, of the deceased’s thoughts as at 9 December 2020, 5 February 2021 and 9 February 2021. None of the texts to my mind are consistent with the deceased having other than a good relationship with her sister during that two month period.
Mr Maconachie in opening referred to the birthday cards, [195] submitting that, throughout the period in which the birthday cards were written, the deceased was representing herself to Jennine as being a loving sister. Upon questioning by me, he confirmed his contention that the cards are disingenuous. [196] This is no doubt in line with an initial written submission to the effect that the deceased was serving up revenge to Jennine. However, in relation to the birthday cards, I reject the submission that the apparent loving content was disingenuous.
The birthday cards produced by Jennine contain what appeared to be genuine, endearing and effusive expressions of love. I find that they were expressive of loving intentions as they purport to be.
Further, the text which the deceased sent to Phillip on 3 February 2021 also gives particular insight as to the deceased’s feelings regarding Jennine, which are expressed in similarly loving terms: [197]
Jennine has been enormous help with sorting out so much stuff that was overwhelming me. I have felt guilty taking her away from her Ocean Grove life. It’s hard to believe it’s thirty years since she moved down south! Seeing her so torn and distressed this morning reminded me of just how really special she is, and how she wants to please all of us. I’m grateful she has such an understanding husband and friend in you. I really can’t tell how long I’ll be around, but I’m grateful for every day and feel very blessed to have such a caring sister. I feel so bad that my situation upsets her so much. Life is such a random thing and we all only have today. When things start getting nasty, I know she’ll be back here for me so that gives me great comfort.
Fourthly, in line with what I have earlier said about aspects of human nature, I admit of the possibility in this case that the deceased without acting maliciously, might have said different things about the nature of her relationship with Jennine to her friends on the one hand and to her siblings and Phillip on the other hand.
Lastly, in the absence of some further context and lack of cross-examination (of any of the defendant’s witnesses and Jennine regarding the alleged source of discord in issues arising out of care for the deceased’s mother), I find myself unable to make particular findings regarding those historic matters raised by Jane, Nada and Karen.
Mr Yazdani asserted that Glen did not have a close relationship with Lynette and that there are a number of independent witnesses who set that out in their affidavits, which was unchallenged. [198]
Glen stated that he and his siblings had an “extremely close” sibling relationship. [199] Specifically, he gave evidence that he had a good relationship with the deceased, stating: [200]
3. I have always been close to my sister Lynette and concerned for her wellbeing. Consequently, I spoke with my sister on numerous occasions before and after she became terminally ill to see how she was coping after her partner Alan had died and how she was coping after her terminal diagnosis and poor prognosis.
20. I refer to paragraph 3 of Glen's Affidavit and dispute his claim that he had a close relationship with Lynette and was concerned for Lynette's wellbeing. Lynette told me on multiple occasions throughout our friendship that she was disappointed in Glen because he did not assist in providing help to their mother who was suffering from an autoimmune disease. Lynette also told me she was upset by Glen when he became dismissive of one of his children who was suffering mental health issues after the breakdown of Glen's marriage.
21. Glen did not attend Lynette's memorial and did not provide any information or reasoning as to his decision. I as well as many of Lynette's friends found this to be upsetting.
26. I refer to paragraph 3 of Glen's Affidavit. I deny that Lynette and Glen had a close relationship. I met Lynette in or around 2002 and I was not made aware that she had a brother until sometime in 2006 or 2007. I never witnessed her speaking to Glen or visiting him. Given it took Lynette around 4 to 5 years to mention her brother to me, it was clear to me that they were not close.
27. I recall on one occasion in or around early 2020, prior to Alan's death, whilst I was shopping with Lynette her phone began to ring, she saw Glen's name on the caller ID and said words to the effect of "what does he bloody well want?" and did not answer the phone.
9. In response to paragraph 20, this is totally incongruous with my relationship with both Lynette and Jennine. Jennine, Lynette, and I have always had an extremely close sibling relationship. While distance separated us, we always called each other either weekly or fortnightly, and less frequently when I was on overseas deployment.
..
11. Regarding my son Gene's attempted suicide, this event happened some years after my marriage breakdown and was drug related. I rushed to Gene's side as he was placed into the ambulance, and I spent much time with Gene while he was in hospital, and still visit him; we have a very close relationship.
In cross-examination, Mr Yazdani challenged Glen to the effect that he did not have a close relationship with the deceased by reference to the fact that he was not a beneficiary in the Will. Glen lacked clarity regarding the deceased’s Will, initially thinking that he had not read the Will though he may have but could not remember. [204] On further questioning, he was aware that the deceased had given legacies to his children and that he was not a beneficiary. [205]
He disputed that he was not close with the deceased and contended that he had “a very close relationship” with her and “always have”. [206] Mr Yazdani sought to undermine Glen’s assertion of a close relationship by cross-examination to the effect that he had not annexed to the affidavit any letters he had exchanged with the deceased or photographs of them together. [207] Mr Yazdani asked Glen a single question regarding whether it was the case that the deceased was upset at him for not being there to provide help to their late mother who was suffering from an autoimmune deceased, to which he responded “She may have been. I don’t know for a fact”. [208]
Lastly, Mr Yazdani cross-examined Glen as to why he did not attend Lynette’s memorial. [209]
Glen stated: [210]
Q. Why did you not attend Lynette's memorial?
A. I had something on at the time that was more pressing, I believe, yes.
Q. More pressing than your sister's memorial?
A. I did go down later to celebrate my sister's memorial, I believe. I do remember her ashes being put under some garden ornament or something like that at a later date. I can't remember exactly when that was. But I think - if I'd been there it would have been to support Jennine and certainly it wasn't necessary to support Lynette.
Q. But you would have attended that memorial for Lynette, not for Jennine?
A. I can't - well, Lynette was dead. I don't think she'd have anything to do with it, to be honest with you.
Q. So--
A. And I can't remember the reason why I didn't go down. I, I - I'd have to think about that and I don't think I could recollect the reason right now but there was a good reason.
Q. I see. Is the reason why you did not attend Lynette's memorial is because you did not have a close relationship with Lynette?
A. That's false. Jennine, Lynette and I have had a very close sibling relationship since very, very young.
I find that as at October 2020, the deceased had a reasonable relationship with Glen. A few points may be observed.
First, Karen’s evidence that, having met the deceased in or around 2002, she was not made aware that she had a brother until sometime in 2006 or 2007 is somewhat intriguing. Her statement that “I never witnessed her speaking to Glen or visiting him. Given it took Lynette around 4 to 5 years to mention her brother to me, it was clear to me that they were not close” is obviously inconclusive of whether Glen had a close relationship with the deceased or not. If it be the case that Karen between approximately 2002 and 2007 apparently never had any conversations with the deceased or potentially never asked the deceased whether she had any siblings other than Jennine, it might equally reflect the nature of the relationship between the deceased and Karen or the extent of Karen’s appetite to find out about the deceased’s family, rather than necessarily revealing some concluded insight as to the relationship between the deceased and Glen.
The minimal cross-examination of Glen about the deceased’s care for her mother did not elicit any vital material for that matter to have been the basis of the deceased harbouring enduring resentment to Glen. In any event, it seems to me that there is fairly marginal relevance of attempting to work out historically what the nature of the relationship between the deceased and Glen was in or about 2002 to 2007.
Secondly, I accept Glen’s evidence that the deceased did speak with him prior to approaching Jennine in October 2020 (discussed further below). The fact that the deceased saw fit to contact Glen and speak with him, in the terms that she did, just prior to speaking with Jennine is suggestive to me that, at least at that time (much closer to the events that are in dispute), the deceased then had a reasonable relationship with Glen.
The fact that Glen did not annex particular correspondence as between himself and the deceased is to my mind anodyne and not conclusive of the relationship being poor. There is no obvious reason why any such correspondence or photographs would have been adduced in chief. When asked about it, he indicated that, rather than exchanging letters, they spoke on the phone together and that he did have photographs of them together but did not believe it was necessary for them to be annexed to his affidavit. [212] He was not confronted with any particular documentary material demonstrating in a clear way that the deceased thought poorly of him.
Thirdly, there are many reasons why siblings might not make gifts to other siblings in their Wills which bear no reflection upon the state of the relationship as between the siblings. The fact that the deceased made no particular provision for Glen in her Will is to my mind benign or neutral as to an indicator that the relationship between the deceased and Glen was poor.
Nada gave evidence that, during October 2020, she attended an oncologist appointment with the deceased and, after the appointment, the deceased told her “she knew she had a ‘short time left’ and that she was comforted in knowing that her affairs, particularly her Will, were all in order”. [213] Dr Blanshard appears to be a GP and accordingly I infer that the reference to an oncologist was to an attendance that the deceased had with Dr Begbie (seemingly with Dr Long also in attendance) on 19 October 2020.
The letter of Dr Blanshard dated 20 October 2020 states that she had examined the deceased that day and her prognosis is “six months”. [214]
Each of Jennine [215] and Glen [216] state that the deceased in their October 2020 conversations informed them that she only had about 3 to 6 months to live. Nada in her reply affidavit takes issue with that asserting that she was “always told by Lynette of her prognosis being six (6) months and it is my understanding there was no contention to this”. [217] The conversations that the deceased had with Jennine and Glen were a couple of days prior to the deceased seeing Dr Blanshard. There is no particular evidence as to a survival period prognosis that had been given to the deceased prior to seeing Dr Blanshard. I admit of the possibility that someone at the Hospital may have given the deceased some indication of a survival period. What is in issue is not proving the exact period in which the deceased was expected to live but rather what the deceased stated to Jennine and Glen. Had the deceased’s examination with Dr Blanshard on 20 October 2020 taken place prior to her speaking to Jennine and Glen, I might have taken a different view of it.
I accept the evidence of Jennine and Glen as to the prognosis timing that the deceased told them. It was repeated by Jennine to Phillip. [218] It seems to me that it is consistent with the deceased’s own views of the matter up until the time that she spoke with them after having spoken with her medical advisers. It is also broadly consistent with the deceased’s statement or indication as described by Nada that “she knew she had a ‘short time left’” having attended upon Dr Begbie (and seemingly also Dr Long) within a day or so after having spoken with Jennine. Further, it is not radically different from a prognosis of six months. It is clear that in the period following Alan’s death, in particular in the text sent to Ronald, which was forwarded to Karen on 24 September 2020, the deceased was seeking advice with some urgency [219] and might well have thought that she did not have long to live.
The evidence on the purported conversations in October 2020 was the subject of particular challenge in the case.
On Jennine’s version of events, the deceased had promised to give Jennine half of her estate if Jennine agreed to come to Port Macquarie to look after her until she passed. Whilst there are some differences in the accounts given by Karen’s witnesses as to whether it was Jennine who offered to come out of familial love and care or whether it was in fact the deceased who requested Jennine to come, they all maintain that at no point did the deceased or Jennine say that the deceased had promised to give half of her estate to Jennine.
Although none of the defendant’s witnesses were privy to the conversations, Mr Yazdani submitted that the conversation is deposed to by Jennine, Glen and Phillip are at odds with other evidence of the defendant’s witnesses.
It is appropriate to set out the evidence on the contested conversations.
Lynette: I’ve been told that I only have about 3 to 6 months to live. I’m not coping very well. I need help as my cancer is really starting to affect my health and ability to manage day to day matters. What do you think, if I promised to compensate Jennine by leaving half of everything I own in my will, would she look after me? That is come and stay with me as my carer so that I can stay in my home which I love and I won’t have to go into a hospital.
Glen: I guess it depends how long you will need her to be there with you but I’m sure she would consider it. You need to ask her.
[Lynette]: I’ve been told that I don’t have long to live, maybe 3 to 6 months at the most.
[Jennine]: I am here for you, whatever you need.
[Lynette]: I really don’t want to go into a hospital. If I promise you half of my estate when I die, would you come up here and look after me? I know it’s asking a lot but I don’t have any other options.
[Jennine]: Yes of course I will, I would never let you go into a hospital as long as I can look after you, I promise that won’t happen.
[Lynette]: I am still going to leave the other half of my estate to the Cancer Council and Wires.
[Jennine]: I think that’s great. I’ll speak to Phillip and get up there as soon as I can.
[Lynette]: Thank you. I am so happy and relieved.
Jennine: Lynette’s prognosis is only three to six months. She wants to live out her remaining time in her own home for as long as possible and she just promised me half her estate when she passes if I move up to take care of her. She really doesn’t want to go to hospital.
Phillip: Are you going to go?
Jennine: I have to. Is that okay?
Phillip: Yes, of course. Go and look after her.
Over the next few days Jennine discussed the intended move, and the pressures it would place on ourselves personally and on our relationship. Jennine and I also discussed whether she should apply for the Commonwealth Carers' Payment. Given that Jennine would inherit a half share of Lynette's Estate, we decided to forego this. This was not an easy decision considering I had been stood down in late March 2020 from my employed Contracted Maintenance Supervisor position with Jetstar due to Covid. Regrettably I was later forced into early retirement, some 4 weeks after Jennine's departure, due to my employed position being made redundant.
Lynette: Jennine is going to live with me and be my carer*.*
Glen: That makes me very happy and relieved.
Lynette: I’m leaving half of my estate to Jennine for being my carer.
Glen: Have you got your will sorted out?
Lynette: I’ve changed my will, I’m doing it.
Sometime after the deceased’s death in September 2021, both Glen and Jennine refer to conversations after the deceased’s death in September 2021 bearing upon the alleged promise (alleged post death promise conversation(s)).
Glen recalls having a conversation with Jennine, although not in the exact words, as follows: [227]
Jennine: Lynette promised me half of her estate for looking after her, but didn’t change her will and I’m not a beneficiary as Lynette had promised.
Glen: I’m sorry, that’s disappointing. Lynette told me about it. I thought she had changed, or was in the process of changing her will. Maybe check with her solicitor she didn’t make a later will.
Jennine: I will.
[Jennine]: I am so upset. Lynette promised me half of her estate for looking after her but her will leaves almost all of her estate to charity.
Glen: Lynette rang me before you went up to live with her. She asked if I thought you would go and live in Port Macquarie and look after her if she promised you half of her Estate. I said to her I am sure that you would, but she would have to ask you.
[Jennine]: She did, and I agreed.
Jennine states that this was the first she became aware of the fact that the deceased had discussed the proposal. [229]
For convenience, I will describe the alleged precursor conversation, the alleged promise conversation, the alleged recounting conversation, the alleged carer conversation, the alleged change of Will conversation and the alleged post death promise conversation(s) as the “contested alleged conversations”.
The following matters emerged during Jennine’s cross-examination regarding the alleged promise conversation:
Jennine remembered that the conversation took place either on 17 or 18 October 2020 independently, and she did not have a diary or calendar or review some other record such as a telephone bill to prompt her recollection of the date; [230]
the conversation was not that long; [231]
there is no contemporaneous notes or written evidence of the conversation nor emails, texts or letters confirming the terms of the conversation and agreement; [232]
on answering the phone, Jennine said “Hello, Chook” which was a nickname or term of endearment that Jennine used for the deceased all the time (though that is not recorded in Jennine’s affidavit); [233]
at the time the conversation took place, Jennine apprehended or understood that the deceased was grieving and her emotions were raw and agreed that the deceased was “crying and sounded very upset”; [234]
Jennine agreed that the deceased told her "I've been told that I don't have long to live. Maybe three to six months at the most?" and that she responded "I am here for you, whatever you need", as she was Jennine’s sister, she didn’t have anyone else, and she needed to comfort her. She regarded it as the right thing to do, she loved her sister, so it was a natural response; [235]
Jennine did not ask the deceased to clarify what she meant by "half of my estate", she understood it simply meant “half of her estate”; [236]
the deceased did not talk about the kind of assistance that she would need nor did Jennine ask the deceased to clarify what she meant by "look after me", but Jennine knew what looking after someone entailed as the deceased looked after Alan; [237]
the deceased in a later telephone conversation (not recorded in Jennine’s affidavit) told Jennine that she would cover her travel and hotel quarantine accommodation costs; [238]
Jennine did not ask the deceased to promise her that once she made a Will, she must not cancel the Will, as she trusted the deceased and had no reason to distrust her; [239]
Jennine did not ask the deceased to put the (supposed) agreement into writing nor to see a solicitor to draft up a written agreement to be signed between herself and the deceased or to prepare a Will to that effect, rather she just assumed or expected that the deceased would make a Will leaving Jennine half of her estate; [240]
Jennine did not ask the deceased during the alleged promise conversation to see a copy of the Will once she made it, because she felt that a Will is private; [241]
Jennine disputed that the deceased’s words were simply expressions of goodwill in a context in which she was still grieving the passing of Alan; [242] and
Q. Is it the case that because a will is private, a person can at any point in time make a will or change a will?
A. Yes.
Q. It's the case that in being a private act, there was no intention as between you and Lynette that you would be able to enforce any promise for her to make a will?
A. No, I couldn't enforce that.
Q. You could not enforce that?
A. No. [245]
…..
Q. It’s the case, is it not, that Lynette did not enter into any contract with you during that conversation?
A. No, I don’t agree.
HIS HONOUR
Q. The question is really being put on the basis of your understanding of the position, as distinct from being a type of conclusive legal analysis of it.
A. No, I didn’t.
HIS HONOUR: That’s right, isn’t it, Mr Yazdani?
YAZDANI: Yes.
HIS HONOUR: Can you just put that again?
YAZDANI
Q. I suggest to you that based on that conversation, which you say you had with Lynette--
A. Yes.
Q. You did not enter into any contract with Lynette?
A. No.
Q. You don’t agree with that?
A. No. I didn’t enter into any contract; it was only a verbal promise.
HIS HONOUR: There’s confusion here and the confusion needs to be clarified.
YAZDANI
Q. It’s the case that based on that conversation which you say you have, I’m suggesting to you that that conversation, based on that conversation which you allege you had, you and Lynette did not enter into an oral contract?
A. I believe it was an oral contract. [246]
…
Q. I’m suggesting to you--
A. Yes.
Q. That it’s the case that at no point during your conversation with Lynette, did Lynette promise you half of her estate?
A. I don’t agree. [247]
The following matters emerged during Glen’s cross-examination regarding the alleged precursor conversation:
Glen had not recorded the date of the conversation anywhere nor reviewed telephone bills to assist in placing the date of the conversation. His basis for recalling that the conversation took place in the latter half of October 2020 was that the conversation made an impression on him; [249]
Glen agreed that, at the time of conversation, she was probably still grieving and her emotions were raw. [250] He indicated that she sounded very anxious and her voice quivered. He had not included the detail in his affidavit as he “just wanted to stick to the facts”; [251]
Glen indicated that it was quite an emotional phone call, he was taken aback by the conversation and “a little bit on the back foot”; [252]
Glen confirmed the time period of 3 to 6 months stated by the deceased, even though he had thought that she might have longer than that; [253]
Glen confirmed that the deceased did indicate that the deceased’s cancer did “Affect my health and ability to manage day to day matters”; [254]
Glen specifically remembered “particularly the three to six months and that she wanted Jennine to come up and be her full-time carer and that Jennine promised, you know, some compensation, which I believed what Jennine said was she promised that she would give Jennine half of everything she owned in her will”; [255]
Glen did not ask the deceased at any point to clarify what she meant by “Half of everything I own”, as based on the way he had been raised “the business had nothing to do with me”; [256]
Glen indicated that the deceased’s words “Look after me” were clarified by her intimating “a fulltime carer, because she wasn’t coping particularly well for day to day matters”. [257] He did not agree with the proposition that he had not set out a full-time carer aspect in his affidavit and pointed to his use of the words “Come and stay with me as my carer”; [258]
Glen confirmed that the deceased said “I don’t want to go to a hospice or hospital. I’d like to stay in my own home;” [259]
Glen confirmed that he responded to the deceased’s statement by saying, "I guess it depends how long you will need her to be there with you, but I am sure she would consider it;" [260]
Glen did not send an email to Jennine to inform her of the terms of the conversation as he did not want to pre-empt what the deceased had to say to Jennine, nor did he send a text message to either the deceased or to Jennine. He simply left it to the two of them to sort it out; [261] and
Glen denied that his version of the conversation was a reconstructed account by him of a conversation that he wish he had with the deceased, but did not actually take place in that form, and denied that whatever the deceased may have raised with him in this conversation were simply expressions of goodwill towards Jennine in a context in which the deceased was still grieving the passing of Alan. [262]
During Phillip’s cross-examination, the following occurred:
Phillip could not recall the precise date of the alleged recounting conversation but recalled that it was around mid-October or at least October; [276] and
Phillip does not have a diary and did not make a note of the conversation or send a text message or email to Lynette thanking her for leaving half of her estate to Jennine. [277]
According to Helen, she had visited the deceased in the days following Alan’s passing on 14 September 2020. At that time, Helen says that the deceased reassured her that “when the time came Jennine had promised to come up and care for her [Lynette] as an act of family love as we would all do for our own siblings, not expecting anything in return”. [278] Not once did the deceased mention to Helen that she had promised Jennine half of her estate. [279]
To similar effect, Jane also understood from what the deceased had told her that Jennine was looking after the deceased “as an act of familial care and love”, and the sisters were reconnecting before the deceased’s imminent death. [280] Jane made reference to a text message sent to her from the deceased on 7 December 2020 in which she mentioned that she was “[e]njoying having Jennine here fussing over me like a sister/mummy does!” [281]
In a conversation said to have taken place over coffee on 20 October 2020, Karen deposes that the deceased told her Jennine had offered to come and stay with her until the end of her life. [282] The deceased also told Karen that she would pay for Jennine’s flights, hotel accommodation for the mandatory quarantine period and all of Jennine’s expenses during her stay (which, to Karen’s knowledge, the deceased did). During the same conversation, the deceased informed Karen that she was going to bequeath to Jennine a sum of $20,000 in addition to giving Jennine her Volkswagen Tiguan, which the deceased considered to be appropriate as she considered Jennine and Phillip to be financially secure. [283] Karen later recalled that the conversation was to the following effect: [284]
Lynette: “Jennine [Mills] has offered to come and stay with me until the end.”
Karen: “That’s great news.”
Lynette: “She will need to go into quarantine in Sydney for 14 days. I told her I will pay for this, and I also told her I would cover all her costs whilst she is here.”
Karen: “That’s very kind of you.”
Lynette: “I told Jennine I would also pay for her flight, but she said she will go on stand-by. I have rung Glen [Mills] (“Glen”) and told him all this.”
Karen: “I’m guessing that there is a lot of paperwork involved in getting Jennine here?”
Lynette: “We are just sorting through that now. I’ve had to organise a letter from my doctor so that Jennine can apply for her travel permit.”
Karen: “You’re lucky to have a sister – sometimes I wish I had a sister.”
Lynette: “I’ve decided to change my will, I’m going to see Justin at 10:30. I will be giving Jennine $20,000.00 and my car. I feel Janine and Phill are financially secure, so I feel this is adequate.”
Karen: “Lynette, you don’t need to tell me this.”
Lynette: “No, I want you to know. I’m also giving Tanya Laws $20,000.00 for all the help her husband Angus gave to Alan. As Glen is also financially secure, I’ve decided to leave $20,000.00 to each of his children.”
Karen denies Jennine’s assertion that the deceased asked for her care in exchange for half of the deceased’s estate. [285] Karen states that at no point did Jennine tell her that she was promised half of the deceased’s estate. [286]
The combined effect of the above appears to suggest that, on the version put forward by Karen’s witnesses, Jennine’s act in providing care and assistance to the deceased in October 2020 until her death was an act of familial love, rather than on the basis that Jennine had been promised half of the deceased’s estate.
That being said, Nada recalls the deceased telling her that she had asked Jennine to move in with her in an effort to improve her relationship with Jennine and to assist Jennine to develop relationships with the deceased’s friends. [287]
Mr Yazdani contended that each of Jennine, Glen and Phillip essentially reconstructed their evidence from what they wished had occurred. [288] However despite a matter which I will refer to below regarding evidence of Kenneth Dodds, Mr Yazdani was not so bold as to suggest that there has been collusion between at least Jennine and Glen. [289]
Underpinning Mr Yazdani’s submissions regarding the conversations were particular matters which I will address below.
However, it suffices at this point to state that I accept the gist of the evidence of each of Jennine, Glen and Phillip in relation to contested alleged conversations.
Having regard to the comprehensive challenge by Mr Yazdani as to certain matters both in respect of the contested alleged conversations and other collateral matters, I will address those matters below.
There is a body of evidence from the defendant’s witnesses, which I accept, to the effect that the deceased informed them after Alan’s death of their testamentary intentions to benefit (initially the Cancer Council), HCT and Wires and other content of her Will. This includes evidence from Pamela, [291] Ronald, [292] Helen, [293] Jane, [294] Nada, [295] Karen [296] and Kenneth. [297]
This aspect is not particularly disputed. Indeed, Mr Maconachie accepts that the deceased was very vocal about the contents of her Will. [298]
Jennine readily agreed that she had been relevantly aware that the deceased and Alan wanted the majority of the residuary estate to pass to the HCT and to also benefit WIRES. [299] Phillip acknowledged that prior to Alan’s death he had been told by the deceased that she and Alan were leaving their entire estate to a “local Cancer Foundation and an Animal Welfare group”, which in cross-examination he confirmed he understood to be HCT and WIRES. [300]
On 12 June 2021, Jane travelled to Port Macquarie and stayed with the deceased. Jennine and Phillip were there at the time. [301] Jane states: [302]
In the morning of 13 June 2021 when I awoke, I looked across to the single bed where Lynette was, hoping to see the rise and fall of the bedding. The first thing Lynette said to me when she realised I was staring at her was words to the effect of
"I'm going to give Gene and Freya [her niece and nephew] $20,000.00 each and Jennine will get the car ... she doesn't need anything and neither does Glen [her brother]".
often commented to me that Jennine and her brother Glen Paton were financially well established, and that she and Alan wanted their estates to benefit those more in need.
Mr Yazdani submitted that:
both before and after Alan’s death, there is evidence from independent witnesses including Ronald, Pamela and Nada [304] whereby the deceased expressed her intentions very clearly to leave the majority of her estate to the survivor of HCT and WIRES; and
the terms of the Will are inconsistent with a testamentary promise by the deceased as alleged by Jennine. [305]
Mr Yazdani stated that Glen’s evidence that he had a conversation with the deceased in which she specifically talks about the terms of the Will or discusses what she is going to do with her estate with him, is entirely inconsistent or at the very least implausible on the face of the Will itself where she has specifically excluded him as being a beneficiary (as distinct from his children) from the Will. [306]
Mr Yazdani also submitted [307] that the deceased’s text message to Ronald on 24 September 2020 was inconsistent with the idea that she would leave the plaintiff half her estate and emphasised that Jennine had agreed with that inconsistency. [308]
The making of the Will by the deceased on 26 October 2020, approximately a week after the alleged promise conversation, was well before Jennine arrived in Port Macquarie.
Nada stated that “at no point” did the deceased tell her that she was giving Jennine half of her estate. [309]
However, that fact alone is not decisive of whether such a promise was made. Whilst there is no need for me to form a view as to why, if the deceased did make the alleged promise, the deceased did not at that point of time incorporate the alleged promise in her Will, it seems to me at least plausible that the deceased wished to have a Will in place to incorporate the intentions that she had within the couple weeks following Alan’s death regarding the disposition of her estate on the basis that she believed that she might imminently die. By that point of time, even if she had made the alleged promise, Jennine had not even arrived in Port Macquarie let alone commenced any period of care for the deceased.
On 19 November 2020, approximately a calendar month after the alleged promise conversation, Jennine arrived in Port Macquarie having spent two weeks of quarantine in Sydney. [310]
The attendance of Jennine at Mr Levido’s office on 27 November 2020 for the purpose of accepting her appointment as the deceased’s attorney, [311] whilst a factor to be weighed, does not decisively count against the deceased having made the alleged promise. The purpose of the appointment was not to make a Will but to address acceptance of the power of attorney. Even if it had occurred to the deceased on that occasion to readdress the making of her Will, at that stage, Jennine had only been in Port Macquarie with the deceased for approximately a week. It does not seem to me to be inexplicable that the deceased would not at that point of time, based on Jennine only being with her for a week, change what appears to have been a relatively long-standing intention regarding disposition of her estate.
Whilst there is no need to speculate, from the deceased’s perspective, on the basis that she believed she had approximately 3 to 6 months to live, the deceased still had time to change her Will. A period of 3 to 6 months from mid-October 2020 is between mid-January 2021 to mid-April 2021. It might well be that the deceased wished to wait and see whether the arrangement worked out or in her mind Jennine had done enough to justify receiving half of the net estate. Without qualifying her promise, she may have considered that if she had died very closely after the time that Jennine had arrived, Jennine might not have sought to enforce the promise. On those scenarios (about which I need to make no finding), it would be explicable that the deceased did not mention the promise to anyone including Mr Levido.
As to Mr Yazdani’s submissions regarding the deceased’s association with the cancer unit at the Port Macquarie Base Hospital and her reasons for wishing to benefit the unit, [312] I do not doubt that evidence. It is supported by the terms of the Will, as I observed during submissions. [313] Nonetheless, of itself, that is not a conclusive answer to the plaintiff’s case. The essential submission on the plaintiff’s case is that the deceased’s desire to benefit HCT and Wires was qualified to the extent that she promised half of her net estate to Jennine whilst maintaining HCT and Wires as beneficiaries.
Lynette had told me about leaving her property in Home Street, Port Macquarie as a place for palliative care. Later she sent me a text message to tell me that after conversations with Ron, her real estate agent, she had concluded it was all going to be too hard. She told me she thought it would be easier to sell it, contents included.
Apropos a similar submission in respect of Glen’s evidence (inconsistency with the Will), I reject the submission that Glen’s evidence should be rejected. The fact that a person does not make provision for another person, in this case a sibling, in a Will does not self-evidently make implausible the fact that the deceased might have discussed the content or proposed content of the Will with that other person.
Concerning the evidence of Jane [317] regarding neither Jennine nor Glen needing “anything” and them being financially well-established, it is consistent with no provision being made for Glen. However, it is not necessarily inconsistent with the alleged promise being made. Whether Jennine needed “anything” or was “financially well-established” or not, is beside the point. The tenor of the promise, as alleged by Jennine, was a quid pro quo for Jennine undertaking to act as the deceased’s carer.
Overall, I am not persuaded that the deceased’s statements regarding her testamentary intentions nor the terms of the Will, decisively count against acceptance of the plaintiff’s claims regarding the alleged promise conversation.
Mr Maconachie submitted that Jennine was a very impressive witness of truth who had sustained lengthy and at times vigorous cross-examination face on, and made appropriate concessions. [318]
Mr Yazdani submitted that I should reject Jennine’s evidence that the alleged promise conversation took place as she asserts [319] and that I should find that Jennine took from that conversation something that was not actually represented to her, but rather was a reconstruction of what she wished had taken place. [320] He stressed that what she told Glen and Phillip is not corroborative of what the deceased said, but only corroborative of what she took from that conversation. [321]
Mr Yazdani, in later developing this, stated that I did not have to make a specific finding that Jennine was deliberately lying or giving false evidence about the conversation but rather that she was mistaken as to her recollection and indicated that I could find that she had subconsciously reconstructed the conversation in her mind, [322] essentially to believe that the alleged promise had been made.
Mr Yazdani made particular reference [323] to the evidence that I have outlined above of Karen’s recollection of a conversation with the deceased on 20 October 2020. [324]
Mr Yazdani referenced my decision in Shymko v Lach [2022] NSWSC 1096 (Shymko) at [642]. [325] In that case, in addressing the question of reliance upon an alleged promise said to support an estoppel claim, I made the observation that I sensed that the relevant plaintiff, though I did not suggest was deliberately lying or giving false evidence, had nonetheless subconsciously reconstructed her involvement with the deceased into an analysis of reliance. However, this case is significantly different from that. In that case I had found that there was no clear and unequivocal promise to support an estoppel.
Mr Yazdani raised a number of matters which were said to bear upon Jennine’s reliability as a witness. Without attempting to be exhaustive I note the following.
My impression, which I provisionally expressed during submissions, was that there were no devastating blows to the plaintiff’s credibility. [326] The plaintiff’s responses appeared to me to be frank. She accepted occasions when she was incorrect and, as I also expressed during submissions, did not appear to me to be seeking to explain away mistakes or looking for some “out” or exit. [327]
As to the critical alleged promise conversation, the fact that a conversation occurred at all is not disputed. Whilst there is a dispute regarding whether any promise was made, there is no real dispute regarding the context for making the alleged promise. It is undoubtedly the case that the deceased had concerns about how long she would live and how she would be cared for.
Jennine in her affidavit stated that she paid for her travel and accommodation expenses from Victoria to Port Macquarie. [328]
Karen gave evidence that on 20 October 2020, whilst she was having coffee with the deceased, the deceased told her: [329]
she would pay for Jennine's flights, her hotel accommodation, and all Jennine's expenses during her stay, which to my knowledge, she did.
agreeing to cover all of Jennine's expenses including the cost of 14-days accommodation for the mandatory COVID-19 hotel quarantine (which I believe was approximately $3,000) and the cost of flights to and from Melbourne to Port Macquarie.
In reply to paragraph 8 [332] I agree that Lynette paid for my accommodation whilst I was in quarantine. In my earlier affidavit I said that I paid for the accommodation. I thought that I had, however having read Karen's affidavit I accept that is incorrect.
The deceased’s CBA Smart Access records disclose that she made a payment on 28 December 2020 of $3,000 for an item that is described as “Civil Debt” referable to “Quarantine”. [333]
During cross-examination, Mr Yazdani made particular reference to the above-mentioned bank record and the reply affidavit paragraph [334] and questioned Jennine as follows: [335]
Q. How did you get that wrong in the first place?
A. Well, when I went to pay, when I had to check out I went to pay, and they said, “No, you can’t pay it because it’s a government quarantine hostel.” But I had to pay some that I had incidentals there. So, I did pay something when I was there. So, I paid some incidentals, you know, through paper and things like that that I had through the two weeks. That’s what I paid.
Q. I appreciate that.
A. Yes.
Q. But my question is why wasn’t that in your first affidavit, you did not state that Lynette paid the $3,000 for my quarantine accommodation?
A. Cause I thought I paid for it, at that stage.
Q. Is it because you didn’t have a particularly good recollection of things that you put in your affidavit?
A. Maybe.
Mr Yazdani referred to aspects of Jennine’s cross‑examination, which were not recorded in her affidavit, in the context of a more general submission that she had reconstructed her evidence. [336] Specifically, he referenced the fact that Jennine accepted that the deceased told her that she would cover (a) her travel and hotel accommodation costs and (b) all of Jennine's expenses whilst she was staying at Port Macquarie. [337]
Two matters may be noted.
First, it is not clear precisely what Mr Yazdani was contending for. To the extent that he was contending that Jennine had omitted a relevant matter in her affidavit, that is true. However, having assessed Jennine’s evidence overall, I do not regard it as being a critical matter that undermines Jennine’s credibility or reliability. The content of affidavits is an interaction between a solicitor and the deponent. Whilst the deponent is self-evidently responsible to some degree for incorrect statements that are included in the affidavit, the mere fact that some particular statement has not been included in an affidavit, does not compel a finding that the deponent’s evidence is unreliable. It is difficult to assess the ramifications of omissions to include material in affidavits unless there is some context around what the discussion or interaction between the solicitor and the deponent has been for choices of topics and content in the affidavit.
Secondly, if under cross-examination a witness reaffirms her core recollections, the fact that parts of the witness’ oral evidence differ from their affidavit and the witness recalls and adds in oral evidence spontaneous detail about the occasions, does not necessarily mean that the Court should reject the spontaneous detail. [338]
It is true that Jennine did not include reference to the conversation with the deceased regarding agreeing to pay for quarantine accommodation costs and travel. In cross-examination, her explanation was that the deceased had informed her of those matters in a later conversation. [339] That much was not disputed and Mr Yazdani did not ask her to detail the so-called later conversation. In any event, on the evidence I have outlined above, led by the defendant, it was not disputed that the deceased had agreed to cover those things. [340]
Jennine’s statement in her initial affidavit that she had paid for her travel and accommodation expenses was incorrect. But she accepted that in the affidavit in reply. Her explanation of having paid for some expenses is understandable. Overall, whilst it demonstrates the Jennine’s memory is not completely perfect, I do not regard it as being a matter of great moment.
On 27 November 2020, shortly after Jennine’s arrival in Port Macquarie, she, the deceased and Karen attended the offices of Mr Levido. Mr Yazdani submitted that “it is telling” (i.e. against the likelihood of the deceased having made the alleged promise) that, at that meeting, Jennine did not raise the topic of the deceased’s Will or of putting into writing any agreement that she suggests she had made with the deceased. [341]
For my part, I regard the alleged failure of Jennine to raise the matter as being of little moment and in any event benign. The context was that she was attending at least relevantly to accept an appointment under the power of attorney, and the appointment of enduring guardian. There is no compelling reason for her to have raised the agreement. She had been in Port Macquarie at that stage for barely 2 weeks. Her evidence, [342] which I accept, is that she trusted the deceased. In light of that trust, it seems to me quite explicable that there was no need for her to raise the issue. Whilst what I have said is enough to address the point, in any event, I consider that it would have been very bold (and some might think it crass) for Jennine to have suggested that right then and there that the deceased put the so-called promise into some formalised agreement.
Mr Yazdani submitted that the reason that Jennine did not do so is because there was no intention of the parties to enter into legal relations. [343] As will be evident below, I reject that submission.
23. I returned home to Victoria on one occasion for approximately 10 days in March 2021 for a dental appointment. I was willing to cancel it, but the deceased encouraged and requested that I go so I could keep the appointment and see my family for a short time. I returned home to Victoria for approximately 10 days, before returning to the deceased in Port Macquarie. I paid for my travel expenses from Port Macquarie to Victoria and the return journey.
24. Other than my 10 day return to Victoria in March 2021, I stayed with the deceased for approximately 10 months from November 2020 until she died in September 2021…..
17. Jennine had one trip back home, which occurred in late Feburary or March 2021. This was to enable her to visit her own dentist, due to an increasing problem she was experiencing. This dental visit saw Jennine not only requiring a new Crown but also a Root Canal procedure. Jennine elected to undertake the Crown procedure through her own dentist, but now due to the extended time she had spent away from her sister, she elected to undergo the Root Canal procedure back in Port Macquarie….
Initially, in cross-examination, Jennine did not recall the exact date she returned to Victoria. [346] By reference to a text message sent from the deceased to Karen on 3 February 2021 [347] which states that Jennine had “decided to go home next Tuesday for an indefinite time”, it was suggested to her by Mr Yazdani that the next Tuesday was 9 February 2021, which she accepted. [348] Jennine initially in cross-examination answered (consistent with her affidavit evidence) that she was in Victoria for approximately 10 days. [349] However, on further probing, she accepted that she (and Phillip) had returned to Port Macquarie towards the end of March and that the deceased had picked her up from the airport on 29 March 2021, and, accordingly, that the period of her sojourn to Victoria was approximately six weeks. [350] It is not entirely clear where Mr Yazdani sourced the date of 29 March 2021 from. Karen’s evidence is that Jennine returned to stay with the deceased sometime in or around 21-27 March 2021. [351]
Exhibit D1 (see below), a text sent by the deceased to Karen on 9 February 2021, confirms the context of the plaintiff going away. The deceased stated “…Jennine originally said she'll probably be home for about 6 weeks but I might summon her earlier, especially if funny things are going to start happening to me…”.
It is not pleaded that Jennine’s leaving of the deceased to return to Victoria was some fundamental breach of contract or some other fundamental matter fatal to Jennine’s claim. The evidence suggests, and I find, that Jennine returned to Victoria to undergo some dental work and that the leaving was effectively on a standby basis.
Mr Yazdani submitted that Jennine was mistaken regarding the length of time during which she went back to Victoria. [352] That is clearly correct. Mr Yazdani suggested to Jennine that her returning to Victoria for an indefinite period of time was inconsistent with the assertion of an oral contract that she receive half of the deceased’s estate on condition that she look after her until she passed away. [353] That was objected to by Mr Maconachie. Following debate on the question in the absence of the witness, Mr Yazdani accepted that no breach of contract had been pleaded or was asserted. He submitted that the question went to whether there was a contract at all. He did not elaborate on that. [354] In subsequent questioning, Jennine denied that the so-called “indefinite return” meant that there was no agreement or that the deceased had not made a clear and unequivocal promise to her that she would receive half of her estate. [355]
Mr Maconachie in his final submissions did not accept that Jennine had left for approximately 6 weeks in February-March 2021. Specifically, he submitted that it is not clearly established that Jennine left on 9 February 2021 and returned on 29 March 2021. [356] Nonetheless, he submitted that the precise period did not really matter. From his perspective, the only real issue was one of credibility and his submission was that it was not affected by the misstatement. [357]
“…Funny thing she said - “I haven't missed Phillip at all. I know that sounds awful!” I can understand exactly what she means though. Men miss women more than vice versa…”.
Jennine was questioned about missing Phillip. She agreed that, during her stay in Port Macquarie, she did miss him. [360] She was confronted with the statement in the deceased’s text to Karen (exhibit D1) that the deceased had recorded Jennine as having said “I haven't missed Phillip at all. I know that sounds awful!”. She denied adamantly, both before and after a copy of the text was shown to her, saying those words to the deceased. [361]
This is one of the conundrums on the evidence.
The reference in the text evidence per se to my mind sits somewhat uncomfortably with the much lengthier text interaction between the deceased and Phillip 6 days earlier on 3 February 2021.
The opening words of the text are: [362]
Hi Phil. I returned from physio this morning to find Jennine very distraught. I’m so sorry that my predicament has impinged on her happy life at home with you.
Seeing her so torn and distressed this morning reminded me of just how really special she is, and how she wants to please all of us. I’m grateful she has such an understanding husband and friend in you. I really can’t tell how long I’ll be around, but I’m grateful for every day and feel very blessed to have such a caring sister. I feel so bad that my situation upsets her so much.
My impression is that Jennine was truly torn, on the one hand, leaving the deceased for a period of time and, on the other hand, having been away from Phillip.
It is possible that the deceased misheard Jennine. In the scheme of things, I do not regard it as being a vital matter to resolve.
However, even if one assumes for the moment that Lynette had accurately recorded what Jennine said, I do not think that this statement evidences some underlying crucial inconsistency in Jennine’s evidence. Sometimes people will feel and express the sentiment that they miss others. Within a few hours or the passing of a day they might feel differently. Jennine’s evidence is that she did miss Phillip. [364] I have no particular reason to doubt that she did miss him to some degree. I do not think that the evidence bespeaks some underlying inherent unreliability regarding Jennine’s evidence.
Jennine gave evidence that aside from the alleged promise conversation, “I did not ask the deceased about her will and we did not discuss it, although I had assumed that she had made arrangements to change it”. [365]
Mr Yazdani submitted that I should find that the deceased specifically told Jennine about the terms of her Will. [366] In this regard he referred to various pieces of evidence.
As outlined above, Jennine’s affidavit evidence included the following: [367]
49. When I received a copy of the deceased's Will I was very shocked and disappointed that she didn't keep her promise to leave me half of her Estate.
50. Following my receipt of the deceased's will, I spoke to my brother Glen and we had a conversation that I recall as follows:
Plaintiff: I am so upset. Lynette promised me half of her estate for looking after her but her will leaves almost all of her estate to charity.
Glen: Lynette rang me before you went up to live with her. She asked if I thought you would go and live in Port Macquarie and look after her if she promised you half of her Estate. I said to her I am sure that you would, but she would have to ask you.
Plaintiff: She did, and I agreed.
51. Prior to the discussion with Glen above, I did not know that the deceased had discussed this proposal. This was the first I became aware of it.
Mr Yazdani referred to Nada’s evidence regarding statements by the deceased to Jennine in respect of her Will.
One piece of evidence, mentioned above, was as follows: [368]
Lynette also told me that she had specifically informed Jennine of the gift of her Volkswagen Tiguan and a sum of $20,000, as well as Lynette agreeing to cover all of Jennine's expenses including the cost of 14-days accommodation for the mandatory COVID-19 hotel quarantine (which I believe was approximately $3,000) and the cost of flights to and from Melbourne to Port Macquarie. I know this detail, as I was staying with Lynette whilst Jennine was in hotel quarantine.
…I again spoke with Lynette as to her Will and had a conversation that I recall as follows:
Nada: "Have you discussed your Will with Jennine, and does she know the breakdown and what she is getting?''
Lynette: "Yes, she knows. She understands my wishes for the Hastings Cancer Council to get the majority of my estate as well as Wires. She has known since before Alan died that it was our intention to give all the estate towards cancer research and Wires. Also, I have asked Jennine to be the Executor of the Will to make sure my Will is carried out. She was happy to do that, and I am relieved that she will do it."
Jennine, in particular, denied that after 26 October 2020, prior to her death, the deceased had specifically told her what the terms of her Will were, indicating the deceased “only mentioned” Gene, Freya, and Tanya. [370] Under cross-examination, she accepted that the deceased told her she was giving her “her car because it wasn’t worth much to sell”. [371]
I cannot easily reconcile Nada’s evidence regarding what Lynette said to her about saying to Jennine what was in the Will and Jennine’s evidence that she did not know what was in the Will prior to the deceased’s death other than the deceased having mentioned Gene, Freya, and Tanya, and knowing that she was going to receive the Volkswagen.
Jennine was not confronted with any documentary evidence suggesting that she must have known the totality of the provision made for her in the Will prior to the deceased’s death. She was not cross-examined to the effect that the deceased had at some point, prior to her arrival in Port Macquarie, during her quarantine or before she left Victoria, told her that she would only receive $20,000 and a motor vehicle under the Will.
Mr Yazdani submitted both that I should conclude that (prior to the deceased’s death) Jennine knew the terms of the deceased’s Will and what she was receiving under the Will [372] and that that I should reject Jennine’s evidence that, upon receiving a copy of the deceased’s Will, she was shocked as outlined above. [373] When I pressed him for clarity regarding whether he was contending that I should find that Jennine was lying, he stated that I did not need to make a positive finding of a lie but submitted that there was a reconstruction in her mind as to what she wished took place or that she was possibly mistaken or had forgotten what she had been told. [374]
I am not satisfied that Jennine knew prior to the deceased’s death, that the terms of the Will did not make provision for her for half of her estate.
Another aspect of Mr Yazdani’s case that Jennine knew about the provision made for her under the Will is that she may have seen an electronic copy of it on the deceased’s laptop. [375]
Jane’s evidence is that Lynette kept a soft copy of her Will on her laptop: [376]
I specifically recall Lynette informing me that a soft copy of her Will dated 26 October 2020 was on the desktop of her laptop. I did not ask to see it, as I considered it private, but as this was the second occasion that I recall where Lynette had verbalized her intentions to me regarding her Estate, I felt that Lynette wanted to make her testamentary wishes clear to me, so that there would not be any potential for ambiguity after she had passed.
Lynette detailed the contents of her Will with me on numerous occasions following Alan’s death in September 2020. During my regular visits to her, and shortly after she had signed her will on 26 October 2020 (“Will”), we would naturally talk about it, and she would prompt me to read her Will, which was saved as an electronic copy and “fast path” access on her laptop. It was apparent that she wanted to cover off with me the reasons for her decisions regarding the Will to avoid any uncertainty about her decisions after she passed. I didn’t feel the need to read the electronic copy, as she had told me verbally, several times of its contents, so I did not believe I needed to see it in writing.
I refer to paragraph 25 of Jennine's Affidavit and note Lynette was very open about the contents of her Will and she had created a shortcut to her Will document on her computer. On or around 14 February 2021 Nada advised me that Lynette had asked Nada to read her Will on her laptop and Lynette also extended this invitation to Jennine. Further, Lynette's laptop was kept on the dining room table, and I witnessed Jennine, on multiple occasions, using the laptop.
I was never invited to view or read Lynette's Will; and
I never used Lynette's laptop computer. I would sit beside her or she would call me over when she was using it for example for online shopping, but I never saw her will. I did not see Lynette's Will, and was not aware of what it contained, until after Lynette died.
Q. Did Lynette have a laptop? A. Yes.
Q. Did you at any point in time use that laptop? A. No.
Q. It's your evidence that at no point in time would you use that laptop? A. Not while Lynette was there. Only after Lynette died and she gave--
Q. After Lynette died. A. Died, yes.
Q. Was there an electronic copy of Lynette's will on that laptop? A. I didn't see it.
Q. Are you aware as to whether there was an electronic copy of the will? A. Yes.
Q. Did Lynette at any stage invite you to read the will on her laptop? A. No.
Q. Did Lynette at any stage read to you the will from her laptop? A. No.
Q. Did Lynette read the will on her laptop to any of her friends? A. Not that I'm aware of.
Mr Yazdani urged me to accept that evidence as showing Jennine knew there was a copy of the Will on the laptop. However, whilst Jennine accepted that she is aware there was an electronic copy of the Will, her response to the question of whether it was on “that laptop”, was “I didn’t see it”. A further difficulty is that Mr Yazdani’s cross-examination did not seek to clarify when she knew that fact. His question was phrased in the present tense, “Are you aware?” In light of this, I do not find that Jennine knew, before the deceased’s death, that there was an electronic version of the deceased’s Will on the laptop. In any event, for the reasons explained below, I do not find that she accessed the laptop to read the Will.
Mr Yazdani, whilst asking me to “unreservedly accept” Karen’s unchallenged evidence “that she recalls Jennine used the laptop on multiple occasions”, [380] did not develop that submission per se.
The limited cross-examination of Jennine regarding her use of the computer and the absence of any cross-examination of Karen on this topic did not facilitate resolution of the issue. For example, Jennine was not asked whether she used the computer on any occasions when Karen was present. There was also no documentary evidence that she used the laptop, for example, showing that she sent or accessed emails from that laptop.
It is unclear whether the occasions that Karen made any such observations about Jennine’s use of the laptop are occasions in which she was at the Villa with the deceased and Jennine, or on occasions after the deceased’s death. Whilst I am prepared to accept Karen’s evidence that she witnessed Jennine “using the laptop”, I have no detail as to the context or what is meant by the so-called “use” or “multiple occasions” of use. Her evidence does not clarify whether the so-called use was before or after the deceased’s death.
The context of Karen’s observations would be important to resolving the matter. For example, it is not clear on what occasions Karen attended the deceased’s house and whether there were any occasions in which she attended in which the deceased was not present.
Karen’s evidence is not necessarily completely at odds with Jennine’s evidence. One distinct possibility is that raised by Jennine in her reply evidence, addressing that what Karen observed was the deceased and Jennine sitting at the kitchen table together using the computer. [381] Perhaps the deceased was showing Jennine some things on the computer and the so-called use of the computer was in that context. In the absence of cross-examination of either Karen or Jennine regarding that, I simply do not know.
To the extent that Mr Yazdani submitted that Jennine was lying about use of the computer, I find myself unable to make a positive finding to that effect. I also do not find that Jennine accessed the Will via the laptop prior to the deceased’s death or otherwise knew the totality of the provision made for her under the Will.
There was evidence led by the deponents, and questions asked in cross-examination, about the respective expenditure made by Jennine and the deceased around the time she was staying with her. This includes the general increased spending of the deceased at that time, certain monetary and other gifts the deceased made to Jennine, and Jennine’s use of the deceased’s card in the last days before the deceased’s death and the immediately following days.
Jennine gave evidence regarding payments during her time spent with the deceased in Port Macquarie as follows: [382]
The deceased used her bank card for purchases, and I also made significant financial contributions to daily living and everyday expenses. Purchases were made by the deceased using her bank card or by me using my own private funds.
Helen gave evidence that the deceased mentioned to her in or around late 2020 that “she frequently gave Jennine money to cover her out of pocket expenses and more”. [383]
Karen gave evidence disputing Jennine’s allegation that she had made significant financial contributions to daily living in everyday expenses, stating as follows: [384]
I refer to paragraph 19 of Jennine's Affidavit and deny Jennine's allegations that she made significant financial contributions to daily living and everyday expenses. This is on the basis that Lynette's bank statements show prior to Jennine moving to Port Macquarie, Lynette was spending on average approximately $2,500.00 per month. However, from 19 November 2020, after Jennine arrived, Lynette's monthly spending increased substantially as outlined below:
(a) December 2020: $7,375.00;
(b) January 2021: $13,627.51;
(c) February 2021: $4,105.11;
(d) March 2021: $5,087.61;
(e) April 2021: $13,980.23;
(f) May 2021: $4,892.26;
(g) June 2021: $6,254.22;
(h) July 2021: $12,568.87;
(i) August 2021: $2,487.13; and
(j) 1 to 4 September 2021: $1,099.20.
It is not clear precisely how Karen made the above calculations. However, based on the figures in the Court Book drawn from the debit amounts in the deceased’s Smart Access account, it is evident that Karen’s totals for expenditure for January, April and July 2021 include 3 particular gift payments the deceased made to Jennine from her Smart Access account. These being:
on 12 January 2021, a payment of $10,000; [385]
on 26 April 2021, a payment of $10,000; [386] and
on 19 July 2021, a payment of $10,000. [387]
Jennine, in cross-examination, accepted that during her stay with the deceased from November 2020 to August 2021, the deceased’s expenditure as set out in her bank statements contained in the Court Book increased substantially. [388]
She acknowledged that she had not annexed or exhibited to her affidavits any documentary evidence that she made any financial contribution or purchases during her stay with the deceased. [389] However she denied that the reason she had done so was because the deceased had covered those expenses [390] and denied that, during her stay with the deceased, the deceased covered all her day-to-day living expenses. [391] I accept her denial. It is highly likely that Jennine made some payments on her own account and highly unlikely that she made no payments covering any of her own day-to-day living expenses. The significance of the matter is hard to gauge. Jennine had provided bank statements for the period 5-17 September 2021 [392] which she noted during cross-examination. [393] Jennine was not, during cross-examination, asked to quantify in any way what expenditure she said she had undertaken from her own funds. Further, she was not probed on what she meant by “significant financial contributions to daily living and everyday expenses” nor on the details of her own purported expenditure. No call was made by Mr Yazdani for the balance of Jennine’s credit card statements.
Nada’s evidence is that between 8 and 16 November 2020, the deceased informed her she had given $10,000 for jewellery to Jennine: [394]
I know from my many conversations with Lynette that Lynette bought Jennine many things, including clothes and shoes and she gave her extra money, including a sum of $10,000 for jewellery, which she told me about during my visit to Port Macquarie between 8 November 2020 and 16 November 2020. I recall Lynette said to me that jewellery was "Jennine's thing".
Jane’s evidence is that on 15 February 2021, the deceased had informed her that she “had already gifted $10,000 to Jennine to purchase jewelry as jewelry was Jennine's ‘thing’”. [395]
Pamela’s evidence is that in or around 16 April 2021: [396]
In or around 16 April 2021 Lynette told me she was going to leave $20,000 to both her niece and nephew. She told me she had given Jennine $10,000 for her to buy things while she was in Port Macquarie. She planned to give her another $10,000 and she could have her car when she died. Lynette said to me:
"Jennine doesn't need anything. She is financially well off."
Lynette informed me on or around 25 July 2021, at her birthday lunch, that she gave Jennine $10,000 to buy herself some jewellery. I also recall, during the time Jennine resided with Lynette, Lynette told me that she had given Jennine numerous gifts and cash.
Jennine in her affidavit in reply [398] specifically responded to Karen’s evidence and Nada’s evidence, agreeing that she did receive gifts of $10,000 from the deceased, stating “I also gave gifts to Lynette. We often bought each other presents”. [399]
Jennine was cross-examined about payments from the deceased, including, in particular, the three payments of $10,000. It is not necessary to recite all of the lengthy cross-examination. The following may be noted.
Jennine acknowledged that she had received a total of $30,000 in payments. [400] When answering questions about the first payment, she said she had not adduced evidence of this in chief because she did not think it was relevant and she “didn’t think I had to explain what Lynette spent money or she gave me as a gift”. [401] In relation to the other two payments, she likewise indicated that she did not think it was necessary. [402]
Specifically, she stated: [403]
A. As I said before, I didn’t think it was necessary. This is long before Lynette passed away, and what Lynette did with her money at that times, her decision when she’s alive. I didn’t control her bank accounts. She decided to give me; that’s, that’s her prerogative. I’m not to question it, if she wants to give me money.
Pausing there, her indication that it was not relevant or necessary is certainly, on one view, correct. Whilst the cross-claim seeks recovery of payments made between 3 and 8 September 2021, no claim is made in respect of the three payments of $10,000.
In cross-examination over the first payment, in response to questions as to why the deceased wished to give her $10,000, Jennine stated that the deceased said “I want to give you $10,000, for you”. [404] She indicated that the deceased “would put money into my bank account. I didn’t ask for it”. [405]
In relation to the second payment, Jennine stated: [406]
Q. Again, at the time that you received, or Lynette told you that you were to receive the $10,000, you did not tell Lynette “No, Lynette. Please, don’t give me that money. I’m already receiving half of your estate, as you had promised me”?
A. I said to Lynette, I didn’t say anything to Lynette. Lynette transferred it into my account and said “I transferred $10,000 into your account.”
Q. You just accepted that?
A. Yeah, I said “You don’t have to do that.” She said, “I want to.”
I accept Jennine’s evidence regarding the payments.
The purpose of the cross-examination was apparently disclosed (in questions which were rejected as to form and not persisted in) to elicit some explanation from Jennine as to why the deceased would have paid her $30,000, when she had previously, on the plaintiff’s evidence, promised Jennine half of her estate after her death. [407] Jennine denied suggestions to the effect that she had not put in her affidavit that she had received $30,000 from the deceased because she did not wish the Court to know that. [408] I accept her evidence.
Jennine acknowledged that the deceased had referred to jewellery as “Jennine’s thing” and that she (Jennine) is a lover of jewellery. However, other than a single parting gift of jewellery in or about July or August in which they had gone out together and it was something that the deceased had picked out, she denied that the deceased had made gifts of jewellery to her. [409] I accept her evidence regarding this.
Lastly, on this topic, Nada’s evidence was, as outlined above, that from many conversations with the deceased, she knew that the deceased had bought Jennine many things including clothes and shoes. [410] Jennine in her reply affidavit had denied that the deceased had brought her clothes and shoes and added that “I bought my own and also some clothes for Lynette when I ordered mine”. [411]
Jennine was cross-examined about alleged gifts of clothes and shoes. She confirmed her affidavit evidence. [412] She was confronted with two documents which were admitted as exhibits D2 and D3.
First, as regards exhibit D2 (a lady modelling a blue patterned top), Jennine acknowledged that, on that one occasion, the deceased had got that top for herself and also ordered a top for Jennine but the deceased had sent it back. [413]
Second, as regards exhibit D3 (the text dated 9 December 2020 referencing a pair of shoes) read with an entry on 11 December 2020 in the deceased’s Smart Access bank statements referencing an item purchased on 9 December 2020 from "Jacqui's Shoe Boutique" for $477.95, [414] Jennine was quizzed about this transaction and even her shoe size. Her evidence is that Lynette’s shoe size was 37 because she has a narrow foot whilst her own (Jennine’s) shoe sizes were 38 or 39 but that it depends because some of the shoes are adjustable by reason of having a Velcro flap. Jennine disputed that the shoes were purchased for both of them, indicating that they were purchased for the deceased, although the deceased had told her that she could have them once she died, which would work because they were adjustable. [415]
I accept Jennine’s evidence regarding the tops and the shoes. It was put to her that she had not set out the explanation regarding those matters in any of her affidavits, to which she asserted that she did not think it was relevant. It seems to me that that was a reasonable assessment and response, at least because the cross-claim does not seek to recover any monies paid by the deceased to the use of Jennine in respect of clothing and shoes.
On 15 September 2021, 10 days after Lynette’s death, Jennine and Glen had a meeting with Mr Levido. Mr Yazdani submitted that the events at the meeting are inconsistent with the alleged promise.
A difficulty with assessing the events of the meeting is that the evidence regarding it from all the witnesses was in general terms. None of witnesses was able to state specifically who said what, let alone depose to any direct speech account of who said what.
Jennine’s affidavit evidence is as follows: [425]
52. Following the receipt of Mr Levido's letter, my husband Phillip and I saw Mr Levido by appointment at his office.
53. Mr Levido requested a lot of information for the probate and administration of the estate.
54. Mr Levido explained the processes of probate and estate administration. I told Mr Levido about the agreement I had with the deceased, and that I was surprised and disappointed that she had not changed her will. Mr Levido advised me that I should seek independent legal advice about that issue before he applied for probate. He referred me to my current solicitor, Mr Brigden.
20. Shortly into the conference, after a few minutes, it became apparent to me that there was an issue and most of the talking was being done by Glen Paton. There were quite negative comments made about the Will and the preparation of the Will and how there was supposed to be additional provision made for Jennine Mills, as she had given up a lot to look after her sister.
21. The bulk of the talking was being done by Glen Paton. I them asked them squarely whether there was a problem and it was made clear to me that there was an expectation or feeling that Jennine Mills should have received a lot more than the entitlements set out in the Will, due to her looking after her sister and giving up a lot to do that in the last 6 to 12 months of her life.
22. I then told to them that Jennine needed to go and seek her own independent legal advice.
Glen’s affidavit evidence did not address the meeting.
The following emerged from Jennine’s and Glen’s cross-examination:
Jennine denied suggestions that Glen attended the meeting with her because she, Phillip and Glen had together formed the view that she deserved more from Lynette's estate and that they felt that the Will was not fair; [427]
Jennine agreed that Glen did most of the talking, from her perspective because most probably she was upset; [428]
other than stating “It’s not what Lynette told me”, [429] and telling Mr Levido that there was an expectation or feeling on her part that she should have received a lot more under the Will, [430] Jennine could not remember what she told Mr Levido; [431]
Jennine agreed that the statement in her affidavit that she specifically mentioned that she had an agreement with the deceased was incorrect and that at no point during the meeting did she specifically mention that; [432]
Glen did not recall that he did most of the talking and had “no idea” what he said during the meeting; [433]
Glen, in response to a question that he had attended the meeting because it was him who suggested to Jennine that she deserved more from the deceased’s estate, stated “I felt that way but I don't think I said that”; [434] and
Glen agreed that he was of the view that the Will was not fair. [435]
Mr Yazdani submitted that I should accept the evidence of Mr Levido “and to the extent that it is inconsistent with either Glen, the plaintiff or indeed any of her witnesses. And to the extent of any inconsistencies your Honour should reject their evidence. There is no reference in the affidavit of Mr Levido to any reference to any promise or agreement having been brought up at that meeting”. [436]
Mr Maconachie, in a quia timet submission, stated that Jennine’s evidence that she did not specifically mention the agreement with the deceased during the meeting with Mr Levido, and that the statement in her affidavit [437] was incorrect, [438] needed to be viewed in context of the evidence as a whole, including the plaintiff’s imperfect understanding of the law of contract. [439] His primary submission was that whether Jennine used the term of art “agreement” is irrelevant and that I ought to be satisfied that a notion close to agreement was discussed with Mr Levido and that Mr Levido’s evidence is confirmatory of that. [440] He submitted that to the extent a concession was made, it was in the context in which Jennine had been in the witness box for the better part of three hours and was a little worn down and the concession was not properly made. [441] He says that even if it was properly made, it goes to her credit and that I should be “thoroughly impressed with her as a witness generally”. [442]
Mr Maconachie submitted that the Court should be impressed with the evidence of Glen both in terms of demeanour and answering questions “head-on”. He also emphasised the candid nature of his evidence. [444]
Mr Yazdani submitted that I should find that Glen had also reconstructed his evidence. [445] Further, in seeking to understand the nature of the so-called “reconstruction”, Mr Yazdani in response to a question from me, confirmed that he was asserting that Glen’s account of the conversation was “not even remotely like” [446] what had actually occurred. [447]
During cross-examination, Glen held to the material parts of his evidence regarding the conversations. His evidence did not appear to me to be inherently improbable or unlikely. I am satisfied that the conversations Glen deposed to took place substantially as he deposes.
I find that the alleged precursor conversation with Glen most likely occurred in mid-October 2020, within a day or so prior to the deceased’s alleged promise conversation with Jennine. However, I do not consider that Glen’s belief that it occurred in late October 2020 materially affects his reliability as to the essential content of the conversation.
Mr Yazdani raised 5 specific matters by which he sought to persuade the Court that Glen’s evidence should be rejected, which I address below.
Thirdly, he essentially submitted that the reconstruction occurred because he was “allied with” and “in the camp of” the plaintiff and accordingly “not an independent witness”. [448]
Self admittedly, Glen is very close to Jennine. Frankly, I consider it is unlikely that Glen would reconstruct a conversation so as to embed in his mind statements by the deceased that she had promised to leave half the estate to Jennine, because he was close to her. To be fair to Mr Yazdani, I made an observation like that during submissions so that he could address it. [449] His response was that Glen was not in a position to have such a conversation as he did not have a close relationship with the deceased. I have already dealt with that. Whilst I bear his closeness to Jennine in mind in assessing his evidence, it has not led me to find that he has reconstructed his evidence because of some disposition (unconscious or otherwise) to recall an account of what occurred favourable to Jennine.
Fifthly, Mr Yazdani submitted that Glen was not an independent witness because he received an interest being $30,000. [451] This references the fact that Jennine, following the deceased’s death, transferred $30,000 from her bank account into Glen's bank account (which she had originally transferred to herself from the deceased’s bank account). [452] She says she did so because of conversations she had with the deceased on the morning of her death. [453] I accept her evidence. It may be noted that, following Jennine speaking with her solicitor and becoming aware that the payments may be disputed, she contacted Glen and requested that he transfer the $30,000 back into her account, which he did. [454] Glen gave evidence consistent with that and was not challenged on it. [455] I accept their evidence.
Further, Jennine has given express evidence, which I accept, that they have agreed that if they are required to repay the funds back to the state that they will do so. [456]
The assertion that Glen had, to use Mr Yazdani’s word, “reconstructed” (whether unconsciously or otherwise) his evidence because he had an interest in retaining the $30,000 was not put to him in cross-examination. In all the above circumstances, I reject the submission that Glen “reconstructed” his evidence because he had an interest in keeping the $30,000 that had been transferred.
Mr Maconachie submitted that Philip was a very straightforward witness in giving his evidence, met Mr Yazdani’s propositions “head-on” and that I should find that he was a witness of truth. [457]
Philip was only cross-examined for a relatively short period of time. He gave his evidence clearly. Broadly, his evidence was consistent with his affidavit evidence. His evidence was not inherently unbelievable. Generally, I accept his evidence. I have dealt elsewhere with a few other aspects of his evidence. Suffice it to say that those other aspects do not cause me to doubt his evidence.
Below I will address a particular aspect of the evidence regarding an event at which Phillip was present but about which he was not cross-examined.
Another plank in Mr Yazdani’s submissions that the evidence of the plaintiff’s witnesses was reconstructed and should not be accepted in relation to the critical contested alleged conversations arose out of some peculiar evidence at a dinner after the deceased’s death.
On 22 September 2021, Karen and her husband Kenneth went out for dinner with Jennine and Phillip at Cafe 66 in Port Macquarie.
Neither Jennine nor Phillip dealt with the event in their evidence in chief.
However, evidence led by Karen from herself and Kenneth was adduced purportedly as bearing upon the cross-claim and in one respect allegedly revealing a plan for Jennine to receive more money from the deceased’s estate.
Below I set out the details regarding it. The evidence, particularly from Kenneth, appears to come desperately close to alleging some form of some cunning scheme or conspiratorial plan on the part of Jennine and Phillip. I say desperately close because that is the tenor of the evidence. However, as I will note below, despite Mr Yazdani spending some time in cross-examination addressing the matter, he did not cross-examine Phillip as to the so-called “plan”.
17. ….. During this dinner, Jennine told me that she had been bequeathed $20,000.00 and Lynette's Car and that she and Glen believed she deserved more from the Estate. In this conversation, Jennine advised me that she would be contesting the Will and I recall she said words to the effect of "Justin Levido will be in contact with you because I am stepping down as Executrix".
18. During this same conversation, I recall Jennine became emotional and started to cry. Jennine said words to the effect of "/ have gifted myself and Glen money from Lynette's account and now I may have to give this money back, I don't want to have to go to Court”. I recall feeling horrified that Jennine had confessed to me that she had taken money from Lynette after Lynette had put her trust in Jennine to help care for her up until her death.
10. …. During this dinner, Jennine told Karen and me that Lynette had left her $20,000.00 and her car. I recall Jennine said to Karen and I words to the effect of:
"Glen [Paton] thinks I deserve more so I will be contesting the Will”.
11. I recall in this conversation Jennine said to me and Karen words to the effect of "/ have taken $60,000.00 from Lynette's bank account and have transferred $30,000.00 of that to my brother, Glen". Jennine then told us that she may have to give this money back, had told Glen not to spend the money and that she didn't want to have to go to Court.
12. Jennine then started to cry. It appeared she was in a considerable amount of stress. Jennine kept repeating words to the effect of:
"Glen is insisting that I make a claim on the Estate, but I don't want to go to Court”.
13. Once Jennine had stopped crying, Phil leaned over the table and looked straight into my eyes. I observed that Phil had an incredibly stern look on his face, and he said to me: "Don't interfere with our plan".
Karen states that at no point did Jennine tell her that she was promised half of the deceased’s estate. [460] Kenneth gave similar evidence indicating that neither Jennine nor Phillip referred “to an agreement made by Lynette that Jennine would receive fifty percent of her estate”. [461]
In reply to Karen’s evidence, Jennine gave evidence as follows: [462]
15. In reply to paragraph 10, I agree that my husband Phillip and I went to dinner together with Karen and Kenneth Dodds. I invited them to dinner to tell them that I was renouncing probate. I agree that I probably said something like "Justin Levido will be in contact with you because I am stepping down as executrix". The purpose of inviting them to dinner is that I wanted to tell them in person rather than them finding out later for the first time through lawyers. I deny that I said "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back" or words to that effect. It is possible I may have said something like "/ don't want to go to Court" or words to that effect but I don't recall saying it and I don't believe that I did so at that point in time. At that stage I was not yet aware of all of my legal options.
17. In reply to paragraph 10, I do not recall mentioning anything about what I did receive in the will, but it is possible I did. It is also possible that I said I would be contesting the will, but I do not recall saying this either. I deny that I said anything about my brother Glen.
18. In reply to paragraph 11, I repeat paragraph 15 above.
19. In reply to paragraph 12, I repeat paragraphs 15 and 17 above. I agree that I was upset and cried. I deny that I mentioned or said anything about my brother Glen.
20. In reply to paragraph 13, I deny that Phillip made the comment 'Don't interfere with our plan' or anything comment to that effect.
3. I have read the affidavit of Karen Ann Dodds dated 18 March 2024. In reply to paragraph 17, I recall that Jennine and I had decided to invite Karen and Ken to dinner as a courtesy to let them know that Jennine had decided to renounce as Executrix, although I am unsure of the date. Karen and Kenneth accepted that invitation and I recall Jennine informing Karen over dinner in both Ken's and my presence that she was going to renounce her Executrix position. In reply to paragraph 18, I deny that Jennine make any such comments. In reply to paragraph 19, I deny that I made any such comments, and say that I had very little, if any understanding of the task or tasks required of an Executrix.
4. I have read the Affidavit of Kenneth Dodds dated 18 March 2023. In reply to paragraphs 10, 11 and 12 I deny that Jennine made any such comments. In reply to paragraph 13 I deny that I made any such comment.
Each of Jennine, Karen and Kenneth were cross-examined regarding the events at the dinner. However, whilst Phillip was cross-examined, he was not cross-examined regarding the dinner.
The following emerged during cross-examination:
Jennine, in response to a question as to whether she told Karen and Kenneth what she had received under the Will, could not recall the exact words that she said and effectively could not recall saying anything but acknowledged that she may have made such a statement, adding, “But I don’t think I would have”; [465]
Jennine, in response to a question as to whether she stated during the conversation “Glen thinks I deserve more, so I will be contesting the will”, doubted that she would have said that, acknowledged that she may have done so but could not recollect whether she did not; [466]
Jennine accepted that at no point during the dinner did she tell Karen and Kenneth that she was promised half the estate; [467]
Jennine agreed that at some point during the dinner she started crying but denied that that was because she had told Karen and Kenneth “I have gifted myself money from Glen and Lynette’s account, and now I may have to give this money back. I don’t want to go to Court”. Rather, she indicated that she did so because she was upset because her sister just died. Jennine doubted very much whether she may have said those words, she could not recollect them but acknowledged the possibility that she may have said them; [468]
Jennine denied that she started crying because she felt guilty, having transferred the deceased’s money from the deceased’s account to her account, stating “No, I didn’t feel guilty at all”; [469]
Karen confirmed that during the conversation, Jennine became emotional and started to cry and believed that Jennine said the precise words "/ have gifted myself and Glen money from Lynette's account and now I may have to give this money back, I don't want to have to go to Court”. [470] she steadfastly held to evidence that the words Jennine used were “I’ve gifted myself” as distinct from “transfer”; [471]
Karen indicated that there was no alcohol being consumed by herself but she did not know whether the others consumed alcohol; [472]
Kenneth acknowledged that it was a social event but could not recall whether alcohol was consumed; [473]
Kenneth, whilst initially asserting that the words he set out in paragraph 11 of his affidavit were “virtually, exactly what was said”, settled on saying that in effect Jennine “definitely said she took $60,000 from each bank account and given 30,000 to her brother” [474] and “So, I gasped at the situation that this money be taken out of the trust account”; [475]
Q. Then at paragraph 13, you say that “Phil leaned over the table, looked straight into my eyes. I observed that Phil had an incredibly stern look on his face, and he said to me ‘Don’t interfere with our plan’”?
A. Yes.
Q. You don’t give any evidence leading up to paragraph 13 of any discussion of any plan, do you?
A. No, I had no discussion. But it was quite obvious from what he said, what it was about. I had - events had taken place before that, that built up to that, that I was aware what was going on, and he knew that I was aware what was going on, and he then leaned over and said those words to me.
Mr Yazdani submitted that I should accept the evidence of Karen and Kenneth regarding what was said during the dinner with Jennine and Phillip, in particular that there was no reference at all to any promise or agreement. [480] Further, he submitted that I should accept their evidence that Jennine specifically informed them that she had gifted herself and Glen money from the deceased’s account. [481]
Mr Maconachie urged me not to find that Jennine had stated "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back". However, he accepted that it was more likely than not that there was some mention of the impugned transactions, having regard to the timeline of Mr Levido’s letter to Jennine on 10 September 2021, [482] the meeting on 15 September 2021, and the fact that, on 30 September 2021, Mr Levido provided Mr Brigden with the deceased’s CBA statements showing “potential notional estate transactions”. [483] Specifically, Mr Maconachie submitted that it was unlikely for there to have been such a quick turnaround for the transactions to have been discovered independently unless there had been some mention of them. [484] Mr Maconachie referenced the evidence of Karen that Jennine had said “I may have to give this money back” [485] and submitted that those words did not indicate that Jennine thought the transactions were improper but rather admitted of a possibility that she might have to return them because of some mistake or legal issue. [486]
Mr Maconachie further submitted that Karen had staunchly adhered to recollection of the word “gifted” notwithstanding that her affidavit evidence was couched in terms of “words to the effect of”. He further submitted that Kenneth’s evidence was equally staunch, though different to that of Karen’s and that I would treat their evidence with a degree of caution. [487]
I accept Mr Yazdani’s submission that there was no specific mention made of any agreement with the deceased.
However, on balance, I accept Mr Maconachie’s submissions. I find that the topic of a payment of $60,000 was discussed. Interestingly, there is some tension between the evidence of Karen and Kenneth Dodds in respect of the matter. Karen was confident that the word “gifted” was the precise word used by Jennine rather than transferred. Kenneth had in his affidavit used the word “taken” to describe the payment ("/ have taken $60,000.00 from Lynette's bank account and have transferred $30,000.00 of that to my brother, Glen"). As I have recounted above, Kenneth’s cross-examination emphasised “took” and “taken”.
The issue is not whether the payment had been made but rather whether it had been done without authority or not. Whilst I am prepared to accept that Jennine did not, at least to the hearing of Karen and Kenneth, make a statement that the deceased had told her to make the payment, that fact does not determine whether the payment was authorised or not.
Even though Karen in her affidavit asserts that she recalls feeling “horrified that Jennine had confessed to me that she had taken money from Lynette after Lynette had put her trust in Jennine to help care for her up until her death”, the context of what was occurring does not present strongly as some type of confession in the sense of an admission of guilt, and I do not find that there was any confession of misappropriation of funds or admission of guilt.
My sense of the evidence is that the context was more likely a form of disclosure by Jennine that some transfers had taken place in a context in which she was then aware that the Will was at odds with what she had been promised by the deceased.
If there had been such a guilt-ridden confession by Jennine, it does not sit particularly easily with the correspondence immediately after the dinner. There was correspondence about transactions described as being “potential notional estate transactions”. However, Karen does not appear to have reported back to Mr Levido that Jennine had confessed to misappropriating funds without authority. If she did, it is not recorded in the evidence and certainly not raised by or asserted by Mr Levido in the correspondence immediately after the dinner.
On 24 September 2021, Jennine signed a renunciation of probate. [488] There was a telephone conversation between Mr Brigdon and Mr Levido on that day and further, approximately a week later, on 30 September 2021. The contents of the 24 September 2021 discussions are not disclosed in the evidence. [489] On 7 October 2021, in the concluding paragraph of a letter from Mr Brigden to Mr Levido, the following was stated: [490]
We further refer to the writer's discussion with Mr Levido on 30 September 2021, and the provision of Commonwealth Bank statements which show potential notional estate transactions. We will obtain instructions in relation to these transactions and revert in due course.
However, other than that, nothing appears to have been asserted between the solicitors, either in terms of oral discussions or correspondence, that there had been a confession by Jennine of unauthorised gifting of money to herself.
It is not a clear to me what Mr Yazdani seeks to take from the evidence of Kenneth regarding his interaction with Phillip, in particular with respect to the statement “Don’t interfere with our plan”. Mr Maconachie submitted that contextually there was nothing in the evidence which would support the conclusion that Phillip made any such statement and the characterisation of Philip as some form of “standover man” is contrary to other evidence of him in the proceedings. [491] As an alternative submission, Mr Maconachie suggested that if the word was “plan” used, it might have been in the context of a plan to challenge the Will.
Frankly, the alleged statement by Phillip is another conundrum in the case. The tenor of the evidence suggests, from Kenneth’s perspective, that as I indicated it was some sort of cunning plot or something sinister.
In any event, as noted, Mr Yazdani did not cross-examine Phillip at all regarding the events of the dinner and even though he cross-examined Jennine regarding the dinner, he did not cross-examine her on her denial regarding that matter.
In those circumstances, I decline to find that, whatever was said as between Kenneth and Phillip, it carried a connotation or bespeaks some untoward conduct on the part of Phillip or some sinister or conspiratorial plan to defraud the deceased.
Mr Yazdani submitted that the evidence relied upon by Jennine is purely oral and that the only corroboration is the assertion that representations were also made to Glen and “to a lesser extent, her husband”. [492]
Mr Yazdani made reference to evidence from the deceased’s friends Pamela, Helen, Jane, Nadia, Karen and Kenneth and from “independent third-party witnesses” being Mr Levido and Ronald, who apart from Karen and Kenneth were not called for cross-examination and their affidavits were read without objection. [493] He emphasised in relation to the deceased’s friends that many of them were in close contact with the deceased right until her passing and to whom she would directly confide in many personal matters. [494]
Mr Yazdani observed that the cross-examination of Karen and Kenneth was limited to the dinner that they had with the plaintiff and her husband on 22 September 2021 at Café 66 in Port Macquarie and submitted that the balance of their evidence should be considered in the same way as the evidence of the deceased’s other friends and acquaintances. [495]
There is no precise submission regarding how their evidence should be treated. However, the observation that their affidavits were read without any objection and that they were not cross-examined, I infer was a submission that their evidence should be accepted.
Broadly speaking, there are significant aspects of the evidence of the defendant’s witnesses which I accept. However, there are some qualifications to that. Naturally, there was not complete uniformity in the evidence of the defendant’s witnesses. Mr Maconachie, for his part, pointed to some contradictions (for example in relation to the deceased’s need for care). [496] Further, there are some other aspects which I comment on below.
Lastly, it is not completely correct to characterise the evidence of the deceased’s friends as being pristinely independent. Whilst I acknowledge that other than Karen and her husband, the defendant’s witnesses were not cross-examined and I expressly do not make any adverse findings regarding those witnesses, there are some indications in some of their evidence which transcended pure factual recounting. This included, in the case of Pamela, veiled comments regarding Jennine’s motives for caring for the deceased, [497] and, in the case of Helen, speculation about the likelihood of the deceased having made the promises to Jennine of half of her estate [498] and comment regarding the generosity of the provision recorded in the deceased’s Will for Jennine. [499]
On the whole, the Project Book does not disclose material which directly bears upon the contested facts in the proceedings.
One page of the book, page 168, which I will reproduce at the end of this judgment, is undated but contains reference to Jennine having arrived in Port Macquarie. The only clear dating on the page is what appears to reference the lodging of a Notice of Death with the NSW Land Registry Services (consequent upon Alan’s death) effected on 25 October 2020.
Mr Yazdani submitted that the notes on that page did not assist the plaintiff, in that there was nothing in respect of the page which was referable to any promise or contract, that it was of no relevance to the matters before the Court, and that I should not make any findings based on that document. [500] Mr Yazdani returned to this point and seemingly raised the possibility that the reference to “- Will part II ?” Might be some reference to the appointment of enduring guardianship. [501]
Mr Maconachie during opening referred to a number of pages in the Project Book [502] and addressed, in particular, page 168. [503] He focused on the reference to “- Will part II ?” He submitted that that writing raised a number of possibilities, including (for example) that the deceased: (a) wanted to have a Will in place because she may pass away at any moment; (b) made the Will she did because Jennine had not at that time performed her end of the bargain that Jennine pleads; (c) was still of two minds as to whether she would make a Will that honoured the promise that she had made; and (d) she was conscious that the Will made on 26 October 2020 did not accord with what she had promised to Jennine. [504] He further submitted that the whole of the Project Book in context revealed that the deceased was contemplating her demise and preparing for it. [505]
It difficult to know what to make of the note. One possibility is that, following Alan’s death, the deceased made a note of certain things that she needed to attend to which became a form of “to do” list. The reference at the top of the page to “done” might well be connected with the diagonal stroke through the page suggestive that the deceased in her own mind had attended to the matters on the page which she needed to complete.
Overall, without some particular contextualisation of the making of the notes on that page, I think drawing inferences bearing upon whether the deceased had made the alleged promise is fraught with danger and I decline to do so.
Despite an array of possible remedies from contract to estoppel and restitutionary remedies few claimants have proved successful. The sanctity of testamentary freedom and formalities has prevailed over the injustice caused to the disappointed carer.
The context is far from easy; it raises significant legal issues as well as moral dilemmas. The freedom of testamentary disposition is pitted against recognising the value of care and other domestic services, while the goal of certainty in dealings with property is never more difficult to evince than in the context of family or other close relationships.
New Zealand legislators grasped the nettle in relation to such claims over 75 years ago with statutory intervention pursuant to the Law Reform (Testamentary Promises) Act 1949 (NZ): See in particular the discussion of that legislation in Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis) at [1.38] and by Nield.
Indeed, Nield, in suggesting legislative change may be desirable, observed (at 85) that:
Yet in New Zealand testamentary promises are commonly enforced under the Law Reform (Testamentary Promises) Act 1949, a statute passed specifically to loosen the grip of testamentary freedom in the face of such promises. Under the influence of this statutory impetus, the New Zealand courts have shown a liberal and flexible approach to the interpretation of this statute that is both interesting and enlightening. They have recognised that in the personal context of the testamentary promise traditional notions of contractual promises and consideration or detrimental reliance need to be rethought. Perhaps it is time for us also to rethink our approach to the treatment of those who provide unpaid care or other services when they have been led to expect some sort of testamentary recompense.
However, that suggestion of legislative intervention has not been generally realised and, in particular, not in New South Wales. One may ponder the reasons for that. Likely, one particular explanation is the flexibility afforded under family provision legislation to take into account promises which may fall short of amounting to contractual obligations or other claims enforceable through estoppel principles.
For claims in New South Wales, conventionally, under the general law, a testamentary promise is enforceable (or otherwise) according to ordinary contractual principles and, if a claimant is successful in his or her contention, as promise, he or she receives under the contract a right to an effectual transfer of the relevant asset under the promisor’s Will: Moore v Aubusson [2020] NSWSC 1466 (Moore) per Ward CJ in Eq at [265]. [508]
The existence and terms of an oral contract are to be ascertained as a question of fact. Consideration of surrounding circumstances and post-contractual conduct is permissible when the existence or terms of an oral contract are in issue: King v Adams [2016] NSWSC 1798 per Sackar J at [65]-[69]; Moore at [332].
The requirements are not in doubt. Both counsel cited authorities bearing upon this [509] and the parties framed the issues regarding a testamentary promise accordingly.
Mr Maconachie submitted that, so long as the Court accepts that the conversation alleged by the plaintiff happened, this issue must be answered in the affirmative. He submitted that there were mutual promises by which the deceased made an offer, which Jennine accepted, and thus an agreement. [510]
Mr Yazdani essentially submitted that the Court could not be satisfied that what Jennine stated was said as it was a reconstruction.
Nonetheless, Mr Yazdani expressly acknowledged that if I found that the contents of the alleged promise conversation as set out by Jennine in her first affidavit occurred as she deposed to, it would satisfy the first element of a testamentary contract, that is that there is an agreement. [511]
Having regard to the totality of the evidence, it seems to me that most likely the conversation that the deceased had with Jennine for Jennine to be the deceased’s carer occurred on or about the date that Jennine states, namely 17 or 18 October 2020. That is because within the next few days, each of Dr Long on behalf of Dr Begbie (19 October) and Dr Blanshard (20 October) had signed correspondence seeking to facilitate from the NSW Ministry of Health a compassionate entry into New South Wales for Jennine on the basis that she would be undertaking a carer role for the deceased.
Based on that timing, the context in which the deceased telephoned Jennine included the circumstances that:
Alan had died approximately one month earlier; [512]
the deceased as at 24 September 2020 was uncertain as to how much longer she had to live (she being on the same treatment as Alan and believed that when the treatment failed there were no more options unless a new cancer trial option emerged); [513] and
the deceased felt some urgency to get her affairs in order, specifically contemplating the preparation of a Will and, as at 24 September 2020, was envisaging bequeathing her home for accommodation for “out of towners at the end of life who don't have the security and convenience of being near the services in town” as she wished “to share it with many people going through this terrible time, so the patient and a few loved ones can enjoy this sunny little villa and [its] proximity to town and services, at the most distressing time in their lives”. [514]
Mr Yazdani submitted that it happened in the context in which the deceased was still grieving, her emotions were raw, she was crying and sounded very upset when she was talking to her. [515]
Evidently, as indicated above, I accept the alleged promise conversation occurred as Jennine has depose to. On Mr Yazdani’s analysis, the first element is satisfied.
The deceased’s statement was language of promise. In ordinary parlance, that is “a declaration made, as to another person, with respect to the future, giving assurance that one will do, not do, give, not give, etc., something”. [516]
This is not a case in which there were no express promises, where the enquiry as to whether a contract was formed involves determining the issue objectively from inferences from their conduct. [517]
Mr Maconachie submitted that this issue turns entirely on the Court accepting that the conversation alleged by Jennine happened. He says that the terms were express and clear in that the deceased promised to leave Jennine half of her estate if Jennine would live with the deceased for the rest of the deceased’s life and look after her. He noted that what the deceased’s estate might hold when she died, or what care she might need were not discussed, adding that those matters did not need to be discussed. [518]
Nonetheless, in opening the case, Mr Maconachie addressed the content of the care or in the terms used above “what care she might need”, stating that the context in which the deceased asked the plaintiff to come and live with her was so that she could live out her remaining days in the same fashion as had occurred with Alan, namely the deceased caring for Alan, not in a hospital, nor an institution, but being cared for by family in their home until his death. [519]
Mr Yazdani cited passages in a number of cases elaborating on principles regarding binding intention and certainty of terms, including McBride v Sandland [No 1] (1918) 25 CLR 69 (McBride) per Higgins J at 94; [1918] HCA 32; Horton v Jones (1935) 53 CLR 475 (Horton v Jones) per Starke J at 489; [1935] HCA 7; and Varma v Varma [2010] NSWSC 786 (Varma) per Ward J at [460]; (2010) 6 ASTLR 152. I have considered those cases.
Specifically, Mr Yazdani submitted that the terms of the arrangement must be certain, citing Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous) per Gaudron, McHugh, Hayne and Callinan JJ at [24].
Mr Yazdani, in a section of the DOS dealing with the testamentary contract, cited the decision of Starke J in Horton v Jones at 489, stating “the High Court held that the agreement in that case was unenforceable on the ground that it was, inter alia, indefinite and void for uncertainty”. [520]
Further, during the hearing, Mr Yazdani raised the issue of vagueness of terms in respect of the contract claim. [521] He submitted that references to "half of my estate" and "look after me" were uncertain. [522]
It does not seem to me that there is any uncertainty about the expression “half my estate”. Indeed the simplicity of it reinforces the clarity of it.
It is wording that has been used by testators in Will documents that have been litigated over without any skerrick of a suggestion that such terminology is vague or uncertain. [524] It is terminology that has been used by Judges in describing the effects of a testamentary instrument. [525] It is consistent with statements made from time to time by testatrixes without any skerrick of a suggestion that the expression is vague. [526] Indeed usually where the expression is used, it is other related wording that creates vagueness rather than the expression “half of my estate”. [527]
A housekeeper or carer arrangement whereby A requests B “to look after” A in return for A leaving B certain provision might or might not be enforceable. However, it is not per se inherently so vague or uncertain as to be unable to afford a consideration for the benefit promise: see e.g. Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51. Ultimately, whether it is enforceable will depend on factual findings and the circumstances of each case.
Horton v Jones involved a case of testamentary promise framed as a contract in which it is alleged that the deceased had promised effectively, that if the appellant promised to make a home for him and to look after him for the rest of his life, he would leave her his “fortune”. By his “fortune”, he then described that he meant his 4/7th interest under his deceased father's Will and he also indicated he would leave her his insurance policy for £12,000. [528] Various defences were raised to the claim, including that the terms were vague and there was a lack of writing. Rich and Dixon JJ were prepared to assume that based on the evidence, it was open to a jury to find that the promise was to act as the deceased's housekeeper and attendant under his reasonable and lawful directions, and that if that was its meaning, it was not too vague or uncertain to afford a consideration for his promise to leave what he called his "fortune" to her. [529]
Starke J noted that it has been recognised that definite proposals to leave property by Will for valuable consideration have been enforced as contracts. [530] The particular issue raised by Starke J was that the proposal to "leave you my fortune" was quite indefinite and, until his death, it was uncertain what his fortune would be, he being free to deal with his property in his lifetime. For the appellant's part she was free to serve or not serve the deceased as she thought fit. His Honour did not regard the evidence as being language of obligation or contract: at 489. Evatt and McTiernan JJ concluded that the terms of the arrangement proved were too uncertain to constitute a contract. [531]
Despite seeming all-encompassing resistance to the plaintiff’s claim, there was no real dispute that the deceased had made some form of request that the plaintiff care for her. Further, there was no particular evidence from any of the deponents and witnesses involved, specifically those called on the part of the defendant, that that the deceased or anyone else made any complaint that they had no idea as to what Jennine had been requested to do in terms of looking after the deceased.
Whilst I accept that there may well be some cases in which the nature of the request is too vague for contractual purposes, I reject the submission that this is one of those cases.
In this regard, it seems to me that what Mr Maconachie stated about the context of the request essentially described what was envisaged in terms of general content of care, namely that Jennine was to come and live with the deceased so that she could live out her remaining days in the same fashion as occurred with Alan, namely the deceased caring for Alan in her home until his death.
Relevantly, Mr Yazdani submitted [532] that there must be real consideration for the agreement, citing Ermogenous per Gaudron, McHugh, Hayne and Callinan JJ at [24].
Mr Maconachie submitted [533] that consideration need not be “valuable” to be valid or effective to form a basis for a contract. It merely needs to be “legally sufficient”, noting that even nominal consideration may be sufficient, citing Silver v Dome Resources NL [2007] NSWSC 455; (2017) 62 ACSR 539 at [135] per Hamilton J, citing Thomas v Thomas (1842) 2 QB 851; 114 ER 851; Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 87.
Mr Maconachie referred to Schaefer v Schuhmann [1972] AC 572 (Schaefer), especially at 583-585, noting that this case differs from the facts of Schaefer because in this case there is no real property involved, and therefore no need for a written memorandum of the agreement. It is not quite clear to me what Mr Maconachie means by that. The deceased’s estate included real property, being the Villa. If he means that no defence regarding lack of writing was raised by the defence, that is correct. The conventional position is that a plaintiff suing on a contract is not obliged to allege in the statement of claim that the statutory requirement for writing has been complied with, rather it is for the defendant to plead and prove relevant non-compliance: Marginson v Potter & Co (1976) 136 CLR 161 per Gibbs and Mason JJ at 168; [1976] HCA 35.
The provision of care services for contractual purposes can constitute consideration: Nield at 96.
The defence, as noted, admitted that the plaintiff lived with and assisted the deceased until her admission to hospital on 1 September 2021. [534]
Jennine gave evidence as follows regarding her care for the deceased: [535]
15. Once I arrived in Port Macquarie on 19 November 2020, I moved in with the deceased and became her carer and looked after her as I had promised.
16. During my time with my sister in Port Macquarie I did washing every day, cleaned, shopped, cooked, drove her to appointments, took her out socially when she felt up to it and ensured she took the correct medications.
…
20. During the last few months of her life, as the deceased's health deteriorated, I showered her, took her to the toilet and often had to clean up a mess from the floor after a few accidents when she couldn't do it herself.
10. I refer to paragraph 20 of Jennine's Affidavit and deny Jennine's allegations that she was required to shower Lynette or take her to the toilet. I along with Nada attended numerous dinners, lunches, breakfasts and catch-ups with Lynette in the months leading up to her death. During these instances, Lynette was able to walk around and take herself to the bathroom.
11. I recall in or around August 2021, I went out for multiple lunches and dinners with Lynette and Jennine. During this time, Lynette showed no signs of needing assistance with the bathroom or showering.
11. From the time of Jennine's arrival at Lynette's home I spoke with Jennine at least daily. From these conversations, I was aware that Jennine lovingly cared for Lynette. Jennine did everything possible to make Lynette's final journey as comfortable and peaceful as possible. Jennine would tell me about her daily routine which included frequent bed linen changes, dressing / undressing her sister, washing, ironing, house cleaning, grocery shopping, cooking, driving Lynette to and from medical appointments, collecting and dispensing her medications, occasionally gardening, taking her sister out for coffee to her favourite cafe's and out for meals with friends when she felt up to it. In the later months, it also involved assisting Lynette with showering and toileting, and cleaning up accidents. Despite my pleading with Jennine to seek assistance if and when Lynette should ever have a fall, Jennine managed on 2 occasions to pick her sister up by herself following falls in the bathroom and bedroom. Unfortunately a third bathroom fall saw Jennine injure her back and she had to seek the help and assistance of a neighbour. Shortly after that, Lynette went into hospital.
..
15. I made 2 visits to Jennine and Lynette in Port Macquarie prior to Lynette's admission to hospital in September. During my visits, I assisted Jennine wherever possible, carried out a number of maintenance tasks inside the home, clipped, trimmed, weeded and watered the front and rear gardens as required and carried out some running repairs to Lynette's car. I also accompanied Jennine and Lynette whenever they ventured out, whether it was grocery shopping, out for coffee or to enjoy the odd evening out at a couple Lynette's favourite local restaurants with friends with myself covering the tab for Lynette, Jennine and myself each time.
..
17. …… I recall Lynette's friend Nada and Lynette's brother Glen caring for Lynette during Jennine's absence.
21. I refer to paragraphs 11 and 12 of Phillip's Affidavit and deny Jennine was required to provide a high level of care to Lynette. Lynette and Jennine were very active and went on numerous dinner, breakfast, lunch, and shopping outings. Further Lynette and Jennine had multiple visitors. In or around December 2020, Lynette and Jennine went on a holiday to Coffs Harbour. Lynette's condition was not so severe as to prevent Lynette being able to undertake these outings, holiday and activities.
22. I refer to paragraph 17 of Phillip's Affidavit. In late February to March 2021 during the time Jennine returned to Victoria, Nada stayed with Lynette at her home. During that time, I accompanied Lynette and Nada to multiple outings and attended Lynette's home. I did not witness Nada providing any carer duties to Lynette during this time. I was advised by Nada on or around March 2021, that whilst Nada stayed with Lynette, Lynette was self-sufficient and did not require care from Nada.
23. I received a text message from Lynette on 3 February 2021, prior to Jennine returning to Victoria, which stated Lynette was feeling well and symptoms of her condition were non-existent.
The bounds of Jennine’s stay with the deceased was (subject to the return to Victoria) from 19 November until her death on 5 September 2021. The sojourn to Victoria was for a period of about six weeks. Jennine was mistaken at least in that respect.
In terms of the content of the promise for care, there was limited cross-examination of Jennine as follows: [539]
Q. Did you ask her to clarify what she meant by "look after me"?
A. I know what looking - and didn't ask her specifically, but I know what looking after someone is, because she looked after Alan. I know what it entailed.
Q. But did she talk about the kind of assistance that she would need?
A. No.
Q. She would require from you?
A. No.
Despite fairly rigorous cross-examination in respect of many aspects of the plaintiff’s evidence, no particular attempt was made to suggest that the nature of the care which the deceased was seeking was unclear, nor to suggest that Jennine had not appropriately cared for the deceased, at least in the aspects in which she asserted. Phillip was not cross-examined in respect of Jennine’s care for the deceased.
Jennine’s and Phillip’s evidence is not inherently unbelievable. Rather, it is likely that in the months prior to the deceased’s death, she would have required some assistance. Despite Karen’s evidence, I accept Jennine’s and Phillip’s evidence regarding her care for the deceased.
In any event, it is unclear how Karen is in a position to deny Jennine’s evidence regarding it. The fact that Karen had been in attendance on “numerous” occasions in the months leading up to the deceased’s death in which the deceased was able to walk around and take herself to the bathroom and, from her perspective, the deceased “showed no signs of needing assistance with the bathroom or showering”, does not demonstrate that Jennine’s evidence is false or grossly overstated.
Further, there was some evidence given by other deponents in the defendant’s case, particularly Jane, which either supported or was consistent with Jennine giving the deceased appropriate care.
On 15 February 2021, Jane visited the deceased in Port Macquarie. [540] She states that after this visit, she continued to have communication with the deceased via text message as it was too exhausting for the deceased to speak regularly on the telephone. [541]
In or around April 2021, according to Jane, the deceased received news that her cancer had metastasised to her sacrum. She states that this “explained why the deceased was suffering longer painful episodes” and that, after April 2021, the deceased “had a short course of treatment and an increase in pain medications”. [542]
Jane gives evidence that as at 12 June 2021 when she travelled to Port Macquarie to visit the deceased, she was looking frail and had significant “unilateral leg oedema” but was still managing activities of daily living with assistance from Jennine and Phillip [543] (who had at that point travelled to Port Macquarie). During this visit, the deceased informed Jane she still had scope to increase her oral medication if the pain increased. [544]
Jane states regarding 13 June 2021: [545]
24. Later that day, I recall Lynette had an acute onset of severe pain not controlled with her medications and had spiked a fever with tachycardia. An ambulance was called and subsequently she spent the night in Port Macquarie Base Hospital, where her pain was managed. When Lynette returned home the next day, she said to me that she thought she was becoming a burden, and she would be agreeable to having the same home nursing care that Alan had during his palliative term.
25. From my visit with Lynette until her passing, I understand Lynette remained in her home however she had several falls, the last fall being on 2 September 2021.
Mr Maconachie submitted [548] that Jennine obtained a COVID travel permit, spent two weeks in quarantine in Sydney, moved to Port Macquarie to live with Lynette for “what turned out to be about ten months” (with a 10-day hiatus to attend to personal and medical matters) and attended to domestic care of the increasingly ill and needy Lynette”. [549]
Further, he submitted based on Jennine’s evidence that she undertook washing, cleaning, shopping, cooking, supervising Lynette’s medication and conveying Lynette to appointments and social occasions, [550] Jennine fulfilled her obligation under the agreement.
Mr Maconachie also contrasted the evidence of Karen with the evidence of Jennine and Jane. [551] Jennine for example says that she assisted Lynette with showering and toileting whereas Karen denies that.
Mr Yazdani did not as I understand him put any submission or at least any specific submission that Jennine had failed to appropriately care for the deceased.
It is not necessary for me to assess in great detail each of the criticisms of Mr Maconachie of the conflicting evidence of the defendants.
It is undoubtedly the case, even on the evidence of both Jennine and Phillip, and Jane and Pamela, that the deceased was frail, her condition declined over the period of time that Jennine was there, and that Jennine assisted her appropriately.
The fact that Pamela included a gratuitous comment in her affidavit to the effect that “had I known Jennine was caring for Lynette because she was getting a share of Lynette’s estate I would have viewed things differently” [552] does not particularly undermine the concession as to what had been observed as distinct from Pamela’s personal judgement about Jennine’s motive.
I find that Jennine provided real and relevantly “legally sufficient” consideration in moving to Port Macquarie for the period that she did to take care of the deceased in the form of completing household tasks like the washing, cleaning, shopping, cooking, driving her to appointments, taking her out, and, at some points, showering her and helping her toilet.
[25] Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances [(1962) 108 CLR 130 at 154; Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 at 367 per Windeyer J], not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties [Masters v Cameron (1954) 91 CLR 353 at 362 per Dixon CJ, McTiernan and Kitto JJ; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549 per Gleeson CJ] (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened [Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348-353 per Mason J; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5]. It is not a search for the uncommunicated subjective motives or intentions of the parties.
The modern approach is to avoid use of presumptions as to whether or not some family arrangements are intended to give rise to legal obligations. [553]
Mr Yazdani also in particular made reference to McBride and Re Gonin [1979] Ch 16 at 32. [554]
Mr Maconachie submitted [555] that regard may be had to subsequent conduct in considering whether the parties intended to enter into a binding agreement, citing Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605; [2015] NSWCA 313 at [118] per Beazley P.
He also cited Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3 at [33] as follows: [556]
As I observed in Bovaird v Frost (at [52]), there are of course many examples of cases involving promises to confer benefits on a friend or relative, in consideration of the latter taking up residence with the former or rendering household or personal services, in which the requisite intention to create legal rights and obligations has been found - particularly where implementation of the arrangement involved the promisee leaving existing advantages or selling an existing residence [ Wakeling v Ripley (1951) 51 SR (NSW) 183; Todd v Nicol [1957] SASR 72; Parker v Clark ; Schaefer v Schumann [1972] AC 572; Tanner v Tanner [1975] 1 WLR 1346; Raffaele v Raffaele [1962] WAR 29; Re Gonin (deceased) [1979] Ch 16]. In Wakeling v Ripely, the act of the plaintiff in leaving a salaried position in Cambridge on the faith of a promise to take up accommodation in Bowral, was considered so serious that it would have been obvious to the defendants that the plaintiffs were relying upon what was considered a definite assurance and a definite agreement, such that it could be inferred that there was an intention to create legal relations; this may be contrasted with Jones v Padavatton*,* supra. But in this context it is also recognised that a sacrifice might be made in reliance upon a promise on the basis simply of trust in the promisor to honour the promise of support, not because of an intention to create legally binding relations [see Jones v Padavatton*,* 625 (Fenton Atkinson LJ); Darmanin, [209]].
Mr Yazdani submitted that there was no intention that the deceased and Jennine would enter into legal relations. [557] Initially he made 2 points.
First, he submitted that Jennine’s conduct was inconsistent with a legally binding arrangement. In this regard, he made reference [558] to Jennine’s evidence that she went to Port Macquarie to be with her sister as “it was the right thing to do and I loved my sister so that was a natural response” and to the fact that she at no point asked the deceased to put the agreement into writing, suggested they see a solicitor to draft up the agreement, nor asked to see a copy of the Will.
Secondly, he referred to the evidence of a number of the defendant’s deponents said to be inconsistent with an intention that the arrangement be legally binding.
Specifically in this regard he referred to:
Helen’s evidence [559] that:
I visited Lynette just days after Alan's passing on 14 September 2020 as I was concerned about her terminal condition and situation with her own illness. Lynette at the time reassured me that when the time came Jennine had promised to come up and care for her as an act of family love as we would all do for our own siblings, not expecting anything in return.
I was aware from conversations with Lynette in or around November 2020, that her sister Jennine Catherine Mills ("Jennine") had travelled from her home in Victoria to Port Macquarie to look after her. It was my understanding from what Lynette told me that Jennine was doing this as an act of familial care and love The impression I was given by Lynette was that she and Jennine were reconnecting before her imminent death. Annexed hereto and marked "JHC -02" are copies of text messages from Lynette. [561]
7. I recall one deep conversation about two weeks after Alan's death in September 2020.
8. The conversation was at Lynette's house in Home Street, Port Macquarie. It was following the death of husband, Alan, on 28 September 2020. She said to me: "My sister, Jennine is going to come and stay with me and look after me. She will have to quarantine for 2 weeks in a hotel in Sydney. I am happy to pay for her airfare and accommodation."
9. Lynette also told me: "It was Alan and my wishes for our estate to go to the Cancer Council and WIRES".
Mr Yazdani referred to Phillip’s text response to the deceased on 3 February 2021, [563] submitting it confirmed the only reason why Jennine did what she did in going and assisting her sister was for that filial love and because it was the (morally) right thing to do. [564]
Building on that, Mr Yazdani submitted that there was no intention to create legal relations. [565]
Mr Yazdani then made particular reference to certain decisions including Todd v Nichol [1957] SASR 72, especially at 79-80, [566] Moore, especially at [267]-[268], [567] and Wakeling v Ripley (1951) 51 SR (NSW) 183, especially at 186-187. [568] The reference to those decisions was in part to support propositions that in this case the Court would not infer that there was an intention to create legal relations as Jennine did not have to sell her home or sell anything to move from Victoria to New South Wales, she did not stay in New South Wales indefinitely, it was always the case that she would return to her home in Victoria, there was no exchange of letters or other evidence that the deceased made a Will reflecting any such agreement, and there was no “life changing decisions made by the plaintiff in the context of having to give up something material”. [569]
Later in submissions, he made 12 points in this regard (to some degree reiterating points that he had previously made): [570]
First, this conversation took place in a family social context immediately after Alan had died, in which the deceased was still grieving, upset and crying.
Second, the plaintiff's motivation for her acts and performances of kindness towards the deceased were largely based on sisterly love and natural affection, and the plaintiff's ongoing and continuing performance of kindness and attention to the welfare of the deceased because she thought that that was the right thing to do. The arrangement between the deceased and the plaintiff was an arrangement of trust and mutual affection, but it was not of a contractually binding nature.
Third, the evidence does not establish such an extraordinary level of commitment as might warrant a conclusion that it could only have been referable to a binding contract, such as, for example, leaving, desisting advantages, obtaining a loan, mortgaging a property or selling a property.
..
Fourthly, your Honour should find that the plaintiff's evidence is self‑serving, with an absence of any objective corroborative evidence.
Fifthly, at its highest, the conversation said to have taken place between the deceased and Lynette warrants a mere expectation or hope on the part of the plaintiff that she would benefit under the deceased's will if she looked after her.
Sixthly, the purported testamentary promise is inconsistent with the immediate subsequent conduct of the deceased who shortly thereafter made her will which was clearly not in accordance with any such promise alleged to have been made only a few days or weeks prior.
Seven, the plaintiff has made no record of the alleged contractual arrangement, no independent written corroboration.
Eight, the plaintiff did not raise the allegation of contract with the deceased or indeed with anyone else, did not specifically raise it with anyone else until the letter sent to Mr Levido on 7 October 2021.
Nine, the fact that the plaintiff performed acts of the kind encompassed by the arrangements she contends does not establish that this was pursuant to a binding contract.
Ten, even if there was a testamentary promise, it was revocable at any time before death. There is no evidence that the plaintiff believed that or that the deceased objectively bound herself to a situation whereby any promise by the deceased as to her will was irrevocable, and the plaintiff accepted during cross‑examination that the deceased could at any time cancel her will.
[Eleven], the irrelevant arrangement, having been founded in family situations, your Honour could infer from that that the parties did not intend their arrangements to be reviewable by the Court or amenable to processes of enforcement by the state.
Lastly, a promise does not equate to a contract. The performance of assistance by the plaintiff, for the deceased, was, the defendant says, not referrable to any pursuance of any contract that she receive half of the estate or any contract at all. The plaintiff was free to leave Port Macquarie whenever she liked, and no action for damages, or to enforce any alleged contract, could have been sought by the deceased against her. But even if there was an agreement, which we say there was not, it was not such as in equity, as such that equity would enforce it.
614. Secondly, the conversations took place in a context fairly immediately after Myron had died.
615. Both in Natalie's evidence in chief and in cross-examination she accepted that the deceased was upset and grieving and that the conversation was "raw" because it was after the death of her father: T 52.
616. Further, there is a real doubt in my mind as to whether what was said was ever intended to be some legally binding promise between family members, as distinct from an expression of spontaneous goodwill from a mother in grief at the loss of her child.
617. There is a serious issue as to whether such a conversation is intended to give rise to legal relations.
618. As Slattery J has noted, the High Court no longer frames such questions in terms of presumptions. It is no longer presumed that in domestic transactions the parties do not intend to create legal relations. Rather, the modern approach is that the plaintiff has the onus of proving that there was an intention to create legal relations: Steiner v Strang [2016] NSWSC 395 at [117] citing Ermogenous v Greek Orthodox Community of SA Inc at [105]-[106] (Gaudron, McHugh, Hayne and Callinan JJ).
- No doubt the defendant will draw on the sibling relationship between Lynette and Jennine to urge the Court to presume otherwise. The Court would be very reluctant to find such a presumption in respect of adult siblings well above the age of majority, living in different States, and where prior to the agreement Jennine was living happily with her husband and close to her friends.
- The Court would be even less inclined to find a presumption based upon familial bonds where the defendant’s case is that the sisters’ relationship was “conflicted”, and Lynette regarded Jennine as having betrayed her and selfishly left her to care for their parents without Jennine’s assistance. In those circumstances Lynette could not be taken to have expected Jennine to uproot her comfortable life and move inter-State during the COVID pandemic by reason of close familial bonds alone.
- …In this case Jennine, Phillip and Glen went to see Lynette’s solicitor, Mr Levido, a matter of days after he sent Jennine a letter enclosing Lynette’s will. [574]
- Mr Levido’s evidence is that they told him “there was supposed to be additional provision made for Jennine Mills, as she had given up a lot to look after her sister”. [575] Mr Levido advised them that Jennine needed to seek her own independent legal advice. [576] Jennine knew that Mr Levido was Lynette’s solicitor because she had attended upon him to accept the appointment as Lynette’s attorney and guardian. [577] That Jennine’s first instinct upon reading Lynette’s will was to approach Lynette’s solicitor strongly suggests she had expected Lynette to be legally bound by her promise.
- Jennine was the only witness to the agreement with Lynette; however, she told Phillip about it immediately, and Lynette had foreshadowed it to Glen days before making the offer to Jennine. It is significant that Jennine, Phillip, and Glen attended upon Mr Levido promptly upon receipt of the will. Mr Levido’s account of what they put to him is remarkably similar to Jennine’s account of the agreement. Mr Levido’s evidence not only supports that Jennine understood the agreement to be binding, it is also powerful evidence that her account of the agreement is truthful and accurate. The Court would be satisfied that the agreement the subject of Jennine’s claim was entered into, and amounted to a legally binding contract.
Q. It’s the case, is it not, that the only reason why you agreed to go to Port Macquarie as soon as you could, was because you thought that, as a sister, it was the right thing to do?
A. Yes.
what was put to the witness that "the only reason you agreed" doesn't do what Lord Herschell expressed as being required and that is to make it perfectly clear what is being impeached. What needed to be put in my submission is that a promise from Lynette that half of Lynette's estate did not influence Jennine to move to Port Macquarie, the point about the promise was hidden with respect to my friend in his question. He didn't squarely put Jennine on notice that that's where he was going and the point wasn't clear to the witness.
137. A promisee or representee has the onus of establishing that she or he believed the promise or representation made by the promisor or representor and of establishing that, on the faith of that belief, the promisor or representee took a course of action or inaction that would turn out to be to her or his detriment, were the promisor or representor to be permitted to depart from the promise or representation. The promisee or representee does not need to establish that the belief to which she or he was induced by the promise or representation was the sole or predominant cause of the course of action or inaction engaged in by her or him. It is only necessary to establish that the belief was a contributing cause.
138. The primary judge held that, for Duncan to establish detrimental reliance on the assumption and belief that Gordon encouraged, namely that he would inherit Gordon’s estate on his death, it was necessary for Duncan to show that he would have acted differently if Gordon had not encouraged him in that assumption and belief. The test is not whether Duncan would have acted differently if Gordon had not encouraged his assumption and belief but whether he was influenced, in a significant or material way, such that it was a contributing cause to his conduct or made a difference to his action or inaction, so that it would be unconscionable for Gordon to resile from the assumption and belief that he induced in Duncan.
Having regard to the evidence overall, clearly there was some engagement by Mr Yazdani in relation to the reasons as to why Jennine travelled to Port Macquarie. It is not clear to me that Mr Yazdani expressly challenged Jennine as to the role that the alleged promise played in relation to her detrimental reliance claim.
Having said that, it is not clear to me that Mr Yazdani is necessarily precluded by reason of the rule in Browne v Dunn from putting a submission that Jennine was not motivated by the promise but only by filial considerations. I consider the issue of reliance was generally in contest.
Overall, I prefer to deal with the matter on the basis that the tenor of the plaintiff’s evidence is as I have stated above, and sufficient to establish reliance on the promise. I am not persuaded that the alleged promise to receive 50% of the value of the deceased’s residuary estate was immaterial or not a sufficiently contributing cause to Jennine’s conduct or did not make a difference to her reason why she did what she did was in reliance upon the alleged promise.
Despite Mr Yazdani’s numerous points and valiant attempts to persuade me that the promise was not intended to be legally binding, I reject that contention.
The fact that at no stage in a conversation anything is said by one party that conveys to the other that what is being promised is to be legally enforceable is not determinative of the matter. [581]
Jennine’s evidence in chief does not contain any express statement that the reason or a contributing reason as to why she travelled to Port Macquarie is because of the alleged promise to receive 50% of the value of the deceased’s residuary estate. However, that of itself is not conclusive of whether there was an intention to create legal relations.
Objectively, I consider that there was such an intention.
In context, all aspects of the subject matter were very serious issues. The deceased had cancer. She had a need for not only companionship but specific care. She wished to be cared for in her home. The anticipated care was not on any view minimal. She had a number of close friends but had chosen not to approach any of them to assist. The fact that the deceased spoke with Glen in the alleged precursor conversation, which I accept, is suggestive to me that the deceased was conscious that what she was anticipating asking the plaintiff was of no small moment. The alleged precursor conversation is at least consistent with the deceased being mindful of the significance of what she was proposing to ask and attempting to gauge a likely reaction from her sister.
On the evidence which the defendant led regarding the deceased’s testamentary intentions of the beneficiaries regarding her residuary estate (which evidence I accept), it was no small thing for the deceased to make an offer of half of her estate to the plaintiff.
On the plaintiff’s version, which I accept, the deceased raised the prospect of testamentary benefit. What she was proposing was a very significant financial value. Whilst the period of time during which the plaintiff might be required to leave Victoria and care for the deceased was indeterminate, it was not anticipated as being for a minimal period of time but in the order of about 3 to 6 months.
The finding that there was an intention to create legal relations is supported by the words used by the deceased which both invoke terminology of promises and contain recognition that what was being asked for was “a lot” in the context in which the deceased recognised that she had no other options.
It was no minor matter for Jennine to upend her life in Victoria during COVID-19 to go and care for her sister.
The fact that Jennine responded in cross-examination that she only went to Port Macquarie because it was the right thing to do, does not to my mind deny that a promise was made or that it was intended to be legally binding. The fact that Jennine did not request to have the promises documented or to see a copy of the Will is explicable by the fact that she trusted her sister and had no need for documentation. The promise was enough for her.
10. I immediately spoke with my husband Phillip about the discussion I had with the deceased. I don't now recall the exact words we spoke, but I do recall that I told Phillip of the deceased's prognosis of 3 to 6 months, the promise she had made to leave me half of her estate to look after her, and that I had agreed to move in with the deceased and look after her until she died. I asked Phillip for his blessing which he gave. Phillip told me that it was the best thing I could do for my sister.
…
15. Once I arrived in Port Macquarie on 19 November 2020, I moved in with the deceased and became her carer and looked after her as I had promised.
…
25. Aside from my conversation with the deceased in October 2020 as deposed to above, I did not ask the deceased about her will and we did not discuss it, although I had assumed that she had made arrangements to change it.
…
49. When I received a copy of the deceased's Will I was very shocked and disappointed that she didn't keep her promise to leave me half of her Estate.
50. Following my receipt of the deceased's will, I spoke to my brother Glen and we had a conversation that I recall as follows:
Plaintiff: I am so upset. Lynette promised me half of her estate for looking after her but her will leaves almost all of her estate to charity.
Glen: Lynette rang me before you went up to live with her. She asked if I thought you would go and live in Port Macquarie and look after her if she promised you half of her Estate. I said to her I am sure that you would, but she would have to ask you.
Plaintiff: She did, and I agreed.
The cross-examination, as noted above, touched upon the alleged promise conversation, [583] a subsequent conversation seemingly fairly immediately after the initial conversation, [584] and her actions thereafter.
Part of that cross-examination included the following: [585]
Q. Can I take you to page 47 of the court book? Can you please go to paragraph 25 where you say, "I did not ask the deceased about her will and we did not discuss it, although I had assumed that she made arrangements to change it". Do you see that?
A. Yes.
Q. So your evidence is that she just offered to make a will, and you accepted her offer simply on the basis that you just assumed that she would make that will?
A. Yes.
Q. Is it your evidence that you expected that Lynette would make a will leaving you half of her estate?
A. Yes.
I accept Jennine’s evidence that she expected that the deceased would make a Will leaving her half of her estate.
Having said that, I also accept that Jennine was motivated in part to agree to what the deceased proposed as Mr Yazdani put it “out of familial sisterly love, mutual love and affection and because it was the right thing to do”. [586]
However, I do not accept that those matters preclude an intention to create legal relations. [587] It does not seem to me that the two are necessarily mutually exclusive. The deceased’s text correspondence with Phillip on 3 February 2021 highlights the deceased’s perception of Jennine’s agonising over the matter of whether to stay in Port Macquarie or go back temporarily to Victoria and the deceased’s own understanding of the significance of what she had asked Jennine to do.
Lastly, I have given anxious consideration to Mr Yazdani’s submissions. The following may be observed in relation to Mr Yazdani’s 12 points.
Self-evidently, the context was at least partly familial. I also accept that the context was one in which the deceased was still grieving. However, the deceased was also attempting to secure care for herself for the remainder of her life which was expected to at least be no less than three months. The subject matter was serious.
Rather ironically, the evidence that Mr Yazdani relied upon to seek to establish that there was no intention as between the deceased and Jennine for the alleged promise to be legally binding, is, on one view, counter to his case theory that relations between the deceased and Jennine were not good. Helen was told that Jennine was coming as an act of familial love not expecting anything and Jane’s impression based on what the deceased told her was Jennine “was doing this as an act of familial care and love”. Whilst I accept that the arrangement between the deceased and Jennine involved trust and mutual affection, I am not persuaded that it was substantially based upon that. Their lives had taken divergent paths.
I reject the notion that an extraordinary level of commitment was necessary in order for the arrangement to be contractually binding. Whilst it is relatively common for children to look after ageing parents, it is less common for an adult sibling who has lived at least the last several decades of their life separately from another sibling in a different state to move to another state in the midst of a pandemic to care for that other sibling. I regard that as being a level of commitment that transcended what might ordinarily be expected as between adult siblings.
I have accepted the plaintiff as a witness of truth relevantly as to the alleged promise conversation. I do not regard her evidence as being self-serving if what is meant by that is that it was reconstructed evidence.
Having accepted the plaintiff’s accounts of the conversation, I reject the submission that the deceased only gave a mere expectation or hope of testamentary recognition to the plaintiff.
Whilst there was a very specific focus by Mr Yazdani on what I will describe as “initial” issues as to whether any contractual obligation arose, there was little or no focus in Mr Yazdani’s submissions on whether, if a contractual obligation existed, it had been breached or the extent of damages consequent upon any such breach.
The deceased’s failure prior to her death to make a codicil or new Will leaving Jennine half of her estate as promised constituted a breach of contract. [589]
In light of the findings that I have made above, it seems to me that there was such a breach by the deceased and I so find.
There was some slight debate which I have noted above regarding the value of the estate. Prima facie, the damages are half the value of the deceased’s residuary estate.
Both counsel [590] cited familiar authorities said to deal with promissory estoppel including Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 per Brennan J at 428-429; [1988] HCA 7; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 per Priestly JA at 610; Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106 (Zugic) per Ward CJ in Eq at [272]; Varma at [485]; Slade v Brose [2024] NSWCA 197 (Slade) per Ward P at [203]. (I note that Slade is a proprietary estoppel case).
The issues, in relation to the claim in respect of what they agreed was promissory estoppel, were framed by reference to the following six elements (bearing close connection to Barrett JA’s summary in Van Dyke v Sidhu (CA) at [40] (Basten JA at [1] at Tobias AJA at [148] agreeing)):
there was a clear and unequivocal promise (such that it was objectively reasonable for the plaintiff to interpret the promise in a particular way and to act in reliance on that interpretation);
the deceased’s promise caused the plaintiff reasonably to assume that a particular legal relationship existed between her and the plaintiff;
the plaintiff acted reasonably in reliance on the promise;
the deceased knew or intended that the plaintiff would act in reliance on the promise;
the plaintiff’s reliance on the promise was to her detriment; and
the deceased acted unconscionably in not honouring the promise.
Mr Yazdani submitted [591] that a distinction has usually been drawn between arms-length/commercial cases and domestic or family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption, citing for example, DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) (2011) 83 NSWLR 728; [2011] NSWCA 348 at [105] per Handley AJA; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 at [68] per Lord Walker of Gestingthorpe, cited with approval in, inter alia, Zugic at [277].
As to the requirement for any promise to be clear and unequivocal, Mr Yazdani made further reference [592] to Zugic at [273]-[277].
Mr Yazdani submitted [593] that the detriment that makes a promissory estoppel enforceable is that which the plaintiff would suffer, as a result of her original change of position, if the assumption which induced it was repudiated [594] by the party estopped (i.e., the deceased), as distinct from loss flowing from non-fulfilment of the promise or assurance, citing Dixon J in (1937) 59 CLR 641 at 674-675; [1937] HCA 58; (1983) 152 CLR 406 at 437 per Mason and Deane JJ; [1983] HCA 11; (1990) 170 CLR 394 at 415 per Mason CJ, 429 per Brennan J, 445 per Deane J; [1990] HCA 39.
- Lynette’s promise was simple and clear. She would leave half of her estate to Jennine if Jennine would live with and care for her until she died.
- The promise was foreshadowed to Glen in terms that are consistent with Jennine’s understanding, and Jennine conveyed the promise to Phillip immediately upon receiving it.
- Mr Levido’s evidence is that Glen did most of the talking on 15 September 2021. Mr Levido’s recollection is different to, but not materially inconsistent with Jennine, Phillip, and Glen’s.
- The Court should have no difficulty finding that the promise was sufficiently clear for the purposes of equitable estoppel by encouragement.
Mr Yazdani, in submissions, expressly acknowledged that if I found that the contents of the alleged promise conversation as set out by Jennine in her first affidavit occurred as she deposed to, it would satisfy not only the first element of a testamentary contract but also the first element of promissory estoppel. [597]
Despite that, he also submitted that the Court should not be satisfied that there was a clear and unequivocal promise as the words said to be attributed to the deceased were too vague and uncertain to establish to support an estoppel in this instance. [598] Specifically, Mr Yazdani submitted that the expressions “half of my estate” and “look after me” were “on one view” vague and uncertain and not specific. [599]
Mr Maconachie submitted [600] by reference to comments of Ward P in Slade at [201] that it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist. It is unconscionability which will be decisive.
It is helpful to set out more fully what the President stated at [199]-[206]:
- The Slades have pointed to the well-known formulation of the elements common to the doctrines of equitable estoppel (or which proprietary estoppel by encouragement is one) by Brennan J, as his Honour then was, in Waltons Stores v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7 (Waltons Stores), emphasising the first of those elements, namely an assumption or expectation that a particular legal relationship between the parties then existed or would exist (and in the case of the expectation of a future legal relationship that the defendant would not be free to withdraw therefrom the expected legal relationship), in submitting that what was required here was for the Broses to establish that they reasonably understood that the promises made to them were irrevocable.
- However, it has been made clear that his Honour’s elements are not to be applied in every case in a “mechanical fashion” (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] (Gleeson JA, with whom Beazley P and Leeming JA agreed); DHJPM at [47]; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 615-616 (Priestley JA)).
- In particular, the broader view reflected in the joint judgment of Mason CJ and Wilson J in Waltons Stores has prevailed (as recognised by White J, as his Honour then was, in Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717 (at [145]-[147]), affirmed on appeal in Doueihi). It is not necessary for a plaintiff to show that he or she assumed or expected that a “particular legal relationship” existed or would exist (see Doueihi at [153]-[170]). Nor is it necessary to show that the promise was irrevocable. It is unconscionability, rather than “ticking the box” of each of Brennan J’s elements, which will be decisive (Doueihi at [166]-[167]) (see also Giumelli v Giumelli at 121).
- True it is that there must be a careful identification of the nature of the assumption or expectation held by the plaintiff (to be assessed by reference to the circumstances of each case) (Doueihi at [186], citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 445; [1990] HCA 39; see also Thorner v Major at [56]) but the requirement of certainty for a representation or promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel. See Flinn v Flinn [1999] VSCA 109, where Brooking JA (with whom Charles and Batt JJA agreed) concluded (at [80]) that “a promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined” (see also Delaforce at [55]; Evans v Evans [2011] NSWCA 92 (Evans v Evans) at [116], [121] (Campbell JA, with whom Giles JA and Sackville AJA agreed); DHJPM at [54]).
- In Galaxidis, Tobias JA said (at [93]) that the representation or promise is sufficiently clear “if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely”. See also the similar statement by Hodgson JA in Sullivan v Sullivan [2006] NSWCA 312 at [85] (McColl JA agreeing).
- While a distinction has sometimes been drawn in practice between arms-length/commercial cases and domestic/family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption (see, for example, DHJPM at [104]-[105]; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55 at [68] per Lord Walker), in the present case this does not assist the Slades since the representations were clearly in a family context (as made clear by the ongoing emphasis on succession planning).
- It is also relevant to note that the expectation reasonably derived from another’s words and actions “need not depend on the words of a single conversation, but could arise from conduct over a period of time” (Evans v Evans at [107]). This is of particular relevance in the present case where the criticism made of the primary judge is that he found a “rolled up” representation.
- Finally, and also of particular relevance to the present case, a proprietary claim does not necessarily fail simply because the representations or promises are conditional or subject to limitations (see Campbell JA in Waddell v Waddell at [53]).
Mr Maconachie, whilst maintaining that it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist, nonetheless submitted that the Court would be comfortably satisfied that this issue be resolved in the affirmative. [601]
Mr Yazdani contended that the Court should not be satisfied that any particular legal relationship was assumed by the plaintiff and the deceased and, at best, the only relationship that they could conceivably assume was that of beneficiary in the context of the deceased making a Will in the plaintiff’s favour in which she was to receive a pecuniary legacy of $20,000 and a motor vehicle. [602]
Clearly, it is not a necessary requisite for promissory estoppel for the parties to be in an existing legal relationship when the promise is made: Denis S K Ong, Ong on Equity (2011, Federation Press) at 222-223.
I accept it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist.
Nonetheless, to the extent that I am incorrect in that and it is necessary to point to some assumption of a legal relationship, it seems to me that Jennine assumed that there was an oral contract [603] by which the deceased had promised to leave Jennine “half of my estate when I die”, the implication being that the deceased would make a Will in which Jennine would be a beneficiary in that sense.
Having regard to the plaintiff’s claim in the statement of claim (which was verified) [604] and the evidence I have outlined above in dealing with intention to create legal relations, it seems to me that the tenor of the plaintiff’s claim is that she was influenced, in a significant or material way, by the alleged promise to receive 50% of the value of the deceased’s residuary estate, such that it was a contributing cause to her conduct or made a difference to her reason why she did what she did. Therefore, she acted in reliance upon the alleged promise.
Phillip was briefly cross-examined on his text correspondence with the deceased on 3 February 2021, in particular, the passage: [605]
"I truly wished we lived close‑by so Jennine could keep a close watch on her very cherished little chook sister. She would be like your own little personal Mother Teresa,"
Q. Why were you comparing your wife to Mother Teresa?
A. Because of the work or the caring support that she'd given to her sister.
Q. Is it because she was assisting her terminally‑ill sister because it was simply the right thing to do?
A. It was a heartfelt thing to do, correct.
Q. It was a heartfelt thing to do, and that was the only reason why she was there assisting her sister?
A. Yes.
Ultimately, whether a promise is intended to be legally binding depends upon an assessment of the relevant facts. Thus, whether any, and if so what, representation has been made is to be judged “objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee”. [607]
In the scheme of cases of detrimental reliance, the arrangement was as not as life changing and dramatic as some but not as unremarkable as others. It seems to me that the arrangement was sufficiently significant to give rise to detrimental reliance. In the midst of a pandemic, the plaintiff left her husband for a period of time to go interstate, quarantine for a period of 14 days and then commence care for a sick sibling for a period of time which was necessarily uncertain but based on the discussion might well be a period of between about 3 to 6 months. [608]
In October 2020 Lynette had no dependents or other individuals who Jennine ought to have considered to be the natural objects of Lynette’s testamentary obligations. Jennine was Lynette’s sister. Until Jennine read the affidavit evidence served on behalf of the defendant Jennine had no idea that Lynette held her in contempt and regarded her as a traitor. Jennine believed that their relationship was never fractured and always close. [610] In those circumstances it was entirely reasonable for Jennine to act in reliance on Lynette’s promise and relocate to care for Lynette in reliance upon Lynette’s promise.
Mr Yazdani asserted that the Court should not be satisfied that there was any reasonable reliance on the part of the plaintiff. [611] He described it as being artificial and unrealistic. [612] He made a number of points.
First, he submitted that it was simply implausible that the deceased did not discuss the terms of her Will with the plaintiff. [613]
Secondly, he referenced what he said was corroborated evidence from independent witnesses that the deceased specifically did inform the plaintiff what she was to receive under the Will, and the plaintiff was aware of the contents. [614]
Thirdly, he submitted that none of the deceased’s closest friends ever recall that the deceased told them that the plaintiff was to receive half of the residuary estate or, indeed, anything more than the pecuniary legacy of $20,000 and the car. In this regard, he referenced evidence from Pamela, Helen and Nada. [615]
Fourthly, he noted that the plaintiff accepted that she was aware that the deceased had made a Will with Mr Levido, and she (the plaintiff) did not tell Mr Levido about any promise or agreement. [616]
Fifthly, during the 22 September 2021 dinner, there was no reference at all of any promise or agreement. [617]
Lastly, he submitted that the plaintiff accepted during cross-examination, that the only reason why she decided to move to Port Macquarie to look after the deceased was because it was the right thing to do. [618]
The plaintiff’s pleaded estoppel claim is that she relied upon the deceased’s representation that she would receive “50%” of the value of the deceased’s residuary estate upon the deceased’s death and undertook certain acts including travelling to New South Wales, moving into the deceased’s home, living with her and caring for her. [619]
I reject Mr Yazdani’s submission that Jennine’s alleged reliance was “artificial and unrealistic” as distinct from being reasonable. It is not clear to me what the words “artificial and unrealistic” are intended to convey. Clearly they cannot attach to what Jennine actually did in leaving Phillip and her life in Victoria, quarantining in Sydney and caring for the deceased.
Mr Yazdani’s first submission about implausibility of discussion of the terms of the deceased’s Will is answered by the plaintiff’s version of the alleged promise conversation she had with the deceased. It is quite clear that the deceased did tell the plaintiff about certain aspects of her Will. The fact that the deceased did not disclose to her friends that she had promised the plaintiff half of her residuary estate is, I accept, a conundrum. However it is not decisive against the fact that the promise was made (I accept it was made), and whether Jennine acted reasonably in her reliance. I find that she did. Mr Yazdani’s other submissions have in a sense already been dealt with by me above.
Mr Yazdani stressed that even if the Court were minded to accept that the plaintiff’s reliance on the promise was reasonable (which is denied), the Court should not be satisfied that the deceased knew or intended that the plaintiff would act in a particular way that she alleges in purported reliance upon her statement. [620]
Mr Maconachie submitted that this issue must be answered in the affirmative. He contended that: [621]
Lynette provided Jennine with doctor’s correspondence so that Jennine could arrange a COVID travel pass. [622] Lynette paid for Jennine’s time in quarantine and her travel. [623] Even if Lynette didn’t need Jennine for domestic care, she did “need my little friend up here to play with!!” [624] Only if satisfied that Lynette did not make the promise the subject of the claim could this issue be decided against Jennine.
I addressed principles regarding detrimental reliance in Stojanovski v Stoyanovski [2024] NSWSC 1582 (Stojanovski) at [282]-[289], albeit in a context of proprietary estoppel by encouragement.
Non-monetary detriment is sufficient to support an estoppel, whether it be “the abandonment of an advantageous lifestyle, the provision of voluntary services, or both.” [625]
Even if not a breach of contract, Jennine had cared for Lynette for about nine-and-a-half months. She had done so far from home, away from her husband and her friends. Jennine endured two-weeks isolation in quarantine in order to attend to Lynette. Once with Lynette Jennine tendered to tasks, some of which were menial home-duties, some of which were challenging and unpleasant. She attended to those tasks night and day. Jennine’s change of circumstances was clearly detrimental to the life she left behind to care for Lynette. Jennine incurred that detriment in reliance upon Lynette’s promise…..
Given that the defendant has raised detriment as an issue to be determined, she apparently does not concede that element of the estoppel claim. That is despite the defendant’s witness Nada Mion considered that Lynette’s relocating to care for her father was a sacrifice. [629] Ms Mion also regarded Lynette’s caring for Alan at home to have been detrimental to her own health. [630] It appears that the defendant regards that Lynette’s relocation and care for dying relatives to have been a taxing detriment, but that Jennine’s relocation and involvement with Lynette through Lynette’s end-of-life was not.
Mr Yazdani disputed that there was any relevant detriment on the part of Jennine. [631]
First, he submitted there was no financial or material detriment in Jennine travelling to Victoria to look after her sister as her travel and accommodation costs were covered by the deceased. [632]
Secondly, he stressed that the deceased, during the course of the plaintiff's stay with the deceased, made a number of gifts of large amounts of cash, at least to the sum of $30,000. Pausing there, the reference to $30,000 I take to be the payments from the deceased’s Smart Access account on 12 January 2021, 26 April 2021 and 19 July 2021. [633] There is evidence from Nada that by 16 November 2020, the deceased had told her that she had given Jennine $10,000 for jewellery. If that is the case, then the “large” cash payments were in total $40,000. However, there is no account statements of the deceased in the Court Book demonstrating a sum of $10,000 coming out of the deceased’s accounts prior to 16 November 2020. Further, Mr Yazdani did not specifically reference a sum of $40,000 as having been received in cash by Jennine.
Specifically, he submitted that I should find, contrary to the plaintiff's evidence, that the deceased did make gifts of clothes and shoes to the plaintiff and that the deceased covered all of the plaintiff's expenses during her stay with the deceased. [634]
Thirdly, he submitted that there was no life changing decision in reliance upon any representation nor any substantial material disadvantage to the plaintiff. [635] He emphasised that her husband travelled to Port Macquarie on occasions and that she travelled back to Victoria for six weeks. He added, although I’m not sure that there was express evidence from the plaintiff about this (as distinct from Phillip) [636] , “the plaintiff says that she missed Christmases, family lunches and the like”, submitting that that was not material disadvantage. [637]
Mr Yazdani referenced my decision in Shymko at [659], [638] in which I had found that in that case there was no life changing decision in reliance upon the assumption (Sidhu v Van Dyke (HC) at [84]; Maxwell v Maxwell [2022] NSWSC 1028 at [252] per Ward P), nor any substantial material disadvantage: Ashton v Pratt (CA) at [147].
The pleaded reliance referenced the fact that the plaintiff was deprived of her ability to:
live in her own home in Victoria, socialise with her friends and community and attend to her own desires; [639] and
seek to obtain any available carers pension or other compensation for her attendance upon, and care for the deceased. [640]
Phillip in his evidence made reference to what he considered Jennine and he had foregone.
One aspect was financial. Phillip gave evidence which I have referred to above that he and Jennine discussed whether she should apply for the Commonwealth Carers' Payment, but that: [641]
Given that Jennine would inherit a half share of Lynette's Estate, we decided to forego this. This was not an easy decision considering I had been stood down in late March 2020 from my employed Contracted Maintenance Supervisor position with Jetstar due to Covid. Regrettably I was later forced into early retirement, some 4 weeks after Jennine's departure, due to my employed position being made redundant.
Phillip was cross-examined about this. He denied that assertion that he and Jennine did not apply for the “Commonwealth carers payment” because their financial position was such that they would not qualify for the payment. Rather, he says they “did not get to that stage”. [642] I accept his evidence. However, there was no specific evidence as to the value of the Commonwealth Carers' Payment.
Another aspect was emotional and relational. Jennine gave evidence regarding the effect on her of the period of her care for the deceased, which was as follows: [643]
24. …The deceased lived longer than she had been told by the doctors, and I was very glad that we had those extra months together, however it was an extremely hard and emotional time for me:
(a) I didn't have much support beyond phone calls from family to see how the deceased and I were doing;
(b) I missed my husband, my home and my friends;
(c) I was under pressure from my family in Victoria to return home, but I refused to leave the deceased because I promised that I would look after her until the end;
(d) The situation put strain on my marriage, as I didn't realise that I would be away from home for so long.
9. I did not accompany Jennine because I was caring my 91 year old mother at the time.
10. Early on the morning of 4 November 2020, Jennine began her travel from Melbourne to Port Macquarie via Sydney. On arrival in Sydney Jennine was required to undertake 14 days of mandatory quarantine, before being able to continue her travel onto Port Macquarie. Upon disembarkation at the Sydney airport, Jennine experienced a very lengthy delay (6 - 7 hours) in the terminal while airport staff arranged the transfer and hotel quarantine accommodation for arriving interstate passengers. Jennine was eventually transferred to the Rydges Hotel in Sydney for the duration of her quarantine stay. This was understandably a distressing period for Jennine, given the nature of her trip and also given she now had no direct in-person contact with myself, family and friends other than via phone. During the next 14 days I had quite a number of distraught and emotionally charged phone calls with Jennine. It was a very helpless and difficult time for both of us.
…
12. Jennine's continual care that she provided to Lynette during her ever deteriorating condition, took an immense toll on Jennine's well-being. Jennine had very little to no respite from the mental and physical strain she endured on a daily basis for almost 11 months, all while watching her sister's condition deteriorate. Jennine and I had many teary and emotional phone conversations.
13. Lynette and I also exchanged many text messages in which she was apologetic and expressed concern for Jennine.
…
18. Following her dentist appointment, I accompanied Jennine on her return to Lynette's house to assist her with care for Lynette. Whilst in Port Macquarie on that occasion I became sick, and needed scans on my brain and Physio treatment. This undoubtedly placed further worry and strain on Jennine.
…
29. For the 11 or so months Jennine cared for Lynette, we essentially put our lives, relationship other family members and friends on hold for 12 months. This saw us forego Christmas, birthdays and our wedding anniversary celebrations together, spending time with other family members and friends and attending the funeral of a close family friend together.
Phillip gave evidence, in which he was not challenged, that on the occasions he visited and he went out with the deceased and Jennine for coffee or restaurants, that he covered the tab for all of them. [645] I accept his evidence.
On balance, I am satisfied that there was detrimental reliance by Jennine on the promise.
Mr Maconachie submitted that even if the deceased had not breached the contract in light of the care carried out for the deceased by Jennine and other aspects of her detrimental reliance upon the deceased’s promise, it was unconscionable for the deceased to obtain the benefit of Jennine’s services without keeping her promise and that “Equity would respond and hold Lynette’s estate to her promise”. [646]
Mr Maconachie in this part of his POS stated “the extent of Lynette’s mala fides will be examined in detail below”. [647]
Mr Maconachie returned to the issue later in strident terms, contending:
- Lynette Paton found a way to be all things to all people. To live out her remaining days and die on her own terms, and to also extract revenge against her sister for what she perceived to be a betrayal.
- To her friends she was a generous and thoughtful person who had cared for Alan during his demise, and would ensure that others benefited from her commitment to honour her agreement with Alan that her estate would go to the charities she and Alan held dear. [648]
- To Jennine and Glen, she was a loving sister who needed support and was prepared to give half of her estate to compensate Jennine for what Lynette knew (having cared for Alan) would be an unpleasant and emotional duty.
- It would appear, however, that Lynette was neither of those people. She was prepared to lie to her sister about the substance of their relationship over years with frequent phone calls, and birthday cards expressing love, whilst harbouring a resentment deep enough to trick her sister into undertaking the onerous and confronting task of helping Lynette die in peace.
- Jennine, on the other hand, uprooted her life, during COVID lockdown, to care for a sister she loved, and whom she believed loved her.
- Jennine has suffered the double jeopardy of not receiving what she was promised, and then finding out after Lynette’s passing that Lynette had held her in contempt for years, and had used her for almost ten months during Lynette’s demise, all the while telling her friends that she didn’t need Jennine’s help but only needed Jennine “up here to play with”. In light of the evidence as a whole, Lynette was not playing with Jennine as a loving sister, but rather manipulating Jennine for her own gratification. Lynette’s conduct was the very essence of duplicity and unconscionability.
Mr Yazdani simply contended that the Court should find that the deceased did not act unconscionably in the matter, especially as the Court should seriously doubt that the deceased knew or intended that the plaintiff would somehow increase her involvement with the deceased out of some prospect of monetary reward rather than, as the plaintiff accepted, that she did it because it was the right thing to do. [649]
Neither counsel made reference in opening submissions or during most of the hearing to the question of countervailing benefits. Thus, at the end of final submissions, I raised the question as to whether the fact that the plaintiff had been able to spend some time with her sister and received some financial benefit during the period might preclude a finding that it was unconscionable for the deceased to resile from representation of a benefit of half of the estate. [650]
Mr Maconachie submitted that I could not make that finding. He stated that whilst Mr Yazdani had stressed material benefit, the plaintiff’s time with her sister involved watching her sister in decline, including having falls, helping her sister with showering and toileting, and going through the same confronting experience that the deceased had gone through with Alan, which at moments must have been appalling, but as sisters rather than as life partners. [651] He emphasised that I could not look at detriment in terms of dollars and cents, clothes and shoes, but I had to look at the human cost of the toll that the plaintiff endured which gave rise to an enormous burden and not one which could properly be considered as having been compensated for, otherwise than by reference to the bargain that he submitted that the sisters had made. [652]
Mr Yazdani submitted that no unconscionability arose in a context where the monetary gifts of at least $30,000 which the plaintiff received during the course of her stay with the deceased were “in thanks, gratification, or in consideration of what she was doing looking after her” referencing Shymko at [659]. [653]
I addressed principles regarding detrimental reliance in Stojanovski at [282]-[293]. The party alleging the estoppel has the onus to establish unconscionability: see Stojanovski at [486] citing Steria Ltd v Hutchison [2006] EWCA Civ 1551 at [129] per Neuberger LJ (as his Lordship then was), cited approvingly in Sidhu v Van Dyke (HC) at [59]. Thus, regardless of whether or not one considers countervailing benefits to be more relevant to question of the unconscionability of departure from the promise than to the question of detrimental reliance, the onus of accounting for countervailing benefits must be on the person raising the estoppel.
The authors of Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) (MGL), in addressing relief in relation to promissory estoppel state at “[17-285] Minimum equity or more?” (omitting footnotes):
Cases decided since the Waltons Stores case have stressed the ‘minimum equity’ when stating the principles on which relief is to be awarded to enforce a promissory estoppel. In ACN 074 971 109 Pty Ltd v National Mutual Life Association of Australasia Pty Ltd, the Court of Appeal of Victoria said that since the decision of the High Court in Giumelli v Giumelli, ‘in the majority of commercial cases not involving the acquisition of an interest in real property’ in which an equitable estoppel was made out, ‘the relief accorded it has been no more than was necessary to avoid detriment’. The assumption is that a prima facie entitlement to fulfilment of the expectation or promise applies only in the case of proprietary estoppels. Sidhu v Van Dyke may require that assumption to be revised. The purport of the reasoning in the latter case seems to be that all species of estoppel by conduct (or in pais) share the one object, the one notion of detriment, and common remedial considerations. If so, the analysis of relief offered earlier in respect of estoppel by encouragement will apply here.
Waltons Stores has been rationalised in some recent decisions and in legal writing as a decision on proprietary estoppel, albeit a decision containing some dubious and unnecessary dicta on promissory estoppel. The rationalisation ignores the pleading of the plaintiff’s case and, arguably, the tenor of the judgments. There is no need to read down the reasoning in Waltons Stores in this way. Rightly or wrongly, the High Court judgments of Mason CJ and Wilson J, and of Brennan J, deliberately propounded a model of promissory estoppel as a cause of action. The judgments were aware the obvious objection to the recognition of such a cause of action, namely, that it would subvert the doctrine of consideration and become an alternative method of promise enforcement. An important respect in which relief in promissory estoppel differs from contract enforcement is in the nature of the relief awarded. The emphasis placed in the judgments in Waltons Stores and Verwayen on the ‘minimum equity’ required to relieve against the detriment incurred by the plaintiff was intended to demonstrate that promissory estoppel is not an alternative method of promise enforcement. A plaintiff’s expectations arising out of a promissory estoppel will not be enforced unless enforcement was the ‘minimum equity’ which would do justice to the claim, as was the case in Waltons Stores itself.
The terminology of ‘minimum equity’ has since been replaced in both English and Australian law by the concept of proportionality. The concept is applied, however, somewhat differently in these jurisdictions. In Australia a plaintiff’s expectations will be enforced in proprietary estoppel cases unless enforcement would be disproportionate to the detriment incurred by the plaintiff. In English law the proportionality test empowers a court to take into account a wide range of interests in a manner not dissimilar to the evaluation of contributions and needs that characterises an application to a court administering family law legislation. It is unclear, particularly on the latter interpretation, how proportionality in equitable relief will be measured although recent authority suggests that it eliminates any assumption that the expectations of a plaintiff who can establish the requirements of a valid proprietary estoppel will be satisfied. Nevertheless, although the ‘minimum equity’ and ‘proportionality’ tests were developed as guides to the award of relief in proprietary estoppel cases, they remain relevant to determining relief under the model of promissory estoppel proposed by the High Court in Walton Stores.
It is not being unkind to say that the present state of the authorities is rather a mess. Both Mason CJ and Brennan J in Verwayen prescribed the ‘minimum equity’ as the appropriate measure of relief. Verwayen has not been formally overruled. However Giumelli, a case without a ratio, now provides the ‘test’.
Sidhu recognises this explicitly but fails entirely to tell the expectant adviser when a case will require a restrained, ‘minimum equity’ approach to relief, and when it is open slather and the ‘full value of the promise’ is to be awarded. The possibility of full relief as opposed to circumstances in which the court must ‘unscramble’ the detriment which is likely to be suffered by the representee is at large. It is relevant to note here that an unvarnished view of Giumelli does not reflect at all well on our system of jurisprudence — a case which began in 1994 as a dispute over a tomato farm in 1993 concluded in 2004 — was anything left on the bare carcase after the legal fees were deducted? From a practical viewpoint, the present state of authority makes in very hard indeed for the competent adviser in Gunnedah or Cootamundra to advise what may become of the family farm short of a long, and very expensive journey, through the trial and appellate courts of NSW, and beyond.
Furthermore, the notion that any ‘detriment’ which cannot be ‘monetised’ gives the trial court carte blanche on relief — in Sidhu it would have been perfectly possible to put a monetary value on the ‘detriment’ as it would have been in Donis. It was much harder to put any monetary value on the ‘detriment’ suffered by the plaintiff in Verwayen and that is, perhaps, the root cause of all the present problems.
The plurality in Sidhu acknowledged statements in the earlier cases that the fundamental purpose of all types of estoppel by conduct is ‘protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted’. In ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v National Mutual Life Association of Australasia Ltd (2008) 21 VR 351 (at [169]) the Victorian Court of Appeal observed that nothing in Giumelli detracts from this view either, and asserted that, since Giumelli, in the majority of commercial cases not involving the acquisition of an interest in real property (ie promissory, not proprietary estoppel cases), the relief accorded has been no more than was necessary to avoid detriment. That statement assumed that prima facie entitlement to fulfilment of the expectation or promise applies only in cases of proprietary estoppel. It is therefore at least arguable that in promissory estoppel cases, the ‘minimum equity’ necessary to do justice to the plaintiff’s claim is a governing principle.
[310] I cannot accept that the loss of the Doyle Avenue Land rent for the relevant period is a loss that should be borne by Vesuvius. The appropriate starting point in an estoppel case is that the “prima facie entitlement” to relief is framed on the basis of the assumed (or expected) state of affairs (see Verwayen at 442, 445–446 per Deane J; Giumelli v Giumelli (1999) 196 CLR 101 (Giumelli) at [42]–[50]; Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 (Donis v Donis ) at [19] per Nettle JA, as his Honour then was, (Maxwell ACJ and Ashley JA agreeing); Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 (Delaforce) at [63]–[65]; and Sidhuv Van Dyke at [82]–[86] per French CJ, Kiefel, Bell and Keane JJ) (though I acknowledge that some of these authorities were cases of proprietary estoppel). A not wholly unresolved point is whether the concept of the “minimum equity” has been discarded in the context of promissory estoppel (as well as in the context of proprietary estoppel). Be that as it may, in Sidhu v Van Dyke, the High Court explicitly framed the question of remedy (there, as noted, a case of proprietary estoppel) by reference to the “requirements of good conscience” (at [83]). That is not, of course, an appeal to idiosyncratic notions of fairness. The concept of good conscience is given content incrementally, by close attention to the facts and reasoning of the cases. The current holistic approach to relief for an equitable estoppel is in my view well encapsulated in the following passage from the judgment of Allsop P (Giles JA agreeing), as his Honour then was, in Delaforce at 485:
Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character.
[311] What is made clear by cases such as Giumelli and Sidhu v Van Dyke is not only that any prima facie entitlement is to be framed by reference to the assumed or expected state of affairs but also that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration (and as recognised in Delaforce at [4], this consideration is sometimes of considerable importance). In Rodda v Ian Rodda Pty Ltd [2015] SASC 95 (see also Rodda v Ian Rodda Pty Ltd (No 2) [2015] SASC 128, again a proprietary estoppel case), Nicholson J said at [305]:
Whilst it is not the case that the court should search for the “minimum equity” to do justice in the circumstances and it is not a case of assessing or measuring or weighing the detriment minutely in order to convert it into some equivalent of cash or kind, there must be a sufficient proportionality of any interest or remedy ultimately granted when compared with the prejudice or detriment suffered by the plaintiffs and the overall justice of the case.
I have reflected upon the plaintiff’s evidence that the deceased did not proffer any particular reason for making the payments to the plaintiff totalling $30,000 other than because the deceased stated “I want to.” I accept Jennine’s evidence. Even on Mr Yazdani’s submissions, the deceased was a selfless and compassionate woman. [654]
Nonetheless, I accept that the payments are significant. I have given anxious consideration as to the issue of countervailing benefits. I have also given anxious consideration to the detriment suffered by the plaintiff. The value of one half of the residuary estate is significant. As indicated by Ward CJ in Eq in Zugic “any prima facie entitlement is to be framed by reference to the assumed or expected state of affairs but also that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration”.
On balance, I confess that I am unpersuaded that the minimum equity appropriate to do justice to the claim is to enforce the promise according to its terms.
No submissions were made by or on behalf of the plaintiff in respect of what would constitute the minimum equity and be a proportionately just amount to assuage the conscience of the deceased, in the event that I were to conclude (which I do) that I am unpersuaded that the minimum equity required is to enforce the promise according to its terms.
Having regard to the findings that I have made in relation to the attempt that was made by the plaintiff at a testamentary contract case, there is no need for me to further ponder this.
Mr Yazdani submitted [655] that an action for money had and received is applicable wherever the plaintiff has received the monies which in justice and equity belongs to the defendant as executrix of the deceased’s estate, under circumstances which render the receipt of it a receipt by the plaintiff to the use of the defendant, citing Juul v Northey [2010] NSWCA 211 at [216] per McColl JA (Basten at [251] and Campbell JJA at [260] agreeing). It applies, he says, as between principal and agent, [656] citing Coshott Family Pty Ltd v Lyons (2022) 110 NSWLR 44; [2022] NSWCA 216 at [27], Kirk JA (Meagher JA at [1] and Griffiths AJA at [61] agreeing). He noted that an action for money had and received is only maintainable against a party who actually received the monies (here, the plaintiff). [657]
Mr Yazdani contended that the plaintiff did not handle the deceased’s money as a mere bailee for the use and benefit of the deceased – rather, she personally received the monies for her own use and benefit. [658]
In Katsoulas v Kritikakis*;* Katsoulas v Apostolatos [2024] NSWSC 67, Leeming JA stated at [22]-[23]:
- The pleading included a claim in unjust enrichment. However, it was confirmed that this rose no higher than a claimed entitlement to recover monies advanced by Lakis in breach of the implied term and therefore without authorisation (T 4.6-18). In such circumstances, there is a prima facie obligation upon the part of the person who has received the principal’s money paid by an agent without authority to make restitution. That obligation is vindicated by an action for money had and received: see Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; [2014] NSWCA 310 at [27], where Barrett JA said with the agreement of Bathurst CJ and Ward JA that:
If, as the Company contends, the payment by the Company occurred through an unauthorised act of Mr Gould, the payment was made without the Company's assent. The situation is therefore the same as others in which someone receives another person's property in a non-voluntary transaction - for example, through mistake, duress or theft, although without any of the overtones of dishonesty that will commonly be present in those cases. The remedy potentially available to the Company is accordingly by way of common law restitutionary action for money had and received in which a money judgment is sought against the Defendant.
- Or, as it was put by a very strong Full Court of the Federal Court in Great Investments Ltd v Warner (2016) 243 FCR 516; [2016] FCAFC 85 at [65], endorsing a proposition from the Restatement: [659]
A transfer by an agent, trustee, or other fiduciary outside the scope of the transferor’s authority, or otherwise in breach of the transferor’s duty to the principal or beneficiary, is subject to rescission and restitution. The transferee is liable in restitution to the principal or beneficiary as necessary to avoid unjust enrichment.
There is no dispute that, between 3 and 8 September 2021 (inclusive), the plaintiff transferred a total of $81,799 from the deceased’s CBA number [XXX] to herself. The question is whether that transfer was done with the authorisation or with the fully informed consent of the deceased and, accordingly, whether the continued retention by the plaintiff of that sum is unjust. [660]
Following the fall on 2 September 2021, the deceased was admitted to Wauchope Hospital. In the following days, 10 payments were made from the deceased’s Smart Access account which are the subject of the cross-claim. They are as follows: [661]
$400 on 3 September 2021;
$400 on 4 September 2021;
$400 on 5 September 2021;
$400 on 5 September 2021;
$200 on 5 September 2021;
$15,000 on 5 September 2021;
$5,000 on 5 September 2021;
$20,000 on 6 September 2021;
$19,999 on 7 September 2021; and
$20,000 on 8 September 2021.
Jennine gave evidence addressing these claims as follows: [662]
27. …..The deceased had a bad fall on Wednesday 2nd September 2021. I could not pick her up and she said to me words that I recall as I think I might have to go to Wauchope hospital because it is getting far too hard for you to look after me now. I called an ambulance which took the deceased to the Wauchope Hospital where she remained until she died 3 days later.
28. Before the deceased left in the ambulance, she gave me instructions on what to bring her that afternoon when I visited, such as clothes, toiletries and her phone. l followed the deceased to hospital and stayed with her until just before dark, when she told me to go home because she didn't want me driving in the dark. The deceased gave me her bank card and pin number and requested that I get some cash out for household expenses whilst she was in hospital.
29. I notified Glen and Phillip that the deceased was in hospital and that I thought she might die. Glen and Phillip made immediate arrangements to travel to Port Macquarie.
30. On the night of 2 September 2021, the deceased phoned me and asked me to bring in her charger and computer and some photos in the next day.
31. On 3 September 2021 I withdrew $400 from the deceased's bank account at an ATM using the deceased's bank card and pin.
32. Glen arrived in Port Macquarie on 3 September 2021.
33. On or around 3 September 2021 when I visited the deceased I gave her computer, charger and photographs. We had a conversation which I recall as follows:
Plaintiff: I took out $400 out of your account.
Deceased: Go and get another $400 out. I'm not sure how long I'll be in here for.
34. On 4 September 2021, I withdrew another $400 from the deceased's bank account at an ATM using her bank card and pin.
35. On or around 4 September 2021, I visited the deceased and we had a conversation which I recall as follows:
Deceased: I want to give you $1,000 so you can buy yourself something for your birthday. What are your account details?
Plaintiff: I don't have them.
Deceased: Use my card and get the money out. Make sure you buy something with it. I also want to pay you $20,000 for all the money you've spent getting here and looking after me so bring in your account details.
Plaintiff: Okay.
36. Phillip arrived in Port Macquarie late on 4 September 2021. Unfortunately, Phillip was not allowed into the hospital because of Covid restrictions, having just travelled from Victoria.
37. On 5 September 2021 I withdrew $1,000 from the deceased's bank account at an ATM using her bank card and pin. I was not sure if there was a limit on the amount of cash that could be withdrawn at the time, so I withdrew the cash in 3 transactions of $400, $400 and $200.
38. On or around 5 September 2021 when I visited the deceased. We had a conversation which I recall as follows:
Deceased: You have been so good to me. I don't know what I would have done without you. I know it must have been hard for you, I'm sorry.
Plaintiff: Don't be silly. It was my pleasure.
Deceased; I am transferring you the $20,000 for all the money you've spent getting here and looking after me. I also want to give you and Glen $30,000 each. Can I transfer Glen's into your account and will you give it to him?
Plaintiff: Yes, but you don't have to do that. Don't worry about money at the moment. Just rest.
Deceased: No, I am doing it. What are your account details?
39. I provided my account details to the deceased.
40. After some time on her computer the deceased said to me words that I recall as: It won't let me transfer any more today. Can you please do it for me? I agreed, and the deceased gave me her internet banking and password details. She said words to me words that I recall as Take $30,000 each for you and Glen. You will have to do a few transactions.
41. The deceased made 2 deposits totalling $20,000 into my account on 5 September 2021. These deposits of $15,000 and $5,000 which appear on the deceased’s bank account statement on 5 September 2021 appearing at page 27 of the Exhibit, [663] and which I understood to be for the $20,000 she wished to pay to me as reimbursement.
42. The deceased died on 5 September 2021. My brother Glen and I were with the deceased when she died.
43. I subsequently processed the following payments from the deceased's bank account into my bank account: for the $30,000 for each of my brother Glen and I:
(a) $20,000 which appears on the deceased's bank account statement on 6 September 2021 appearing at page 27 of the Exhibit; [664]
(b) $19,999 which appears on the deceased's bank account statement on 7 September 2021 appearing at page 27 of the Exhibit; and
(c) $20,000 which appears on the deceased's bank account statement on 8 September 2021 appearing at page 28 of the Exhibit. [665]
44. I processed the payments over 3 days because I thought there may have been a daily transaction limit on the account. I cannot now recall specifically why I transferred the odd figure of $19,999 on 7 September 2021, but vaguely recall that it was also because of concerns I had about a daily transaction limit.
45. Copies of my corresponding bank account statements for the period 5 September 2021 to 17 September 2021 appear at pages 31-31 of the Exhibit. [666]
46. Following the death of the deceased I attempted to locate the deceased's funeral documents. I located some funeral documents from Graham Bayes Mid Coast Funeral Service Port Macquarie. I contacted Graham Bayes' office who advised me that the deceased had not paid for her funeral yet. I paid for the deceased 's funeral using the deceased's bank card and pin on 11 September 2021 in the sum of $3,600 which appears on the deceased's bank statement at page 28 of the Exhibit. [667]
47. I subsequently transferred $30,000 from my bank account into my brother Glen's bank account.
Jennine was cross-examined about the expenses, initially by reference to the enduring power of attorney. Jennine understood that the crossing out of what is described as “Additional powers” which separately provide power for the attorney to “give reasonable gifts”, “conferred benefits on the attorney to meet his/her reasonable living and medical expenses” and to “conferred benefits on the following person/s to make them reasonable living in medical expenses” [668] meant that she did not have those powers. [669]
The following emerged from Jennine’s cross-examination on these payments:
Jennine confirmed that certain of the payments ($1,000) was consequent upon the deceased gifting her, stating that Jennine could buy something for her birthday; [670]
Jennine agreed that the deceased did not send her a text message or email authorising her to withdraw $1,000, she thought that Glen was in the vicinity although may not have heard what the deceased said because he was watching something on his iPad; [671]
Jennine was “not sure” as to why Lynette had asked for Jennine’s bank details given the deceased previously transferred monies to her; [672]
Jennine noted that the deceased was not in a lot of pain as she was heavily medicated, at the time she seemed to be very coherent and laughing, and chatting; [673]
the conversation on 5 September 2021 [674] took place in the morning in the deceased’s room at the palliative care unit, Glen was present, she acknowledged that Glen may not have heard it and she accepted that the deceased did not send her a text message or email expressly authorising the transfers of the $20,000 and $30,000 sums nor did Jennine ask the deceased to confirm the transfers in writing nor asked for anyone else to be present in the room for that purpose; [675]
Jennine accepted receipt of the funds in circumstances where the deceased had already promised her half of her estate because the deceased told her to do it, [676] she did not know why the deceased said what she did and did not ask her to transfer the funds, indicating that “it’s what Lynette wanted to do”; [677]
Jennine agreed that this occasion would have been the “perfect opportunity” for her to have “clarified this promise that you say Lynette gave to you with her”; [678]
Jennine agreed that if the deceased had promised her half of her estate, there would have been no need for Jennine to have accepted a sum of over $81,000; [679] and
Jennine denied that the reason why she accepted receipt of the monies was that she knew that the deceased had not promised her half of the estate. [680]
Mr Yazdani put to Jennine, who agreed, that she understood that the $20,000 “was in consideration for your services rendered for Lynette during your stay with Lynette”. [681] Mr Maconachie in a submission made reference to this indicating that I would not conclude that Jennine had in some way bargained away her rights as distinct from making some sort of more general recognition that a promise of 50% of the estate had been earlier made. [682] However, Mr Yazdani did not make reference to it and did not, as I understand it, contend as Mr Maconachie had anticipated.
Mr Yazdani submitted that there is no evidence that the deceased, at any point in time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account and accordingly the plaintiff is obliged to pay back the sum claimed and interest to the estate. [683]
Mr Yazdani submitted as follows: [684]
First, at the time that these transfers took place the deceased was in her dying days in hospital. There is no corroborative objective or, indeed, documentary evidence that the deceased at any point in time expressly authorised or gave her fully informed consent to the plaintiff to transfer significant sums of money.
Second, in circumstances where the deceased was in palliative care unit at hospital where she was under pain relief medication and in circumstances where the purported conversations with the plaintiff took place a day before or on the day that the deceased died, your Honour should not accept that in those circumstances the deceased would have been in any position to give any express authorisation or consent.
Mr Yazdani also made reference to the events of the dinner on 22 September 2021 where the plaintiff at some point started crying and said words to the effect "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back. I don't want to have to go to court". He contended that that was an acknowledgement by the plaintiff that there was no express authorisation or consent from the deceased to transfer the funds. [685]
Lastly, Mr Yazdani submitted that there is no independent corroboration by anyone of the authorisation having been given. [686]
Mr Maconachie in opening submitted that with respect to the first two impugned transactions being withdrawals of $400 on each of 3 and 4 September 2021, the deceased’s bank statements clearly show these were withdrawn from an ATM in Wauchope. [687] He submitted that that was objective evidence of authorisation, the withdrawals occurring in the same town at which the deceased was in hospital and could only have occurred by the deceased providing Jennine with her bank card and PIN. [688]
Mr Maconachie submitted that I was bound to accept that the transactions were authorised based on Jennine’s evidence because (he says) Mr Yazdani did not squarely put to Jennine that the deceased did not authorise the transactions as distinct from suggesting that it was inappropriate for Jennine to take the monies in the context of being the deceased’s attorney. [689]
I reject Mr Maconachie’s submission that I am in some way bound to accept the evidence of Jennine on the basis that alleged lack of authorisation was not squarely put to her.
It seems to me that the issue regarding authorisation for the transactions is evident on the pleadings. Without going into an excursus on the rule in Browne v Dunn, in part it involves giving a witness a fair opportunity to explain their conduct. It seems to me that the tenor of the questioning gave Jennine a fair opportunity to explain the transactions. Her explanation is that Lynette had expressly authorised her to do it.
Having stated the above, and accepting that Mr Yazdani was not precluded from challenging Jennine’s evidence, I accept Jennine’s evidence in relation to her discussions with the deceased.
There is no evidence that the deceased had, prior to 3 September 2021, given Jennine her PIN for her CBA account. There is no particular evidence that the deceased had recorded her PIN in some location which could have been readily discovered or accessed by Jennine prior to 3 September 2021. Jennine’s affidavit does not expressly state that the deceased gave to Jennine the deceased’s PIN. Her evidence is as follows: [690]
31. On 3 September 2021 I withdrew $400 from the deceased's bank account at an ATM using the deceased's bank card and pin.
..
33. On or around 3 September 2021 when I visited the deceased I gave her computer, charger and photographs. We had a conversation which I recall as follows:
Plaintiff: I took out $400 out of your account.
Deceased: Go and get another $400 out. I'm not sure how long I'll be in here for.
That evidence, which I accept, gives express authority for the withdrawal of the $400 on 4 September 2021 and is consistent with the deceased having either previously authorised the prior withdrawal, or then ratifying authority for the withdrawal. There is no suggestion in the conversation that the deceased challenged Jennine in some way as to how she had obtained the deceased’s PIN. The conversation is consistent with the deceased having informed Jennine of her PIN. Further, Jennine was not challenged in cross-examination to the effect that she had improperly discovered or accessed the deceased’s PIN without her knowledge.
In that respect, as to Mr Maconachie’s submission that the withdrawals in Wauchope were authorised, I accept that submission.
There is some force in Mr Maconachie’s submission that the challenge by Mr Yazdani to Jennine regarding the transactions was by reference to the power of attorney.
The fact that a person who undertakes transactions by transferring or withdrawing funds from another’s bank account is an attorney of the other under a formal power of attorney does not mean that the transactions may only be authorised by reference to the terms of the power of attorney. The transactions may be separately expressly authorised by the other person: see e.g. Dulhunty v Dewhirst [2005] NSWSC 350.
Here, Mr Maconachie contends, and I accept, that the transactions were undertaken on the deceased’s express oral instructions. [691]
Concerning the deceased’s condition (i.e. the second submission), Mr Yazdani contended that it was not necessary for me to make a positive finding as to the deceased’s mental capacity. Rather, he submits that, having regard to her physical state and in circumstances where she was under medication and dying, even if authorisation may have been given, it does not constitute fully informed consent. [692]
There was no formal pleading in the cross-claim that the deceased was not in a state to give a fully informed consent. Nor was there any reply to the defences to the cross-claim (which met the claim of lack of authority with the pleading that the transactions were undertaken at the express direction of the deceased), [693] that even if authority was purportedly given it was not an effective authority because the deceased was unable to give a fully informed authority or consent because of her physical or mental state.
For that reason alone, I do not consider that it is open to the defendant to raise an issue regarding the physical or mental state of the deceased in some way vitiating an apparent consent.
However, if I be wrong on that and it is open to the defendant to raise the issue, then I reject it on the evidence.
The submission is somewhat undermined by evidence led on the defendant’s side to which Mr Maconachie made reference [694] from Kenneth that “the deceased’s mental condition did not weaken and she continued to be of strong disposition”. [695] Mr Maconachie also made reference to other evidence of the defendant that the deceased was compos mentis right up until death, referring to Nada’s evidence at CB 99[4] and Karen’s evidence at CB 106. I confess those last two references do not appear to support his contention. Nonetheless, there was no express evidence from any deponent on the part of the defendant that the deceased was lacking capacity during the period 3-8 September 2021. Nor did, subject to one question regarding the deceased’s recall of the plaintiff’s bank account details, did Mr Yazdani cross-examine the plaintiff to the effect that the deceased lacked capacity because of her mental physical condition.
Further, Mr Yazdani accepted that there are no medical or hospital records which indicated one way or another whether the deceased realised that on or about 5 September 2021 that she was in extremis, [696] and further, whilst she was in a palliative care unit, there were no materials indicating what actual medications she was receiving at the time. [697]
The determination of the issue of whether Jennine is obliged to pay the money back is really consequent upon and foreclosed by the findings that I have made above.
In light of my findings that the sums were withdrawn by authorisation, I find there is no obligation for Jennine to pay those monies back.
I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the counter-claim are not liable to be repaid by the plaintiff.
The defendant did not seek judicial advice in relation to the defence of the proceedings and prosecution of the cross-claim. Mr Yazdani confirmed that Karen is proceeding on the basis that in the event that Jennine is successful, the half share of the residuary estate that Jennine claims is not to be burdened by any deduction for legal costs. [698]
I direct the parties to bring in short minutes of order to give effect to these reasons for judgment including addressing the cost of the proceedings.
**********
Annexure A is a photo of two pages of a spiral A5 notebook.
The left page shows an asterisk with the title "To Do" in the left-hand corner and "Done" a little below it to the right. The text on the lined section of the page, with a diagonal strike through it, reads:
Levido Law & Property Law Practice
Trust Account
Commonwealth Bank
BSB: [XXX XXX]
Acc No: [XXXX XXXX]
* Reference: [XXXX] - must include
Pexa fees to register Notice of Death… (ineligible)
NSW Land and Registry Services Notice of Death
registration fee: $146.40 [in a box: TRANSFER DONE: 25.10.20]
TOTAL: $182.59
- Need to sign will before J arrives
* Make app’t with Justin, once
Jennine has arrived to sign
as Enduring Power of Attorney
- also Karen as substitute
- Will part II. ?
Sign Monday 9-30 am 26/10/20
? Can Jennine Jennine to stay in
house as long as necessary.
The second page contains the following:
(?)hm 3/3/21
left $470 physio
1/7/21 - $375 + init. $28 each
visit
podiatry $494 $25
+ init visit
health improvement $500 left (250+250)
$40 each
remedial massage – natural therapy
acupuncture $600 (ineligible) $27 each
exercise physiology $22
Note: There is some underlining and strikethrough of certain words, which is only shown on the Caselaw website (and not the downloaded word version).
Plaintiff’s Outline Submissions (POS) [104] “Revenge is a dish best served cold” citing Eugène Sue, Matilda, Or, The Memoirs of a Young Woman, (1843, J Winchester New World Press); T 134.4-.46.
POS [114].
T 41.42-42.1, 80.30-.34, 89.20-.28, 94.17.20, 142.46-.48, 148.26-.31, 150.5.34.
For example, Court Book (CB) 89[11].
CB 114[6].
Dated 20 August 2024.
POS [71]-[77].
POS [71], [92], [95], [96], [99], [103]-[105], [109]-[110].
POS [114]; T 116.47-117.2.
T 23.22-.25.
According to some of the evidence led by the defendant.
T 22.15-.17, 23.10.14.
T 13.36-.37, 13.50-14.1.
POS [67]-[70].
T 169.5-.14, 169.20-.23.
POS [65], elaborated at POS [63]-[95].
POS [8]-[10].
POS [12].
T 134.45-.46.
T 169.14-.16.
CB 296, 264.
CB 106[2].
CB 44[5], 264.
T 30.34-.35; CB 88[5], 264.
CB 195.
CB 88[3], 264.
CB 103[20].
CB 88[4], 264.
CB 103[20].
CB 205.
CB 213, 89[12]; T 27.9-.10.
CB 56[7].
T 97.22-98.7, 100.14-.32; CB[7].
CB 62 (stated occupation).
CB 190 (there are refences to a marriage breakdown: CB 74[11], 127[20]).
CB 298.
CB 298.
CB 62.
CB 264, 108[14].
CB 108[14].
CB 103[20].
CB 107[9].
CB 106[4].
CB 106[5].
CB 301.
CB 196 (deceased), 89-90[14] (Jane), 100[5] (Nada).
CB 325.
CB 331.
CB 52[64].
CB 108[13].
CB 107[11].
CB 108[12].
CB 340-342.
T 112.24-.29; POS [115(1)].
T 112.31-.32.
CB 332.
CB 107[11].
CB 25[11].
CB 24-26.
DOS [40].
DOS [35].
DOS [35], [36].
DOS [48]-[51], [55], [56].
DOS [48].
CB 33[7].
DOS [61].
POS [14].
T 16.1-.4.
T 25.45-.49.
T 112.38-.49.
POS [10].
POS [8]-[10].
This is the parties’ wording, which seems incorrect. Issue (b) arises only if the withdrawals were unauthorised.
Statement of Claim (SOC) [15]-[24], see CB 16-17.
Equitable estoppel (POS Heading to paragraph 48, [49], [62]); promissory estoppel (POS [48]); equitable estoppel by encouragement (POS [54]).
DOS [9(b)], Heading to paragraph 41, [41], [42], [43], [45], [48], [53], [54].
T 5.3-.7.
T 136.46, 141.29, 141.34, 142.15-.16, 158.25-.26.
T 159.
French CJ, Kiefel, Bell and Keane JJ at [2], Gageler J at [89] relevantly agreeing.
See Barret JA at [41].
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity Doctrine & Remedies (5th ed, 2014, LexisNexis) (MGL) [17-260] page 540.
CB 99[1].
CB 67[8(a)], 103 [20].
CB 74[10].
CB 66[5(b)], 67[8(a)].
CB 55[5].
CB 84[4].
CB 84[5], 108[14], 189; T 31.
CB 188.
CB 190.
CB 67[10], 108[14], 188.
CB 188.
CB 189.
CB 188; T 31.21-.22.
CB 189.
CB 73[7].
CB 188.
CB 106[4], [6]; T 31.47-32.6.
T 32.11-.14.
CB 106[7].
CB 196.
CB 94[4]-[5].
CB 201.
CB 202.
CB 94[6]
CB 95[8].
CB 213-224.
CB 124[3]-[4].
CB 202-205.
CB 205.
CB 46[13].
CB 46[13], 108[18].
CB 25[11], 47[23]-[24], 109[19]; T 52.10-.11.
CB 95[9], 216.
T 32.34-.39.
CB 191-193.
CB 227-228.
CB 226.
CB 227-228.
The last sentence is underlined, which is only viewable on the Caselaw website.
CB 226.
The last four sentences are underlined, which is only viewable on the Caselaw website.
The text at CB 229 is barely legible. A more distinct and larger-print version of the text appears at CB 230-231.
CB 232-233.
CB 115[14].
CB 261.
CB 48[27], 110[27]; T 29.29-.31.
CB 264.
CB 96[16].
DOS [60].
CB 32[5], 39[5], 110[28].
CB 51[47].
CB 262-263.
CB 96[19].
CB 96[20].
CB 96[21].
CB 64[14].
CB 280-281.
T 137.2-.9.
Citing inter alia Macrossan SPJ in Sheahan v Woulff [1927] St R Qd 128 at 131.
At 378.
See e.g. Coss v Norman [2021] NSWSC 1464 per Parker J at [99] fn6.
Norris v Pendino (Estate of Louise Edith Fernandez) (Supreme Court (NSW), Master Macready, 21 September 1995, unrep, BC9505523) at 12.
Finlay v Mack [2001] NSWSC 443 per Master Macready at [10].
Weston v Hourn [2000] NSWSC 543 per Master Macready at [18].
See e.g. Rathswohl v Court [2021] NSWSC 356 per Rees J at [116].
T 138.
For example, T 50.25-.32, also T 49.38-.44, T 50.9-.12.
CB 77[3].
T 50.25-.32.
DOS [12].
T 13.38-.41.
T 137 citing CB 106[8], 109[24].
CB 120[5].
T 137-138 citing CB 88[5].
T 30.43-.44.
CB 77-78.
CB 81-82.
CB 84-85.
CB 94-97.
CB 109[21].
CB 114[6].
CB 99[1].
CB 103[20].
CB 125[9], 126[16].
CB 89[11].
CB 88.
CB 89[10].
CB 89.
CB 84[3].
CB 120[6].
CB 45[7].
E.g. T 114.37-.39.
CB 178-187.
CB 187.
CB 185.
CB 183.
CB 67[11(b)].
CB 67[11(c)].
CB 55[5].
CB 67[8(a) & (c)].
CB 109[21].
CB 66[5(a)], 178-187.
CB 66[5(b)].
CB 73[4]-[7], 78[10].
CB 179.
CB 181.
CB 183.
CB 185.
CB 187.
T 117.
CB 213-219.
CB 220-224.
T 21.7-.37.
T 23.14-.25
CB 231.
T 149.43-.45, 150.39-.41.
CB 74[9].
CB 62[3].
CB 127[20]-[21].
CB 117[26]-[27].
CB 74[9],[11].
T 90.30-91.5.
T 91.7-.19.
T 91.18-.35, 92.7-.13.
T 91.38-92.1.
T 92.3-.5.
T 96.
T 96.1-.23.
T 166.40-167.11.
T 91.38-92.1.
CB 100[9].
CB 202.
CB 45[9].
CB 62[4].
CB 125[11].
CB 55[6].
CB 196.
CB 62[4].
CB 45[9].
CB 45[10].
CB 55[6].
CB 55-56[7].
CB 62[5].
CB 63[8].
CB 63[11].
CB 51[50].
CB 51[51].
T 33.36-34.10.
T 35.45.
T 39.26-40.12.
T 33.22-.34.
T 34.16-.25.
T 34.27-.50.
T 35.10-.23.
T 35.25-.38.
T 35.40-.49.
T 36.6-.17.
T 36.19-.44.
T 36.46-37.5, 39.4-.12.
T 41.48-42.1.
T 42.38-.41.
T 41.42-.46.
T 39.14-.24.
T 40.22-41.8.
T 41.35-.40.
CB 232-233.
T 84.49-85.44, 88.47-89.1-.4.
T 86.11-.16.
T 86.18-.26.
T 87.47-88.9.
T 87.47-88.32.
T 87.2-.3.
T 88.31-.36.
T 86.28-.42.
T 86.44-.47.
T 87.13-.32.
T 87.37-.39.
T 87.45-.47.
T 89.6-.18.
T 89.20-.28.
CB 62[5].
T 90.17-.28.
T 89.30-.43.
T 89.1-.3.
T 90.6-.15.
CB 63[8].
T 92.15-.26.
T 92.48-93.5.
T 93.29-.45.
T 93.19-.22, 92.48-93.5.
T 93.6-.10.
T 93.7-.27.
T 94.17-.20.
T 98.18-.28.
T 98.30-.42.
CB 85[9].
CB 85[13].
CB 89[10].
CB 193.
CB 108[15].
CB 108[16].
CB 113[4].
CB 114[7].
CB 116[19].
CB 127-128 [23].
Generally, T 148-151 and, specifically, T 41.42-42.1, 80.30-.34, 89.20-.28, 94.17.20, 142.46-.48, 148.26-.31, 150.5.34.
T 150.12-.16.
DOS [17].
CB 77-78[9]-[14].
CB 81[3]-82[9].
CB 84[7], 85[8], 85[11].
CB 89[8], 89-90[14]-[16], 91[23].
CB 99-100[4]-[5], 101[14]-[16], 124[4]-[5].
CB 108[16], 109[22], 110[26], 114, 115[15].
CB 121[7].
POS [67]-[70].
T 44.4-45.24.
CB 55[4]; T 98.44-99.7.
CB 91[20].
CB 91[23].
CB 102[16].
T 139-140 citing CB 81[5], 78[11], 101[15].
T 139-140.
T 149.45-150.3.
T 140-141.
T 47.24-.27.
CB 100[7], 124[5].
CB 46[13], 108[18].
CB 95[9], 216.
T 138.
T 138-139.
T 139.
T 142.
CB 78[11].
CB 91[23].
T 115.38-.49, 120.10-.12, 129.50-130.4, 134.46, 135.34.
T 141.16.
T 142.46-.49.
T 142.49-143.2.
T 149.20-.35.
T 146.46-147.6.
CB 113[4].
T 168.39.
T 120.
T 120.
CB 46[14].
CB 108[15].
CB 100[5].
CB 68[13].
In fact the reply is to paragraph 15 i.e. CB 108[15].
CB 239.
T 59.44-60.11
T 60.13-.29.
T 143.36-.49.
T 35.36-.42.
For example, see Gill v Garrett [2020] NSWSC 795 per Slattery J at [239].
T 35.46.
CB 100[5] (Nada).
T 152.13-.18.
T 49.7-50.42.
T 152.38-.46.
CB 47[23]-[24].
CB 57[17].
T 50.34-.41.
CB 226.
T 50.43-51.7.
T 51.8-.12.
T 51.34-52.20.
CB 109[19].
T 158.37-158.1.
T 53.11-.14.
T 53.16-54.20.
T 55.3-.12.
T 119.24-.32.
T 119.32-.42.
T 52.36-.38.
T 118.28-.33, 119.42-.43
T 55.14-.20.
T 55.25-56.9.
CB 230.
CB 231.
CB 47[24(b)]; T 55.14-.20.
CB 47[25].
T 147.8-.9.
CB 51.
CB 100[5].
CB 124[4].
T 56.38-.41.
T 57.16-.19.
T 148.2-.5.
T 148.2-.14.
T 148.16-149.20.
T 147.29-148.5.
CB 90[15].
CB 99[4].
T 147.10-.14 citing CB 115[15].
CB 68[14].
T 147.10-.12.
CB 68[14].
CB 46[19].
CB 85[12].
CB 114-115[9].
CB 241. The sum of $10,000 had been transferred on the same day by the deceased from her Net Bank Saver account into her Smart Access account: CB 225.
CB 253.
CB 272.
T 59.11-.17.
T 57.21-58.50, 59.2-.4.
T 59.6-.9.
T 58.41-.43.
CB 50[45], 282-283.
T 57.35-.37.
CB 100[6].
CB 89-90[14]-[16].
CB 78[14].
CB 109[20].
CB 66[4],[7].
CB 66[4].
T 61.29-.31.
T 60.47-61.1.
T 62.14-.29.
T 62.29-.33.
T 61.15-.19.
T 61.25-.27.
T 62.4-.12; see also generally T 63.44-64.1.
T 62.38-63.5.
T 63.39-.45.
T 64.5-65.16.
CB 100[6].
CB 66[7(a)].
T 65.21-.39.
T 65.41-66.50, 69.8-.11.
CB 237.
T 67.1-68.48, 69.5-.8.
T 74.48-75.12.
Both recorded at CB 278.
T 76.17-.46.
T 76.48-77.20.
T 77.22-.39.
T 77.41.49.
T 74.48-76.15.
T 75.25-.31.
T 123.7-.37.
CB 51.
CB 96[20]-[22].
T 81.21-.25.
T 81.27-.37.
T 81.40-.41.
T 81.43-.45.
T 81.39.
T 81.47-82.9.
T 95.9-.17.
T 95.19-.38.
T 95.48-.49.
T 167.15-.21.
CB 51[51].
T 82.3-.9.
T 126.25-127.29.
T 130.24-.31.
T 127.30-128.16.
T 129.47-.50.
T 151.40-.50.
T 135.45-136.6.
T 149.38-150.12.
T 150.39-151.4.
CB 63[8].
T 151.14-.40.
T 150.5-.37.
T 151.43-.47.
T 152.4-.13.
CB 50[43], 51[47].
CB 49-50[38]-[40].
CB 52[62].
CB 64[14].
CB 52[62].
T 136.8-.12.
CB 116[17]-[18].
CB 121-122[10]-[13].
CB 116[19].
CB 122[14].
CB 68[15].
CB 68-69[17]-[20].
CB 71.
T 82.16-.29.
T 82.31-.41.
T 82.43-.46.
T 82.48-83.8.
T 83.10-.12.
T 104.44-105.3.
T 105.17-.48.
T 105.8-.15.
T 107.43-108.2, 108.33-.35.
T 108.5-.15.
T 108.37-.41.
T 108.26-.31, 108.48-109.4.
T 109.15-.22.
T 109.24-.37.
T 109.39-.41.
T 160.44-.46.
T 164.42-165.5.
CB 262-263.
Referenced in the final paragraph of Mr Brigden’s letter to Mr Levido dated 7 October 2021: see CB 285.
T 130.35-131.30.
CB 116[18] (though in the transcript Mr Maconachie use the word "might" rather than “may").
T 131.32-.42.
T 131.50-132.21.
CB 280-281.
The fact that a discussion occurred is referenced in the first paragraph of the letter at CB 284.
CB 285.
T 132.40-133.15.
T 136.49-137.2.
T 137.
T 137.
T 137.
POS [8]-[10].
CB 78[16]-[17].
CB 85[13].
CB 85[11].
T 165.11-166.12.
T 168.1-.28.
T 16.6-19.11.
T 19.13.
T 20.5-.24, 20.46-.47.
T 20.26-.45.
See also at 86.
At 86.
Mr Yazdani also referred to my decision in Shymko at [539] and to Lucas v Salman [2022] NSWSC 1301 per Kunc J at [204]: see DOS [29], [30].
See generally DOS [29]-[39]; also POS at [32].
POS [34].
T 141.27-.33.
CB 195.
CB 196.
CB 196.
T 143.
Macquarie Dictionary online ed definition of "promise".
For an example of this, see Priestley v Priestley [2017] NSWCA 155 (Priestley) at [3] per Macfarlan JA.
POS [36]-[37].
T 14.26-.42.
DOS [38].
T 142.3-.16.
See DOS [39] being the reference to Thorner v Major [2009] 3 All ER 945; [2009] UKHL 18; [2009] 1 WLR 776 (Thorner v Major) at [57] cited by Ward J in Varma at [460].
T 142.
Battenberg v Phillips [2020] NSWCA 249 at [9]-[13]; Allison v Farrington, Hobbs v Farrington [2005] NSWSC 106 at [14].
For example, see Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 (Dybac) per Slattery J at [18], see also [256].
Dybac at [55],
See for example, Application of Marais [2009] NSWSC 206 per McLaughlin AsJ at [2]-[4] where the relevant expression was “I give one half of my estate to my remaining relatives and one half to Allan Gordon Marais.” The issue in question was not what was meant by the words one half of the estate but rather the construction of the phrase "my remaining relatives".
At 476, 483-484.
At 484.
At 489.
At 490-492.
DOS [30].
POS [39].
CB 25[11].
CB 46[15]-[16], 47[20].
CB 115[10]-[11].
CB 56-57[11],[15],[17].
CB 116-117[21]-[23].
T 35.25-.34.
CB 89[14].
CB 90[17].
CB 90[17]-[18].
CB 91[20].
CB 91[20]-[21].
CB 91[24].
CB 91[25].
CB 78[16].
POS [8].
POS [40].
CB 46[16].
POS [8]-[10].
CB 78[17].
Ermogenous at [26] per Gaudron, McHugh, Hayne and Callinan JJ.
T 155.19-.28.
POS [45].
POS [44].
T 142.11-.15, 145.3-.5.
T 143.30-144.37.
T 146.14-.21 citing CB 85[9].
T 146.21-.25 citing CB 89[10].
CB 191-193.
T 146.27-.35 citing CB 77[8] (for context I have included the two surrounding paragraphs).
CB 232.
T 153.30-.42.
T 152.38-154.1.
T 154.7-.35.
T 154.37-.42.
T 154.44-155.17.
T 155.15-.16.
For the purposes of this judgment, I have gathered together the submissions made across a number of pages of transcript at T 156.15-.29, 157.10-.15, 157.27-.47, 158.12-.25.
T 168.39.
POS [42]-[43].
POS [45]-[47].
CB 96[18]-[19].
CB 96[20].
CB 96[22], 51[54].
CB 95[9].
T 42.38-.41.
T 120.12-.45.
T 121.10-.17.
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 (Ashton v Pratt (CA)) at [225] per Meagher JA, citing Placer Development Ltd v Commonwealth of Australia (1969) 121 CLR 353 at 367 per Windeyer J; [1969] HCA 29.
CB 45[9].
T 33-37, 39-42.
T 35.36-.49.
T 36.31-.44.
T 152.38-153.22.
T 152.38-154.1.
T 169.46-170.5.
POS [11].
DOS [41]-[45]; POS [48], [50].
DOS [46].
DOS [47].
DOS [52]-[54].
Mr Yazdani’s word. Dixon J’s word is “deserted”.
POS [50].
POS [51]-[54].
T 141.27-.33.
DOS [48].
T 142.
POS [57].
POS [56].
DOS [49], T 160.9.
T 40.22-41.8.
CB 19.
CB 232.
T 101.14-.23.
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 at [15], quoting Mance LJ in MCI WorldCom International Inc v Primus Telecommunications Inc [2004] EWCA Civ 957; [2004] 2 All ER (Comm) 833 at 844; see also Thorner v Major at [24]-[27] per Lord Rodger of Earlsferry and at [80], [84]-[86] per Lord Neuberger of Abbotsbury; in this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93] per Tobias JA (Giles JA agreeing at [1]); Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 (Sullivan) at [85] per Hodgson JA (McColl JA agreeing at [101]); and Evans v Evans [2011] NSWCA 92 at [124] per Campbell JA (Giles JA at [1] and Sackville AJA at [151] agreeing); see also Ashton v Pratt (CA) at [224] per Meagher JA, citing Ermogenous at [24]-[26] and also Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22].
An observation made during submissions at T 156.
POS [59].
CB 66 [5].
DOS [50].
T 160.9-.10.
T 160.20-.25.
T 160.27-.30.
T 160.30-.35; CB 78[15] (Pamela), 85[11],[13] (Helen), 100[7] (Nada).
T 160.37-.42.
T 160.44-.47.
T 160.47-.50.
CB 15[11], 16-17[15]-[23].
DOS [51]; T 162.1-.2.
POS [61].
CB 45-46[11].
CB 113-114[4].
CB 125.
Nield at 97.
POS [62].
POS [12].
POS [88].
CB 103[20].
CB 103[21].
DOS [55]; T 160.8.
T 162.5-.7.
CB 241, 253. 272.
T 162.8-.15.
T 162.33-.36.
I note Phillip stated “For the 11 or so months Jennine cared for Lynette, we essentially put our lives, relationship other family members and friends on hold for 12 months. This saw us forego Christmas, birthdays and our wedding anniversary celebrations together, spending time with other family members and friends and attending the funeral of a close family friend together”: CB 59[29].
T 162.36-.43.
T 168.39.
SOC [19], see CB 17.
SOC [20], see CB 17.
CB 55-56[7].
T 99.39-100.8.
CB 47[24].
CB 56[9]-[10], 57[12]-[13], 58[18], 59[29].
CB 57[15].
POS [12], see also POS [62].
POS [12].
CB 100-101[10].
DOS [56]; T 162.45-163.2.
T 171.35-172.3.
T 172.9-.36.
T 172.36-.46.
T 173.7-.29.
T 137-138 citing CB 88 [5].
DOS [58].
DOS [59].
DOS [58].
DOS [59] citing James Edelman & Elise Bant, Unjust Enrichment (2nd ed, 2016, Bloomsbury Publishing) p. 78.
Restatement of the Law Third: Restitution and Unjust Enrichment (American Law Institute Publishers, 2011), §17.
DOS [60].
CB 110[29], 277-279.
CB 48-51[27]-[47].
CB 277.
CB 277.
CB 278.
CB 282-283.
CB 278.
CB 214.
T 69.18-70.12.
T 70.17-.24.
T 71.13-.34.
T 70.31-.39.
T 70.41-71.4.
CB 49[38].
T 71.36-73.36.
T 73.38-.46.
T 74.22-.37.
T 74.3-.6.
T 74.44-.46.
T 74.39-.42.
T 71.9-.11.
T 123.43-125.24.
DOS [61]-[62].
T 163.16-.27.
T 164.42-165.5.
T 175.9-.10.
CB 277.
T 14.46-15.34.
T 113.10-.39, 114.28-.34.
CB 48[31],[33].
T 113.22-.23.
T 163.29-.46.
CB 40[10].
T 170.41-42.7.
CB 121[9].
T 164.4-.14.
T 164.27-.38.
T 1.21-2.32.
Mills
Dodds [2025] NSWSC 396
(2015) 88 NSWLR 281
(1989) 16 NSWLR 582
(2022) 110 NSWLR 44
(2011) 83 NSWLR 728
(2002) 209 CLR 95
(2019) 100 NSWLR 155
(2003) 214 CLR 118
(2006) 66 NSWLR 186
(1937) 59 CLR 641
(1935) 53 CLR 475
(1983) 152 CLR 406
(1976) 136 CLR 161
(1918) 25 CLR 69
(2004) 218 CLR 451
(1975) 133 CLR 150
(2015) 90 NSWLR 605
(1969) 121 CLR 353
(1915) 19 CLR 544
(2020) 383 ALR 469
(2014) 251 CLR 505
(1990) 170 CLR 394
(2013) 301 ALR 769
(1988) 164 CLR 387
(1991) 22 NSWLR 389
(1999) 73 ALJR 306
(1985) 59 ALJR 842
(1993) 177 CLR 472
(1990) 171 CLR 167
(2010) 79 NSWLR 453
(1954) 91 CLR 353
(1988) 18 NSWLR 540
(1982) 149 CLR 337
(2016) 92 NSWLR 247
(2008) 21 VR 351
(1999) 196 CLR 101
(2007) 19 VR 577
(2010) 78 NSWLR 483
(2014) 87 NSWLR 552
(2016) 243 FCR 516
The plaintiff established a testamentary contract, which the deceased breached by not making a Will or codicil giving effect to it. The cross-claim for repayment of $81,799 was dismissed in substance because the withdrawals were authorised. The parties were directed to bring in short minutes of order, including addressing costs ([624]–[626]).
Under the revenge theory, the deceased was some form of Jekyll and Hyde character who found a way to be all things to all people, presenting to her friends as a generous and thoughtful person, whilst avenging her sister for what she perceived to be a prior betrayal. [8] Allegedly, the deceased acted in a duplicitous [9] manner to Jennine, sent her disingenuous cards [10] and harboured [11] a long-standing resentment arising out of historic events in which she was left by her siblings to principally care for their mother. Mr Maconachie submitted that the evidence of discord and betrayal led on the part of the defendant was a surprise to the plaintiff, with her believing that she had always had a close and loving relationship with the deceased. [12]
However, that material sits uneasily with facts showing the deceased turning to her sister in her hour of need, appointing her to positions of being executrix, enduring attorney and enduring guardian, and corresponding with her sister and her husband in seemingly loving and effusive terms.
Mr Maconachie in the oral opening indicated that the “vast majority” of what is stated in Mr Yazdani’s submissions is common ground. [13] Mr Maconachie did not cross-examine the deponents called in the defendant’s case, other than the defendant and her husband. His reason for limiting cross-examination (at least in part) was that he did not dispute that the deceased had made statements to those deponents regarding her testamentary intentions [14] and that Jennine was coming to Port Macquarie as an act of love rather than anything else, which in some respects might be said to have been at odds with the plaintiff’s case. [15] Mr Maconachie also relied upon what he said were “multiple contradictions and curiosities in the defendant’s case” within the evidence of the witnesses [16] (such as care for the deceased). [17] Cognisant of such evidence, which potentially was conflicting with the plaintiff’s case, the plaintiff’s counsel in the POS used strong language to characterise the deceased’s conduct referring to what they described as the deceased’s “mala fides”. [18]
Despite the above, Mr Maconachie submitted that I do not need to determine why the deceased did not honour the agreement or promise. [19] Further, by the end of the proceedings, it is not entirely clear to me that Mr Maconachie maintained that indecorous designation, in that he indicated that some of the deceased’s conduct was “just a bit strange”. [20]
There are some cases, including this one, where, in the long run, it is not possible nor necessary to pristinely reconcile all of the conflicting material in the case. Some aspects of this case remain a degree perplexing. However, what I have done is make findings on the evidence according to the applicable standard and burden of proof**.** I will first state those findings and then address the issues and provide further comment below.
On 17 January 2023 and 6 February 2023, the gifts in cll 6, 7 and 9 of the Will were distributed to the respective legatees. Jennine in her evidence stated that she made no claim and did not wish to interfere with the specific bequests in cll 6, 7 and 9 of the Will. [49] That accords with Karen’s understanding that Jennine had relinquished any claim to those gifts. [50]
As at 8 December 2023, the deceased’s estate was valued at $1,050,251.67, which included the sale proceeds of the Villa. [51] At that time, $1,020,000 was held in a term deposit and had accrued approximately $8,925, with the remaining $21,326.67 being held in trust by Levido Law + Property. There are no liabilities of the estate as at the deceased’s date of death or as at 8 December 2023 of which Karen is aware. [52]
In correspondence to Mr Levido in July 2023, both the solicitors for WIRES and the HCT, indicated their respective positions that the executrix of the deceased’s estate ought to oppose Jennine’s claims and distribute the estate in accordance with the Will. [53]
The claim for “half of the estate” was clarified by Mr Maconachie to be 50% of the net residuary estate of the deceased in lieu of the monetary gift in cl 8 of the deceased’s Will (see below). [54] He submitted that if Jennine is successful on her claim, but unsuccessful on the cross‑claim, “the figure of $1,051,052.22 would increase by $81,799 to $1,132,851.22”. [55] The figure of $1,051,052.22 is drawn from the estate administration statement as at 31 March 2023, being the funds of the residuary estate available for distribution after allowance for certain expenses and distributions of the $20,000 gifts to Tanya, Freya and Gene, an amount of $20,000 retained to pay tax and accounting fees, and an amount of $550,000 being anticipated costs and disbursements in finalising distribution. [56]
It is not apparent to me that that is the appropriate figure because administration has progressed since 31 March 2023. As at 8 December 2023, excluding the costs of the proceedings, the residuary estate is said to total $1,050,251.67. [57]
However, having made that observation, neither counsel suggested that it was necessary for me to identify some precise amount which constituted “half of the estate”. That is a matter that can be addressed in the administration of the estate having regard to the findings that I have made.
Fourthly, frequently in estate cases, there is cross-examination to the effect that someone who does not attend a funeral or memorial service has not had a good relationship with a deceased or has failed to attend out of some other poor motive. It is not uncommon for the cross-examination to have little utility. There may be occasions when there is some form of express evidence that the person has said that they are not attending because they dislike the deceased or were in a poor relationship. However, there are many reasons why people do or do not attend funerals or memorial services. The absence of someone from such a service does not necessarily prove that they were not in a close relationship with the deceased.
In any event, I accept Glen’s evidence that there was some pressing matter and his evidence that he had a close relationship with the deceased.
subject to contention by Mr Maconachie which I address below, Jennine agreed to the proposition that “the only reason why you agreed to go to Port Macquarie as soon as you could, was because you thought that, as a sister, it was the right thing to do”. [243]
Jennine denied that her affidavit version of the alleged promise conversation is a reconstructed account by her of a conversation that she wished she had with Lynette but that did not actually take place in that form. [244]
Mr Yazdani asked Jennine a number of questions regarding enforceability of promises and entry into a contract with the deceased. The evidence was as follows:
In relation to the alleged carer conversation, [263] in cross-examination, Glen:
confirmed there is no written evidence of the conversation which he described as a “family conversation” and that he has never taken notes during such conversations; [264]
could not recall the exact date of the conversation but confirmed that it was a few days after the alleged precursor conversation. He was able to recall it as the memory was pretty fresh from the time that the deceased had rung a few days earlier and, for his part, he was relieved to know that he would not have to step in and be obligated and help the deceased; [265]
indicated, consistent with his affidavit evidence, that he could not remember any other content, and that which he has deposed to was the main point; [266] and
that he had not asked the deceased whether she had promised Jennine half of her estate, and that she did not confirm that she had. [267]
Concerning the alleged change of Will conversation, [268] in cross-examination, Glen indicated that the conversation took place in the first quarter of 2021, he thinks about March. He recalls having trouble getting back over the border to Queensland and that he had to take Covid tests at Tweed Heads Hospital and stay at a friend’s place until he was cleared. [269]
Further, in cross-examination, the following was detailed:
the conversation took place at the deceased’s home, and whilst Jennine was there, he did not think she was privy to the conversation; [270]
Glen agreed that he had no contemporaneous note or written evidence of the conversation taking place nor did he send an email or text message to the deceased and Jennine setting out the terms of the conversation; [271]
whilst Glen did not know precisely how the conversation begun, the deceased raised the subject about leaving “stuff to people or something like that”, indicating that the deceased brought it up of her own volition; [272]
Glen stressed the deceased’s reference to her estate as distinct from her prior reference to “her possessions, her everything”. He understood she had been to a solicitor and got a Will done; [273]
Glen indicated the deceased said “‘I've changed my will. I'm, I'm doing it’ or, or words to that effect” and he was unclear in his own mind whether she had actually changed her will or not but did not pursue the matter; [274] and
Glen denied that the conversation is a reconstructed account by him of a conversation that he wished he had had with Lynette but did not actually take place in that form. [275]
The fact that Nada spent some time living in the deceased’s house with the deceased does not gainsay the fact that the deceased made a specific approach to Jennine in specific terms. [314]
I do not consider that the text message to Ronald gives reason for me to materially alter my finding as to the alleged promise. The text occurs approximately 3.5 weeks prior to the deceased’s telephone conversation with Jennine. The fact that the deceased had a particular testamentary view as of 24 September 2020 does not necessarily gainsay the fact that the deceased may have made (or, as I have found it, did make) a promise to Jennine a number of weeks later.
It may be observed that ultimately, the deceased changed her mind about the particular use of her house that she had contemplated in the text to Ronald. Thus (as Mr Yazdani was at pains to point out), [315] Pamela gives evidence that: [316]
All aspects of the alleged promise conversation are explicable in light of that context. The deceased commenced with indicating to Jennine that she did not have long to live, and expressed a period (3 to 6 months) which, certainly on one view, was commensurate with her belief about the timing of her demise. She did not wish to go to hospital. She considered that, in order to avoid hospital, she would need someone to look after her but realised that that was “asking a lot” and in that context proffered some incentive for Jennine to agree, the deceased being mindful that she did not “have any other options”. Whilst there is some evidence that Nada stayed with the deceased for a brief period in late October and November 2020, there was no suggestion that the deceased had asked Nada or any of her other “close friends” to come and care for her in the same vein as that request was made of Jennine. Further, there was no attempt by the deceased to hide the fact that she was making other provision for initially the Cancer Council (later HCT) and Wires.
Generally, except as otherwise qualified in this judgment, I accept Jennine’s evidence. However, having regard to the particular matters that were meticulously raised by Mr Yazdani in respect of Jennine’s evidence, it is appropriate for me to expressly address them.
Jennine in cross-examination acknowledged that her affidavit evidence to the effect that a return trip was only 10 days was incorrect but stated “It most probably felt like ten days”. [358] Mr Maconachie submitted that that was an appropriate concession. [359]
Whilst Jennine’s differing evidence regarding the period of her return is, on one view, a material difference, overall I do not think that that significantly weakens her evidence about what the deceased said to her in the critical conversations regarding the initial promises and the authorisation of the monies the subject of the cross-claim.
Jennine was questioned about the payment on 6 September 2021, the day after the deceased had died, at Aldi Stores for $52.75. She indicated that she used the card to purchase items from Aldi “Cause Lynette told me to keep, like, feeding us and whatever with the card”. [416]
Jennine was also questioned about two purchases at Dan Murphys respectively on 7 September 2021 for $112.05 and 8 September 2021 for $99.98. [417]
The first purchase, Jennine indicated, was use of the card because the deceased told her to use it. She could not recall precisely what alcohol was purchased but suggested some of it was wine for the deceased’s memorial or getting things to have for her memorial drinks. She accepted they might have drank some of the alcohol. [418] Mr Yazdani somewhat incredulously pressed Jennine on her answer that the alcohol was purchased on 4 September 2021 for a memorial which did not take place until 13 November. Nonetheless, Jennine confirmed her evidence. [419]
The second purchase was also for alcohol. [420]
Mr Yazdani also questioned a further purchase at Coles on 10 September 2021 for $70.09. Jennine confirmed that she had purchased items from Coles using the deceased’s card and did that “Cause that's what Lynette told me to use the card”. [421]
In the context of a question as to whether Jennine was aware that an attorney cannot use a donor’s funds after the donor has died, she seemingly indicated that she was not sure but did not think twice about using the deceased’s card. [422]
There is no claim in the proceedings regarding recovery of the Aldi Stores, Dan Murphys and Coles purchases. Mr Maconachie objected to certain of the questioning because these items have neither been pleaded nor put forward as part of the defendant’s case. Notwithstanding that Mr Maconachie was undoubtedly correct regarding that, I permitted the questioning on the basis that there was an issue regarding authorisation and I considered that the questioning was within a general purview of that. [423]
Jennine’s evidence was that, just prior to her death, the deceased had told her to use her card. I accept her evidence regarding that. She did that without really giving it second thought. Clearly, she did not turn her mind to the legal niceties of whether an oral authorisation by the deceased just prior to her death would terminate upon her death.
Given that the above-mentioned items are not the subject of any claim in the cross-claim, certainly, on one view, there was no significant reason for the plaintiff to have to address the payments in her affidavit evidence. Mr Maconachie submitted that that was why they were not dealt with. [424] I accept that submission.
Assessment of the matter is difficult in the context in which Jennine and Glen had little recollection of what was said and Mr Levido, though not cross-examined, did not in his affidavit evidence spell out who said what or specifics about what was said. However, even on Mr Levido’s account, which I accept, his understanding from what was discussed was an assertion (I infer, by Jennine or by Glen in Jennine’s presence) that there was supposed to be additional provision made for Jennine.
Whilst that does not descend to the point of an assertion of a specific agreement, I reject Mr Yazdani’s submission that it is “entirely inconsistent” with a promise or agreement having been made by the deceased. [443]
Kenneth denied that Jennine said she did that because the deceased had told her to, confirming in response to the question “No, absolutely it did not happen” And asserting there was no possibility that he was mistaken; [476] and
Kenneth confirmed his affidavit evidence that Jennine said a number of times “Glen is insisting that I make a claim on the estate, but I don’t want to go to Court”. [477]
Kenneth was asked in particular about his evidence of the alleged statement of Phillip. The cross-examination was as follows: [478]
That is borne out by evidence in which Jennine expected that the deceased would make a Will leaving her half of her estate.
Jennine’s affidavit evidence included the following: [582]
I accept that the deceased acted in certain ways that are not consistent with the promise. However, I have addressed the purport of that submission above.
The absence of any written record of the alleged promise conversation, whilst a matter which I have considered, ultimately has not been decisive against my acceptance of her evidence as to the terms of the conversation.
I have addressed the above submission regarding what was raised by the plaintiff in the meeting with Mr Levido on 7 October 2021.
Conceptually, the fact that the plaintiff performed acts of the kind encompassed by the arrangements she contends for does not per se establish a binding agreement. Nonetheless I find that she was materially motivated to do the acts because of the promise.
There is no suggestion that the deceased had a further conversation with the plaintiff revoking the promise. The fact that the deceased could have “cancelled” her Will is in a sense beside the point.
In light of the seriousness of the arrangement, it seems to me objectively that there was an intention that breach of the arrangements would be amenable to legal processes.
I reject the notion that the plaintiff was simply free to leave Port Macquarie whenever she liked, without any consequence. It is contrary to the evidence which I have addressed. Mr Maconachie submitted that the deceased’s statement in exhibit D1, “Jennine originally said she'll probably be home for about 6 weeks but I might summon her earlier” was language contemplating the capacity to exercise a degree of control over the plaintiff's attendance upon her, being entirely consistent with the deceased's understanding that the plaintiff was bound to attend upon her when the deceased required or needed her to. [588] I agree it has that tenor.