Plaintiff v Defendant

EQUITY - Unconscionable conduct - Special disability - Whether the plaintiff was under a special disability when she entered into a property transaction - Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1, Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392, and Charbord Investments Pty Ltd v Isabelle Szwarcbord [2023] VCC 2141 referred to - Plaintiff claims special disadvantage arose due to her age, limited proficiency in English, emotional dependence on the defendant, inability to understand legal documents written in English, and inability to attend to financial and banking transactions without assistance - Whether the defendant took unconscientious advantage of the plaintiff's special disability - Held that the plaintiff was not under any special disability with respect to the defendant and that the defendant did not engage in unconscionable conduct - Plaintiff's claim dismissed.

1 The plaintiff, Emilia Matteo ('Emilia'), is a widow, who migrated to Australia from Italy some 60 years ago. The defendant, Roberto Matteo ('Robert') is Emilia's adult grandson. Robert is the registered proprietor of a large (approximately 2000sqm, or half an acre) residential property in Melbourne Road, Yea ('Melbourne Road property'), which was originally purchased by Emilia on 2 October 2018.0F[1]

2 Emilia says that the Melbourne Road property was purchased by her as an investment when she sold a farming property owned by her ('Evansford farm'). She says that she was persuaded by Robert to nominate him as the purchaser of the Melbourne Road property after he told her that she risked losing her aged pension if she purchased the Melbourne Road property in her own name. Emilia agreed, and says she subsequently allowed Robert and his family to live at the Melbourne Road property while they constructed a house on a property owned by his now-wife in Roycroft Way, Yea ('Roycroft Way'), following which it was intended that Robert would return vacant possession of the Melbourne Road property to her.

3 But that is not what occurred, although the Melbourne Road property did remain vacant for some time after Robert moved out of the Melbourne Road property in September 2020. In March 2021, Emilia sold her home in Doncaster ('Doncaster property') for approximately $1.7 million, and then purchased another property in Yea ('Yea Springs Drive'),0F1F[2] where she lived with her son Nicola (who is Robert's father) for approximately seven months from mid-2021. Also during this period, in September 2021 and December 2021, Emilia transferred a total of $127,000 to Nicola to fund renovations to the house on the Melbourne Road property ('renovations').

4 From early 2022, Robert was in discussions with a builder, Steven Tull, about completing the renovations and subdividing the Melbourne Road property into four lots pursuant to a planned joint venture. However, for a range of reasons, the joint venture did not proceed. Also in early 2022, there was a falling out between Emilia and Nicola, again, it seems, for a range of reasons, and Nicola left Yea Springs Drive at around this time. On 24 March 2022, solicitors instructed by Emilia lodged a caveat on title to the Melbourne Road property ('first caveat'), claiming that Robert held the Melbourne Road property for her pursuant to an implied, resulting or constructive trust. Nicola has lived at the Melbourne Road property since 2023, and he remains living there today.

5 This proceeding was issued on 10 March 2023. Emilia claims that, as she advanced the whole of the purchase price of the Melbourne Road property by way of bank transfers to Nicola and cash payments to Robert, there is a resulting trust in her favour with respect to the Melbourne Road property. Alternatively, she says that she was the victim of unconscionable conduct on the part of Robert, who took unconscientious advantage of the special disadvantages she laboured under as an elderly woman who cannot read English, let alone understand legal documents written in English, such that Robert holds the Melbourne Road property for her pursuant to a constructive trust.

6 Robert accepts that Emilia provided the bulk of the purchase price for the Melbourne Road property. However, he says that the Melbourne Road property was purchased in part with funds provided by Emilia to Nicola as a gift, and that he funded the balance of the purchase price by taking out a loan secured by the Melbourne Road property ('Secure Funding loan'). Robert says that the only reason why he became the registered proprietor of the Melbourne Road property was because Emilia was unwilling or unable to provide Nicola with sufficient funds to complete the purchase of the Melbourne Road property, and Nicola, as a disability pensioner with no assets, would not have been able to borrow the funds required to meet the shortfall. Robert borrowed approximately $92,000 to complete the purchase of the Melbourne Road property via the Secure Funding loan.

7 Robert says that the presumption of a resulting trust has been rebutted by the presumption of advancement, given that Nicola is Emilia's son. Further, he denies that Emilia, who he says is an intelligent and astute woman, is or was under any special disability, and that she knew precisely what she was doing at all times.

8 Stepping back, if Emilia's story is accepted, this is an almost textbook case of elder abuse. There is evidence from one of Emilia's other children, her daughter Rosa, to the effect that Nicola and Robert isolated Emilia from other family members by making false accusations against Rosa and her family, and by arranging for Emilia to move away from her family and friends in Doncaster to a small town nearly 100 kilometres away. Emilia says that Robert manipulated her financially by telling her that she would lose her pension if she purchased the Melbourne Road property in her own name. She says Robert took control of the purchase of the Melbourne Road property, bringing documents to her to sign that she could not read or understand, without explaining their effect, and Emilia had no access to any independent professional advice during the course of the transaction.

9 The question is, however, whether I accept Emilia's story, setting aside for the moment the question of whether Emilia laboured under a special disability which was unconscientiously exploited by Robert.

10 Emilia thus bears the onus of establishing, on the balance of probabilities, that it was always her intention when she purchased the Melbourne Road property to retain the beneficial ownership of the property. She must establish that the advance of funds to Nicola and Robert was to facilitate her acquisition of the beneficial ownership of the Melbourne Road property, and was not a gift to Nicola.

11 I am not satisfied that Emilia has discharged the burden upon her to establish that the payments she made to Nicola were not a gift. Further, I am not satisfied that she laboured under any special disability vis-à-vis Robert. In my view, at all material times, Emilia knew exactly what she was doing.

12 Accordingly, Emilia's claims in this proceeding should be dismissed. My reasons follow.

The parties, the witnesses and the chronology of relevant events

13 At the time of the trial, Emilia was 89 years old. She left school at the age of 16, and worked as a dressmaker. Her late husband Mario Matteo migrated to Australia in 1963. Emilia and their children joined Mario in 1964. Mario worked at a railway station, but also had some small businesses on the side, and Emilia continued to work as a dressmaker, specialising in evening wear. She worked as an employee and sub-contractor, but also had her own shop in High Street, Kew, which she operated with the assistance of an (English speaking) employee. She retired about 12 years ago, when she was 77 years old.

14 Until 2021, Emilia lived in the family home in Doncaster, where she had lived for over 40 years. Until 2018, she was the sole proprietor of the Evansford farm. She purchased the Evansford farm in about 1985, under her maiden name, Emilia Martello, following the advice of Mario, who died in 1986.

15 Emilia and Mario had four children, and Emilia now has a large tribe of grandchildren and great-grandchildren. Her eldest child, Rosa Reade, is now 68, and has had for the past decade some significant health problems. Rosa has seven children. She was estranged from her mother for a period of time in 2021, but they have now reconciled. Rosa and her son Reece gave evidence at the trial of the proceeding.

16 Nicola Matteo, Robert's father, is Emilia's elder son. He is 67 years of age, and he too has faced significant health challenges in recent years, since at least late 2021. Nicola did not flourish at school, and has worked only intermittently during the course of his adult life. Nicola also has seven children. It seems that Nicola has been estranged from Rosa and his brother Roberto ('Roberto Snr') since about 2017. He has had a close relationship with his mother, who has assisted him financially on numerous occasions over the years, at least up until early 2022, when they fell out. Although not a party to this proceeding, Nicola was a critical witness, who was called by Robert to give evidence at the trial of the proceeding.

17 Five of Nicola's seven children, including Robert, were born to his ex-partner Linda Ryan. While Nicola and Linda no longer live together, they remain close. Linda did not give evidence at the trial, but was referred to on occasion by the witnesses when giving their evidence.1F2F[3]

18 Emilia's third child, her daughter Carmelo Matteo, died of cancer in August 2014, in her mid 50s, leaving behind five children.

19 Emilia's youngest child, Roberto Snr, is now 61 years of age, and works as a handyman. He has five children. Between 2014 and 2021, he lived in a self-contained flat at Emilia's home in Doncaster. Roberto Snr gave evidence at the trial of the proceeding.

20 All of Emilia's surviving children speak both Italian and English.

21 Robert does not speak Italian. He is Nicola's second youngest child, and is 35 years old. He has owned and operated a variety of small businesses, including a flooring business, and more recently, a chain of pizza shops in the north eastern region of Melbourne and beyond. He is married to Monika, who is the registered proprietor of Roycroft Way, and who is also the mother of their two children.

22 Robert has had some financial difficulties in the past. He was bankrupt between 2013 and 2016. He had a sports gambling habit some years ago, which he says is now under control after he sought professional help.

23 Reece Reade is Rosa's son and Robert's cousin. Reece is 31 years old, and in 2016 and 2017 he worked with Robert in Robert's flooring business. Reece was called by Emilia to give evidence at the trial of the proceeding.

24 Steven Tull attended Court to give evidence in compliance with a subpoena issued by Emilia. Mr Tull is a builder and developer who in 2022 entered into an informal joint venture with Robert to subdivide and redevelop the Melbourne Road property. However, their plans did not come to fruition, and they parted ways in early 2023. Robert and Mr Tull are currently in dispute about a claim by Mr Tull for reimbursement for work and labour done by him and other expenses incurred by him in connection with the Melbourne Road property.

25 Robert also called two solicitors, Mark Morgan and Mduduzi Radebe, to give evidence. Mr Morgan is the principal of a legal practice retained by Emilia to provide conveyancing services with respect to the sale of the Evansford farm, the sale of the Doncaster property, and the purchase of Yea Springs Drive. He had nothing to do with the purchase of the Melbourne Road property, which was handled by a conveyancing firm engaged by Robert, Croydon Conveyancing Services ('CCS') on or about 17 October 2018, some weeks prior to Emilia first meeting Mr Morgan. Mr Morgan only met Emilia on one occasion, in late 2018, in connection with the sale of the Evansford farm. Most of the work done on Emilia's property transactions was carried out by a conveyancing clerk employed by Mr Morgan, Antonella Marra.

26 I will now turn to the chronology of relevant events, which is to some extent uncontroversial. Where the parties differ as to whether a conversation or an event or series of events occurred, I shall outline the scope of the dispute regarding the issue.

27 The ability to provide a precise chronology of events has been impaired somewhat by the vagueness of some of the evidence given by the witnesses called by both parties, particularly as to the time and place at which various events and conversations were said to have occurred, what was actually said during those conversations and to whom. For example, witnesses would say words to the effect that 'we talked about it all the time', or 'everyone in the family knew', or 'they' did something or said something. I have done my best based upon the evidence of the witnesses, the contemporaneous documents available, and where necessary, by the application of the lessons of ordinary human experience to reach my conclusions about what did and did not occur, and, where necessary, to resolve any conflicts in the evidence, keeping in mind the burden of proof and other relevant evidentiary principles.

28 Sometime during the course of the first half of 2018, Emilia decided that she wanted to sell the Evansford farm, because it was all getting too much for her.

29 Emilia entered into a contract of sale for the Evansford farm on 13 November 2018 for the sum of $250,000. At around that time, she agreed with the purchaser of the Evansford farm to sell to him the mature pine trees on the property, which Emilia subsequently arranged to be harvested, for $194,000 or $196,000, and machinery and equipment ('chattels') for $50,000. It seems that the price for the chattels was paid in cash, and the payment for the harvested timber took place by way of bank transfer. There is no evidence as to when those funds were received by Emilia, but common sense suggests that they would have been received at or shortly prior to the settlement of the sale of the Evansford farm on 4 December 2018.

30 About six weeks prior to the sale of the Evansford farm, on 2 October 2018, Emilia inspected the Melbourne Road property, visited the office of the real estate agent for the vendor of the Melbourne Road property ('real estate agent'), executed a contract of sale ('contract of sale'), and paid a deposit of $2,000 in cash.3F[4] It seems that the Melbourne Road property was located and drawn to Emilia's attention by Nicola and/or Robert. In the month prior, Monika had purchased Roycroft Way, upon which she and Robert subsequently built their family home, largely from the proceeds of Monika's inheritance and her salary income. Nicola gave evidence that he needed a place to live at around this time, and that he wanted to live in the Yea area to be close to Robert and his family.

31 The discussions between the parties at the time Emilia entered into the contract of sale and the parties' understandings and intentions are critical to the resolution of the issues in dispute in this proceeding, and will be discussed in detail later in these reasons.

32 At trial, Emilia gave evidence that Nicola was with her when she signed the contract of sale, again using her maiden name, and that she paid the deposit of $22,000 in cash.4F4F[5] However, Nicola gave evidence that on the way back from Yea to Doncaster, they stopped at a bank in Kilsyth, where Emilia arranged for $20,000 to be transferred to the vendor's real estate agent to pay the balance of the deposit.5F[6] The documentary evidence, which shows that the real estate agent received the sum of $20,000 by way of bank transfer on 3 October 2018,6F[7] indicates that the latter version of events is correct.

33 There were three versions of the contract of sale in evidence.7F[8] The first, which was discovered by Emilia,5F8F[9] was signed by the vendor on 5 October 2018, and provides Robert's email address and mobile phone number as the contact details for Emilia, along with the contact details for CCS. The handwriting style and Nicola's evidence supports a conclusion that these details were written by a staff member at the office of the real estate agent, or possibly, but less likely, by a staff member of CCS, some time after 2 October 2018. Another version of the contract of sale (produced by CCS in response to a subpoena issued by Emilia's solicitors) has the words 'and/or noninee' [sic] in the same handwriting adjacent to Emilia's signature. A further version (discovered by Robert) corrects the spelling of 'nominee' by adding a downward stroke to the letter 'n'. It seems unlikely, on any version of events, for these details to have been added to the contract of sale on the day that Emilia executed the contract of sale.

34 The likely explanation for the discrepancies between the three versions of the contract of sale seems to me to be as follows:

(a) Emilia executed the contract of sale prior to the addition of the words 'and/or noninee', which were presumably added by a staff member at the office of the real estate agent some time between 2 October 2018 and 17 October 2018 (the latter being the date of the earliest document on CCS's conveyancing file);

(b) the additional words were in the same hand as Emilia's contact details on the contract of sale, which is consistent with Nicola's evidence that he (or Linda) contacted the real estate agent to organise for Robert to be nominated as the purchaser of the Melbourne Road property; and

(c) the correction of the spelling of the word 'nominee' may have been done by either the real estate agent's clerk or CCS, but little turns upon that for present purposes.

35 In any event, the contract of sale included a clause which permitted the purchaser to nominate an additional or substitute purchaser.

36 Emilia says that after she signed the contract of sale, Robert told her that she should not put the title to the Melbourne Road property in her name, because that would jeopardise her aged pension. Robert denies making any such representation, or having any discussions whatsoever with Emilia about the purchase of the Melbourne Road property prior to the settlement of the purchase. Instead, Nicola gave evidence to the effect that after Emilia signed the contract of sale, Emilia told him that she could not give him enough money to fully fund the purchase of the Melbourne Road property, as she could only give him about $350,000. As he had no funds of his own, and, as a disability pensioner, would not be able to raise finance to fund the shortfall, he approached Robert and asked him to borrow the balance of the purchase price. Robert agreed, apparently with some reservations. Nicola said that when he told Emilia about this proposal, she expressed some concern about the title to the Melbourne Road property being in Robert's name, but agreed to nominate Robert as the purchaser of the Melbourne Road property in her place.

37 On 17 October 2018, CCS wrote to Robert confirming that he would be nominated by Emilia as the purchaser of the Melbourne Road property,9F[10] and provided Robert with a form to be completed by Emilia and Robert to give effect to the nomination ('nomination form').10F[11] The nomination form is a single page document, and was executed first by Emilia some time between 17 October 2018 and 23 October 2018. The nomination form was executed by Robert and returned to CCS on 23 October 2018. Two days later, on 25 October 2018, Robert authorised the release of the deposit to the vendor of the Melbourne Road property.11F[12]

38 On 1 November 2018 (that is, after the execution of the contract of sale and the nomination form, but prior to the sale of the Evansford farm), Emilia's regular and long standing general practitioner, Dr Lillian Rezk, prepared a letter addressed to 'To whom it may concern'.12F[13] Dr Rezk stated as follows:

This is to let you know that Emilia has been my patients (sic) for many years. She is in (sic) cognitively able to sign legal documents and their implications.

39 Dr Rezk was not called by either party to give evidence, but I permitted Dr Rezk's records to be tendered into evidence. However, Emilia was not questioned about this letter, or the circumstances in which the letter was obtained, and, for reasons I will explain later in these reasons, I have given this letter little weight.

40 It is common ground that there were no communications whatsoever between Emilia and CCS in connection with the purchase of the Melbourne Road property. As for the funding of the purchase of the Melbourne Road property, the only dispute between the parties is whether Emilia provided Robert with approximately $90,000 in cash, or whether the purchase of the Melbourne Road property was in part financed by the Secure Funding loan.

41 There is no dispute that Emilia contributed the following funds for the purchase of the Melbourne Road property:

(a) a cash deposit of $2,000 on 2 October 2018;

(b) a bank transfer to the real estate agent of $20,000 on 3 October 2018;13F[14]

(c) Emilia transferred $80,000 to Nicola's bank account on 23 October 2018;

(d) on 3 December 2018, $150,000 was paid to Nicola's bank account from the proceeds of sale of the Evansford farm, in accordance with a direction given by Robert in a telephone call to Mr Morgan's office;14F[15] and

(e) on 6 December 2018, Emilia transferred $100,000 to Nicola's bank account.

42 There is also no dispute that at settlement, the sum of $92,908.50 was paid by Secure Funding Pty Ltd ('Secure Funding') to the vendor of the Melbourne Road property.

43 Robert says on or about 17 October 2018, consistent with his agreement with Nicola, he approached a mortgage broker, Ben Walker, and applied to Secure Funding for finance the following day. On 26 October 2018, Nicola made a statutory declaration at a pharmacy, which stated (in a form of wording apparently suggested by Mr Walker) ('statutory declaration') as follows:

I will provide my son Roberto Matteo a non refundable gift of $350,000 (three hundred and fifty thousand dollars) to assist with the purchase of his home. This gift is unconditional and there is not repayment arrangement of any kind.15F[16]

44 On 15 November 2018, Robert accepted a loan offer from Secure Funding of $95,000, of which $92,908.50 was paid to the vendor of the Melbourne Road property at settlement on 11 December 2018.

45 However, Emilia says that she paid Robert $90,000 in cash in three tranches: the sum of $50,000 on 2 October 2018 (the date she executed the contract of sale), a further payment of $30,000 on 15 November 2018, and a further payment of $10,000 on 29 November 2018. Emilia said that the cash was provided to Robert at the Doncaster property, either to him directly, or via Nicola or Robert's sister.16F[17] Robert denies receiving any cash payments from Emilia, save for some modest sums (totalling $15,000) that she lent him to assist him to purchase equipment for his pizza shops, which he has repaid to Emilia.

46 Emilia's evidence regarding the source of the cash she said she paid to Robert was not very precise. At one time she said that the source of the $50,000 cash she paid to Robert on 2 October 2018 was the cash she obtained for the chattels,17F[18] although 2 October 2018 was six weeks prior to the sale of the Evansford farm. On another occasion she said that she had around $250,000 in cash saved from her work as a dressmaker in five dollar notes hidden at various locations at the Doncaster property, and that she gave Robert cash in a little red bag containing five dollar notes.18F[19] She believes she made a written note of the cash payments she made to Robert, but she has not retained those notes. She did not record these payments in a notebook she produced to the Court which contained, among other things, notes of loans (of modest sums) to some of her grandchildren.

47 Given that it is common ground that Secure Funding contributed $92,908.50 at settlement, the necessary implication of Emilia's allegation that she provided $90,000 in cash to Robert is that, if Emilia's evidence in that regard is accepted, Robert must have used these funds for his own purposes, without Emilia's knowledge or consent. Emilia adduced evidence to the effect that Robert has had financial problems associated with his business ventures and gambling habits. It was also put to Robert that the funds provided to him by Emilia and funds raised by borrowings secured by the Melbourne Road property ('further borrowings') were used by him for his own purposes and to purchase and construct a home at Roycroft Way. Robert denied that Emilia provided him with $90,000 in cash for the purpose of purchasing the Melbourne Road property, and maintained that the Secure Funding loan was used to make up the shortfall between the balance of the purchase price and the funds gifted to Nicola by Emilia. While at one point he gave evidence that he used some of the funds raised by the further borrowings for expenses associated with the subdivision of the Melbourne Road property, Robert ultimately agreed that the further borrowings were used by him for his own purposes.19F[20]

48 Robert gave evidence that prior to the settlement of the purchase of the Melbourne Road property in December 2018, he had discussions with Nicola regarding what to do with the Melbourne Road property. Robert said that he and Nicola agreed that they would take steps to subdivide and redevelop the Melbourne Road property, with Nicola to live in the house on the Melbourne Road property, and with one of the lots to be retained by Robert to reflect his contribution to the purchase price of the Melbourne Road property.

49 Robert gave evidence that he did not discuss with Emilia what senior counsel for Emilia described as the 'side-deal', but said that he did not need to do so, because the Melbourne Road property was Nicola's property, not Emilia's property.

50 During the course of 2019, Robert lived with his family at the Melbourne Road property while the family home at Roycroft Way was being built. Monika became the registered proprietor of Roycroft Way on 28 February 2019.

51 On 16 January 2019, Robert accepted a further loan offer from Secure Funding secured by the Melbourne Road property of up to $188,000, which was drawn down upon on two occasions in January 2019 and May 2019. On 25 November 2019, Robert refinanced the Melbourne Road property with Pepper Finance Corporation Ltd for the principal sum of $266,116. It is common ground that Emilia knew nothing about Robert's use of the Melbourne Road property to secure the further borrowings. However, the parties are in dispute about whether Emilia knew about the use of the Secure Funding loan to purchase the Melbourne Road property.

52 Also during the course of 2019, consistent with the evidence about the discussions he and Nicola had about their plans for the Melbourne Road property, Robert consulted with architects, town planners and other professionals regarding the potential sub-division and redevelopment of the Melbourne Road property. On 8 November 2019, Robert met with Domenic Marasea, an architect, regarding a possible joint venture for the redevelopment of the Melbourne Road property.

53 A summary of the feasibility study prepared by Mr Marasea on around 8 November 201920F[21] shows the various options for redeveloping the Melbourne Road property with four, five or six units, with 'Rob & his Dad' to contribute the land and a share of the development costs, and Mr Marasea's company providing architectural and project management services, making a cash contribution to 'Rob & his Dad', and contributing a share of the development costs. A reference by Mr Marasea in the covering email to Robert's broker suggests that Robert and Nicola were planning to finance their share of the development costs by further borrowings.

54 Over the course of 2020, Robert continued to live at the Melbourne Road property, and to have discussions with various parties about the potential redevelopment of the Melbourne Road property. On 24 January 2020, Chris Smith & Associates ('CSA'), a firm of engineers and planners, provided Robert with a fee proposal to make an application for a planning permit for a three lot subdivision of the Melbourne Road property.21F[22]

55 On 31 March 2020, Mr Radebe emailed Robert, copying in Roberto Snr, a draft will prepared by Mr Radebe for Emilia ('draft will').22F[23] The draft will provided as follows:

I GIVE DEVISE AND BEQUETH the whole of my estate both real and personal of whatsoever nature or kind and whatsoever situate unto my Trustee UPON TRUST as follows:-

a) to pay thereout my just debts, funeral and testamentary expenses and the State and Federal duty payable upon my estate.

b) to sell the two (2) properties below and distribute the proceeds of sale of the said properties to my children ROSA MATTEO, NICOLA MATTEO and ROBERTO MATTEO as shall survive me in equal shares.

(i) 25-27 Church Road, Doncaster in the state of Victoria.

(ii) [address] Miami in the State of Queensland.

I DIRECT that ROBERTO MATTEO be given the first option to purchase the Miami property at a market value price.

I DIRECT AND INSTRUCT my Executor to deduct a sum of $400,000.00 from NICOLA MATTEO'S share of the proceeds of sale of Doncaster and Miami properties and distribute the amount of $400,000.00 to ROSA MATTEO and ROBERTO MATTEO in equal shares.7F23F[24]

56 It is common ground that Emilia did not execute the draft will. Where the parties differ is as to how and why the draft will came to be prepared, and the forensic significance of the terms of the draft will to the issues in the proceeding. This issue will be discussed in more detail later in these reasons.

57 The following day, on 1 April 2020, Nicola took Emilia to an appointment with Dr Rezk. Dr Rezk wrote the following letter, which Emilia said that she provided to Nicola, unopened.24F[25] The letter stated as follows:

This is to let you know that Emilia has been my patient since the year 2004 and is very well known to me as a patient.

I believe Emilia would like to make changes to her will. I assessed her cognitive abilities today and her understanding of the implications of making a will.

She seems to be of a sound mind to do so.

If you have any enquiries, please do not hesitate to ring me on the above telephone number.

58 Emilia denied giving Mr Radebe instructions to prepare the draft will, saying that Nicola organised the preparation of the draft will. Mr Radebe gave evidence that the draft will was drafted on Emilia's instructions, following a number of discussions between him and Emilia at the Doncaster property. Emilia gave evidence that she did not sign the draft will because, among other things, she intended to sell the Doncaster property and use part of the proceeds to facilitate the subdivision and redevelopment of the Melbourne Road property, such that the terms of the draft will would be redundant within a short period of time. Indeed, the conveyancing file for the sale of the Doncaster property9F25F[26] shows that in or about June 2020, Mr Radebe, presumably acting upon Emilia's instructions, commenced the searches necessary for the preparation of a s 32 statement for the Doncaster property. A document on the conveyancing file for the Doncaster property shows that a s 32 statement was completed on 22 June 2020, and a contract of sale was prepared and was in the possession of Emilia's real estate agent by 6 October 2020, so presumably the Doncaster property was on the market from about that date.

59 On 16 June 2020, Robert entered into an agreement with a food service company permitting it to take a charge over the Melbourne Road property.26F[27]

60 In September 2020, Robert and his family left the Melbourne Road property to live at Roycroft Way. It seems that the Melbourne Road property remained vacant for some time after that.

61 On 11 March 2021, Emilia sold the Doncaster property for $1,695,000.10F27F[28] Despite having retained Mr Radebe to prepare the s 32 statement and the contract of sale for the Doncaster property, she engaged Mr Morgan's office to handle the conveyancing transaction. While it is not entirely clear from the evidence when she left the Doncaster property, at around that time she was living with Nicola and Linda at Linda's home in Croydon. Nicola gave evidence that Emilia lived in Croydon for about three or four months (and wanted to leave Doncaster and live in Yea) because she was subject to threats and intimidation by one or more of Rosa's children (Rosa also lived in Doncaster).28F[29] Rosa says that her mother refused to see her and her family during this period because of unfounded rumours spread about her by an unnamed family member. Emilia was not asked to comment upon and did not comment upon either version of events in her evidence.

62 On 18 April 2021, Emilia signed a contract of sale for the purchase of Yea Springs Drive.29F[30] It seems that she purchased this property after either or both of Nicola and/or Robert located it. Again, Emilia retained Mr Morgan's office to handle the conveyancing transaction. On around 24 June 2021, Emilia signed a nomination form providing for the nomination of both her and Nicola as purchasers of Yea Springs Drive as joint proprietors.30F[31] Settlement of the sale of the Doncaster property took place on 8 July 2021, and settlement of the purchase of Yea Springs Drive took place on 12 July 2021.

63 It seems that Linda assisted Emilia and Nicola with the conveyance of the Doncaster property and Yea Springs Drive, receiving and sending emails and taking Emilia documents to sign. On the nomination form referred to above, Nicola nominated the Melbourne Road property as his address.11F31F[32] The evidence suggests that any involvement by Robert in the conveyancing transaction associated with the purchase of Yea Springs Drive was limited.

64 Emilia and Nicola went to live at Yea Springs Drive at around the time of settlement.

65 On 14 September 2021, Emilia attended a bank with Nicola and withdrew $107,000 in cash and deposited $100,000 in Nicola's bank account, telling a bank clerk that she was using it for the construction of a granny flat in Yea.[33] However, the parties agree that the funds were advanced to Nicola for the purposes of the renovations. Nicola says that these funds (including a further sum of $27,000 on 8 December 2021) were advanced as a gift or a loan from Emilia to him.32F[34] Emilia says that the funds were to be spent by Nicola at her direction for the renovations, which were to be carried out to her specifications. In particular, she wanted the house to be constructed in brick, and wanted Nicola to install an Italian kitchen. Robert denies being present or having any involvement in the discussions between Emilia and Nicola regarding the renovations.

66 It has not been necessary for the purpose of determining the issues in this proceeding or preparing these reasons to reconcile in detail the expenditure on the renovations shown in Nicola's bank statements33F[35] with the funds provided by Emilia to Nicola for the renovations. However, a review of bank statements produced by Nicola at trial shows that he did in fact spend substantial funds on the renovations in the latter quarter of 2021, although the renovations were not complete by the time Robert commenced discussions with Mr Tull about the redevelopment of the Melbourne Road property in early 2022.

67 On 28 January 2022, Robert (and possibly Nicola) met with Mr Tull to discuss a joint venture between them for the subdivision and redevelopment of the Melbourne Road property.

68 On that day, Robert sent Mr Tull a plan of subdivision for the Melbourne Road property prepared by CSA, which showed a four lot subdivision with the retention of the now partially renovated house.34F[36] During the course of February and March 2022, Robert and Mr Tull talked and exchanged text messages about the sale of the Melbourne Road property by Robert to Mr Tull, on terms which included a sale price of $300,000, and which required Mr Tull to construct a house for Nicola on the rear lot and transfer the title of the rear lot to Nicola. The sale was not concluded. However, Mr Tull's company carried out further renovation works on the house at the Melbourne Road property between March and May 2022, following which Mr Tull's sister moved in to live at the Melbourne Road property by agreement between Robert and Mr Tull.

69 One of the impediments to the joint venture and the redevelopment of the Melbourne Road property was the lodgement by Emilia, through a firm of solicitors, of the first caveat.35F[37] The first caveat lapsed in about August 2022 after Emilia failed to issue a proceeding to substantiate her claim following the issue of a lapsing notice.

70 It is not clear exactly when Nicola left Yea Springs Drive. He probably left there in about early 2022, he says to obtain treatment in Melbourne for a range of quite serious medical conditions. The circumstances in which Nicola left Yea Springs Drive will be explored further later in these reasons. There was also some evidence that there was an acrimonious discussion at a family meeting at Yea Springs Drive in early 2022 involving (at least) Emilia, Nicola and Roberto Snr ('family meeting').[38]

71 On 7 April 2022, CSA wrote to Robert confirming that a planning permit had been granted for the subdivision of the Melbourne Road property into four lots and the construction of three new houses on the rear lots.

72 Also on 7 April 2022, Rosa, Emilia, and a friend of Rosa's attended the Melbourne Road property ('7 April visit'). Mr Tull, his sister and some of Mr Tull's employees were present at the Melbourne Road property during the 7 April visit. Emilia and Rosa demanded to know what Mr Tull was doing there, and Mr Tull told them that he had purchased the Melbourne Road property. Emilia protested, saying it was her property. Emilia and Rosa inspected the property and the house, and took photographs of the house, the yard, and the people and the motor vehicles (including the registration plates on the vehicles) present. Later that day, they visited Robert's pizza shop in Yea. The following day, Robert sought intervention orders against both Emilia and Rosa. Interim orders were granted, probably ex-parte, by the Magistrates' Court at Seymour on 13 May 2022.

73 Robert pressed an application for final intervention orders against Emilia and Rosa. In his further and better particulars dated 1 October 2022, Robert, among other things, referred to the fact that Emilia and Nicola were currently in dispute over the ownership of Yea Springs Drive, to which Robert was not a party, and said further as follows:

On 7 April 2022 at approximately 12.30pm, Emilia, Rosa and a third woman (who claimed to be a friend of Emilia named Julie) attended the Melbourne Road property unannounced and entered the property without permissions, which was at the time an active construction site. They proceeded to begin to harass trades on site including STEVEN TULL. They were asking for my personal information such as if the Applicant had paid them, that they were going to lose money as Emilia owned the property and that the Applicant had commit fraud.

The Applicant understands that Rosa was also very vocal that the Applicant was not the owner of the Melbourne Road property and threatened that "my mum" will be taking ownership back through the Courts. Rosa also began taking pictures of the property and the workers. When Emilia and Rosa were asked to leave the property by the trades, they refused to comply and stayed for at least 20 minutes. The Applicant was called by Tull and the Applicant then called the Police having spoken to SC KIRSTEN BARLEY. The Applicant says that Barley directed him to obtained intervention orders.

After finally leaving the property at approximately 2.00pm, Emilia, Rosa and Judy attended the High Street business premises of the Applicant (Tender Bundle Items 7 and 8). At first, they walked past the property back and forth, peering through the windows. Emilia then proceeded to enter the property and began harassing employees, demanding to LATESISHA TOURNEY, an employee of Knead It Pizza Bar, to "see the plants". Latesisha asked Emilia why she wanted to access the staff only area and Emilia replied that she was Roberto's grandmother. Latesisha facilitated Emilia's request. Rosa stayed at the front of the premises, but she kept staring into the shop window resulting staff having to ask if needed help, to which she replied, "No, I'm just waiting". Emilia was observed to be "snooping" around the kitchen and seating areas of the business, before leaving (Tender Bundle Item 9). Staff were left uneasy and intimidated by the conduct of Emilia and Rosa.

Rosa was observed speaking to several customers as they were trying to enter the business to make purchases, causing a several customers to leave as they appeared uncomfortable. The Applicant contacted SC Barley to complain of Emilia and Rosa's further conduct after his staff alerted him to this incident.

The Applicant says that Emilia and Rosa then proceeded to D.A Robinson Real Estate in Yea who manage the High Street property. They proceeded to demand to speak to the managing agent, Deb Robinson, requesting that she provide copies of paperwork relating to the sale of the Melbourne Road property. When this was refused, Emilia demanded to buy the High Street property. After this request was also dismissed, the Respondents left.

Emilia called the Applicant on approximately a week after the above incidences, threatening that if the Applicant did give her what she wants (sic the Melbourne Road property), she would "destroy" his business. Emilia further threatened that "I have the money" to "do what I want", and that the "the rest of the family will be after your family". Emilia also stated to the Applicant that "I will play dumb like I have dementia", and "no one will believe you because I'm old".

In addition, DAMIAN READE ("Damian"), then contacted EMMA MATTEO ("Emma"), the Applicant's sister several days (4 to 5) after the incidences. The Applicant understand that Damian informed Emma that Emilia and Rosa had attempted to convince him to attend the Applicant's business and stand over him in an effort to have the Applicant sign over the Melbourne Road property to Emilia.

74 In their response filed on 2 May 2023, Emilia and Rosa:

(a) denied that Robert owned the Melbourne Road property;

(b) said that the dispute between Emilia and Nicola was irrelevant to Robert's application;

(c) denied that the first caveat was frivolous, and referred to the caveat lodged after the issue of this proceeding, saying:

... the applicant has taken advantage of Emilia by improperly coaxing her into having the Melbourne Road property to be registered in his name, brings the intervention order proceeding without proper basis in an endeavour to cause undue pressure and stress on Emilia and has committed family violence against Emilia.

(d) denied harassing Mr Tull, and said that they did not require permission to enter the Melbourne Road property, because Emilia is the true owner of the Melbourne Road property;

(e) denied the characterisation of Emilia and Rosa's conduct when they attended the Melbourne Road property during the 7 April visit and when they attended Robert's pizza shop;

(f) noted that the police had taken no action to obtain an intervention order against them;

(g) denied that Emilia called Robert threatening to destroy his business if he refused to sign over the Melbourne Road property to her, and denied that Emilia and Rosa sought to persuade Rosa's son to threaten Robert; and

(h) stated as follows:

(a) Emilia is 88 years old and of poor health, and as such most of the allegations made by the applicant are either physically impossible or generally infeasible for a person of Emilia's age so as to make the allegations preposterous;

(b) Rosa is 66 years old and of poor health;

(c) most of the conduct alleged by the applicant is ordinary conduct that is no way improper but merely sensationalised by the applicant so as to misrepresent Emilia and Rosa's actions, and further portray them in a falsely vicious light;

(d) the applicant has perpetrated elder abuse against Emilia and taken advantage of her old age, poor health and limited proficiency in the English language;

(e) the applicant is not in fear of Emilia and Rosa and the suggestion of same is absurd and incredulous given the respondents' age and their having embarked on seeking legal remedy via the courts against the applicant's malicious conduct.

75 In their evidence at trial, Emilia and Rosa did not expressly deny the allegations made by Robert in his application for the final intervention orders, but their evidence (and the evidence of Mr Tull) was to the effect that no-one could have felt physically threatened by their conduct. Robert's application for final intervention orders was struck out by consent on 4 May 2023.

76 On 18 July 2022, Emilia's solicitors sent a letter of demand to Nicola.36F[39] This letter stated as follows:

As you may be aware, we act for your mother, Mrs Emilia Matteo of [Yea Springs Drive].

We are instructed by Mrs Matteo that on 12 July 2021 she became the registered proprietor of [Yea Springs Drive] being Lot 1 on Plan of Subdivision 525297V in dealing number AU567194Y. This represents the whole of the land in Certificate of Title Volume 10958 Folio 238 ("the land").

Unbeknown to Mrs Matteo, you became the joint registered proprietor of the land, together with her, at the time she became registered as proprietor. As a result, and as you are aware, you are joint proprietors of the land.

We are instructed by Mrs Matteo that she has requested that you transfer that part of the land of which you are the joint proprietor back to her, forthwith. Mrs Matteo has asked that you do so at your own expense, as it was never intended by Mrs Matteo that you would become a joint owner of the land with her. Aside from the fact that you have not made any monetary contribution to the purchase of the land, or to its improvement or maintenance, Mrs Matteo has other children, being your siblings, to whom she owes a duty to treat equally, together with you.

If you are unwilling or unable to forthwith co-operate in transferring back to Mrs Matteo that portion of the land registered in your name, Mrs Matteo will have no alternative but to commence legal proceedings seeking Orders of the Supreme Court of Victoria to affect a transfer to her. Should that become necessary, you face the prospect of costs orders being made against you, together with the costs of transferring the land, that is, stamp duty and titles office registration fees, etcetera.

Further, we are instructed by Mrs Matteo that she has also made substantial short-term loans of money to you, which moneys she requires be repaid forthwith, namely for use by you in:

1. The purchase of a house;

2. The purchase by you of a car and caravan;

3. The purchase by you of a ride-on mower; and

4. Orthodontic work for your daughter.

TOTAL OF SHORT-TERM LOANS TO YOU: $250,000.00.

If you are unwilling or unable to re-pay Mrs Matteo the $250,000.00 loaned to you on a short-term basis, together with interest, she will have no alternative but to issue legal proceedings for the recovery of the said loans in the County Court of Victoria. Again, such action will result in you being ordered to pay substantial legal costs, together with the debt and interest.

We trust that within fourteen (14) days hereof you will have:

1. Confirmed your agreement to transfer the portion of the land presently registered In your name, back to your mother, Mrs Matteo; and

2. Made arrangements to repay the $250,000.00 to Mrs Matteo.

In the absence of your willingness to attend to Mrs Matteo's above demands forthwith, we will have no alternative but to issue the legal proceedings that we have been instructed by Mrs Matteo to issue.

We trust this will not be necessary.12F37F[40]

77 This letter does not refer to the Melbourne Road property, or refer to, at least in express terms, the funds transferred to Nicola in late 2018, or the funds transferred to him in late 2021 for the renovations. Emilia was not asked any questions at trial about this letter and what it said or did not say, and there was no evidence at trial about how this dispute progressed.

78 During the course of 2022, Robert and Mr Tull continued to take steps preparatory to the redevelopment of the Melbourne Road property, including drawing plans for the construction of a house for Nicola on the rear lot of the Melbourne Road property.

79 In September 2022, Mr Tull messaged Robert saying that Nicola would not be able to move to the Melbourne Road property after his sister departed because he would need to start work on an extension to the house on the Melbourne Road property. He told Robert that his mother had a unit in Yea available to rent if Nicola was prepared to cancel his lease and move sooner. Robert responded 'Its not that. It's he's going to keep paying rent when he has a house sitting there. Honestly his [sic] cracked it.' Mr Tull responded 'At the moment he does yes but once we settle then he won't I'll be the one paying interest.'

80 On 26 October 2022, Mr Tull signed a contract of sale for the purchase of the Melbourne Road property for $860,000, and the following day presented Robert with a rough calculation of what Mr Tull said was owing to him and his company in connection with the Melbourne Road property. However, it seems from an exchange of text messages between Robert and Mr Tull in late 2022 that Mr Tull was having some difficulties raising finance to complete the purchase, and on 4 November 2022 Mr Tull's conveyancer informed Robert's solicitor that Mr Tull was withdrawing his offer to purchase the Melbourne Road property. However, it seems that Mr Tull's efforts to obtain finance to complete the purchase continued into December 2022. Mr Tull disputes Robert's evidence to the effect that the joint venture failed because of his inability to raise finance: rather, he blamed the first caveat. It is not necessary for the purpose of the resolution of the issues in dispute to resolve this dispute, but Mr Tull's evidence to the effect that neither party had the financial wherewithal to progress matters to a mutually acceptable solution rings true.

81 Mr Tull's sister was forced to leave the Melbourne Road property in around Christmas 2022, when Robert changed the locks on the house.38F[41]

82 In January 2023, Mr Tull made attempts to contact Robert to discuss the brewing disputes between them, but on 31 January 2023, after Mr Tull messaged Robert to request that he provide Nicola's telephone number to him, Robert responded as follows:

Steve he's not interested in talking, we have been advised by the solicitors to have no further contact with you without them there, so all future communication can be sent to [email address].

83 On 10 March 2023, Emilia issued this proceeding. She lodged a further caveat over the title to the Melbourne Road property on 15 March 2023, in substantially the same terms as the first caveat.39F[42]

84 Nicola moved into the house on the Melbourne Road property some time in 2023.40F[43]

85 On 10 May 2024, a few weeks after this proceeding was set down for trial, Rosa visited Nicola at the Melbourne Road property late at night, where he told her that Emilia had provided the funds for the purchase of the Melbourne Road property and the renovations. According to Rosa, Nicola said that he would repay Emilia $127,000, because he still had the money. Nicola gave evidence that prior to this visit, he had not spoken with Rosa since 2017.

86 On 16 May 2024, Nicola sent a text message to Rosa telling her to never come to his house again, saying that she arrived after 10.00pm at night, after he had taken his medication, and questioned him until 2.30am.41F[44]

87 On 30 July 2024, the proceeding failed to settle at mediation.

88 On 1 August 2024, Nicola called Emilia and had a 15 minute conversation with her. Rosa was with Emilia at the time, and Emilia arranged for Rosa to record the conversation, which was partly in English, and partly in Italian. An agreed version of the translated transcript of this call, and a subsequent call (together the 'August 2024 call') is in evidence.42F[45] During the first call, Emilia and Nicola discussed the following matters:

(a) Nicola asked what Emilia wanted out of this proceeding, to which Emilia responded that she wanted her property back and her money back;

(b) whether Nicola promised Emilia that he would build her a brick house at the Melbourne Road property;

(c) whether Emilia had taken Nicola out of her will and would leave him with nothing;

(d) Nicola said that he never wanted to be on the title to Yea Springs Drive, and he would be happy to return Yea Springs Drive to her if Emilia left him alone at the Melbourne Road property;

(e) Emilia denied having given Nicola permission to have his name on the title to Yea Springs Drive;

(f) Emilia said that she gave Nicola money to buy a car and caravan, gave him everything on the farm, and lent him money he was supposed to repay once he received compensation from a civil claim, but he never did repay her;

(g) Emilia said that Nicola gave her property, being the Melbourne Road property, to his son, and Nicola said that it was not her property, it was his property, and the property was only put in Robert's name because Robert helped him;

(h) Nicola said that he would sign Yea Springs Drive back to Emilia and keep the Melbourne Road property, which would result in his siblings getting three times more than him;

(i) Nicola spoke about his health issues;

(j) Emilia said a lot of her money had gone towards this proceeding, and said that she wanted both properties back;

(k) Emilia asked Nicola if he still had the $127,000, to which Nicola responded that he was always going to give that back to her. Emilia said that Nicola told her that he was going to build an Italian kitchen for her with that money, which he never did;

(l) Emilia then referred to the promises made by Nicola to the effect that he would look after her when she moved to Yea, to which Nicola responded that he had to go to hospital;

(m) Nicola then referred to Emilia bringing the rest of the family to Yea, and Emilia taking out an intervention order against him;

(n) after a discussion about other family members and an emotional exchange, Emilia then offered to allow Nicola to stay in the house on the front lot, but that she wanted the rest of the Melbourne Road property, to which Nicola responded, '[t]he land's not getting subdivided';

(o) Nicola said the value of the Melbourne Road property is $750,000, and Emilia said that she paid for it, and that he took $127,000 to build a house for himself, not for her, and that Nicola was a crook because he listened to his son;

(p) Nicola said that all Robert had done was help him, and that the money he had borrowed on the security of the Melbourne Road property was to fund this proceeding;43F[46]

(q) Emilia said that Nicola had come to her many times to ask for money for Robert's pizza shops. Nicola said Emilia lent Robert $15,000, while Emilia said she lent Robert $50,000; and

(r) after an angry exchange, the call ended.

89 It is not entirely clear what period of time elapsed between the first call and a further call that same day, or who initiated the second call. The transcript shows that the following matters were discussed during the second call, which lasted about 28 minutes:

(a) Emilia's request to visit the Melbourne Road property to recover her plants,44F[47] which Nicola refused;

(b) Nicola said that he was not going to lie about her plants, or the $127,000 for the house, and he would give her the $127,000 back, and return Yea Springs Drive and her plants to her;

(c) Emilia repeated her offer that Nicola could remain in the house on the Melbourne Road property, which she was prepared to allow, because he is unwell;

(d) Nicola said that he did not want to subdivide the Melbourne Road property, as he did not want to have somebody living behind him;

(e) Emilia complained that she had already spent half a million dollars, plus what she has had to spend to go to court again;

(f) Nicola once again said that he would give Emilia back her plants and $127,000, and would sign over Yea Springs Drive to Emilia;

(g) Emilia then said she would not subdivide the Melbourne Road property;

(h) they then argued about whether Emilia gave Nicola the money for the Melbourne Road property, with Nicola saying that Emilia had told Nicola's daughter Rebecca that she had done so;

(i) they then argued about whether Nicola promised Emilia that he would install an Italian kitchen at the Melbourne Road property;

(j) they then argued about who was lying, who was sick, and whether Emilia could speak, understand, and read English;

(k) they spoke about the draft will, which Emilia said she had not signed, but she also said that she could not deny that she 'did' the draft will;

(l) they spoke about the circumstances in which Nicola left Yea Springs Drive, which Emilia said that she did not want to discuss. Nicola said that he left because he had to have an operation and then planned to return, until Emilia 'started all this';

(m) Nicola explained that he could not take care of Emilia because as a male, he felt that he could not undertake her personal care, and Emilia did not want to get other help;

(n) they discussed again what would be required to resolve the dispute, with the sticking point being what was to be done with the Melbourne Road property. Nicola said that Emilia would not agree to leaving him with the Melbourne Road property because his siblings were greedy;

(o) Nicola continued to insist that Emilia gave him the money for the Melbourne Road property, and Emilia continued to insist that she gave him $127,000 to renovate the house on the Melbourne Road property for her;

(p) Emilia asked whether Nicola denied that she gave him money for a car, and gave Robert money to build his four pizza shops; and

(q) they argued about other matters and the conversation ended without any resolution.

90 At the trial, Emilia said that her offer to allow Nicola to keep the house on the Melbourne Road property provided that the other three lots were transferred to her was no longer open for acceptance by Nicola, given the amount she has had to pay her legal representatives between 1 August 2024 and the conclusion of the trial.

91 Under the heading 'Parties', Emilia pleaded, among other things, that while she speaks and reads Italian fluently, she has 'very limited proficiency in the English language, written and spoken'. In response, Robert pleaded that Emilia 'has a commercial/transactional level of proficiency when it comes to reading and writing in English' sufficient to understand the nature and effect of documents such as a contract for the sale of land and a nomination form. Robert relied upon, among other things, Emilia's work as a dressmaker, and her engagement of solicitors who did not speak Italian.

92 In her reply, Emilia pleaded that 'at all material times, she could not, without assistance, read or understand the nature and effect of legal documents in English relating to the conveyance of real property'.

93 Under the heading 'Pre-purchase period', Emilia said that in 2018 she sold the Evansford farm, including a crop of mature pine trees, for the total sum of $446,000. She alleged that, following the sale of the Evansford farm, and prior to the Melbourne Road property coming on to the market on 12 September 2018, Robert told Emilia that she should not purchase another property in her own name, as this would result in her losing her aged pension and other social security entitlements, and she should seek his assistance in respect of any property purchase she might make ('Evansford representations'). Robert denied making the Evansford representations, and said that the allegations concerning the Evansford representations were inconsistent with Emilia purchasing the Melbourne Road property in her own name.45F[48]

94 Under the heading 'Purchase of the Yea property', Emilia pleaded as follows:

(a) she executed the contract of sale on 2 October 2018. The copy of the contract of sale provided to her by the vendor's solicitors in August 2022 did not provide for the alteration of the contract of sale following its execution, and the handwriting on the second page of the contract of sale was completed by Robert or his agent;

(b) at the time Emilia executed the contract of sale she intended to complete the purchase of the Melbourne Road property as purchaser;

(c) Emilia turned her mind to seeking Robert's assistance with the conveyancing matters associated with the purchase of the Melbourne Road property ('conveyancing transaction'), but did not consider, or rely upon, the Evansford representations;

(d) Robert engaged CCS on Emilia's behalf for the purposes of the conveyancing transaction; and

(e) she paid the deposit on or around 3 October 2018.

(a) did not plead to the allegations concerning the execution and contents of the contract of sale;

(b) did not admit Emilia's allegations concerning her intentions when she executed the contract of sale, and said further that:

1. the Plaintiff's true intention and what matters she considered at the time are only known to her;

2. purchasing the property in her own name was directly inconsistent with the pleaded Evansford Representations in terms of ownership of the Property which appears to be the core and operative representation that is alleged (which is denied);

3. the Defendant is not in a position to plead to sub-paragraph 7 A(b) because it is not clear what is meant by "turn her mind"; and

4. the Plaintiff carried out the sale of the Evansford Property without assistance from the Defendant which indicates that she did not specifically require the Defendant's assistance with respect to the purchase of the Melbourne Road Property and was not dependent on him in this regard.

(c) denied engaging CCS to act on Emilia's behalf with respect to the conveyancing transaction, and said that CCS was engaged to act on his behalf; and

(d) did not plead to the allegation concerning the payment of the deposit for the Melbourne Road property.

96 In her reply, Emilia pleaded, among other things, as follows:

[S]he required assistance in respect of the sale and conveyance of the Evansford Property, the Melbourne Road Property, the Doncaster Property and Yea Spring Drive, as she could not, without assistance:

(A) read or understand the nature and effect of legal documents in English relating to such conveyances;

(B) attend to financial and banking arrangements, including making payments in order to enable such conveyance;

97 Further, Emilia pleaded that the engagement of CCS by Robert was without her knowledge, consent or authorisation,46F[49] and

(i) she had no involvement in any work conducted by CCS and did not provide any instructions for them to do any work, including in respect of nomination of a substitute purchaser;

(ii) she did not receive any advice or assistance from CCS, or any other conveyancer or lawyer, in respect of the conveyance of the Melbourne Road Property;

(iii) Roberto had actual or constructive knowledge of the matters pleaded ... above.

98 Under the heading 'Purported Nomination and Bare Trusteeship', Emilia pleaded as follows:

Following execution of the Contract of Sale and payment of the Deposit, Roberto told Emilia:

(a) that he had spoken to a financial advisor, who had confirmed that Emilia would lose her aged pension and other social security entitlements if the Melbourne Road Property was registered in her name;

(b) that the Melbourne Road Property should be registered in his name;

(c) that he would receive and hold funds advanced to him by Emilia in respect of the Purchase Price and advance such funds to the Vendor (via the conveyancer), at or prior to Settlement; and

(d) that, after Settlement, he would hold the Melbourne Road Property on trust for Emilia.

(collectively, the Bare Trustee Representations)

The Bare Trustee Representations were made during conversation between Roberto and Emilia that occurred in Emilia's then home, the Doncaster Property, on a date between 2 October 2018 and 23 October 2018.

On 23 October 2018, acting in reliance upon the Evansford Representations and the Bare Trustee Representations, Emilia signed a document purporting to be a nomination of Roberto as substitute purchaser of the Melbourne Road Property (Purported Nomination).

The Purported Nomination was in writing, in a document titled "Sale of Real Estate Nomination Form", which document had been drawn by CCS on the instructions of Defendant, not the Plaintiff, and a copy of which is available for inspection. Roberto asked Emilia to sign a document, that Emilia now knows to be the Purported Nomination, to protect her pension. Emilia did not and could not read the Purported Nomination, without assistance, due to her limited English skills. Emilia relied on Roberto to explain the contents of the Purported Nomination. The contents and effect of the Purported Nomination were not explained to Emilia by CCS or any employee thereof. Prior to signing the Purported Nomination, Emilia did not try to check whether what Roberto had said in the Evansford Representations and the Bare Trust Representations was correct, because she trusted Roberto.

99 Emilia pleaded as follows in relation to the funds advanced by her for the purchase of the Melbourne Road property:

With respect to the cash deposits made into Nicola's bank account, each of Roberto and Nicola told Emilia, during telephone and in-person conversations at or around the time of such deposits, that such funds were to be deposited into Nicola's bank account:

1. because Nicola was assisting Roberto in relation to the purchase of the Melbourne Road Property; and

2. that such funds would be applied in respect of the Purchase Price.

Roberto made no contribution to the Purchase Price.

(a) denied the allegations made by Emilia with respect to the alleged representations and the circumstances in which the nomination form was signed;

(b) said further that between 10 and 20 October 2018 he had a conversation with Nicola to the following effect:

1. The Plaintiff had told Nicola she did not wish to proceed with the purchase of the Melbourne Road property, as she had been informed and believed that she would lose her pension if she did.

2. The Plaintiff told Nicola she was prepared to nominate him as purchaser pursuant to a nominee clause in an existing contract for purchase of the Melbourne Road property. Nicola declined this offer, and instead proposed that the Defendant be nominated as purchaser pursuant to a nominee clause in an existing contract for purchase of the Melbourne Road property, to which the Plaintiff agreed.

3. Nicola and the Defendant agreed that Nicola would advance by way of gift to the Defendant the majority of the purchase funds to complete the contract for purchase of the Melbourne Road property.

4. The Defendant agreed to provide or otherwise raise an additional amount beyond those provided by Nicola in order to complete the contract for purchase of the Melbourne Road property.47F[50]

(c) said further as follows:

further and/or in the alternative, rather than reliance on the representations, the Plaintiff's purpose in executing the Nomination reflected several considerations and objectives:

i. not losing her aged pension and social security entitlements:

1. not proceeding with the purchase of the Melbourne Road Property: and
2. facilitating a gift to Nicola in the form of an advance against his inheritance.

(d) denied the allegation that he made no contribution to the purchase price of the Melbourne Road property, referring to the Secure Funding loan;

(e) the balance of the funds required to purchase the Melbourne Road property were gifted to him by Nicola as evidenced by the statutory declaration; and

(f) insofar as funds for the purchase of the Melbourne Road property originated from Emilia, Robert said as follows:

1. this constituted a gift by the Plaintiff to Nicola, that he subsequently regifted to the Plaintiff;
2. further and/or in the alternative, this constituted an advance against inheritance to Nicola, which was subsequently gifted to the Plaintiff;
3. further and/or in the alternative, this constituted a gift by the Plaintiff to the Defendant.13F48F[51]

101 In reply, Emilia pleaded, among other things, in summary, as follows:

(a) she relies upon Robert's denial with respect to the alleged representations and the execution of the nomination form as an admission that Emilia did not nominate Robert to be the substitute purchaser of the Melbourne Road property;49F[52]

(b) in relation to the conversation between Robert and Nicola referred to in paragraph 100(b) above, Emilia said:

(i) whereas the alleged representations were made by Nicola to Roberto, not Emilia to Roberto, Roberto brings no claim against Nicola;

(ii) Nicola was not her agent in respect of the alleged representations;

(iii) any alleged "gift", from Emilia to Nicola and/or Nicola to Roberto and/or Emilia to Roberto, was not completed or perfected in writing, including as to quantum and date;

(iv) Roberto brings no counterclaim nor seeks no relief in relation to any "gift", by any person, in this case, and has not otherwise made Nicola a party to the proceeding;

(v) Roberto brings no counterclaim nor seeks no relief in relation to any "gift", by any person, in this case, in respect of the alleged October Representations made solely by Nicola, as alleged, nor has he made Nicola a party to the proceeding;

(vi) if Roberto reached any agreement in respect of a "gift", of $350,000 or any other amount, such agreement can only have been with Nicola, who was not Emilia's agent and is not made a party to the proceeding;

(vii) at the time of Nicola allegedly making the October Representations:

(A) Emilia had already paid $22,000 towards the Purchase Price, including by the Deposit, and it is not alleged that such amount was a "gift";

(B) Nicola was dependent on social security payments and did not have the funds to, and could not, make a "gift" of the balance of the Purchase Price or the majority thereof;

(C) Nicola was not acting on behalf of Emilia.

(viii) insofar as Roberto relies upon a Statutory Declaration made by Nicola on 26 October 2018 to imply that the alleged October Representations were made or to allege any "gift", such document:

(A) was not provided to Emilia at any time prior to being disclosed in this proceeding;

(B) does not, in its terms, refer to any "gift" provided to Nicola by Emilia;

(C) was made when Nicola was dependent on social security payments and did not otherwise have the funds described therein as the "gift", being $350,000, nor the "gift" alleged in paragraph 12(b) (and the particulars subjoined thereto) of the Amended Defence, being $328,616.56;

(D) was made for the purposes of misleading [Secure Funding], as to Roberto's financial position, in order to obtain the loan pleaded in paragraph 17 of the Amended Statement of Claim.

(c) insofar as Robert relies upon the draft will as evidencing Emilia's intentions at the time she executed the nomination form:

(i) the draft will was never executed;

(ii) the draft will was not drawn on Emilia's instructions and does not reflect her testamentary intentions, at any time;

(iii) neither the email nor the draft will was provided to Emilia at any time prior to being disclosed in this proceeding;

(iv) the draft will does not, in its terms, refer to any "gift" provided to Nicola by Emilia or to any "advance against his inheritance";

(v) the draft will refers, in its terms, to a deduction of $400,000 from Nicola's share of the sale of the Doncaster Property, being a sum different to those described in the Statutory Declaration, being $350,000, and the "gift" alleged in paragraph 12(b) (and the particulars subjoined thereto) of the Amended Defence, being $328,616.56.

102 Under the heading 'Unconscientious Dealing with respect to the Purported Nomination', Emilia alleged as follows:

(a) she was in a position of special disability vis-a-vis Robert by reason of her age, her 'very limited proficiency with the English language', and her dependence, including emotional dependence, upon Robert;

(b) by reason of Emilia's special disability, Robert's knowledge of Emilia's special disability, and the fact that the purported nomination caused detriment to Emilia, Robert took unconscientious advantage of her in securing the purported nomination; and

(c) it would be unconscionable for Robert to rely upon the purported nomination to claim any equitable interest in the Melbourne Road property.

(a) admitted that in October 2018 Emilia was aged 83, but, if Emilia has limited proficiency in English (which is not admitted), Emilia was not dependent upon him because Robert is not proficient in Italian;

(b) denied that he took advantage of any special disability and said further as follows:

[T]he Plaintiff was not under any special disability or disadvantage which seriously affected her ability to make a judgment as to her own best interests:

1. while the Plaintiff was 83 years old, she had the cognitive capacity to sign legal documents and understand their implications;

Particulars

Letter dated 1 November 2018 from Dr Lilian Rezk.

1. the Plaintiff had a commercial/transactional understanding of the English language and was able to ascertain the content of the document independently of the Defendant;
2. the Plaintiff was able to seek independent advice, including legal advice;

4. the Plaintiff was not dependent on the Defendant; and

1. even if the Plaintiff was dependent on the Defendant (which is denied) any such dependence did not constitute a special disability for the purposes of unconscionability in the present circumstances; and
2. special disability is ascertained at the time when the Nomination was signed and therefore:
   1. to the extent that there has been a change in the Plaintiffs circumstances this is not relevant; and
   2. in so far as all that has happened is that the Plaintiff has subsequently changed her mind, this does not entitle her to relief.

(a) even if Emilia had a special disability, he was not aware of this, as he was only one of a number of family members with whom she had an emotional connection;

(b) Robert did not take unconscientious advantage of Emilia, as what occurred was what was intended, being the 'Plaintiff's purpose'14F50F[53] and/or an arrangement whereby Emilia's entitlement to the aged pension was not affected; and

(c) he is entitled to an equitable interest in the Melbourne Road property to the extent that he has directly or indirectly contributed funds to the Melbourne Road property, and/or, insofar as this is consistent with Emilia's purpose, which required that she not have a disclosable interest in the Melbourne Road property, such that Robert needed to be the legal and beneficial owner of the Melbourne Road property.

(a) said that she did not rely upon Robert to translate the nomination form to her, but rather to explain its contents, which he did not do;

(b) admitted that she was able to sign legal documents written in English, but could not understand or make decisions about or understand the implications of such documents if they were not properly explained to her;

(c) she did not seek independent advice about the nomination form because she relied upon Robert to explain the contents of the nomination form, and because she trusted Robert;

(d) at all times Robert knew that Emilia relied upon him to arrange for legal, financial and conveyancing advice for her;

(e) she required assistance in respect of the conveyance of the Evansford farm, the Melbourne Road property, the Doncaster property, and Yea Springs Drive because she could not, without assistance, read or understand the nature and effect of legal documents written in English, or attend to the necessary financial arrangements, and Robert, Nicola and Linda purported to assist her with those transactions; and

(f) Robert's allegations regarding an unspecified 'change in circumstances' and that Emilia 'has subsequently changed her mind' are embarrassing, and she does not admit those allegations.

106 Under the heading 'Use of Yea Property by Roberto as Security', Emilia pleaded that, without her knowledge, consent or approval, Robert encumbered the Melbourne Road property by obtaining the Secure Funding loan for $92,908.50 on 11 December 2018, by arranging the further borrowings and providing a charge over the Melbourne Road property on or before 16 June 2020 to secure a commercial credit agreement with Cadell Food Service.

107 Emilia alleged that, contrary to Robert's representation that he would hold the Melbourne Road property on trust for her, Robert:

(a) failed to advance to the Vendor, prior to Settlement or otherwise, all funds advanced to him by Emilia in respect of the Purchase Price;

(b) retained, without authority, the sum of $92,908.50 from the funds advanced to him by Emilia in respect of the Purchase Price;

(a) admitted the allegations regarding the Secure Funding loan and the further borrowings, but said that Emilia's consent, knowledge and approval with respect to those borrowings was not required; and

(b) Emilia did not advance any funds to him, including the sum of $92,908.50 said by Emilia to have been retained by him, as the source of the funds for the purchase of the Melbourne Road property were Nicola and the Secure Funding loan.

109 Under the heading 'Occupancy Agreement', Emilia pleaded, in summary, as follows:

(a) on a date between 23 October 2018 and 11 December 2018, at the Doncaster property, Emilia and Robert entered into an agreement whereby Robert could reside at the Melbourne Road property with his family until the house constructed at Roycroft Way was complete;

(b) in lieu of rent, Robert would pay all rates and other outgoings for the Melbourne Road property; and

(c) upon completion of the house at Roycroft Way, Robert would return vacant possession of the Melbourne Road property to Emilia, which he failed to do.

110 In response, Robert denied the existence of the occupancy agreement, and said further that there was no need for an occupancy agreement as he was the owner of the Melbourne Road property.

111 Under the heading 'Further funds advanced to Roberto by Emilia', Emilia pleaded as follows:

Between September 2020 and March 2021, Roberto advised Emilia to sell the Doncaster Property and to purchase a property located at 1 Yea Spring Drive, Yea, Victoria (Yea Spring Drive).

Roberto told Emilia, during conversations at the Doncaster Property, that she should sell the Doncaster Property and purchase Yea Springs Drive, so that Emilia could have more money available to advance to Roberto, including for the renovation of the Melbourne Road Property.

Between March and April 2021, Emilia sold the Doncaster Property and purchased Yea Spring Drive.

Following settlement of Yea Spring Drive, Roberto told Emilia that:

(a) he would coordinate renovation of the Melbourne Road Property for Emilia, while she was residing at Yea Spring Drive, prior to her returning to reside at the Melbourne Road Property (Renovation);

(b) he would receive and hold funds advanced to him by Emilia in respect of the Renovation and advance such funds to the tradesperson engaged to undertake the Renovation; and

(c) after the Renovation, he would return vacant possession of the Melbourne Road Property to Emilia.

The Renovation Representations were made during conversation between Roberto and Emilia that occurred in Emilia's then home, at Yea Springs Drive, on a date in or around mid-September November 2021.

Between mid-September 2021 and December 2021, acting in reliance upon the Renovation Representations, Emilia advanced Roberto $127,000 to finance the Renovation (Renovation Financing).

....

With respect to the transfers, each of Roberto and Nicola told Emilia, during telephone and in-person conversations at or around the time of such deposits, that such funds were to be deposited into Nicola's bank account:

1. because Nicola was assisting Roberto in relation to the renovations of the Melbourne Road Property; and

2. that such funds would be applied in respect of the renovations of the Melbourne Road Property.

Roberto made no contribution to the Renovation Financing.

...

Contrary to the Renovation Representations, Roberto failed, after the Renovation or otherwise, to return vacant possession of the Melbourne Road Property to Emilia.

112 In response to a request for further and better particulars of the alleged 'advice' given by Robert to Emilia regarding the purchase of Yea Springs Drive, Emilia said that Robert advised her, during conversations between them at the Doncaster property, to sell the Doncaster property and purchase Yea Springs Drive so that she would have more money available to advance to Robert, including funds for the renovations.

113 In response, Robert denied advising Emilia to sell the Doncaster property and to purchase Yea Springs Drive, and denied telling Emilia that he would co-ordinate the renovations, that he would pay for the renovations using her funds, and that he would return vacant possession of the Melbourne Road property to her upon the completion of the renovations. He said that Emilia's allegations in that regard were inconsistent with the fact that Emilia transferred $127,000 to Nicola's bank account, and Nicola organised and paid the tradespeople who carried out the renovations.

114 In her reply, Emilia said that Nicola was not a party to the proceeding, and the conveyance of Yea Springs Drive was organised by Robert, Nicola and Linda, to her detriment. In relation to the allegations concerning the renovations of the Melbourne Road property, Emilia said as follows:

(a) without her knowledge or consent, Roberto and Nicola entered into an agreement or arrangement with HI Vibration Pty Ltd and/or Steven Tull to renovate the existing dwelling at the Melbourne Road Property, for Nicola and Linda's use, and to subdivide the Melbourne Road Property, including to provide a new dwelling for Nicola and Linda's ongoing use and enjoyment;

(b) HI Vibration and/or Tull undertook renovation works in respect of the existing dwelling at the Melbourne Road Property, and work required to obtain a planning permit in respect of subdivision of the Melbourne Road Property;

(c) neither Roberto nor Nicola paid HI Vibration or Tull in respect of the work referred to in sub-paragraph 25(b), above;

115 Finally, under the heading 'Entitlement to Equitable Relief, alternatively Damages', Emilia pleaded as follows:

(a) Robert holds the Melbourne Road property on trust for Emilia by way of a resulting or constructive trust;

(b) Robert is estopped from claiming any equitable interest in the Melbourne Road property;

(c) Emilia is entitled to equitable compensation in respect of the Melbourne Road property;

(d) allowing Robert to remain in possession of, or to retain any proceeds of sale of the Melbourne Road property would be unconscionable; and

(e) alternatively, Emilia has suffered loss and damage in the sum of $567,000, being $440,000 for the purchase price of the Melbourne Road property, and $127,000 for the renovations.

116 In response, Robert denied that he holds the Melbourne Road property on trust for Emilia, and said further as follows:

1. in so far as the Plaintiff alleges that the Melbourne Road Property is held on resulting trust, this is denied, the Defendant refers to paragraphs 10-13 and 21, and further says:

1. Nicola was the relevant source of part of the funds used to purchase the Melbourne Road Property, not the Plaintiff;
2. the presumption of advancement applies with respect to the funds originating from the Plaintiff which is a complete defence to this claim;
3. in so far as the Defendant borrowed funds which were applied towards the purchase of Melbourne Road Property, this needs to be recognised as giving rise to an equitable interest for him in the Melbourne Road Property.

...

1. any equitable relief should be guided and limited by the following public policy considerations:

2. if the Plaintiff's principal or operative purpose was immoral or illegal (which appears to be the case with the Evansford Representations and Bare Trustee Representations), she should not be assisted by the law to benefit from this:

3. the Court has a general discretion to mould an equitable remedy, which is both proportionate to the seriousness of the illegality and not incongruous with the applicable statutory scheme (in this case social security law);

4. to the extent that the Melbourne Road Property has increased in value beyond the amounts that the Plaintiff is found by the Court to have contributed, the Court should not assist her so that she can benefit from this increase in value; and

5. an appropriate remedy would be to treat any amounts found to have been advanced by the Plaintiff as an advance on inheritance for Nicola.

6. the Plaintiff should not be assisted if she has merely changed her mind.

117 Robert also denied that Emilia is entitled to equitable compensation, and said further as follows:

[E]ven if the Plaintiff was entitled to equitable compensation (which is denied), any such claim should be reduced or otherwise take into account the following:

1. any government payments, reimbursements and/or subsidies the Plaintiff would not have received if she had purchased the Melbourne Road Property in her name and/or disclosed her interest in the Melbourne Road Property
2. any state taxes with respect to the Melbourne Road Property that have been avoided;
3. any federal taxes with respect to the Melbourne Road Property that have been avoided; and/or
4. any gains or increase in value of the Melbourne Road Property on the basis that the Plaintiff should not be entitled to profit from a transaction entered into for an illegal or immoral purpose on public policy grounds.

118 Robert denied that it would be unconscionable for him to retain the legal and beneficial ownership of the Melbourne Road property, saying further as follows:

1. allowing the Defendant to remain the legal and beneficial owner of the Melbourne Road Property is consistent with the Plaintiff's Purpose;
2. further and/or in the alternative, if the Plaintiff executed the Nomination relying on the pleaded representations and solely to avoid losing her aged pension and social security entitlements, this was an immoral or illegal purpose and the Court should not assist her to benefit from this, which is what would occur if:

1. the Melbourne Road Property has increased in value since it was purchased; and
2. the Melbourne Road Property is simply transferred to the Plaintiff;
3. further and/or in the alternative, the Court should not assist the Plaintiff to obtain a transfer or cause the sale of the Melbourne Road Property, in circumstances where:
4. this either constitutes a reversal of the Plaintiff's Purpose (a change of mind) or legitimises an illegal or immoral purpose;
5. this will disproportionately and more significantly adversely affect the Defendant because he has altered his position and proceeded on the basis that he is the legal and beneficial owner of the Melbourne Road Property, including by using this as security for finance, and would suffer detriment if this were to occur.

The Defendant would be required to provide alternative security or repay the debt secured by the Melbourne Road Property, which he is not currently in a position to do.

1. alternative, more appropriate and relatively equitable remedies can and should be moulded.

119 In her reply, Emilia said, among other things, that:

...to the extent that any state or federal tax liabilities arise in respect of a finding by this Court that [Robert] holds the Melbourne Road property on trust for her, being matters not yet known or admitted, Emilia undertakes to pay such sum, in full... .

120 In her prayer for relief, Emilia seeks, among other things:

(a) a declaration that Robert holds the Melbourne Road property, as renovated, on a resulting or constructive trust for her;

(b) orders requiring Robert to transfer the Melbourne Road property to her, unencumbered;

(c) alternatively, a declaration that Robert is liable to Emilia in the sum of $567,000; and

(d) an order for the judicial sale of the Melbourne Road property, with the net proceeds of sale after the discharge of any liabilities to be paid to Emilia.

121 On 7 July 2023, Robert served interrogatories for the examination of Emilia. It is not necessary for present purposes to refer to the questions and Emilia's answers, save to note the following:

(a) Emilia said that she did not check whether what Robert represented to her about the potential impact of the purchase of the Melbourne Road property upon her pension entitlements was correct, because she trusted Robert;

(b) each of the deposits made to Nicola's bank account, and each of the cash payments made to Robert for the purpose of the Melbourne Road property were made by Emilia at Robert's direction, including as to the timing and amount of each payment and deposit;

(c) Nicola was Robert's agent for the purpose of the acquisition of the Melbourne Road property and the renovations, because both Robert and Nicola told her that Nicola was assisting Robert; and

(d) Emilia has not told Centrelink that Robert holds the Melbourne Road property on trust for her, because she did not know that she was required to do so.

122 At the commencement of the trial, Emilia's legal representatives provided a document titled 'Statement of issues', which I agree is a generally accurate summary of the issues in dispute, but requires reframing to take into account the evidence which emerged at the trial. This document is reproduced at Annexure A to these reasons. During the course of the trial it became apparent that some of the issues said to be in dispute are actually not in dispute, and Annexure A has been annotated accordingly. The outstanding issues in dispute which require resolution are as follows:

(a) whether Robert advised Emilia after she signed the contract of sale for the Melbourne Road property that she should not complete the purchase in her own name because that would adversely affect her aged pension and other social security entitlements;

(b) whether, when Emilia executed the nomination form and provided funds to Nicola and/or Robert, she intended to retain the beneficial interest in the Melbourne Road property, or she intended to make a gift to Nicola;

(c) whether Emilia provided Robert with $90,000 in cash between 2 October 2018 and 11 December 2018 for the purchase of the Melbourne Road property;

(d) whether Emilia was in a position of special disability vis-a-vis Robert with respect to the purchase of the Melbourne Road property;

(e) whether it was unconscionable for Robert to encumber the Melbourne Road property and/or refuse to deliver up the Melbourne Road property to Emilia; and

(f) if Emilia's claims in this proceeding are made out, what is the appropriate remedy?

123 Issues (a) to (c) are related, and concern Emilia's intentions at the time she executed the nomination form. Issues (d) and (e) are also related, and only arise if I was to find, contrary to Emilia's primary contention in this proceeding, that she did not intend to retain the beneficial ownership of the Melbourne Road property, that is, if she was unsuccessful in establishing that Robert held the Melbourne Road property for her pursuant to a resulting trust. If she is successful in establishing a resulting trust, the question of whether she was under a special disability vis-à-vis Robert, and the question of whether Robert took unconscientious advantage of any special disability fall away, because there was no transfer of the beneficial ownership of the Melbourne Road property to anyone else.

124 Annexure A refers to a number of other issues which remain in dispute, such as the question of whether Robert lived at the Melbourne Road property pursuant to an occupancy agreement between him and Emilia, whether Robert advised Emilia to sell the Doncaster property and purchase Yea Springs Drive, and whether the funds advanced by Emilia to Nicola were in fact used for the renovations. However, the resolution of the factual disputes regarding these issues is either subsidiary to or consequent upon the resolution of the issues above, but does not independently give rise to any relief or establish any defence.

125 There was no dispute between the parties regarding the legal principles applicable to Emilia's claim that Robert holds the Melbourne Road property for Emilia pursuant to a resulting trust or, alternatively, a constructive trust based upon Robert's unconscientious exploitation of Emilia's position of special disadvantage. Rather, the dispute between the parties concerns whether the facts support Emilia's claims or Robert's defences.

Resulting trusts and the presumption of advancement

126 In Napier v Public Trustee (WA),51F[54] Aickin J summarised the position with respect to a resulting trust arising from the payment of or contribution to the purchase price of real or personal property as follows:

The law with respect to resulting trusts is not in doubt. Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or a child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted by evidence.52F[55]

127 Robert relied upon the presumption of advancement to defeat the presumption of a resulting trust in favour of Emilia, on the basis that part of the purchase price for the Melbourne Road property was funded by a gift from Emilia to Nicola, Emilia's son.

128 The principles relevant to whether a party can rely upon the presumption of advancement were summarised by Judge Cosgrave (as he then was) in Charbord Investments Pty Ltd v Isabelle Szwarcbord,53F[56] ('Charbord') as follows (omitting footnotes):

where a parent buys a property or otherwise provides purchase funds for a property to a child, equity will presume that any purchase of contribution was intended to be a gift such that the legal and equitable estates remain where they lie;

that the presumption of advancement applies from father54F[57] to child and the rationale is based in the prima facie likelihood that a beneficial interest is intended in situations to which the presumption has been applied;

that the question of intention is one of fact and concerns the intention manifested by the person or persons who contributed funds to the property;

it makes no difference to the operation of the presumption of advancement that the child was an adult at the time the property was acquired;

it makes no difference that the child has independent means;

the onus falls on the parent to displace the presumption when it arises in respect of transfers to children;

to rebut the presumption of a resulting trust, a party must adduce evidence that permits the court to find facts and circumstances that showed an objective intention of the participants to establish a trust;

the presumption can only be rebutted by the intention at the time of the transfer;

where a transfer of property from a parent to a child occurs to minimise or circumvent tax obligations, this will be used as evidence against the presumption of a resulting trust by reason that the parent's objective cannot be achieved without vesting both the legal and beneficial interest in the transferred property in the child.55F[58]

129 In relation to the last point above, his Honour referred to the decision of the Court of Appeal in Yard v Yardoo Pty Ltd_56F[59]_ and the decision of Ward CJ in Equity in Cong v Shen (No 3).57F_[60]_ In both cases, where a property had been transferred to a family member to enable the transferor to avoid actual or potential future tax obligations, the intention at the time of the transfer was the relevant intention, and the transferor would not be permitted to resile from that intention merely because the taxation regime had changed, or a change in circumstances meant that the potential taxation obligation would not be incurred.

130 While the question of whether the presumption of a resulting trust generally arises in the context of the purchase or transfer of real property, this presumption, along with the presumption of advancement ('presumptions'), also applies to personal property.58F[61]

131 In recent years, consistent with judicial and academic criticism of the modern relevance of the presumptions, the authorities have observed that the presumptions are generally only of relevance where there is a dearth of evidence of the intentions of the person transferring property or advancing funds to another. As cited by Judge Woodward (as he then was) in Nieduziak v Nieduziak,59F[62] in Nelson v Nelson,60F[63] Deane and Gummow JJ observed:

...that the presumption of advancement is only of practical importance if the evidence, including that of the actual relationship between the parties, does not enable the court to make a positive finding of intention.61F[64]

132 His Honour also noted that the limitation of admissible evidence to evidence of acts and deliberations of parties prior to and contemporaneous with the relevant transaction referred to by the High Court in Charles Marshall Pty Ltd v Grimsley_62F[65]_ must be qualified by the statement of Deane J in Calverley v Green,63F_[66]_ to the effect that evidence of the relationship between the parties will always be admissible.64F[67]

133 In Bosanac v Federal Commissioner of Taxation ('Bosanac'),65F[68] where the High Court was invited to, but declined to hold that the presumption of advancement no longer represented the law in Australia, the members of the Court discussed the principles underpinning the presumptions. In a joint judgment, Keifel CJ and Gleeson J noted that '... the strength of the presumptions will vary from case to case depending on the evidence'66F[69] and said that '[t]he presumption of advancement, understandably, is especially weak today'.67F[70]

134 After observing that, in the absence of legislative intervention, the presumptions are 'here to stay',68F[71] Gageler J went on to explain the operation of the presumptions as follows:

The presumption of a resulting trust is a presumption of fact, functionally akin to a civil onus of proof. The presumption will yield to an actual intention to the contrary found on the balance of probabilities as an inference drawn from the totality of the evidence. The weight to be given to the fact of a contribution having been made to the purchase price in drawing an inference as to actual intention will vary according to the totality of the circumstances of the case.

The counter-presumption of advancement is not really a presumption at all. The existence of a relationship within a category recognised as triggering the counter-presumption is no more than a "circumstance of evidence". Considered alone, the circumstance of such a relationship is enough to negative the presumption which arises from the bare fact of contribution to the purchase price. However, the circumstance of such a relationship will not be considered alone if other evidence going to intention is adduced and will then simply be weighed in the overall evidentiary mix.

Whether any, and if so what, inference is then to be drawn about the actual intention of the contributor and the purchaser falls to be determined as an ordinary question of fact on the balance of probabilities. "It is the intention of the parties in such cases that must control, and what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act." Just as the standard of proof of intention is the ordinary civil standard, there are no special rules about proving intention. No predetermined weight is to be given either to the fact of a contribution having been made or to the categorisation of the relationship between the parties. The significance of each of those circumstances falls to be assessed within the totality of the circumstances of the case.

Where evidence relevant to intention is adduced, the presumption and the counter-presumption are therefore of practical significance only in rare cases where the totality of the evidence is incapable of supporting the drawing of an inference, one way or the other, on the balance of probabilities about what contributors and purchasers actually intended when they participated in the purchase transaction.69F[72]

135 Given that in the current case, Emilia bears the onus of proof, and evidence, both direct and circumstantial, has been adduced as to Emilia's intentions at the time she executed the nomination form and as to the relationships between the parties over time, the presumptions have a relatively limited role in the fact finding process in this proceeding. The presumptions are simply the starting point of the analysis.

Special disadvantage70F and unconscionable conduct[73]

136 In Stubbings v Jams 2 Pty Ltd,71F[74] the plurality of the High Court referred to the principles governing the circumstances where equity will relieve a claimant of the consequences of a legal transaction based upon the unconscionable conduct of the other party to the transaction, as follows (omitting citations):

In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a "special disadvantage" vis‑à‑vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage.72F[75]

137 In relation to the question of what constitutes a special disadvantage, the plurality went on to say as follows:

In this field of discourse, "special disadvantage" means something that "seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests". While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.73F[76]

138 In Kakavas v Crown Melbourne Ltd,74F[77] the High Court referred with approval to the following statement in Commonwealth Bank of Australia v Amadio:75F[78]

...the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the other party.76F[79]

139 In Thorne v Kennedy,77F[80] the High Court made the following observations regarding the task before a court when evaluating claims of unconscionable conduct:

In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a "close consideration of the facts ... in order to determine whether a claim to relief has been established". ...

In Kakavas v Crown Melbourne Ltd, quoting with approval from the judgment of Dawson, Gaudron and McHugh JJ in Louth v Diprose, this Court described how the "proof of the interplay of a dominant and subordinate position in a personal relationship depends, 'in large part, on inferences drawn from other facts and on an assessment of the character of each of the parties'". ...

Related to the fact finding advantage of the trial judge is the evaluative nature of the judgment involved in determining whether the vitiating factors have been established. For example, in undue influence there will be questions of evaluative judgment involved in assessing whether the extent to which a person's will has been subordinated to another's is sufficient to characterise the person as lacking free will. The same evaluative exercise was described by this Court in Kakavas v Crown Melbourne Ltd in relation to unconscionable conduct, quoting from Dixon CJ, McTiernan and Kitto JJ in a passage from Jenyns v Public Curator (Qld) which emphasised how the application of these equitable principles:

"calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'".78F[81]

140 As put succinctly by Judge Cosgrave (as he then was) in Charbord:79F[82]

These considerations are not separate elements like the components of a cause of action in tort. A court of equity is to take a comprehensive view of all of the relevant circumstances to arrive at a determination on to the real justice of the case.80F[83]

It is well recognised that conclusions about the interplay and relationship between people in dominant and subordinate positions in the context of undue influence and unconscionable conduct depend in large part upon the particular facts of the case. This requires the court's assessment of the respective parties - their character, intelligence, capacity, nature and credibility. Also important are inferences drawn from this assessment.81F[84]

142 Some time at trial was devoted to Emilia's denial of Robert's allegation in his defence that Nicola had gifted him the funds to purchase the Melbourne Road property. Senior counsel for Emilia submitted that the statutory declaration could not be evidence of a gift from Nicola to Robert, because at the time that Nicola executed the statutory declaration, Emilia had not transferred the totality of the funds for the purchase of the Melbourne Road property to Nicola's bank account.

143 Counsel for Robert referred to authorities to the effect that the doctrine of negotiability is an exception to the rule that someone who has no title to property cannot pass that title to another, such that the rule does not apply to fungible property such as money.82F[85]

144 However, as the evidence emerged at trial, it is clear that Nicola did not purport to, and in fact did not, make a gift to Robert of the funds advanced to him by Emilia. Rather, he assisted Robert to represent to Secure Funding that Nicola would, at the settlement of the purchase of the Melbourne Road property, advance those funds to Robert, and the advance was not a loan. Robert acknowledges that, on his case, Nicola has a beneficial interest in the Melbourne Road property. Accordingly, this issue does not require further exploration in these reasons.

145 However, in his defence, Robert contends, and continues to maintain, that the funds advanced by Emilia to Nicola were a gift from Emilia to Nicola.

146 The requirements for a valid gift are as follows:

(a) an intention to make a gift, usually expressed by words;

(b) an intention on the part of the donee to accept the gift; and

(c) delivery.83F[86]

147 In Maxwell v Maxwell,84F[87] Ward P observed as follows:

(a) the donee's assent to a gift is to be presumed (in the absence of proved dissent) it being human nature to accept a benefit which is provided gratuitously; 85F[88] and

(b) delivery need not be contemporaneous with words of gift.86F[89]

148 Given the nature of the dispute, the resolution of the issues in dispute turns largely upon the credibility and reliability of the evidence of the parties and the witnesses called by them. Prior to turning to the individual witnesses and the evidence given by them, I will make some general observations regarding the fact finding process in this proceeding.

149 First, it is to be kept in mind that Emilia bears the onus of proof in relation to both of the critical issues in this proceeding, being her intentions at the relevant time, and whether she was under a special disability. Given that Robert has alleged that the funds paid by Emilia in connection with the Melbourne Road property were a gift from Emilia to Nicola, the starting point is that the presumption of a resulting trust is rebutted by the presumption of advancement.

150 Secondly, the presumption of advancement has been described as a 'weak' presumption,87F[90] capable of being readily rebutted by evidence of Emilia's actual intentions at the relevant time. The civil standard of proof applies to Emilia's contention that at all relevant times (being when she signed the contract of sale, when she signed the nomination form, and when she advanced the funds) she intended to retain the beneficial interest in the Melbourne Road property.

151 However, the position regarding the standard of proof with respect to Emilia's claim that Robert holds the Melbourne Road property on trust for her is a little nuanced. While it is not expressly pleaded as such, the way the evidence emerged, including the evidence of Robert and Mr Tull regarding the plans for the Melbourne Road property, and when those plans were made, suggests that the only logical conclusion that can be drawn, if Emilia's evidence is accepted, is that Robert and Nicola were engaged in an elaborate and pre-meditated scheme to defraud Emilia of her property. This is a serious allegation, and one must feel a positive and comfortable degree of satisfaction that a scheme of that nature was hatched and implemented.88F[91] No conspiracy to that effect between Robert and Nicola was pleaded, but that is what in fact was alleged by Emilia at trial.89F[92]

152 No such considerations apply to Emilia's contention that she was under a special disability, and her contention that Robert took advantage of that special disability. If Emilia was to establish that she was under a special disability, the threshold as to what would amount to unconscientious conduct on the part of Robert would be reasonably low. Arguably, it would not be necessary for Emilia to do much more than to point to her lack of independent legal advice at the time she executed the nomination form and made the payments.

153 One complication with this aspect of Emilia's case is that the evidence establishes that, while such an allegation was not pleaded, Nicola was actively involved in the conduct that was said to amount to unconscientious conduct, and, based upon Robert's evidence, was a beneficiary of that conduct.[93] The implications of this evidence, and its disconformity with Emilia's pleading, is discussed further later in these reasons.

154 An issue which arose from time to time during the course of the trial, was the subject of submissions by both parties, and became apparent time and time again while reviewing the evidence for the purpose of preparing these reasons,90F[94] was the compliance of the parties with the rule in Browne v Dunn.91F[95]

155 The rule in Browne v Dunn ('rule')92F[96] is essentially a rule of procedural fairness. As stated in the following passage of that decision:

[...] I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit ... I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.93F[97]

156 Some examples of occasions where the rule was infringed, or might have been infringed had I permitted the parties to call certain witnesses, were as follows:

(a) the failure to put certain matters to Robert, Nicola, Roberto Snr and Reece regarding the conversations Roberto Snr and Reece said they had with Robert and Nicola regarding the sale of the Evansford farm and the purchase of the Melbourne Road property;

(b) the failure to put to Emilia that she had told others within the family, including Robert's sister Rebecca, that she had given Nicola money to purchase the Melbourne Road property;

(c) the failure to put certain matters to Mr Radebe regarding the preparation of the draft will;

(d) Robert's proposal to call Antonella Marra, a conveyancing clerk employed in Mr Morgan's office;

(e) the failure to put to Robert and Nicola what was said to have occurred at a family meeting, where Nicola allegedly told Emilia, Roberto Snr, and possibly Rosa that 'I hold all of the aces';

(f) the failure to put to Emilia, Roberto Snr and Rosa certain allegations made by Nicola regarding the circumstances in which he came to fall out with Emilia in early 2022;

(g) the failure to explore with Emilia her motivations for lodging the first caveat in March 2022; and

(h) the relatively limited exploration of the allegations made by Robert in his application for intervention orders against Emilia and Rosa.

157 In relation to the evidence of Roberto Snr and Reece, they gave evidence that they each had conversations with Robert that supported Emilia's allegations that Robert had made representations to Emilia to the effect that Emilia should put the title of the Melbourne Road property in Robert's name to protect her pension entitlements (and also save on taxes). The evidence given by Roberto Snr and Reece will be discussed in more detail later in these reasons, but, essentially, Reece's evidence was to the effect that Robert was planning to persuade Emilia to purchase a property in his name at least a year prior to the purchase of the Melbourne Road property, and Roberto Snr's evidence was to the effect that both Robert and Nicola acknowledged Emilia's beneficial ownership of the Melbourne Road property in conversations with him. These conversations were not pleaded, and therefore were not expressly denied by Robert in his defence, but were referred to in the outlines of evidence filed by Emilia concerning the evidence that Roberto Snr and Reece were expected to give.94F[98] However, neither Robert or Nicola were questioned in either examination-in-chief or cross-examination as to whether those conversations occurred, nor was it put to either Roberto Snr or Reece in cross-examination that those conversations did not occur.

158 Robert gave evidence that, prior to the date the purchase of the Melbourne Road property was settled, he had not spoken at all with Emilia about her plan to give Nicola funds to purchase the Melbourne Road property. When he agreed to become the purchaser and raise the finance necessary to complete the purchase of the Melbourne Road property, he relied entirely upon what Nicola had told him. However, he said that it was well known within the family95F[99] that Emilia had made a gift to Nicola, because she said so on a number of occasions after the purchase of the Melbourne Road property had been concluded, including in the presence of Robert's sister Rebecca. However, this allegation was not put to Emilia, and neither Linda, Rebecca, or any other family member was called to corroborate Robert's evidence.

159 Mr Radebe gave evidence regarding the circumstances in which the draft will was prepared which directly contradicted Emilia's evidence. Emilia disowned any involvement in the preparation of the draft will, and her evidence, and the evidence of Roberto Snr, was to the effect that Nicola was the driving force behind the preparation of the draft will. However, that proposition was not put to Mr Radebe in cross-examination.

160 As for Ms Marra, Robert originally intended to call Ms Marra to give evidence in order to identify certain documents regarding Emilia's involvement in the purchase of Yea Springs Drive, being documents sent by Ms Marra to Robert's solicitors (who were presumably then acting for Nicola) in July 2022. The necessity to call Ms Marra arose out of the fact that Mr Morgan was unable to produce any documents from his records regarding his retainers by Emilia in response to a subpoena issued by Emilia's solicitors, such that the documents forwarded by Ms Marra to Robert's solicitors (which included, among other things, file notes of conversations between Ms Marra and Emilia) could not be adduced into evidence as business records or verified by Mr Morgan, but could be verified by Ms Marra. However, I did not permit Robert to call Ms Marra to give evidence, which would have been largely relevant to the question of whether Emilia was under a special disability, because Emilia had completed her evidence and had not been cross-examined about any of her dealings with Ms Marra. However, in the end, the transaction involving the purchase of Yea Springs Drive was tangential to the issues in the proceeding, so little turns on the absence of Ms Marra as a witness.

161 Emilia was asked in examination-in-chief regarding the 7 April visit. She said that the reason why she asked Rosa to take her to visit the Melbourne Road property was because, at the family meeting, where Nicola, Rosa and Roberto Snr (but not Robert) were present, Nicola collected some blankets, put them on his shoulder, and said he was leaving, followed by 'I will say just one thing...I hold all the aces'. She said she thought he was talking about all of the documents which were in evidence in this proceeding, which is how she was tricked.96F[100] She mentioned Nicola's statement again in cross-examination.97F[101]

162 Roberto Snr gave evidence that he called the family meeting, at which Emilia, Robert and Nicola were present. Rosa was not present. Viewed in the context of the other evidence given by Roberto Snr, the family meeting was called and took place after the 7 April visit, not beforehand. Most of the discussion was between him and Nicola, and after Roberto Snr told Nicola that what he was doing was wrong, Nicola told him, among other things, that 'I hold all the aces'.98F[102]

163 Neither the fact of the family meeting, or what was said during the family meeting, was put to either Robert or Nicola in cross-examination. It was not put to Emilia or Roberto Snr that the family meeting did not occur, or if it did occur, who was in attendance. Rosa was not questioned about the family meeting either.

164 In his defence, Robert pleaded that at the relevant time, Emilia intended to gift the funds to purchase the Melbourne Road property to Nicola, but at a later date she changed her mind. No particulars were ever provided (or sought) regarding Emilia's alleged change of mind. The reason why Emilia may have changed her mind was the subject of a rather enigmatic reference in Robert's evidence (where he said words to the effect that the dispute within the family was 'not all about money'99F[103]). While it was put to Emilia something had occurred which caused her to be very upset and as a consequence she changed her mind about the gift to Nicola,[104] it was not put to her what might have made her upset.

165 Nicola gave evidence that he fell out with Emilia in the period after he underwent hospital treatment, which was probably in early 2022, following a confrontation between Emilia, Roberto Snr, and Rosa on the one hand, and one of his daughters on the other hand, at a meeting at Yea Springs Drive at which Nicola was not present. Robert's counsel was apparently provided with a video recording of the meeting made by Nicola's daughter the day prior to Nicola commencing to give evidence. None of the allegations regarding what happened at this meeting, or the allegations against Robert Snr and Emilia which were said to be the subject matter of the meeting, were put to Emilia, Rosa, or Roberto Snr in cross-examination.

166 Nicola concluded his evidence-in-chief on Friday afternoon. I ruled that if Robert wished to call his sister to give evidence and tender the video recording into evidence, he would need to make an application the following Monday to amend his defence to, in effect, better particularise his allegation that Emilia had changed her mind, which would be dealt with in accordance with the usual principles governing late applications to amend pleadings.100F[105] No such application was made.

167 As noted earlier in these reasons, Emilia lodged the first caveat on 24 March 2022, two weeks prior to the 7 April visit. Emilia was not questioned about the reasons why she instructed solicitors at around this time to lodge the first caveat. However, it is clear from the first caveat that Emilia claimed to be the beneficial owner of the Melbourne Road property, and something must have occurred to cause her to take steps to notify the world at large of her claim.

168 Finally, as noted above, there was very limited exploration of the allegations made by Robert in his applications for interim and final intervention orders against Emilia and Rosa. Robert's allegations against Emilia and Rosa were quite detailed and specific, and while they support Emilia's claim that she always believed that she was the beneficial owner of the Melbourne Road property, some of the allegations made by Robert, if true, would reflect quite poorly on Emilia's credit as a witness.

169 The consequences of any breach of the rule are not prescribed by authority, and may vary according to the significance of the evidence in question and the time of the application of the rule. It may be applied during the course of the trial, or considered when evaluating the evidence following the conclusion of the hearing. Further, given that the principle underpinning the rule is the requirement to afford procedural fairness, any breach of the rule, such as any shortcomings in 'puttage', may be of less significance where the party seeking to rely upon the rule must have been on notice of the allegation in question through other means, such as a direct reference to the allegation in pleadings or other court documents, or where the other party seeks to rely upon a discovered document which is clearly forensically significant. A failure to ask a witness questions about a particular document may not carry great weight where the document speaks for itself.

170 Applying the rule in the current case has led to a range of outcomes. In the case of the conversations between Robert, Robert Snr and Reece, Robert's failure to deny those conversations, and the failure to put to Roberto Snr and Reece that the conversations did not occur, should ordinarily support an inference that the conversations did occur. However, it was not put to Robert that they did occur, which somewhat lessens the 'sting' in that regard.

171 The failure to put to Emilia the allegation that she had told others within the family that she had given Nicola money to purchase the Melbourne Road property, and the failure to call, without explanation, other members of the family to corroborate that evidence,101F[106] tend to support the doubts I already had about the veracity of Robert's evidence in that regard.

172 In the case of the evidence of Mr Radebe, the failure to put to Mr Radebe the version of events proffered by Emilia and Roberto Snr to the effect that Nicola, not Emilia, was the driving force behind the preparation of the draft will, is of some forensic significance. Robert relied upon the draft will as near contemporaneous evidence corroborating Nicola's evidence that Emilia gave him $350,000 as a contribution to the purchase price of the Melbourne Road property.

173 Emilia, supported by the evidence of Roberto Snr, sought to disclaim any responsibility for the draft will, giving evidence to the effect that Nicola was responsible for the preparation of the draft will, therefore encouraging the drawing of an inference to the effect that Nicola, not Emilia, gave instructions to Mr Radebe regarding the draft will. It seems highly unlikely that Mr Radebe would forget who gave him instructions in relation to the draft will, or would be mistaken about the matter. Accordingly, the failure to explore the question of Nicola's involvement in the draft will with Mr Radebe, who was in the best position to know what occurred, weighs in favour of accepting Mr Radebe's evidence regarding the preparation of the draft will, and not accepting Emilia and Roberto Snr's evidence in that regard. It was also not put to Mr Radebe that his evidence was false, and no allegations were put to him as to why he might be motivated to give false evidence.

174 In the case of Ms Marra, the application of the rule resulted in her evidence about the purchase of Yea Springs Drive, and documents concerning this transaction being excluded. One might have expected Ms Marra to be able to give evidence about Emilia's understanding of and involvement in the conveyancing transactions managed by Mr Morgan's office which would, among other things, be relevant to the issue of whether Emilia was under a special disability.

175 As for the evidence that at the family meeting Nicola told Roberto Snr, Emilia, and maybe Rosa that he held 'all the aces', the failure to put this allegation to Nicola, along with the inconsistencies between the evidence of Emilia and the evidence of Roberto Snr regarding the timing of the family meeting, as discussed further later in these reasons, causes me to doubt whether the family meeting occurred, or, at the very least, whether Nicola said what was attributed to him at the family meeting, or whether what he said at the family meeting triggered the 7 April visit and/or the lodgement of the first caveat.

176 The evidence given by Nicola regarding the events of early 2022 which led to, or at least contributed to, the falling out between him and Emilia and which, he said, led to her claim in this proceeding to recover the Melbourne Road property, was said to be relevant to the allegation in the defence that Emilia changed her mind about her gift to Nicola. The allegations made by Nicola were serious. No notice had been provided of those allegations in Robert's defence, or in Nicola's outline of evidence. None of these allegations were put to either Emilia, Roberto Snr, or Rosa when they gave evidence in the preceding days.

177 It was in this context that I indicated that if Robert wished to press ahead with this line of inquiry, he would need to apply to amend his defence to allege the material facts in support of his allegation that Emilia changed her mind, and to call Nicola's daughter to give evidence. Given that the trial was in its fifth day, and if granted, I would have been required to grant leave to have Emilia, Roberto Snr and Rosa recalled, and would possibly be required to deal with applications by some or all of them for certificates under s 128(3) of the Evidence Act 2008 (Vic), granting the application would have been very disruptive to the trial. In any event, the application was not made, and accordingly, I have excluded Nicola's evidence regarding the meeting and the subject matter of the meeting on the grounds that this evidence was inadmissible hearsay evidence. However, Nicola gave evidence of a conversation which he had with Emilia regarding this issue, which is admissible, albeit uncorroborated, and not put to Emilia, and there was other evidence which provided some explanation as to why Emilia may have changed her mind about the alleged gift to Nicola.

178 As for the lodgement of the first caveat, given the timing of the first caveat, Emilia's knowledge and intentions at the time she lodged the first caveat may well have been fertile ground for cross-examination. However, the document speaks for itself.

179 Finally, neither party explored in any detail the allegations made by Robert in his applications for intervention orders against Emilia and Rosa, or their responses. The allegations made by Robert in his application for final orders were quite specific and detailed, and, if accepted, would support a conclusion that Emilia was prepared to engage in bullying and threatening conduct, was prepared to recruit other family members to do so, and was prepared to lie in Court in order to recover the Melbourne Road property.

180 However, none of these allegations were put to Emilia and/or Rosa. Conversely, it was not put to Robert that the allegations were not true, and they were denied by Emilia and Rosa in their response to Robert's application. Accordingly, although the documents are in evidence, I can only proceed on the basis that the allegations were made, and have been denied.

181 While the issues in this proceeding largely turn on the credibility and reliability of the oral evidence given by the parties and their witnesses, there was a reasonable amount of contemporaneous documents in evidence, as shown by the chronological narrative of relevant events provided earlier in these reasons. These documents were quite helpful in establishing the chronology of events and in evaluating the credibility of the witnesses' evidence. The exhibits included, among other things, the following documents:

(a) the conveyancing files and land title records for the Evansford farm, the Melbourne Road property, the Doncaster property, and Yea Springs Drive;

(b) bank statements for Emilia, Robert and Nicola, and other bank records;

(c) documents produced by Mr Tull regarding the proposed subdivision and redevelopment of the Melbourne Road property, and the text messages between Robert and him regarding the proposed joint venture and/or sale of the Melbourne Road property;

(d) documents regarding the Secure Funding loan and the refinancing of the Secure Funding loan, including the statutory declaration;

(e) photographs taken by Rosa during the 7 April visit;

(f) the draft will;

(g) the letter of demand from Emilia's former solicitor to Nicola in July 2022 regarding Yea Springs Drive and loans allegedly made by Emilia to Nicola;

(h) documents regarding Robert's financial affairs, including tax returns for him and his companies, and schedules prepared by Emilia's legal team showing cash deposits to Robert's bank accounts, and his expenditure on gambling;

(i) two letters prepared by Dr Rezk in November 2018 and April 2020 regarding Emilia's cognitive capacity and the notes made by Dr Rezk regarding Emilia's attendances upon her which resulted in these letters being prepared;

(j) the transcript of the August 2024 call;

(k) a family tree of the Matteo family; and

(l) the applications made by Robert for interim and final intervention orders against Emilia and Rosa, and their response.

182 I will now turn to the evidence given by each of the witnesses.

183 While Emilia is of advanced years, and walks with the assistance of a frame, she appears to be in reasonably good health, and there are no evident cognitive concerns. She presents as forthright, intelligent and astute. While she speaks English with a heavy accent, her comprehension of spoken English seems quite good, and she seems to have no difficulty in communicating with family members and others who do not speak Italian.

184 At the trial of the proceeding, Emilia gave evidence with the assistance of an interpreter, although I was not convinced that this was necessary for the purpose of giving her oral evidence. However, she did have difficulties with reading documents written in English, and the interpreter was of assistance in that regard.

185 Emilia gave her evidence confidently and fluently, although she tired easily. On occasion, she expressed anger and bitterness at the conduct of Robert and Nicola and other unidentified members of her family. As discussed later in these reasons, she gave evidence-in-chief which was in some respects inconsistent with her pleaded case, but was consistent with her overall position that she always intended to retain the beneficial interest of the Melbourne Road property, and only agreed to Robert's proposal that he become the purchaser because of the advice he gave and representations he made regarding her pension entitlements. Further, as also discussed later in these reasons, there were significant internal inconsistencies in her evidence, and she gave some evidence that simply did not make sense.

186 Emilia remained confident during the course of cross-examination, at one point suggesting (probably accurately) to counsel for Robert that he was 'running out of road' with a certain line of questioning.[107] However, she was somewhat defensive and evasive when questioned about certain topics where there were incongruities in her evidence (such as the source of the cash payments she said she made to Robert), or where she was questioned about inconvenient documents, such as the draft will, or the letters prepared by Dr Rezk. I agree with the observation made by counsel for Robert in his submissions that Emilia's memory was 'selective'. By way of example, at one point, when she was questioned about her visits to Dr Rezk to obtain letters regarding her capacity to execute documents, which she said she did not recall, she said words to the effect that 'you're giving me a headache'.103F[108] When questioned about aspects of the August 2024 call, she responded, on two occasions 'let's not talk about this'.[109]

187 Emilia made a number of extravagant allegations against Robert and Nicola and some other rather odd statements during the course of giving her evidence. By way of example, she said she only received $700,000 from the sale of the Doncaster property,[110] not $1.7 million. She said that she paid $670,000 for the purchase of Yea Springs Drive, but it only cost $570,000, and Nicola pocketed the balance.[111] At one point she said that she spoke to Robert every day about the purchase of the Melbourne Road property,[112] which seems unlikely. Her contention that she had $250,000 in cash, all in five dollar notes,[113] also seems inherently unlikely. Her evidence that she spent $160,000 on a car for Nicola also seems implausible, and her evidence that Mr Radebe was just a friend, and was not her solicitor, was directly contradicted by the documents in evidence.

188 Emilia gave evidence, emphatically, that she never spoke with Mr Morgan, the solicitor acting for her for the sale of the Evansford farm, the sale of the Doncaster property, and the purchase of Yea Springs Drive.[114] However, this evidence was directly contradicted by Mr Morgan's evidence, which I accept, as discussed later in these reasons. In any event, when asked in examination-in-chief about what would happen when she was given documents to sign, and who would ask her to sign documents, she said 'If I were in Morgan's office, it was definitely Morgan'.[115] She also gave evidence that Nicola took her to see Mr Morgan at his office.[116]

189 As a result, I have treated Emilia's evidence with some caution, noting that she, not Robert bears the burden of proof in this proceeding.

190 Turning now to the substance of Emilia's evidence, during her examination-in-chief, Emilia gave evidence, in summary, as follows:

(a) she has always worked as a dressmaker, and was paid in cash, which she hid at home;

(b) Nicola and Robert handled everything in relation to the sale of the Evansford farm and the purchase of the Melbourne Road property. They never showed her anything, and she never met or spoke with Mr Morgan;

(c) she was quite relaxed about everything until they asked her for another $800,000. She talked with Nicola and Robert about the Melbourne Road property all the time. The Melbourne Road property was supposed to go back into her name after she sold the Doncaster property, when she would have the money to redevelop the Melbourne Road property;

(d) she gave evidence about the payment of the deposit for the Melbourne Road property;

(e) she does not understand what the words 'or nominee' mean;[117]

(f) she could not recall who asked her to sign the documents in connection with the purchase of the Melbourne Road property;

(g) Robert located the Melbourne Road property, took her to inspect the Melbourne Road property and took her to the real estate agent to pay the deposit.105F[118] She was attracted to the Melbourne Road property because of its development potential;

(h) she discussed the purchase of the Melbourne Road property with Robert and Nicola after she signed the contract of sale. Robert said that he would put the title in his name so she did not lose the pension, but only until after she sold the Doncaster property, after which his name would be removed from the title to the Melbourne Road property;[119]

(i) she asked Robert about the mortgage on the Melbourne Road property at an unspecified time, but he just shrugged his shoulders;[120]

(j) she lent Robert $85,000 for his pizza shops and bought Nicola a new car;[121]

(k) she never visited Robert at Roycroft Way, even at Christmas time, when she was left alone at her home by her family;[122]

(l) she discussed the renovations with Robert. Robert agreed that he would build her a house on the Melbourne Road property, first he asked for $60,000, then $100,000, then he asked for another $27,000 for an Italian kitchen;[123]

(m) she gave evidence about the family meeting, where Nicola said 'I hold all the aces', and the subsequent visit to the Melbourne Road property.[124] Mr Tull told her that he had purchased the Melbourne Road property for $300,000, and that the man who sold it to him had kept the last block;[125]

(n) Robert had told her that if he had to give the Melbourne Road property back to her he would sell it;[126]

(o) Nicola took her to the doctor on three occasions to get a letter to say that her mind was okay. She knows the doctor well, but does not remember what occurred, and has not read the letter. She said 'I don't remember the doctor and the will;[127]

(p) she denied giving Mr Radebe instructions to prepare the draft will. The draft will was arranged by Nicola when she had been living with him and Linda for about two months.106F[128] The reference to $400,000 in the will refers to the sum that Nicola was trying to get from her;

(q) she recovered $700,000 from the sale of the Doncaster property, not $1.6 million.[129] She paid $670,000, not $570,000 for Yea Springs Drive, and Nicola kept some.[130] She found out two to three months later that Nicola had put his name on the title to Yea Springs Drive;

(r) she gave evidence about the cash payments she made to Robert;107F[131]

(s) referring to the draft will again, she said that Roberto Snr and Rosa looked at the draft will and helped her understand what was in it, but she did not like it, so she did not sign it;[132] and

(t) when asked by me why she chose to leave Doncaster to go and live in Yea, she said the only reason was because there was a property there, but then said that Nicola promised her that he would take her to the club, he would cook for her, and do everything for her.[133]

191 Some time was spent in cross-examination focusing upon Emilia's accomplishments and commercial experience. She gave evidence about Nicola's schooling and troubled adolescence, and the gifts that she had given him in the past. She says Nicola owes her $275,000, which he is supposed to repay after he receives compensation from an outstanding civil claim.

192 Emilia gave evidence that Nicola had nothing to do with the purchase of the Melbourne Road property, Robert was the only other person involved. She wanted to build six units on the Melbourne Road property and generate rental income, and then leave them to her children. She felt comfortable about getting the assistance she required to subdivide and redevelop the Melbourne Road property.

193 However, she then gave evidence that Robert and Nicola were pressuring her to sell the Doncaster property and purchase the Melbourne Road property.

194 The remainder of Emilia's cross-examination covered the following topics:

(a) the conversations she had with Robert about the pension after she signed the contract of sale. When asked about whether she checked with anyone else whether what Robert told her about the impact on her pension should she purchase the Melbourne Road property in her own name was correct, she said that she kept it a secret;108F[134]

(b) the cash payments she made to Robert for the purchase of the Melbourne Road property;

(c) that there was an agreement between her and Robert that once the renovations were complete, he would give the Melbourne Road property back to her;

(d) she repeated her evidence that she gave Nicola $127,000 to build a brick house and an Italian kitchen. She said that she does not know whether Nicola took the money and had to give it back, saying '[Nicola and Robert] were both in cahoots';[135]

(e) she gave evidence to the effect that she did not accept the draft will, she did not give Nicola $400,000, Mr Radebe was just a friend, and she has another solicitor now;

(f) when asked why the draft will was provided to Robert Snr, she said that at one stage 'they were trying to get Robert to go in with them';[136]

(g) she does not recall Mr Radebe preparing the draft will, or making the appointment with Dr Rezk, because it was 10 to 20 years ago.[137] She denied the accuracy of what was recorded in Dr Rezk's notes; and

(h) she gave evidence to the effect that she felt abandoned by Nicola and Robert.

195 Reece, Rosa's son, gave evidence regarding conversations he had with both Robert and Emilia. He said that some time in 2017, when he was working with Robert in Robert's flooring business, he had a conversation with Robert, where Robert discussed Emilia selling the Evansford farm to purchase another property in Robert's name to save her pension and taxes.[138] He said he spoke with Emilia about this conversation, and told her that she should not go into such a transaction. He also spoke to Rosa about these conversations. He also knew about Nicola being on the title to Yea Springs Drive and the $127,000 paid to do the renovations on the Melbourne Road property, including an Italian kitchen.[139] He also heard about the 7 April visit, and Robert's subsequent application for intervention orders against Emilia and Rosa.

196 Reece gave evidence that he called Robert on about 13 April 2022. He asked Robert why he had made an application for intervention orders against Emilia and Rosa, and Robert told him that he done so because Emilia and Rosa were threatening his employees and tradespeople.[140] Robert told him that Emilia had purchased the Melbourne Road property as a gift for Nicola, because Nicola was looking after Emilia.[141] Robert said that he had spent the money provided by Emilia for the renovations upon the renovations, and had paid out of his own pocket for earthworks and subdivision expenses.[142] Robert denied using the funds provided by Emilia for earthworks at Roycroft Way.[143]

197 Reece gave evidence that he called Robert later that day to ask why they (presumably Robert and Nicola) had left Emilia at Yea with no-one to look after her.[144] During cross-examination, Reece said that he had asked Robert why Robert and Nicola had taken Emilia up to Yea and then failed to look after her, and now other family members had to travel from Melbourne to Yea when anything went wrong.

198 Reece said that he did not trust Robert because of issues about money in the past. He was also concerned about the application for intervention orders.

199 Reece presented as a pleasant, straightforward young man, and there was nothing in his demeanour that suggests that he was not telling the truth. He is clearly not well disposed to Robert. He readily conceded that much of what he knew about the transactions involving the Melbourne Road property, including an allegation that Robert had borrowed funds on the security of the Melbourne Road property to fund the purchase of Roycroft Way, was told to him by others.

200 Therefore, the most significant pieces of evidence, which remained undisturbed by cross-examination, was Reece's evidence about the two conversations he had with Robert. The first conversation with Robert in 2017 (and his subsequent conversation with Emilia) is relevant to the question of whether Robert had a pre-meditated scheme to defraud Emilia of her property. The second conversation in April 2022 is consistent with Robert's position that Emilia gifted Nicola the funds to purchase the Melbourne Road property.

201 Roberto Snr gave evidence that Emilia told him that she was selling the Evansford farm. He said that he had a conversation with Nicola at the Doncaster property, presumably in the latter part of 2018, and asked Nicola why Emilia was selling the Evansford farm.[145] Nicola also told him about Emilia purchasing the Melbourne Road property as an investment and that she planned to build some units on the property.[146]

202 Roberto Snr said that Robert or Nicola told him that they were helping her with the Melbourne Road property, and that Robert was going to live there for a while.[147] He said that in his initial discussions with Robert and Nicola they said that the Melbourne Road property was going to be put in Emilia's name.[148] However, Emilia later told him that the property was going to be put in Robert's name, to help her avoid losing the pension.[149]

203 Roberto Snr said that around this time he had a discussion with Robert at the Doncaster property and told him not to do anything wrong by Emilia, and in response, Robert acknowledged that the Melbourne Road property was Emilia's property.[150]

204 Roberto Snr gave evidence that in September 2021 he spoke to Emilia, who told him she was going to give Robert and Nicola money to renovate the house on the Melbourne Road property for her at a cost of $127,000.[151] He said he did not think it was a good idea, and told Emilia so. She responded with words to the effect that she believed that Robert and Nicola would do the right thing.[152] He went past the Melbourne Road property at the time, and it still looked quite dilapidated. He spoke to Robert at about this time, who told him that he had subdivided the Melbourne Road property. When Roberto Snr asked Robert why he was subdividing the Melbourne Road property when it was not his property, Robert brushed him off.[153]

205 Roberto Snr gave evidence that he was told about the 7 April visit by Emilia and Rosa, and Robert's subsequent application for the intervention orders. He gave evidence that he advised Emilia to put a caveat on the title to the Melbourne Road property, because something was really wrong.[154] The sequence in which he gave his evidence suggests that he gave this advice after the 7 April visit. He may have done so, but by this time the first caveat had already been lodged over the Melbourne Road property.

206 Robert gave evidence about the family meeting. He said Nicola, Robert and Emilia were present. Roberto Snr said he told Nicola and Robert that they had been stealing from an old lady, to which Nicola said 'if you ever say that again I'll bury you - I hold all the aces', following which Robert and Nicola both left.[155]

207 Roberto Snr gave evidence about the circumstances in which the draft will came into existence. Roberto Snr said that Mr Radebe came to the Doncaster property and Nicola told Mr Radebe what he wanted to be included in the draft will.[156] He said that the draft will was emailed to him because he asked Robert to give him a copy. Emilia also had a copy of the draft will. Roberto Snr gave evidence that he read through the draft will with Emilia, and explained the contents to her, and she said 'I'm not signing that'.[157] He did not discuss the contents of the draft will with either Robert or Nicola, and he could not recall whether he discussed the draft will with Rosa.

208 Roberto Snr was largely cross-examined about his relationships with Nicola, Robert, Emilia and Rosa, rather than the matters referred to above, which failed to elicit much evidence of any particular value.

209 Rosa gave evidence that she and her mother are quite close. She first became aware of the Melbourne Road property in 2019, when Emilia told her she had paid $440,000 for the Melbourne Road property as an investment, and that she was going to put four to six units on the Melbourne Road property, with the house on the Melbourne Road property to be constructed in brick, and have an Italian kitchen.[158] She later learned from Emilia that Robert was living there while his house at Roycroft Way was being built.

210 Rosa gave evidence that the next time she went to visit the Doncaster property (which must have been no earlier than the second half of 2020) there was a 'For Sale' sign outside. Emilia told her that she had to sell the Doncaster property because she had purchased another property in Yea, and it had to be paid for.[159]

211 Rosa gave evidence that when she visited the Doncaster property while Emilia was packing up to move house Linda arrived with a folded piece of paper she told Emilia to sign. When Rosa asked what it was for, Linda told her to mind her own business. When she asked Emilia about the document, Emilia said that she thought it was for the house.[160]

212 Rosa gave evidence that on an unspecified date she and Reece visited Emilia at Yea Springs Drive, who told her that she was waiting for Robert to move out of the Melbourne Road property, which was going to be renovated for her to live in.109F[161]

213 Rosa confirmed that she visited the Melbourne Road property with Emilia on 7 April 2022 and had a conversation with Mr Tull about him buying the property.[162] She took some photographs. She said there was no physical altercation at the Melbourne Road property.[163] About a week later she took Emilia to see the real estate agent to obtain documents regarding the purchase of the Melbourne Road property.

214 Rosa gave evidence that Emilia told her that she had purchased the Melbourne Road property with the proceeds of sale of the Evansford farm and the sale of the trees, and that the title to the Melbourne Road property was put in Robert's name because Robert told her that he had seen a financial advisor who had told him that Emilia would lose the pension if the property was in her name.[164] Emilia also gave Nicola and Robert $127,000 for the renovations.

215 Rosa gave evidence that Nicola called her in May 2024, having heard that she was unwell, and invited her to his home.[165] When she visited him, he told her that Emilia had provided the money for the property and the renovations, and said that he would repay Emilia for the renovations, as he still had the money.[166]

216 When taken to the text message from Nicola to her on 16 May 2024,110F[167] she said she believed that this message was sent because 'they' had found out what Nicola had told her and 'they' were trying to cover it up.[168]

217 Rosa gave evidence that she remembers Emilia being provided with a draft will a long time ago, but she never went through with it. She did not discuss the draft will with Emilia.[169]

218 Under cross-examination, Rosa gave the following evidence:

(a) Emilia told her that she had bought the Melbourne Road property as an investment, and that she proposed to redevelop it with the proceeds of sale from the Doncaster property.[170] Emilia did not discuss the logistics of the redevelopment with her;

(b) she could not understand why Emilia would ask Nicola and Robert to help her with the redevelopment of the Melbourne Road property, given that there are others in the family with trade qualifications who could help Emilia with the redevelopment;[171]

(c) she was surprised to see the 'For Sale' sign at the Doncaster property. Nicola was running the sale.[172] Emilia would not let Rosa in the house at that time because Emilia had been told (presumably by Nicola and/or Robert and/or Linda) that Rosa would suffocate her with a pillow as part of their plan to turn Emilia against Rosa and Roberto Snr and take her to Yea with them;[173]

(d) while the Doncaster property was being sold, Rosa went to great lengths to find out why Emilia would sell the Doncaster property, calling doctors and solicitors for further information and advice. The Doncaster property was sold for $800,000 to $1 million less than it was worth, but Emilia was under pressure from Nicola, Linda and Robert because she was purchasing another property.[174] She did ask Nicola why Emilia was selling the Doncaster property. It was not clear from her evidence whether she spoke to Roberto Snr about the sale;111F[175]

(e) Emilia told her that Nicola lived with her at Yea Springs Drive for a month or two, but he left after he and Emilia had an argument;[176]

(f) Nicola and Robert kept Rosa away from Emilia so that Rosa could not prevent the sale of the Doncaster property. They would not provide her with Emilia's address in Yea and changed her telephone number. She was able to locate Yea Springs Drive in late 2021 or early 2022 by researching what properties had recently been sold in Yea;[177]

(g) when asked about the draft will, Rosa said that it did not mean anything, because it was not signed.[178] Rosa said that Emilia told her about the draft will after she wrote it, but Rosa did not see the draft will until she attended Court the day prior to give her evidence. Emilia told her that she did write the draft will, but that she did not sign it. She has never discussed the sum of $400,000 referred to in the draft will with anyone;[179]

(h) when taken to Dr Rezk's letter of 1 April 2020,112F[180] Rosa said that when she visited Yea Springs Drive, but before the 7 April visit, Emilia told her that Nicola made her go to the doctor so that Emilia could sell the Doncaster property and do her will, and had been coerced as to what to say.[181] She said that her mother is not a silly woman, but that she can be pushed into doing things, and Rosa believes that Emilia was 'put on a guilt trip' to do certain things, such as to buy and sell property quickly;[182]

(i) when asked about whether Emilia made gifts, such as gifts of cars, Rosa said that she would not take Emilia's money, and Emilia did not buy her a car.[183] However, when taken to the transcript of the August 2024 call, she agreed that Emilia bought her a car about 15 years ago, because she helped her brothers, and she is still driving her mother's car;[184] and

(j) she said that she did not have a good relationship with Nicola, and explained why.113F[185]

219 To the extent that Rosa's demeanour was relevant to the assessment of her credibility as a witness, I observed that she was often combative under cross-examination. Further, Rosa seems to have adopted, without direct knowledge of the relevant conversations and events, a number of her mother's 'talking points'.

220 Rosa seemed at times to go out of her way to paint Nicola and Robert (and Linda) in a poor light. By way of example, her evidence about her concerns about the sale of the Doncaster property suggested that this transaction was disadvantageous to Emilia, and was part of some scheme on the part of Nicola.

221 However, this evidence does not really make sense, even in the context of Emilia's claims in this proceeding. There was not a shred of evidence to support Rosa's contention that the sale of the Doncaster property was at an undervalue. Her evidence to the effect that Emilia had told her (during a period in which Rosa said she and Emilia were estranged) that she needed to sell the Doncaster property because she had purchased a property in Yea is not borne out by the chronology of events, because Emilia sold the Doncaster property before she purchased Yea Springs Drive. Emilia herself gave no evidence that she sold the Doncaster property under any duress: indeed, she said that she wanted to sell the Doncaster property and apply the net proceeds of sale to fund the redevelopment of the Melbourne Road property.

222 Rosa did not really explain why she contacted doctors and lawyers to prevent the sale of the Doncaster property. This aspect of her evidence reinforced my view that Rosa's evidence, to the extent that she had any direct knowledge of the relevant events, should be treated with some caution.

223 Mr Tull gave evidence that in early 2022 he entered into a joint venture with Robert and Nicola with respect to the Melbourne Road property. The plan was for him to purchase the Melbourne Road property, finish the renovations and obtain the necessary permits to construct three units at the rear of the property.[186] Robert would receive $400,000 in cash, and Nicola would receive clear title to the rear lot with a newly built home.[187]

224 Mr Tull's first meeting was with both Nicola and Robert, but most of his dealings were with Robert. Robert always needed to go back to Nicola to seek approval.[188] Mr Tull said that he thought that Robert was the owner of the Melbourne Road property because his name was on the contract of sale he signed, saying '[i]t was in his name, but obviously it was his dad's as well'.114F'[189]

225 Mr Tull gave evidence that Robert took materials from the Melbourne Road property to Roycroft Way. Mr Tull understood that there was still some landscaping to be done at Roycroft Way, and a pool was to be installed there.[190]

226 Mr Tull gave evidence regarding the 7 April visit which was largely consistent with Emilia and Rosa's evidence. Mr Tull (who is a relatively young man) said that he did not feel physically threatened by Emilia and Rosa, but he was concerned about his position given Emilia's claim that the Melbourne Road property was her property, and that documents had been fraudulently signed.[191] However, the fact that Robert was the registered proprietor of the Melbourne Road property gave him peace of mind.

227 Mr Tull said that when he first started dealing with Robert and Nicola, the house on the Melbourne Road property was semi-renovated, but there was still a fair bit to do. The plan was that his sister would live in the house after the renovations were finished and while the rear units were being developed. She in fact lived there until about Christmas 2022, when Robert changed the locks and removed her belongings.[192] Robert had told him that the house was required because Nicola needed somewhere to live, but after his sister was locked out of the Melbourne Road property, it remained vacant for six to eight months.[193]

228 Mr Tull denied that the joint venture failed because he was unable to obtain finance to complete the purchase of the Melbourne Road property.[194] He said that after Emilia lodged the first caveat, he begun calculating how much was owed to him by Robert in connection with the Melbourne Road property. He explained how he created the table which represents his claim in the current dispute with Robert, who he says now owes him about $200,000, including legal costs.[195]

229 Mr Tull gave evidence that Robert told him that he came to own the Melbourne Road property because his grandmother gave Nicola $200,000 to get money out of her bank account so she could get the pension, and Robert borrowed the rest of the purchase price.[196]

230 Under cross-examination, Mr Tull gave evidence about the different options he and Robert discussed regarding the joint venture, and, essentially, the joint venture failed because neither he nor Robert could raise the funds to pay the other out.[197] He tried to arrange to meet with Nicola, because he wanted to make sure that Nicola agreed with any proposal to move forward.

231 In my view, Mr Tull was a credible and largely reliable witness. There were some inconsistencies in the evidence Mr Tull gave regarding the timing of certain events, and the amount he said Robert told him that Emilia 'gave' to Nicola for the purchase of the Melbourne Road property. Further, it does appear from the text message exchanges between Robert and Mr Tull that Mr Tull' s difficulties in obtaining finance were more of an impediment to the progress of the joint venture than the first caveat, as suggested by Mr Tull. However, those inconsistencies are understandable given that Mr Tull is an arms-length witness, and given the ongoing dispute between him and Robert.

232 To the extent that Mr Tull's evidence was relevant to the issues in dispute in this proceeding, the following conclusions can be drawn:

(a) Emilia was not involved in the plans for the subdivision and redevelopment of the Melbourne Road property;

(b) by the time Mr Tull became involved with the Melbourne Road property (January 2022), the renovations were well underway, but were not yet complete;

(c) while most of Mr Tull's dealings were with Robert, Nicola was clearly a critical decision-maker;

(d) Mr Tull confirmed Robert's evidence to the effect that by mid to late 2022, Robert no longer expected to retain a lot at the Melbourne Road property following its subdivision, but rather, Robert expected that Nicola would obtain clear title to a developed lot at the rear of the Melbourne Road property, and that he would recover sufficient cash to pay out the loan secured by the Melbourne Road property; and

(e) Mr Tull's evidence regarding what Robert told him about how he came to be the registered proprietor of the Melbourne Road property is consistent with the cases advanced by both parties, but perhaps weighs more in favour of Robert's version of events, in that Robert said that Emilia gave the funds to Nicola, not to him.

Observations regarding the plaintiff's evidence

233 As indicated earlier in these reasons, I consider that Emilia's evidence, insofar as it concerns controversial matters, needs to be treated with some caution. However, I will discuss the reasons for doing so in more detail later in these reasons when discussing Emilia's primary claim in this proceeding.

234 I have also treated the evidence of both Roberto Snr and Rosa with some caution. Other than Emilia herself, they have the most to gain financially by a favourable outcome for Emilia in this proceeding. Not only will Emilia regain a property now valued at $750,000, it is apparent from Emilia's evidence that her assets have been substantially depleted by the legal costs associated with this proceeding. Further, both Roberto Snr and Rosa (and to a lesser extent Reece) gave evidence which suggested that the key elements of Emilia's claims in this proceeding have been the subject of some discussion within the family, as they gave evidence about matters which those witnesses were unlikely to have direct knowledge.115F[198]

235 While there was nothing in Roberto Snr's demeanour to suggest that he was not telling the truth, his evidence about the preparation of the draft will was directly contradicted by Mr Radebe, whose evidence I accept. Further, some of Roberto Snr's evidence was internally inconsistent, or was inconsistent with Emilia's evidence or incontrovertible facts. For example, he said that he advised Emilia to put a caveat on the title to the Melbourne Road property after the 7 April visit. However, the first caveat had already been lodged by that time. Further, he said he called the family meeting after the 7 April visit and Robert's application for intervention orders, but Emilia's evidence was to the effect that the 7 April visit was precipitated by Nicola's conduct at the family meeting. Neither account can be correct, and the timing of the relevant events is quite important.

236 To explain further, Emilia relies upon the evidence concerning the family meeting and the 7 April visit to support her contention that, until the family meeting, she had no inkling that there was any issue about her ownership of the Melbourne Road property, and she had no reason to mistrust Robert, consistent with her pleading that Robert had promised her that after the renovations were complete, the title to the Melbourne Road property would be returned to her. However, she says that her suspicions were aroused by what Nicola said at the family meeting, although she did not give any evidence about what was said to put the words 'I hold all the aces' in context. She also said that Rosa was at the family meeting, and Robert was not. It was after the family meeting that she asked Rosa to accompany her on the 7 April visit, which was when she discovered that Robert had sold the property to Mr Tull.

237 There are of course some difficulties with this evidence, given that the first caveat was lodged two weeks prior to the 7 April visit. But Roberto Snr's evidence suggests a different sequence of events, being the 7 April visit, his advice to Emilia to lodge a caveat over the title to the Melbourne Road property, followed by the family meeting.

238 Taken in isolation, these inconsistencies would not be of great significance, or could be attributable to confusion or faulty memory. However, taken together, and given that Roberto Snr's evidence regarding the preparation of the draft will is plainly incorrect, and that I accept Mr Radebe's evidence, I also must view Roberto Snr's evidence with some caution, including his evidence about the conversations he said he had with Robert and Nicola about the purchase of the Melbourne Road property in 2018.

239 As for Rosa's evidence, it is clear that most of what Rosa knows or understands about the Melbourne Road property has been told to her by Emilia after the fact. Her only direct evidence of relevance to the issues in the proceeding is to the effect that in about 2019, Emilia told her that she purchased the Melbourne Road property as an investment, which she proposed to develop, and her evidence about her conversation with Nicola in May 2024. In relation to the latter evidence, where she said that Nicola told her that Emilia had provided him with the funds to purchase the Melbourne Road property and for the renovations, that is common ground between the parties. However, it seems highly unlikely that Nicola told her that he retained the $127,000 provided for the renovations. While I have not examined Nicola's bank statements in minute detail, it is clear from Nicola's evidence, where he identified payments for trades and materials, and Mr Tull's evidence that the renovations were well advanced, that part, if not all of the funds provided by Emilia for the renovations were in fact spent on the renovations.

240 However, as will be discussed in more detail later in these reasons, the main difficulty in accepting the corroborative evidence of Roberto Snr, Rosa and Reece is that their evidence does not cure the fundamental difficulties with Emilia's evidence. That is, if Emilia's account of the relevant events is disbelieved, and Robert and Nicola's evidence is accepted, then the evidence given by Roberto Snr, Rosa and Reece regarding the conversations they had with Emilia, Robert and Nicola regarding the Melbourne Road property is implausible, save that Emilia may have told Rosa and/or Roberto Snr that she had purchased the Melbourne Road property as an investment in order to hide from them that she had given money to Nicola to facilitate the purchase of the Melbourne Road property. While that conclusion is plausible, it would be mere speculation on the evidence as it stands.

241 Robert gave evidence on his own behalf. While a little nervous at times, he generally gave evidence in a calm and matter-of-fact manner. Where he gave evidence which contradicted Emilia's version of events, he presented as being bemused and/or frustrated, rather than angry or upset. He made appropriate concessions, and was generally not defensive or evasive. By way of example, he conceded that he had not had any discussions with Emilia prior to the purchase of the Melbourne Road property, and that in hindsight, that it was unwise for him to not have had such a discussion. He was candid about his gambling problem. There was only one aspect of Robert's evidence where I had some real reservations about its reliability or credibility, or at least, I cannot be comfortably satisfied that it is correct. This was Robert's evidence to the effect that, while he had not confirmed with Emilia that she had made a gift to Nicola prior to the settlement of the purchase of the Melbourne Road property, afterwards Emilia had, in the presence of other family members, referred to her gift to Nicola.[199]

242 Robert's evidence that Emilia mentioned the gift to other family members after the settlement of the purchase of the Melbourne Road property was given in the context of being questioned about whether he had spoken to Emilia about the transaction prior to the settlement of the purchase. He said he had not done so, but relied upon what Nicola told him about the proposed transaction. He also gave evidence that had he had his time again, he would have spoken to Emilia about the transaction, presumably to confirm Emilia's intention to make a gift to Nicola.[200] However, his evidence regarding Emilia's alleged subsequent declarations of gift was vague as to time, place, and context, and, without explanation, was not corroborated by any other family member (including Nicola), and was not put to Emilia.

243 Further, it is not clear why Emilia would have made any subsequent declarations of gift. After all, Emilia gave evidence that she kept the fact that the Melbourne Road property was purchased in Robert's name a secret. There was no other evidence that anyone in the family knew about Emilia making a gift to Nicola, at least not prior to the preparation of the draft will.

244 However, my view that Robert's evidence that Emilia made subsequent public declarations of gift is more likely than not to be incorrect, diminishes but does not destroy, the credibility of Robert's evidence generally. I attribute this evidence to Robert's embarrassment at the predicament in which he now finds himself in.

245 Turning now to the substance of Robert's evidence, Robert's evidence-in-chief was relatively brief. He gave evidence that he was not party to any discussions between Emilia and Nicola about the Melbourne Road property, or the renovations. He was not present when Emilia signed the contract of sale, or when she signed the nomination form.[201] He denied making the representations alleged by Emilia, or receiving any cash from Emilia for the purchase of the Melbourne Road property.[202] He agreed to the release of the deposit to the vendor of the Melbourne Road property because Nicola told him that it was okay to do so.[203]

246 Robert was taken to his pleading about the conversation he had with Nicola about the Melbourne Road property (see paragraph 100(b) of these reasons), but was not asked any questions about this conversation. He seemed to affirm that this part of his pleading was correct, but said 'M'hmm' rather than 'yes'.[204] However, he did give evidence regarding this conversation under cross-examination.[205]

247 Robert gave evidence that the draft will was sent to him and Roberto Snr because Nicola did not have an email address.[206] He passed the draft will onto his father.

248 Robert was cross-examined at some length. Much of the cross-examination was focussed upon Robert's lack of consultation with Emilia regarding the purchase of the Melbourne Road property, the 'side-deal' with Nicola, the further borrowings, and the proposed subdivision and redevelopment of the Melbourne Road property, which Robert freely admitted. Robert gave evidence that he did not consult with Emilia about these matters because, relying upon what Nicola told him, he did not understand Emilia to have an interest in the Melbourne Road property following her gift to Nicola.

249 Robert gave evidence regarding the side-deal, which was to the effect that, prior to the settlement of the purchase of the Melbourne Road property, he and Nicola agreed that they would subdivide the Melbourne Road property, and that Robert would retain one lot in recognition of the contribution he made to the purchase of the Melbourne Road property by obtaining the Secure Funding loan.[207] However, this plan changed over the course of their dealings with Mr Tull, and as the dispute within the family emerged.

250 Other topics covered in the course of Robert's cross-examination included the following:

(a) Nicola's ability to read and understand commercial documents and transactions;[208]

(b) what he knew about the gift from Emilia to Nicola and when;

(c) his involvement in the conveyancing transactions for the sale of the Evansford farm and the purchase of the Melbourne Road property, giving instructions for the disbursement of funds from the proceeds of sale of the Evansford farm. He said that Mr Morgan told him that Emilia had given him instructions about how the proceeds of sale of the Evansford farm were to be disbursed;[209]

(d) his involvement in the preparation of the statutory declaration;

(e) whether he ever spoke with Nicola about expediting Nicola's inheritance from Emilia. He said that he did not;[210]

(f) how the funds raised by the further borrowings were used;116F[211]

(g) he denied using materials purchased for the renovations for improvements at Roycroft Way;117F[212]

(h) he said that Emilia was lying when she gave evidence that they discussed Robert holding the Melbourne Road property in his name for a specific period of time;[213]

(i) he said that Emilia lent him about $15,000 for the pizza shops, which he has repaid.[214] The establishment of the pizza shops has largely been financed by loans;

(j) he said that the falling out between Emilia on the one hand and Nicola on the other hand was about two years prior to the trial and had nothing to do with the transaction concerning the Melbourne Road property;[215]

(k) he admitted that he had a gambling problem in the past;[216]

(l) he believes that he did tell Emilia about the proposed subdivision and redevelopment of the Melbourne Road property, about a year after it was purchased, but he did not tell her about the proposed sale to Mr Tull;[217]

(m) by 2022, he no longer planned to keep a lot at the Melbourne Road property, because by that time, given all of the conflict within the family, he just wanted Nicola to have a unit to live in, and to pay out the mortgage on the Melbourne Road property;[218]

(n) he later believed that part of Emilia's purpose in giving Nicola the funds to purchase the Melbourne Road property was to avoid losing her pension;[219]

(o) he accepted that it was probably the case that no-one told Emilia that she remained liable to the vendor of the Melbourne Road property under the contract of sale following her execution of the nomination form;

(p) he gave evidence at some length about his dealings with Mr Tull, including his dispute with Mr Tull;

(q) he gave evidence that he understood that the $22,000 deposit paid by Emilia was part of her gift to Nicola;[220]

(r) how his wife came to acquire and purchase Roycroft Way;

(s) the source of the numerous cash deposits to his bank accounts between January 2018 and March 2023;[221] and

(t) his (lack of) involvement in the purchase of Yea Springs Drive and the preparation of the draft will.

251 In re-examination, Robert gave evidence that Emilia never called him or otherwise spoke to him about how the conveyancing transaction was progressing, or to ask him to explain anything to her, and there was no barrier to him doing so.[222] He gave evidence that he had no reason to disbelieve what Nicola told him about the gift from Emilia.[223] He gave evidence that the falling out between Emilia and Nicola, or between Emilia on the one hand and Nicola and Robert on the other hand was originally not about the Melbourne Road property.[224]

252 Nicola gave his evidence-in-chief in a rather unconventional fashion, embarking upon a series of lengthy narratives rather than short sharp answers to direct questions. Accordingly, his evidence lacked some precision as to the time and location of conversations, but the same could be said for each of the other witnesses who gave evidence. Like Robert, it seems as if the dispute with Emilia had caused him more sorrow and bemusement than anger.

253 In his evidence-in-chief, Nicola said that he went to Yea to look at real estate because Robert was living there, and after Emilia told him that she was going to give him some money to purchase a property because he had nowhere to live. He found the Melbourne Road property and told Emilia about it, and asked her if she wanted to have a look at it.[225] Emilia inspected the Melbourne Road property, and agreed that it was a good deal. They went to the real estate agent's office, and Emilia paid a $2,000 cash deposit, as there was another buyer in the picture.[226] Later at home (it is not clear when and where), Nicola asked Emilia how much she was going to give him, and she said that she would give him $80,000 now, and the rest from the proceeds of sale from the Evansford farm, or about $350,000 in total.[227]

254 Nicola said that his response was to the effect that he could not purchase the Melbourne Road property, given that the purchase price was $440,000, but he told Emilia that there was a possibility that Robert could assist him.[228]

255 Nicola said that he spoke to Robert about helping him to acquire the Melbourne Road property and Robert was sceptical but agreed to help. He said that Emilia asked him whether he was sure about Robert being on the title to the Melbourne Road property, and Nicola responded that this was the only way he could raise finance to complete the purchase.[229] He said that he called the real estate agent to tell her that he wanted to nominate a new purchaser.118F[230] He took the nomination form to Emilia, then to Robert, and Robert took over the conveyancing transaction from there.

256 When asked why he believed that Emilia would give him a property when she had other children, Nicola responded that she was having difficulties with Rosa's children, who were threatening her.119F[231] Emilia told him that she wanted to leave the Doncaster property and buy a house near him. She lived at Linda's house in Croydon before she bought Yea Springs Drive. He and Robert located Yea Springs Drive, which was a nice house with no stairs, so Emilia sold the Doncaster property and purchased Yea Springs Drive.

257 Nicola gave evidence that he stayed with Emilia at Yea Springs Drive for about seven months until he got sick and had to go to hospital.[232] All that Emilia was concerned about when he left was that he was leaving her on her own. When he returned, all the children were there.120F[233]

258 Nicola then proceeded to give evidence about what he believed occurred during a confrontation between one of his daughters and Emilia, Roberto Snr and Rosa at Yea Springs Drive. I will not recount this evidence here, as it is inadmissible hearsay. What is admissible is Nicola's evidence that Emilia told him to tell his daughters not to go to the police, and said words to the effect that 'if you don't shut your kids up I'm taking everything from you', with Nicola going on to say that is what she is doing?[234]

259 The context in which this evidence was given suggests this conversation, if it did take place, took place in early 2022. The weight I can give this evidence is of course relatively limited given the lack of corroboration, and the failure to put this allegation to Emilia. However, along with the evidence Nicola and Emilia gave about Nicola breaking his promise to care for her, Emilia's evidence that she was 'left alone like a dog', the evidence about the 7 April visit, Robert's evidence to the effect that the dispute between the parties was not just about money, Robert's reference to a dispute between Emilia and Nicola in his application for intervention orders (said by Emilia and Rosa in their response to be 'not relevant') and the timing of the lodgement of the first caveat, shows that by the time of the 7 April visit, there had been a serious falling out between Emilia and Nicola.

260 Nicola agreed that Emilia transferred $330,000 to his bank account in three tranches. He said that she did so on her own initiative - he did not put a gun to her head. He said that he was the best thing in Emilia's life until the arguments started about his daughters.[235]

261 Nicola gave evidence that he had to leave Yea to have a series of operations and other medical treatment. He then planned to return to Yea to live at the Melbourne Road property once the renovations were complete, and help Emilia with her shopping and other chores. He and Emilia argued about the extent of care he could provide her, because he was a male, and Emilia reacted badly, accusing him of breaking his promise to care for her.[236] He agreed that he broke his promise to Emilia in that regard, but he also attributed the breakdown of his relationship to his failure to 'quiet' his daughters.[237]

262 Nicola gave evidence about the preparation of the draft will. His evidence in this regard was brief, but he understood the effect of the draft will. While he did not mention Mr Radebe by name, I understood his evidence to mean that Emilia gave Mr Radebe instructions over a period of three hours regarding the draft will.[238]

263 Nicola was asked about the funds Emilia provided him for the renovations, observing that 'you can't build a brick house for $100,000'.[239] He then went through his bank statements identifying payments he made for the renovations.

264 Nicola's cross-examination covered the following topics:

(a) his employment history (or lack thereof);

(b) that he regards the Melbourne Road property as his, by reason of the agreement he has with Robert. He believes that the Melbourne Road property will ultimately come back to him, and he plans to live there until he dies. The arrangement with Robert was that they would subdivide the Melbourne Road property, and Robert would keep a lot in recognition of his contribution with the Secure Funding loan;[240]

(c) he accepted that he never directly received from Emilia the $22,000 deposit she paid for the Melbourne Road property, but said that she told him that he could keep it;[241]

(d) he did not know that Emilia received $50,000 cash for the chattels, and he did not know whether she gave any cash to Robert;[242]

(e) he gave evidence that he had conversations with Emilia about nominating Robert to be the purchaser of the Melbourne Road property, and that she knew that Robert would be borrowing money to complete the purchase of the Melbourne Road property. He said that he explained to Emilia that the purpose of the nomination form was to give effect to the transfer of the Melbourne Road property to Robert.[243] He did not tell Emilia about the side-deal;

(f) he gave Robert permission to arrange the further borrowings. He did not ask Emilia's permission, because he did not need to obtain her permission for the further borrowings;

(g) when asked about the $127,000 advanced by Emilia for the renovations, he said that he was not sure whether this was a gift or a loan, but he would pay it back;[244]

(h) he was present when Emilia spoke to Mr Radebe for three hours about the draft will at Linda's home before she moved to Yea Springs Drive;121F[245]

(i) he believes Mr Radebe's files were taken to Linda's home at Croydon. He does not have them in his possession;[246]

(j) he took Emilia to the doctor's several times. She did tell him she was getting a letter written so that 'the other kids can't take it off [him]';[247] and

(k) prior to the telephone call with Rosa in May 2024, he had not spoken to Rosa or Roberto Snr for seven years.122F[248]

265 In re-examination, Nicola gave evidence that Emilia has given him money on three occasions, and that she had helped all of her children financially.[249] He said he specifically discussed the deposit Emilia paid for the Melbourne Road property with Emilia, when they were discussing how much money Emilia would be able to give him. She said 'there's $22,000 there.'[250]

266 While in some respects Nicola's evidence suffered from a lack of precision, I generally found Nicola to be a credible witness. He was not evasive or defensive.

267 Further, some of the cross-examination of Nicola (and Robert) focussed upon Nicola's lack of education and employment history. However, the purpose of that line of questioning was not at all clear. On the one hand, the fact that Nicola was a disability pensioner could be said to support a conclusion that he was motivated to obtain an advance on his inheritance for financial reasons. On the other hand, the focus on Nicola's lack of education and literary skills seemed to be directed towards supporting a conclusion that Robert was the real mastermind behind the scheme to defraud Emilia.

268 However, while I accept that Nicola does not feel comfortable with paperwork or technology, he did not strike me as unintelligent. Emilia herself described him as 'brighter' than Robert,[251] who himself does not strike me as unintelligent.

269 I accept that Nicola gave his evidence-in-chief in a rather unconventional narrative form. But that of itself does not mean that his evidence should be excluded, or disregarded. He was cross-examined in the usual way, and his evidence largely survived unscathed by cross-examination. Like a number of the other witnesses, he was vague as to the time and place of certain conversations and events, but his recollection of key events and conversations was quite good.

270 Specific inconsistencies in Nicola's evidence included his evidence about the preparation of the draft will. He gave evidence which I understand to mean that he was present when Mr Radebe spoke to Emilia about the draft will for about three hours at his home in Croydon. That cannot be correct, as the draft will was prepared in 2020, not 2021, and Mr Radebe gave evidence that he always spoke with Emilia alone about her legal matters, and received instructions from Emilia about the draft will at the Doncaster property.

271 Nicola gave evidence that he believed that Emilia gave him the funds to purchase the Melbourne Road property because she was having difficulties with her other children. However, the only other evidence about that is that Emilia and Rosa were estranged in 2021, not 2018.

272 Finally, Nicola gave evidence that he contacted the real estate agent to arrange for the nomination of Robert as the purchaser of the Melbourne Road property,[252] but later said he arranged for Linda to contact the real estate agent to arrange for the contract of sale to be amended.[253] However, while it was possible that the clerk at the real estate agent's office amended the contract of sale, the nomination form was prepared by CCS.

273 While there are some inconsistencies in Nicola's evidence, there was no material inconsistencies between his evidence and Robert's evidence, and I accept that Nicola was endeavouring to give evidence about the relevant events to the best of his recollection.

274 Mr Radebe gave evidence that he is a retired lawyer. He was Emilia's lawyer, and he knows her very well, having assisted her for over 10 years. He assisted Emilia with a property settlement concerning the Queensland unit, the sale of the Evansford farm, the sale of the Doncaster property, and the removal of a mortgage and caveat from the title to the Doncaster property.

275 Mr Radebe gave evidence that he would always visit Emilia at the Doncaster property, where he would often stay for dinner. They always spoke about legal matters alone: if Roberto Snr was present, he would leave the room. They always spoke in English, as he did not speak Italian. He said that Emilia was smart, articulate and well organised, and he could always understand her instructions.

276 When questioned about the draft will, Mr Radebe gave evidence that Emilia asked him to prepare the draft will. She did not have an email address, so he sent the draft will to Robert and Roberto Snr to pass on to Emilia.[254] He gave evidence that he and Emilia spoke three or four times about the matter when he attended upon her for other reasons, following which she gave him instructions to prepare the draft will.[255]

277 Mr Radebe gave evidence that in their discussions, Emilia told him that she had given Nicola $400,000 from the proceeds of sale of the Evansford farm, and, in order to be fair to her other children, she wanted that gift reflected in the distributions to her children in her will. He said that Emilia wanted the draft will to say that Nicola had already received $400,000 from the sale of the Evansford farm.[256]

278 Mr Radebe gave evidence that he spoke to Emilia after she had received the draft will. She told him that she was happy with the draft will, and said again that she wanted to be fair to Rosa and Roberto Snr. He gave evidence that he did not discuss the contents of the draft will with anyone other than Emilia.[257]

279 Under cross-examination, Mr Radebe gave, in summary, the following evidence:

(a) he is aware of the duties he owes to Emilia as his former client;

(b) he has no access to any file notes regarding the draft will, as he provided all of his files concerning Emilia's legal matters to Emilia at her request when she was living at Nicola's house in Croydon.[258] Nicola was present when he dropped off the files;

(c) he was involved in preparing the s 32 statement for the Evansford farm, and in lodging and removing a caveat on the title to the Doncaster property on behalf of Rosa, Roberto Snr and Nicola.[259] The caveat was removed after the death of Emilia's daughter Carmela. In these transactions, he was acting for Emilia, not her children;

(d) he agreed that he did not prepare retainer letters and costs agreements for the matters where he acted for Emilia;

(e) he gave evidence that he was not involved in the transaction for the purchase of the Melbourne Road property, and, save for some preliminary matters, the sale of the Evansford farm or the sale of the Doncaster property. The name 'Mark Morgan' meant nothing to him;[260]

(f) while he did email the draft will to Robert and Roberto Snr, he could have taken hard copies of the documents to Emilia if necessary;123F[261]

(g) he gave evidence that Emilia was happy with the draft will, but that she did not sign it because they had other pressing matters to deal with at that time;[262]

(h) he does not know whether Emilia discussed the terms of the draft will with members of her family; and

(i) he agreed that the draft will did not refer to Emilia having made a gift to Nicola.

280 In re-examination, Mr Radebe repeated his earlier evidence regarding the instructions Emilia provided to him about the draft will, and said that Emilia was happy with clause 5 of the draft will, because that would have the result of being fair to her other children.

281 Emilia submitted that Mr Radebe's evidence was unreliable, because he no longer retained any files in relation to Emilia's matters, and objectionable, insofar as his evidence was in breach of legal professional privilege and his obligation of confidence to Emilia.

282 Where the evidence was said to be objectionable, those objections can be dealt with quite promptly. To the extent that Mr Radebe's evidence was said to give rise to a breach of legal professional privilege, no formal objection was taken during the course of Mr Radebe giving his evidence. And, if an objection had been taken, there would be a powerful argument that Emilia had waived any privilege by giving evidence to the effect that she did not provide Mr Radebe with instructions to prepare the draft will in the terms that he did.124F[263] As for any alleged breach of confidence, Mr Radebe did not come to Court voluntarily: he was compelled to do so by a subpoena.

283 As for the reliability of Mr Radebe's evidence, Mr Radebe's evidence was largely undisturbed by cross-examination. He clearly had a good recollection of the relevant events, and there was nothing before me to support any contention that Mr Radebe was a partisan witness, or had any incentive to do anything other than tell the truth.

284 Mr Morgan gave evidence of quite short compass. He has been engaged in legal practice for over 30 years. He gave evidence that his office was first retained by Emilia after the purchaser of the Evansford farm retained him to act in the conveyance. After he wrote to Emilia asking her to nominate a solicitor, Emilia, Nicola and his client Mr Todorovski came to his office and asked him to handle the conveyancing transaction for both parties.[264]

285 This meeting was the only time that Mr Morgan met Emilia. Mr Morgan said that she spoke very good English with an Italian accent.[265] They discussed the sale price for the Evansford farm, the prior heads of agreement reached between Emilia and Mr Todorovski, and how the proceeds of sale were to be disbursed at settlement.[266]

286 Mr Morgan gave evidence that Emilia never called him, but there was no impediment to her doing so.[267] She subsequently dealt with Ms Marra for the purpose of the conveyancing transactions associated with the sale of the Doncaster property and the purchase of Yea Springs Drive.

Observations regarding the defendant's evidence

287 With some limited exceptions and reservations, I generally accept the evidence relied upon by Robert in defence of Emilia's claims in this proceeding. The evidence of Robert and Nicola was largely consistent with Robert's pleaded case, with the evidence given by each other, with the evidence of Mr Radebe and Mr Tull (which I accept unreservedly), and the contemporaneous documents in evidence, in particular, the draft will.

288 Emilia's written outline of closing submissions made the assertion that ' [Robert] and Nicola's accounts of their conversations with Emilia are without credit', without descending into any detail as to why their evidence should not be accepted.

289 However, as noted earlier in these reasons, the only evidence given by Robert that I have real reservations about is the evidence he gave to the effect that Emilia made subsequent public declarations of the alleged gift to Nicola. I otherwise accept that he gave credible evidence, and his evidence remained largely undisturbed by cross-examination. To the extent he made concessions in cross-examination, these concessions were made freely, and were more relevant to the question of whether Emilia was the victim of unconscionable conduct rather than the question of whether he made the representations, or Emilia's intention to retain the beneficial interest in the Melbourne Road property. I accept Robert's evidence that he relied upon what Nicola told him about the transaction, and acted consistently with his belief that the funds provided to Nicola were a gift to contribute to the purchase of the Melbourne Road property. Despite the best efforts of Emilia's legal team, their attempt to establish that Robert diverted the cash said to have been given to him by Emilia for his own purposes went nowhere.

290 Robert conceded that he used the funds raised by the further borrowings for his own purposes. However, this conduct is consistent with his case, as it is conduct consistent with his belief that Nicola, not Emilia, was the true beneficial owner of the Melbourne Road property. After all, as observed by counsel for Robert in his submissions, why would Robert undertake the further borrowings if he knew that, as contended for by Emilia, he would need to transfer the title of the Melbourne Road property to Emilia in 2021 or 2022? After all, registered mortgages are very difficult to hide. Rather, the further borrowings, and Robert and Nicola's evidence to the effect that Robert asked Nicola for permission to make the further borrowings, are consistent with Robert and Nicola's plans to subdivide and redevelop the Melbourne Road property, which they no doubt expected would generate sufficient funds to repay the further borrowings.

291 Otherwise, there were no material inconsistencies between Robert's evidence and Nicola's evidence, and no material inconsistencies between Robert's evidence and the contemporaneous documents or established facts.

292 Emilia's primary claim in this proceeding is that she always intended to retain the beneficial ownership of the Melbourne Road property, but decided to purchase the property in Robert's name after he told her that she would lose the pension if she purchased the property in her own name. Robert denies this allegation, and said that he had no conversations whatsoever with Emilia about the Melbourne Road property prior to its purchase. Accordingly, the resolution of this issue requires a close evaluation of the credibility and reliability of the evidence of the parties and their witnesses.

293 The position is a little different with Emilia's claim that she laboured under a special disability, and Robert took unconscientious advantage of that special disability. This issue only arises if I find that Emilia did intend to give Nicola the funds to purchase the Melbourne Road property. Its resolution turns not so much on the credibility and reliability of the parties' evidence, but rather upon the characterisation of the facts as found.

Did Emilia intend to retain the beneficial ownership of the Melbourne Road property?

294 The issues set out in sub-paragraphs 122(a) to (c) of these reasons all concern the question of what Emilia intended at the time she executed the contract of sale, signed the nomination form, and transferred the funds for the purchase of the Melbourne Road property.

295 Emilia bears the onus of establishing that at all material times she intended to retain the beneficial ownership of the Melbourne Road property. However, by reason of the inconsistencies in Emilia's evidence, including the inconsistencies between her evidence and her pleaded case, and between her evidence and the limited contemporaneous documents, I must treat Emilia's evidence with a great deal of caution. As a consequence, Emilia has not discharged the onus upon her to establish the requisite intention. Indeed, while strictly speaking, given where the onus of proof lies, it is not necessary for me to make a positive finding about the matters raised by Robert in defence of Emilia's claim, I largely accept the evidence of Robert, Nicola, Mr Radebe and Mr Tull as to what transpired.

296 Mr Morgan gave relatively limited evidence, but his evidence was significant in one respect, being that he discussed with Emilia how the proceeds of sale of the Evansford farm were to be disbursed at settlement. This is contrary to Emilia's evidence that she never met Mr Morgan, and contrary to her evidence and submissions that Robert controlled the sale of the Evansford farm. Mr Morgan is unlikely to be mistaken as to whether he met Emilia,[268] but Emilia was adamant that she had not spoken with Mr Morgan, which reflects poorly upon her credit generally.

297 Further, to the extent that Roberto Snr and Rosa have any direct knowledge of the relevant conversations and events (and that direct knowledge is limited), I also treat their evidence with some caution. In particular, I do not accept Roberto Snr's evidence that, prior to the purchase of the Melbourne Road property, he had discussions with Emilia, Nicola or Robert about whose name the property was to be purchased in, or discussions where Robert and/or Nicola acknowledged Emilia's beneficial interest in the Melbourne Road property.

298 Further, as for Reece's evidence about the conversation he said he had with Robert in 2016 or 2017, it seems to me to be unlikely that this conversation occurred. Emilia's own evidence was that she decided, herself, to sell the Evansford farm in early 2018, because understandably it was becoming a burden for her. She did not give any evidence to the effect that Robert and/or Nicola were encouraging her to sell the Evansford farm at any time, and no doubt she would have given that evidence had they done so. Further, if I accept Robert's evidence that his first involvement with any dealings concerning the Melbourne Road property was when Nicola approached him in October 2018, then it seems highly unlikely that he had a conversation with Reece in 2016 or 2017 to the effect that there was a plan afoot to have Emilia purchase a property in Robert's name.

(a) to the extent that there were any discussions about the purchase of the Melbourne Road property, those discussions were between Emilia and Nicola, not Emilia and Robert. Robert made no representations to Emilia of the character alleged by Emilia;

(b) Emilia intended to give the funds she provided to Nicola, and the funds she paid towards the deposit for the purchase of the Melbourne Road property, to Nicola to assist him to purchase a home. I accept Nicola's evidence that Robert only became involved in the transaction when Emilia told Nicola that she was only in a position to give him $350,000, not the full amount of the purchase price of the Melbourne Road property;

(c) Emilia did not provide Robert with $90,000 in cash for the purchase of the Melbourne Road property. This finding is not only relevant to the question of whether all of the funds for the purchase of the Melbourne Road property originated from Emilia, but also affects the credibility of Emilia's evidence generally; and

(d) Emilia understood, at the time that she signed the nomination form that the beneficial ownership of the Melbourne Road property would pass to Nicola, not Robert. I accept Nicola's evidence that, in fact, Emilia questioned him about the wisdom of having the title to the Melbourne Road property in Robert's name, which suggests that she understood the potential pitfalls associated with the legal ownership of the Melbourne Road property being in the name of someone other than Nicola if he was to be the true beneficial owner of the Melbourne Road property.[269]

300 I make these findings because, where the evidence of Emilia on the one hand and Robert and Nicola on the other hand is in conflict, I generally prefer the evidence of Robert and Nicola. Contrary to the submissions advanced on behalf of Emilia, the evidence of Mr Tull, who I consider to have been a largely disinterested125F[270] and reliable witness, tends to support Robert's version of events rather than Emilia's version of events. I also accept the evidence of Mr Radebe and Mr Morgan, which also supports Robert's version of the events.

301 The following matters are of particular significance to my findings:

(a) the conflicting evidence and pleadings about, among other things, the purpose for which Emilia purchased the Melbourne Road property;

(b) my conclusion that the issue of the impact of the purchase of the Melbourne Road property upon Emilia's pension entitlements is somewhat of a red herring;

(c) the payments made to Nicola's bank account for the purchase of the Melbourne Road property;

(d) my finding that Emilia did not pay $90,000 in cash to Robert in October and November 2018;

(e) the preparation of draft will and its contents;

(f) Emilia's purchase of Yea Springs Drive, and her payment to Nicola of $127,000 for the renovations;

(g) the events of early 2022, including Nicola's departure from Yea Springs Drive, the lodgement of the first caveat, the 7 April visit, and the letter of demand sent by Emilia's solicitors to Nicola in July 2022;

(h) the conduct of Robert and Nicola with respect to the Melbourne Road property, including, among other things, the preparation and execution of the statutory declaration, and their dealings with third parties;

(i) the contents of the August 2024 call; and

(j) other inconsistencies in Emilia's evidence which do not necessarily go to a pleaded issue, but detract from the credibility and reliability of Emilia's evidence generally.

302 Turning first to the pleadings and evidence about the purpose for which Emilia purchased the Melbourne Road property, I would make the preliminary observation that, in a case of the current kind, which ultimately turns on its facts, pleadings are important. One can infer that, by reason of the ethical duties of the legal practitioners involved in drawing pleadings, and the certification requirements of the Civil Procedure Act 2010 (Vic), if an allegation is pleaded, then it has been pleaded on the basis of direct instructions from the client.

303 However, the very first material allegation in the statement of claim, being representations said to have been made by Robert to Emilia prior to the Melbourne Road property coming on to the market in mid-September 2018, were not only not the subject of any evidence, but the evidence that Emilia did give demonstrated that this allegation was patently untrue. While it is correct to say that Emilia gave evidence that representations of a similar (but not identical) character were made after she signed the contract of sale, the inaccuracy in the pleading is apt to paint a misleading picture as to what actually occurred. The pleading conveys a suggestion that, at the time Emilia purchased the Melbourne Road property, she had sold the Evansford farm and had received the proceeds, and was ripe for manipulation by Robert as to what she should do next. As it happened, she signed the contract of sale six weeks prior to the sale of the Evansford farm, in Nicola's presence, not Robert's, and there is no evidence to suggest that Robert knew anything about the purchase of the Melbourne Road property prior to 2 October 2018.

304 This discrepancy between Emilia's pleading and her evidence is not fatal to her claim. However, the provision of instructions which are clearly wrong, and must have been known by Emilia to be wrong, supports my view that Emilia has a tendency to shape the narrative in a way that she considers might be advantageous to her case. Taken alone, an embellishment of this nature would not necessarily significantly detract from the credibility of Emilia's evidence. But the cumulative effect of all of the embellishments and inconsistencies reflects adversely upon the credibility of Emilia's evidence in relation to all contentious matters.

305 Another example of such an inconsistency is Emilia's continuing insistence that she paid the full amount of the deposit for the Melbourne Road property in cash, when the documentary evidence was to the contrary. Again, this discrepancy, taken alone, does not matter much, but it does add to the doubts about the reliability of Emilia's evidence, as does her vagueness as to whether Nicola was with her when she executed the contract of sale: he almost certainly was.

306 A further example of the inconsistencies between Emilia's evidence and her pleaded case is the evidence about the purpose for which she purchased the Melbourne Road property. Emilia was adamant that she purchased the Melbourne Road property as an investment property, which she planned to subdivide, redevelop, and rent out the houses to generate income. That evidence was unremarkable, given the size of the block and the property's obvious development potential, as shown by the investigations and works carried out by Robert and consultants engaged by him between 2019 and 2022.

307 However, in her statement of claim, and also in her evidence, Emilia contended that she intended to live in the house on Melbourne Road property after the renovations had been completed, and that she provided Robert, via Nicola, $127,000 for the renovations to be carried out to her specifications. Rosa also gave evidence to that effect. However, this allegation is not only inconsistent with Emilia's own evidence regarding why she purchased the Melbourne Road property (as an investment/development opportunity), but, frankly, common sense. No explanation was provided, or was sought to be provided, as to why Emilia, having purchased and moved into Yea Springs Drive, a comfortable, single level brick home in a quiet residential street, would want to move from there to the house on the Melbourne Road property, being a modest home on a large block on a major road less than a year after purchasing Yea Springs Drive. If it was truly her intention to live at the Melbourne Road property (which was vacant from September 2020), why would she not undertake the renovations and move directly there from either the Doncaster property or Linda's home in Croydon?

308 However, Emilia may have perceived it to be necessary to bolster her claim in this proceeding to assert that she planned to move into the house on the Melbourne Road property, in order to explain why she advanced $127,000 to Nicola to fund the renovations. After all, providing Nicola with the funds to renovate the house to his own specifications (which he in fact did), whether by way of gift or loan, is consistent with Robert's contention that the funds provided by Emilia to Nicola in 2018 were a gift to Nicola to assist him to purchase the Melbourne Road property, where he planned to live.

309 Further, Emilia's evidence that Nicola promised to build her a brick home with an Italian kitchen does not make sense, given that the house being renovated was a weatherboard house. Although, given the evidence from the bank records,126F[271] it is not inconceivable that there were discussions between Emilia and Nicola about a unit being built for her on one of the lots at the Melbourne Road property once it was subdivided. There was no other evidence to that effect though.

310 Similarly, Emilia's evidence regarding the reason why she sold the Doncaster property was inconsistent with her pleaded case. She pleaded that Robert advised her to sell the Doncaster property and to purchase Yea Springs Drive, so that she would have more money available to advance to Robert, including for the renovations.

311 If Emilia's evidence supported this allegation, it would support a finding that there was a pattern of conduct on behalf of both Robert and Emilia, whereby Robert repeatedly manipulated Emilia for his own financial benefit, and Emilia, as she usually did, acquiesced. However, Emilia's evidence was that she sold the Doncaster property to fund the subdivision and redevelopment of the Melbourne Road property. That evidence is consistent with her overall contention that she always intended to retain the beneficial interest in the Melbourne Road property, that she purchased the Melbourne Road property as an investment, and that she was attracted to the Melbourne Road property because of its redevelopment potential. But Robert clearly had no part to play in her decision to sell the Doncaster property, and Rosa's evidence to the effect that the sale of the Doncaster property (apparently at an undervalue) was part of an elaborate scheme hatched between Robert and Nicola makes no sense at all.

312 There was evidence volunteered by Emilia in the course of her examination which came somewhat 'out of the blue', and was not explored further, which was consistent with her potentially becoming involved in the redevelopment of the Melbourne Road property, potentially using the proceeds of sale of the Doncaster property, but was not consistent with her holding the beneficial ownership of the Melbourne Road property. Emilia gave evidence that she was quite relaxed (presumably about her arrangement with Robert) until about a year before trial (which must have been an error) until he (presumably Robert) said to her that if she did not give him more money he was going to sell the Melbourne Road property. Emilia gave evidence that Robert wanted another $800,000 '...and then he reckon we make half each'.[272]

313 The sum of $800,000 is largely, albeit not entirely, consistent with the sums being referred to for redevelopment costs in the feasibility studies obtained by Robert in 2019. However, if Robert was not the owner of the Melbourne Road property, what would his contribution to the redevelopment project be to justify a half-share? That is, Emilia's own evidence was consistent with Robert (and/or Nicola) approaching Emilia to contribute funds to the redevelopment project as an investor, not as the owner of the Melbourne Road property.

314 It was put to Emilia in cross-examination that she may have been mistaken about the Melbourne Road property, and that what she was intending to do was to help Nicola develop the Melbourne Road property, but her answer was non-responsive.[273]

315 Further, in my view, the allegation that Emilia agreed to Robert's proposal that the Melbourne Road property be purchased in Robert's name because he told her that she might lose her pension if she purchased it in her own name does not bear close analysis, even setting aside Robert's evidence he made no such representation.

316 While there was no direct evidence regarding this issue, any concern Emilia might have about her pension entitlements presumably would arise from holding assets other than the Doncaster property (being her principal place of residence) in excess of the applicable asset threshold ('threshold'). But, on Emilia's own evidence, she had not acquired additional assets when she purchased the Melbourne Road property, or converted threshold exempt assets into non-exempt assets. She merely converted the assets associated with the Evansford farm (being the land and the trees), being non-exempt assets, into another non-exempt asset, being the Melbourne Road property. That is, using the proceeds of sale of the Evansford farm and trees to purchase another investment property would not alter her position as far as eligibility for the aged pension was concerned.

317 Emilia said that she had declared her ownership of the Evansford farm and the Queensland unit to Centrelink. I have some doubts about that evidence given that she did receive the aged pension until sometime in early 2024, my rough understanding of the level of the threshold at the relevant time,127F[274] and given that the Evansford farm and the Queensland unit were registered in Emilia's maiden name. However, if the purchase of property under her maiden name was in fact a device used to shield her ownership of property from the authorities (and I am not in a position to make a positive finding to that effect), she could continue to use that device when she purchased the Melbourne Road property. Indeed, she signed the contract of sale in her maiden name.

318 In any event, Emilia's own case is that she expected Robert to return the Melbourne Road property to her after she sold the Doncaster property, and she would use the surplus proceeds of sale from the Doncaster property to develop the Melbourne Road property. If what she meant by that evidence was that she expected Robert to transfer the title of the Melbourne Road property to her, then she was always going to be at risk of losing her pension, particularly following the redevelopment of the Melbourne Road property. I do not need evidence to conclude that a person who owns four to six units along with a unit in Queensland, all generating rental income, would not be eligible for the aged pension.

319 Accordingly, the pension issue is somewhat of a red herring. Emilia was always at risk of losing the aged pension once she downsized from the Doncaster property. Putting the Melbourne Road property in the name of another person was only going to postpone the inevitable. I also note that where a transaction is entered into for the purpose of avoiding potential tax liabilities, it is presumed that the party to the transaction must have intended that equitable as well as legal title would pass, and as such is evidence against the presumption of a resulting trust.[275] An analogy can be drawn with transactions made in order to obtain or preserve social security entitlements.

320 Indeed, that the availability of the pension was never a significant motivating factor governing Emilia's decision making at the time that she signed the nomination form was revealed during the course of her evidence-in-chief, as shown by the following extract of the transcript:

Did he talk to you about who should own a property in Melbourne Road and the pension? --- What did that have to do with the pension? What did the purchase of Melbourne Road have to do with the pension?

Did he tell you whose names the property should be registered in, your name or somebody else's? --- Which house?

Melbourne Road? --- Yes, he said it should be put in his name. Why did he explain that to you? --- So that I could get the pension, that's what he said to me lots of times.

Where did he tell you this? --- Anywhere, anywhere, we talked about it all the time.

If it was put into his name rather than your name did he say anything to you about how he would deal with the property? --- He didn't tell me these things, I don't remember.

Did he tell you anything beholding [sic] the property for you? --- Two years later I would sell Doncaster and he would have to remove his name from it.

Whose name would be put back on it?---It would come back to me.128F[276]

321 Emilia relied upon Mr Tull's evidence to the effect that Robert told him that Emilia had given Nicola $200,000 in order to avoid losing the pension as support for the contention that Emilia relied upon the representations said to have been made by Robert. However, Robert gave evidence that he and Nicola later thought that one of the motivations for the gift to Nicola was to divert the proceeds of sale of the Evansford farm from Emilia's bank account. By 'later', I assume Robert meant, sometime after the purchase of the Melbourne Road property. However, if Robert had made the representations to Emilia, and did not believe that Emilia had made a gift to Nicola, why would he have referred to Nicola in his conversation with Mr Tull, who until the 7 April visit had no knowledge of Emilia?

322 Accordingly, I am not satisfied that there were any discussions between Emilia and Robert regarding Emilia's pension in the context of the purchase of the Melbourne Road property.

323 It is common ground that the funds transferred by Emilia to Nicola's bank account were used to fund the purchase of the Melbourne Road property. Where the parties differ is as follows:

(a) whether the funds paid by Emilia to Nicola's bank account represented all, or only part of the funds advanced by Emilia for the purchase of the Melbourne Road property; and

(b) the reason why Emilia paid these funds to Nicola's bank account rather than a bank account operated by Robert.

324 The issue in (a) above is tied up with the issue of whether Emilia paid $90,000 in cash to Robert, and will be considered in that context. In relation to (b) above, Emilia gave evidence that she paid the funds to Nicola's bank account because Robert and Nicola told her that it would be easier for them if she did so. Neither Robert nor Nicola gave direct evidence about this issue, but they probably did not need to. One can infer, in the absence of any evidence to the contrary, that if someone pays money into someone else's bank account, the payer intended the payee to be the recipient.

325 It is clear from Nicola's bank statements[277] that this bank account (which was not the bank account used to receive funds and make payments for the renovations) was opened on 23 October 2018, the date of the first transfer from Emilia. That is, it appears to have been established for the specific purpose of collecting and then disbursing the funds for the purchase of the Melbourne Road property. In circumstances where Robert operates a number of bank accounts for personal and business purposes, the suggestion that this course of action was adopted because it was convenient does not make sense, and the payment of the funds to Nicola's bank account is consistent with Emilia making a gift to Nicola. The suggestion that it was more convenient for Emilia to transfer the funds to Nicola rather than to Robert also does not make sense, given that Robert was liaising with CCS, brokers and lenders regarding settlement.

326 As noted briefly earlier in these reasons, the question of whether Emilia paid Robert $90,000 in cash for the purchase of the Melbourne Road property is critically relevant not only to the resolution of the primary issue in dispute, being whether Emilia intended to retain a beneficial interest in the whole of the Melbourne Road property, but also the credibility and reliability of the parties' evidence generally.

327 In relation to the former issue, if I accept Emilia's evidence regarding the cash payments she said she made to Robert, this would at the very least add weight to her contention that she always intended to retain the beneficial interest in the Melbourne Road property. If I do not accept this evidence, Robert and Nicola's evidence to the effect that a gift was made by Emilia to Nicola, but that the Melbourne Road property was put in Robert's name because only he could raise finance to cover the shortfall is far more plausible. Further, even if I did largely accept that Emilia was entitled to the beneficial interest in the Melbourne Road property, but that she did not make the cash payments to Robert, then this would affect the nature and the quantum of the relief to be granted to Emilia.

328 Further, my conclusion regarding whether the cash payments were made by Robert to Emilia is critically relevant to my assessment of the credibility of both Emilia and Robert as witnesses. After all, the payment or receipt of $90,000 in cash is a matter about which one is unlikely to be mistaken. If Emilia is not telling the truth about this issue, then that reflects poorly upon the credibility of her evidence generally. As for Robert, if he is not telling the truth about this issue, it not only adversely affects the credibility of his evidence generally, but, given the necessary implications of this finding (see paragraph 47 of these reasons), it would make it easier to accept the proposition that Robert is the type of person that would commit an equitable fraud with his elderly grandmother as the victim.

329 As noted earlier in these reasons, the evidence Emilia gave regarding the cash payments she made to Robert was rather vague and confused. Her evidence was that she made many cash payments to Robert, either directly to him or via Nicola or one of Robert's siblings, calling Robert to tell him that the money was for the purchase of the Melbourne Road property. But she pleaded that she provided Robert with cash on three occasions, on specified dates, at the Doncaster property.

330 Emilia's evidence regarding the dates, method of payment and the source of the cash payments was also vague, contradictory, and in some cases, almost nonsensical. In her evidence, she said the first payment of $50,000 was made on 2 October 2018, from the proceeds of the sale of the chattels, consistent with what she pleaded in her statement of claim.

331 However, it is extremely unlikely that this allegation is correct. First, despite what is contained in her pleading, Emilia now says that the representations made by Robert with respect to the impact of purchasing the Melbourne Road property on her aged pension were made after she signed the contract of sale, not beforehand. It is not impossible, but seems highly unlikely that, all in one day, Emilia would travel to Yea,130F[278] inspect the Melbourne Road property, visit the real estate agent to execute the contract of sale and pay the deposit, visit a bank branch in Kilsyth on the way home to arrange to transfer the balance of the deposit to the real estate agent, return to Doncaster, receive Robert at her home, consider the representations, make a decision about putting the Melbourne Road property in Robert's name, and provide Robert $50,000 in cash.

332 Under cross-examination, Emilia did seek to resile from her evidence that she paid cash to Robert that day, but only after counsel for Robert pointed out the inherent unlikelihood of a payment being made that day. She also continued to maintain that she paid the $50,000 in cash from the proceeds of sale of the chattels, until it was pointed out to her that the Evansford farm was not sold until 13 November 2018, with settlement taking place a few weeks later. While it is possible that Emilia may have received the proceeds of sale of the trees before settlement, or even before the sale of the Evansford farm, her evidence was that she received these funds into her bank account, not in cash. It seems highly unlikely that Emilia would have received cash for the sale of the chattels from the purchaser of the Evansford farm substantially in advance of the sale of the Evansford farm.

333 When confronted with this timing issue, Emilia then said that she had approximately $250,000 in cash at the Doncaster property, being savings from her many decades of work, in five dollar notes. She said she paid Robert using this cash, which was placed in a little red bag for good luck. I am not in a position to calculate what size bag would be required to hold $10,000, $30,000, or $50,000 made up of five dollar notes, or even notes of larger dominations, but I doubt that a little red bag would be sufficient.

334 Emilia gave evidence that she kept a record of the cash she gave to Robert, she would make a note.[279] She said she may have thrown the note away. At my request, on the following day she brought to Court a notebook which recorded, among other things, measurements and other fitting details for the former customers of her dressmaking business. This notebook also included references to modest loans made to other grandchildren, but no reference to other cash payment made to Robert. While this is by no means conclusive, it does seem odd that she would record small transactions in a notebook, but not large transactions, such as the cash payments she said she made to Robert.

335 Emilia also gave evidence to the effect that she also required Robert to make up a $20,000 shortfall in the sum required to purchase the Melbourne Road property by sourcing the funds himself, and setting off that sum from the money he owned her for the pizza shops.[280]

336 That allegation was not pleaded, nor led in evidence-in-chief. However, if, as pleaded by Emilia, she gave Robert $90,000 in cash, there was no shortfall for him to make up.

337 Finally, and while this was a relatively minor matter, there is evidence to suggest that Emilia knew that part of the purchase price of the Melbourne Road property was to be found from borrowed funds. In response to some questions about whether she had any dealings with CCS, and whether she recognised the name, she responded 'No... I heard them talking about Croydon who had lent them some money.'131F[281]

338 However, this issue was not pursued further in cross-examination.

339 Taken as a whole, Emilia's evidence at trial regarding the source and mode of the cash payments she said she made to Robert bore all the hallmarks of recent invention, was less than satisfactory, and I do not accept it.

340 In any event, it seems inherently unlikely, although I accept, not impossible, that Robert could have received the cash and used it for his own purposes. Despite their best efforts, and access to Robert's banking and other financial records, Emilia's legal team have been able to establish no more than that Robert owned some marginally profitable businesses and was a regular gambler.132F[282] Robert's denials of having received cash from Emilia and using that cash for his own purposes was largely unshaken by cross-examination. Further, while again it is not impossible, it does seem odd that Robert would keep the cash provided to him by Emilia, and then replace that cash a short time later with the Secure Funding loan, thus incurring a liability for the fees and interest associated with a loan from a sub-prime lender.

341 Accordingly, given the serious nature of the allegation to the effect that Robert misappropriated $90,000 in funds provided to him by Emilia, I am not persuaded to the necessary degree of satisfaction133F[283] that Emilia provided $90,000 in cash to Robert. As previously observed, that has consequences for my assessment of Emilia's credibility generally, given that she is unlikely to be mistaken about this issue. Further, this finding also renders more plausible the version of events put forward by Robert and Nicola, being that Emilia had always intended to assist Nicola to purchase a home, but that she was unable to provide him with more than $350,000,134F[284] and therefore the only solution available to Nicola (and also Emilia, who ran the risk of losing her deposit and being exposed to a claim for damages by the vendor of the Melbourne Road property if she failed to complete the purchase of the Melbourne Road property) was for Robert to borrow the funds to meet the shortfall.

342 Further, in my view, the draft will, and Mr Radebe's evidence about the circumstances in which the draft will was prepared, provides considerable support for Robert's contention that when Emilia paid Nicola the sum of $330,000 in late 2018, and allowed Robert and/or Nicola to retain the benefit of the deposit, she intended to provide Nicola a gift, which was in effect an advance on his future inheritance.

343 It is common ground that the draft will was not signed. But it was created. And I accept Mr Radebe's evidence that it was drafted in accordance with Emilia's instructions. Mr Radebe gave evidence that he discussed the draft will, and the events giving rise to the preparation of the draft will with Emilia on a number of occasions, usually over dinner with Emilia at the Doncaster property, as they had a personal friendship as well as a professional relationship. Mr Radebe gave evidence that he spoke with Emilia alone, and that all instructions regarding the draft will came from Emilia alone.

344 Mr Radebe said that Emilia told him that she had made a substantial gift to Nicola, but that she also wanted to ensure that her other children were treated equally. He said that he discussed this with her on a number of occasions before she provided him with instructions to prepare the draft will. He said that after he provided her with the draft will, Emilia told him that she was happy with the draft will.

345 As discussed earlier in these reasons, Mr Radebe's evidence was not disturbed or undermined by cross-examination. The direction of the questioning suggested an attempt to undermine Mr Radebe's credibility by pointing to the absence of file notes, costs agreements, and retainer letters. But Mr Radebe said that, upon his retirement as a solicitor, Emilia asked him to deliver his files regarding her affairs to Linda's home in Croydon, where she was living, and he did.135F[285]

346 It is hardly unusual for a parent to wish to help a child, even an adult child, with accommodation. After all, Emilia had provided financial assistance to each of her surviving children in the past, and to some of her grandchildren, although not assistance of such generosity. At the time the draft will was created, she had been providing Roberto Snr with rent free accommodation for several years. It is also hardly unusual for a parent to wish to treat their children equally. And, while I do not understand why the draft will referred to the sum of $400,000 (rather than $350,000, or, on Emilia's version of events, $440,000),136F[286] the effect of the terms of the draft will was to equalise the position as between Emilia's three children after her death.

347 Significantly, the draft will does not refer to the Melbourne Road property as being owned by Emilia. Further, there is a deficiency in the draft will in that it fails to deal with the residue of Emilia's estate, although that may simply have been an oversight on Mr Radebe's part, which would in any event be ameliorated by the intestacy provisions of the Administration and Probate Act 1958 (Vic) ('intestacy provisions') had the draft will been executed.

348 It is correct to say that the draft will makes no reference to Nicola receiving $400,000 as a gift, or as an advance upon his inheritance, as was referred to in Robert's defence. But, with all due respect to Mr Radebe, the draft will is not a prime exemplar of legal drafting. In addition to not dealing with the residue of the estate, it does not include the more direct explanation that is usually prepared by experienced legal practitioners in that field for treating a beneficiary differently than other beneficiaries in the same class. But it does convey and give effect to the instructions Mr Radebe said that Emilia provided to him. As far as the reference to an 'advance on inheritance' in Robert's defence, while there is no evidence that Emilia or anyone else used words to that effect when the draft will was being discussed and prepared, the reference to that term in the pleading does no more than serve its purpose of putting Emilia on notice of the case to be advanced by Robert at trial.

349 That Emilia did not sign the draft will is of course relevant to the question of whether the draft will accurately reflected Emilia's intentions and instructions at the time, but it is not determinative. Emilia's evidence was to the effect that she did not sign the draft will because she planned to sell the Doncaster property and to use the proceeds to redevelop the Melbourne Road property. Indeed, in June 2020, she instructed Mr Radebe to take certain steps to prepare for the sale of the Doncaster property, and the Doncaster property was put on the market in late 2020. Emilia may simply not have wanted to sign a draft will in circumstances where the terms would need to be altered within a year or even months, because within a short period of time, she would no longer own the Doncaster property. But what was really an easily rectifiable drafting defect in the draft will does not alter the fact that the draft will did not record her having the beneficial ownership of the Melbourne Road property, causing me to draw the inference that Emilia did not provide Mr Radebe instructions to that effect. Further, the draft will did provide for an adjustment to Nicola's entitlements137F[287] consistent with the proposition that Emilia had previously gifted Nicola $400,000 or a similar sum.

350 Significantly, the draft will was prepared at a time when there appeared to be no dispute between Emilia and any of her children. Rosa gave evidence, contrary to Emilia's evidence, that she had not seen the draft will until recently. However, the evidence shows that a copy of the draft will was also emailed to Robert Snr, which suggests that the need for an adjustment to take into account a gift to Nicola was not a secret within the family. Given Mr Radebe's evidence, I do not accept the evidence of Emilia and Roberto Snr that the terms of the draft will were in effect dictated by Nicola.

351 The letter of Dr Rezk dated 1 April 2020, and the evidence regarding Emilia's visit to Dr Rezk is indicative of the following:

(a) Emilia wanted to make a will;

(b) Emilia had the capacity to make a will;

(c) she was receiving advice about the process of making a draft will. While it is not a universal practice, it is hardly unusual for a solicitor to recommend that an elderly person obtain a doctor's certificate prior to executing a will; and

(d) the evasive nature of Emilia's evidence regarding this visit indicates an awareness on her part that the preparation of the draft will was problematic for her case.

352 While Dr Rezk was not required to give evidence, I can accept what she says in her letter at face value. As noted above, it is unremarkable for an older person planning to make a will to obtain a certificate of capacity, and the threshold for establishing testamentary capacity is undemanding.138F[288]

353 Contrary to Emilia's submissions, the involvement of Nicola and Robert in the preparation of the draft will was not particularly sinister either. It seems that Robert's only role was as a post-box. As for Nicola, he took Emilia to see Dr Rezk, from whom Emilia obtained a letter clarifying she had capacity to make a will, which is an unremarkable thing to do in the circumstances given Emilia's age. Nicola's evidence that from time to time he took Emilia to her doctor's appointments and did not go inside with her was unchallenged, and the evidence shows that Emilia herself made the appointment with Dr Rezk.

354 Further, Nicola obtained no advantage from the draft will: indeed, he would have been in a better financial position had Emilia died intestate. The only potential advantage to Nicola of the execution of the draft will is that it would provide documentary evidence of the gift in the event of a subsequent dispute between him and Emilia, or between him and his siblings. That Nicola orchestrated the preparation of the draft will for such a purpose suggests an ability to see around corners, that, with respect, I doubt Nicola possesses, and in any event, is inconsistent with Mr Radebe's evidence, which I accept.

355 Accordingly, the draft will, the terms of the draft will, and the evidence about the circumstances in which the draft will was made, provides solid corroborative evidence of Robert's contention that the funds provided to Nicola by Emilia in November and December 2018 were a gift from Emilia to Nicola.

356 As for Emilia's purchase of Yea Springs Drive, allegations have been made against Nicola by Emilia regarding the purchase of Yea Springs Drive, in particular with respect to her execution of a nomination form nominating both Nicola and Emilia as purchasers of Yea Springs Drive as joint tenants. However, no claims have been made against Robert (or Nicola) in respect of Yea Springs Drive in this, or, to the best of my knowledge, any other proceeding. In any event, because I did not permit Ms Marra to be called to give evidence or her records to be adduced into evidence, any such claims could not be fully ventilated or investigated.

357 Accordingly, the relevance of the purchase of Yea Springs Drive to the issues in this proceeding is quite limited. Given that Yea Springs Drive was considerably less expensive than the Doncaster property, the purchase of this property is consistent with Emilia's evidence that she planned to use the balance of the proceeds of sale to subdivide and redevelop the Melbourne Road property. However, the purchase of Yea Springs Drive is inconsistent with her pleaded case that she provided Robert, via Nicola, with $127,000 to renovate the house on the Melbourne Road property that she would then live in. As previously observed, it simply made no sense for her to move to another property less than a year after purchasing and moving to Yea Springs Drive.

358 To some extent, the conduct of Nicola (and Linda) with respect to Yea Springs Drive could be relevant in establishing a pattern of conduct on the part of Nicola and his family in seeking to deal with Emilia's property to their advantage. But, there was no evidence which established any significant involvement on the part of Robert in the purchase of Yea Springs Drive apart from helping to locate the property. This transaction was not explored in any detail with Nicola, and Emilia was represented by solicitors during the course of this transaction.

359 Turning now to the events of early 2022 (save for the dealings between Robert and Mr Tull, which I shall deal with later in these reasons), it seems that, at least by March or April of 2022, there had been a serious falling out between Nicola and Emilia. The question of what took place when there was a gathering of family members at Yea Springs Drive, including one of Nicola's daughters, was not fully explored after Robert decided not to make an application to amend his defence to raise express allegations as to why Emilia reneged upon her gift of the Melbourne Road property to Nicola. (See paragraphs 165 to 166 of these reasons).

360 However, there is evidence from both Nicola and Emilia, which was confirmed by what was said during the August 2024 call, that Emilia's expectations about the nature and level of care and support Nicola would provide Emilia with after she went to live at Yea Springs Drive were disappointed. Nicola himself admitted that he broke his promise to Emilia to look after her, explaining that he had to leave Yea to obtain treatment for serious health conditions in Melbourne, and also, as a male, he could not assist Emilia with intimate personal care. During the course of giving evidence, Emilia expressed upset, even anger, on more than one occasion about how 'they' (who I assumed to be Nicola and his family) left her 'alone like a dog' on what must have been Christmas Day 2021.[289] Nicola gave evidence that Emilia was very upset when he returned to Melbourne for medical treatment, querying who was going to look after her in his absence. The argument between Nicola and Emilia about what Nicola promised and what he delivered continued during the August 2024 call.

361 It is not clear from the evidence when Nicola left Yea Springs Drive, but it must have been sometime in early 2022. He gave evidence that when he returned, he was annoyed to find that Emilia had resumed contact with Rosa and her family. And, while it is not possible to reach any concluded view about what may have occurred at family meetings at Yea Springs Drive139F[290] at around this time, there clearly was a falling out within the family at around that time.

362 It was in this context that the 7 April visit took place. Emilia, whose evidence in this regard was supported by Rosa, said that she went to the property because she wanted to check the progress of the renovations, and despite asking Nicola and/or Robert to take her there, they had not done so. It was during this visit that she discovered the Robert had sold the property to Mr Tull.

363 This evidence was clearly intended to convey the impression that this was the first occasion on which Emilia had discovered that something untoward had happened. However, that proposition sits very uncomfortably with the fact that two weeks prior, on 24 March 2022, Emilia's solicitors lodged the first caveat, presumably having received instructions in the days or weeks prior to that date. That is, it was not the conversation with Mr Tull during the 7 April visit which precipitated the dispute that ultimately led to the issue of this proceeding. It seems more likely than not that what precipitated the lodgement of the caveat was the falling out between Nicola and Emilia (for whatever reason) rather than any concern over any dealings between Robert and Mr Tull. Again, the sequence of events supports Robert's contentions in this proceeding, not Emilia's allegations.

364 As noted earlier in these reasons, the first caveat lapsed in August 2022 after Emilia failed to issue a proceeding to substantiate the interest claimed by her in the first caveat. There is no evidence that Emilia's solicitors made any formal demands of Robert prior to issuing this proceeding on 10 March 2023. However, in July 2022, Emilia's solicitors sent Nicola a letter demanding that Nicola repay Emilia the sum of $250,000 and transfer Yea Springs Drive back to her. Understandably perhaps, given that Robert, not Nicola was the registered proprietor of the Melbourne Road property, there was no reference to the Melbourne Road property, or the money paid to Nicola for the purpose of the purchase of or the renovations to the Melbourne Road property. However, the letter does make reference to Emilia having provided Nicola with money to buy a house, although the sum of $250,000 bears no relationship whatsoever with what Emilia actually advanced to Nicola in connection with the Melbourne Road property.

365 As for the August 2024 call, Emilia relied upon the conversation between Nicola and Emilia to support her submission that Nicola made certain admissions. However, I would make the following observations about this conversation:140F[291]

(a) the contents of the August 2024 call have to be considered in light of the fact that Emilia knew that the conversations were being recorded, while Nicola did not;

(b) other than admitting that he owed Emilia $127,000, which was an admission he repeated in his evidence at trial, Nicola made no other admissions relevant to the issues in this proceeding, and what he said was otherwise consistent with his evidence at trial;

(c) Emilia said that she 'couldn't deny' that she did the draft will, which I interpret to mean that she could not deny that she caused the draft will to be created; and

(d) her demeanour during the call was on occasion quite strident, which supports Nicola's evidence to the effect that Emilia was the dominant personality in the family.

366 Significantly, it was clear from the August 2024 call that the real decision-makers in this litigation are Emilia and Nicola, not Emilia and Robert. The discussions between Nicola and Emilia during the August 2024 call (which took place the day after an unsuccessful mediation) were directed at the resolution of the issues in the proceeding, as well as the dispute about the ownership of Yea Springs Drive. There was no suggestion by Nicola that he wanted to, or was required to consult with Robert about the proposal made by Emilia that Nicola retain the front lot, and Emilia take the three rear lots, in order to resolve the dispute between them. That negotiations progressed in this fashion is consistent with Robert's contention that his role in the Melbourne Road property was merely to help his father, and that the original discussions regarding the Melbourne Road property were between Emilia and Nicola, not Emilia and Robert, consistent with the evidence of Robert and Nicola.

367 Finally, as discussed earlier in these reasons, Robert and Nicola's evidence at trial was largely (although not entirely) consistent with Robert's pleaded case, and was largely undisturbed by cross-examination.

368 Importantly, Robert and Nicola's conduct in the period between the signing of the contract of sale and the issue of this proceeding, including in the period when there was no dispute between them and Emilia regarding the ownership of the Melbourne Road property, has been consistent with Robert's contention that he became the registered proprietor of the property to assist Nicola to purchase the Melbourne Road property, because the funds provided by Emilia fell short of what was required to complete the purchase of the Melbourne Road property.

(a) Robert organised the Secure Funding loan;

(b) Robert organised the preparation and provision of the statutory declaration to assist him to obtain the Secure Funding loan, and Nicola executed the statutory declaration;

(c) he lived at the Melbourne Road property for a period of time;141F[292]

(d) soon after the purchase of the Melbourne Road property was completed, he engaged consultants to look at options for the subdivision and redevelopment of the Melbourne Road property, without any reference to or consultation with Emilia;

(e) the feasibility studies carried out in 2019 refer to a land contribution being made by Robert and Nicola, consistent with Robert's contention that the true beneficial owner of the Melbourne Road property was Nicola;

(f) Nicola obtained further funds from Emilia in late 2021 to conduct the renovations, and did use those funds for that purpose. He did not use the funds to construct a brick house with an Italian kitchen;

(g) while the actual dollar figures referred to by Mr Tull in his evidence were incorrect, Robert's statement to Mr Tull that the Melbourne Road property was purchased with funds from his grandmother and loan funds was consistent with both versions of events, but significantly, Mr Tull said that Robert told him that Emilia had given money to Nicola, not him; and

(h) it is clear from the communications between Robert and Mr Tull in 2022 that Nicola was the real decision-maker when it came to the use and development of the Melbourne Road property. That Robert was required to defer to Nicola on such matters (and told Mr Tull he was required to do so) is consistent with Robert believing that Nicola was the true beneficial owner of the Melbourne Road property.

370 I accept that neither Nicola nor Robert showed Emilia the statutory declaration,142F[293] and that, of itself, the statutory declaration is not conclusive evidence of a gift from Emilia to Nicola. But it is an example of Nicola conducting himself as if he were the beneficial owner of the funds in his bank account, and an illustration of Robert's acknowledgment of Nicola's contribution to the purchase price of the Melbourne Road property.

371 Further, it seems inherently unlikely, although I accept not impossible, that Robert and Nicola would press ahead with the redevelopment of the Melbourne Road property had they been engaged in a scam. While the engagement of consultants and negotiations with Mr Tull could be carried out behind closed doors, and it was common ground that Emilia knew that the renovations were being carried out, it would be very difficult to conceal the construction of three additional units on the Melbourne Road property, given that Emilia lived in the same small town, and given that by 2022, Rosa and other members of Emilia's family were regularly visiting her there.

372 Accordingly, at all relevant times, Nicola conducted himself as if he was the beneficial owner of the Melbourne Road property, while acknowledging that Robert had an undefined, but minority interest in the Melbourne Road property in recognition of his contribution to the purchase price via the Secure Funding loan. Within a month or two of the purchase of the Melbourne Road property, Robert and Nicola were representing to third parties that they were the owners of the Melbourne Road property. Indeed, given that Robert was the registered proprietor of the Melbourne Road property, his contemporaneous recognition of Nicola's beneficial interest in the Melbourne Road property in his dealings with third parties was probably unnecessary for the purposes of those dealings, but is forensically significant in this proceeding.

373 Nicola's belief that he was the true owner of the Melbourne Road property could only arise in two scenarios: the first being that Emilia did in fact give him the funds to purchase the property, and the second being that he was a party to and the primary beneficiary of a pre-meditated and brazen scheme between him and Robert to defraud Emilia. No such scheme was pleaded or put to Robert and/or Nicola.

374 If the evidence of Emilia and the witnesses called by her is to be accepted, then Robert, and presumably Nicola, had been planning for some years to persuade Emilia to sell the Evansford farm, and to then use the proceeds of sale to purchase another property in Robert's name, by misleading Emilia that if she did so in her own name, she would lose her pension. Given that they were part of a large family, and that Roberto Snr lived with Emilia at the Doncaster property, they would have to have assumed that Emilia would tell her other children what she had done, and would have to be prepared to lie to other family members about their acknowledgement of Emilia's beneficial ownership, while simultaneously making plans to subdivide and redevelop the Melbourne Road property for their own benefit. On this version of events, Nicola instructing Emilia to prepare the draft will was a cunning device to create independent documentary evidence of the fictitious gift, and putting the title to Yea Springs Drive in Emilia and Nicola's names as joint tenants was a further instalment of a systematic plan to denude Emilia of her assets in the later years of her life to the disadvantage of Emilia, Roberto Snr and Rosa.

375 That Robert and Nicola had such a plan, and implemented that plan, is of course possible. But, particularly given that transactions involving real property are readily traceable, and given that Emilia has a large family, and herself is astute and confident, Emilia's whole case theory is quite far-fetched. It was not bolstered or improved by the evidence.

376 That said, it could be said that Robert's case theory is equally far-fetched. That is, why would a woman in her senior years, having worked hard all her life, choose to give a substantial gift to one of her children, who had not worked hard all his life, potentially at the ultimate expense of her other surviving children?

377 Given the way Emilia put her case at trial, it was not really feasible to explore her possible motivations for making a gift to Nicola. However, as observed earlier in these reasons, it is not unusual for a parent to seek to assist their children: indeed, that proposition underpins the presumption of advancement. It was common ground that Emilia has been generous with her assistance to her children and grandchildren in the past. And, while the evidence was not entirely clear about the status of Nicola's relationship with Linda at various times, by 2018 Nicola was in his early 60s, on a disability pension, and in a relationship which had its 'ups and downs'. It may well be that Emilia appreciated that when she sold the Evansford farm, which she wanted to do, she had the opportunity and the wherewithal to help Nicola, which in turn had the consequential benefit of avoiding the risk to her pension of holding hundreds of thousands of dollars in her bank account.

378 Of course, making a substantial gift to Nicola could be perceived as being unfair to Emilia's other children. However, at the time the Melbourne Road property was purchased, Roberto Snr had enjoyed the benefit of rent free accommodation for a number of years. And, by making a will which took into account the gift to Nicola, Emilia could take steps to ameliorate any unfairness to Rosa and Roberto Snr caused by the operation of the intestacy provisions. And that is precisely what she proceeded to do, about a year or so after the purchase of the Melbourne Road property.

379 The gift from Emilia to Nicola was effective. Nicola gave evidence that Emilia used words of gift in her discussions with him. The gift was accepted by him. The gift was delivered to him, by the transfer of funds to his bank account. The question of whether Nicola in turn gifted funds to Robert does not arise, as there is no issue between Robert and Nicola in this proceeding as to where the beneficial ownership of the Melbourne Road property lies.[294]

380 Finally, the question of whether Emilia could have gifted the deposit paid for the Melbourne Road property to Nicola is somewhat of a red herring. Nicola gave evidence that Emilia expressly referred to the deposit 'being there' in her conversation with him. From that evidence I can infer that Emilia told Nicola that he could retain the benefit of the deposit already paid by her. That he never had possession of or title to the funds does not matter: the real issue was Emilia's intention when she executed the nomination form.

381 Accordingly, Emilia's claim that Robert holds the Melbourne Road property on trust for her pursuant to a resulting trust must be dismissed.

Did Robert take unconscientious advantage of Emilia's special disability?

382 I have found that Emilia, when she signed the nomination form and made the payments to Nicola for the purpose of acquiring the Melbourne Road property, did so intending to make a gift to Nicola. Accordingly, it is necessary to consider whether Emilia was under a special disability vis-à-vis Robert when she entered into the transactions regarding the Melbourne Road property, and if so, whether Robert took unconscientious advantage of Emilia's special disability.

383 A complicating factor in evaluating the evidence regarding any special disability, and any exploitation of that special disability, is the involvement of Nicola in the relevant transactions, being the execution of the nomination form, and the payment of funds by Emilia. Emilia makes allegations, but no claims against Nicola in this proceeding. Emilia's special disability is said to arise, at least in part, from the relationship between Emilia and Robert, not Emilia and Nicola, and the nature of those relationships is different. Further, given that I have largely accepted the evidence of Robert and Nicola as to what transpired during the discussions regarding the Melbourne Road property, who was present when Emilia signed the contract of sale and the nomination form, and Robert's evidence that no cash payments were made by Emilia to Robert, there is a real question mark over whether Robert, as opposed to Nicola, obtained any real advantage from the transaction.

384 Setting aside for the moment Robert's use of the Melbourne Road property to secure the further borrowings for his own purposes (which he admits), the evidence establishes that Robert acknowledges, and has always acknowledged, Nicola's beneficial ownership of the Melbourne Road property. Given the manner in which Emilia's claim is pleaded, and my earlier findings regarding the gift to Nicola, then even if Robert was found to have taken unconscientious advantage of Emilia, arguably the appropriate remedy available to Emilia would be the difference between the current balance of the loan secured by the Melbourne Road property and the value of the Secure Funding loan, as that is the only advantage Robert has obtained.

385 Emilia has pleaded that her special disability vis-à-vis Robert arose from her age, her limited proficiency in English, her emotional dependence upon Robert, her inability to understand legal documents written in English without assistance, and her inability to attend to financial and banking transactions without assistance.

386 In her written outline of submissions in closing, Emilia submitted as follows (omitting footnotes):

Emilia's evidence demonstrated that:

a) without assistance, she cannot (and could not at relevant times) read and understand the nature and effect of legal documents written in English and relating to the conveyance of real property;

b) she required assistance in the conveyance of real property, in respect of understanding legal documents written in English and attending to conveyancing transactions, and obtained such assistance from Roberto. The conveyancing files in respect of the Evansford Property, Melbourne Road Property, Doncaster Property, and Yea Springs Drive demonstrate Roberto's involvement: he, not Emilia dealt with the lawyers/conveyancers, by emails and telephone, including receiving/sending critical conveyancing documents;

c) she was dependent upon Roberto (as well as Nicola and Linda, not called), not other members of her family or lawyers/conveyancers, to provide such assistance in respect of the conveyance of the Melbourne Road Property, because she trusted them;

d) she had no knowledge of CCS and did not instruct them to act on her behalf in respect of the purchase of the Melbourne Road Property. She did not otherwise have a lawyer or conveyancer to act on her behalf in respect of the transaction.

Roberto's evidence was that:

a) Emilia could read a contract of sale, if it was in Italian, or slowly in English;

b) he helped with the conveyance of the Evansford Property, Melbourne Road Property, Doncaster Property, and Yea Springs Drive;

c) whilst CCS was recorded on the Contract of Sale as the purchaser's conveyancer, based on information provided by Roberto, CCS was engaged by Roberto, to act on his behalf only, on 23 October 2018. CCS was not engaged to, and did not, act on behalf of Emilia;

d) after the Purported Nomination, every part of the conveyancing communication was done by him;

e) as he did not engage or instruct any other conveyancer or lawyer on behalf of Emilia, the purchase of the Melbourne Road Property was conducted by CCS, on his instructions, while Emilia was unrepresented in the transaction;

f) Nicola had limited schooling and cannot, without assistance, read and understand the nature and effect of legal documents written in English and relating to the conveyance of real property. As such, Roberto has helped him with commercial transactions, including conveyancing.

Nicola's evidence was that:

a) he only obtained a primary school education;

b) he didn't read the Contract of Sale or the Vendor Statement;

c) he entrusted the conveyancing process to Roberto;

d) he did not employ CCS.

Such limited evidence as was given by Emilia's former solicitors, Mark Morgan and Mdu Radebe, was not in respect of the conveyance of the Melbourne Road Property and did not go to establishing that Emilia could read or understand the nature and effect of legal documents in English relating to such conveyance.

As such, there cannot be any doubt that, in respect of the conveyance of land, Emilia was in a special relationship with Roberto and that she relied on his assistance in understanding documents associated with same.

387 Senior counsel for Emilia referred to Emilia's evidence that she could not read or understand the nomination form, and Nicola's evidence that he could not understand the nomination form either, so he could not have explained it to her.

388 In his written outline of closing submissions, Robert submitted in relation to the question of whether Emilia laboured under a special disability, in summary, as follows:

(a) Emilia herself says that she is old, but not stupid. Mr Radebe described her as articulate, smart, and organised;

(b) Emilia felt confident undertaking the redevelopment of the Melbourne Road property, and engaging professionals to help her;

(c) she has managed a farm, run her own dress-making business, with an employee, and manages an interstate rental property;

(d) she was capable of engaging lawyers, giving instructions to and receiving advice from lawyers in English, and has resolved property disputes in the past;

(e) Emilia was not dependent upon Robert, and her evidence was to the effect that Robert was dependent upon her;

(f) Emilia's evidence was that she relied upon both Robert and Nicola, especially Nicola, because he was brighter, and it was Nicola, not Robert, who took her to appointments;

(g) Nicola's evidence that Emilia was 'a hard woman... to tell what to do' and that she was a 'control freak'[295] was corroborated by the tone and content of Emilia's statements during the course of the August 2024 call; and

(h) Robert submitted that '...the suggestion that Emilia had a special disability, that she was dependent, including emotionally, on her grandson, Robert, is simply not credible.'

389 Robert submitted that the proposition that Emilia was under a special disability was not supported by the evidence of her former lawyers, Mr Morgan and Mr Radebe. If anything, her children and grandchildren are dependent upon her. Emilia is well able to protect her own interests: she has engaged lawyers and lodged caveats.

390 Robert submitted that there is no evidence that he took any unconscientious advantage of Emilia. It was Nicola, not Robert, who procured the execution of the nomination form. Robert simply did what he was told to do.

391 I do not accept that Emilia was under a special disability vis-à-vis Robert. While Emilia is of advanced years, and English is not her native language, there is no evidence of any cognitive impairment, and Emilia clearly speaks and understands spoken English well. She is also clearly quite astute: indeed, she presents as being more articulate and commercially astute than each of her three children who gave evidence. She presents as someone who is quite alert to and capable of protecting her own interests.[296]

392 During the course of the trial and closing addresses, senior counsel for Emilia said that the special disability relied upon was Emilia's inability to understand legal documents written in English. However, while I accept that as a matter of principle, there is no hard limitation upon what amounts to a special disability for the purpose of a claim for unconscionable conduct, Emilia did not point to any authority where an inability to understand legal documents (whether written in the claimant's native language or otherwise) has been, without more, considered to be a special disability. After all, if that is a disability, then it is a disability shared by the vast bulk of the population that does not hold legal or conveyancing qualifications. It is hardly a special disability.

393 I also accept that the evidence does not support a conclusion that Emilia was under any special disability by reason of any dependence, emotional or otherwise, upon Robert. The evidence was that Emilia mentored and assisted many of her children and grandchildren. I accept Robert's evidence that, while he got along well with his grandmother, he did not have the type of relationship contended for by Emilia. Robert said he saw Emilia a few times a year, which is consistent with what one might expect from a young man busy with a number of new businesses and a young family. The evidence reveals emails being sent by conveyancers and Mr Radebe to Robert's email address, but that is explicable by the fact that neither Emilia or Nicola had an email address.

394 There was nothing in the evidence adduced by Emilia to support her pleaded contention that she was emotionally dependent upon Robert. The observation made by Robert in his defence to the effect that she could not be dependent upon him to explain legal and other documents to her because he does not speak Italian is also germane.

395 That said, the position may have been different had Emilia contended that she was in a position of special disability vis-à-vis Nicola. After all, Nicola was Emilia's son, he spoke Italian as well as English, and they were clearly close, given that Emilia provided substantial financial assistance to Nicola over the years, and they lived together for many months in 2021. Further, while it was not clear from the evidence whether Nicola made promises to Emilia regarding his future care for her at the time of the purchase of the Melbourne Road property, he agreed that he made promises of that kind in 2021, and he regularly took her to the bank, to the doctors, to real estate agents, and to solicitors' offices, which establishes a degree of dependence by Emilia upon Nicola. However, by reason of the way Emilia put her case, primarily relying upon the representations allegedly made to her by Robert, it was not open for her to contend that she had some special disability vis-à-vis Nicola, because a claim of that kind required an acknowledgement that her discussions regarding the acquisition of the Melbourne Road property were with Nicola, not Robert.

396 However, even if the relationship between Emilia and Nicola is relevant to Emilia's claim that Robert took unconscientious advantage of her special disability, I would not be satisfied that Emilia laboured under a special disability in late 2018. As observed in Charbord,[297] when evaluating claims of unconscionable conduct, the Court is required to assess the 'character, intelligence, capacity, nature and credibility' of the parties.[298] Emilia is advanced in years, but she is accomplished, astute, and resilient. She was an experienced businesswoman, and has a forceful personality. She does not convey the impression of being gullible, easily led, or even particularly trusting in nature. The manner in which she gave her evidence, and her demeanour during the August 2024 call, does not paint a picture of a meek and mild elderly lady capable of being easily pushed around by her unscrupulous son and grandson.

397 For completeness, my conclusion that Emilia was not under a special disability at the time she executed the nomination form is not based upon Dr Rezk's letter of 1 November 2018.[299] To recapitulate, in this letter, Dr Rezk said as follows:

This is to let you know that Emilia has been my patients [sic] for many years. She is in [sic] cognitively able to sign legal documents and under [sic] their implications.

398 With respect, the above statement is meaningless, save for the purpose of drawing an inference that Emilia is not labouring under any cognitive impairment, which is not an issue in dispute in this proceeding. The term 'legal documents' is far too vague. Most lay people would understand the implications of signing a will, or a simple mortgage. But a contract of sale for a business? Or a deed documenting a scheme of arrangement with creditors? One on view, no one can fully understand the implications of signing a legal document unless they have the benefit of legal advice, or are themselves lawyers.

399 As for Dr Rezk's letter of 1 April 2020, the forensic significance of this document is not its contents, but rather that it evidences that Emilia wanted to make a will, and was in the process of taking the necessary steps to ensure that any will she did make was less susceptible to challenge. Whether she did so on the advice of Mr Radebe or decided to obtain the letter on her own initiative was not explored at trial.

400 Given that I have found that Emilia was not under any special disability vis-à-vis Robert, and given that Emilia has made no claim to the effect that she was under a special disability vis-à-vis Nicola, then strictly speaking it is not necessary to consider whether Robert took unconscientious advantage of Emilia's special disability. Further, given how the parties put their respective cases, and given my findings regarding what occurred, it is also a somewhat artificial exercise.

401 To explain further, the question of whether Robert took unconscientious advantage of Emilia's special disability only arises if Emilia intended to transfer the beneficial as well as the legal interest in the Melbourne Road property to Robert. That scenario is not put forward by either party, and, given that Robert is one grandchild among a couple of dozen, is quite a far-fetched scenario.

402 Robert's case is that he became the registered proprietor of the Melbourne Road property to help Nicola, such that any advantage to him is incidental. However, at least for the purpose of this analysis, I accept that Robert has obtained some direct material advantage from the transaction (being the ability to borrow money against the security of the Melbourne Road property, and to potentially profit from its redevelopment), and also the indirect advantage of having his father acquire an asset.

403 Robert conceded all of the factual matters relied upon by Emilia to support her contention that he took unconscientious advantage of Emilia. He agreed that he did not speak with her about the transaction prior to the settlement of the sale, because Nicola arranged for the execution of the nomination form and the payments to Nicola's account. He engaged CCS to act on his behalf, not Emilia's behalf, and made no arrangements for her to obtain independent legal advice. He did not consult her about releasing the deposit to the vendor of the Melbourne Road property. He did not show her or tell her about the statutory declaration. He did not consult with her about the Secure Funding loan or the further borrowings.[300] He did not discuss the proposed joint venture with Mr Tull with Emilia, although that he did say that he told her about the proposed redevelopment of the Melbourne Road property about a year or so after the purchase of the Melbourne Road property.

404 Robert agreed that he did not consult with Emilia about any of the above matters because his understanding was that he did not need to, as the Melbourne Road property belonged to him and/or Nicola. Further, he says that, when Emilia signed the nomination form and transferred the funds to Nicola's bank account, she knew exactly what she was doing, and, in any event, there was no impediment to Emilia seeking and obtaining advice from a lawyer, whether it be Mr Radebe or someone else.

405 I have some sympathy for Robert's position in that regard. However, had I found that Emilia was under a special disability vis-à-vis Robert, in my view, given the nature of the transaction, and given the significant financial contribution Emilia made to the purchase of the Melbourne Road property, it seems to me that it would have been incumbent upon Robert to arrange for Emilia to obtain independent legal advice prior to accepting the nomination and Emilia's money. At the very least, Emilia should have been advised of the consequences of signing the nomination form, which, among other things, did not relieve her from any liability to complete the purchase of the Melbourne Road property had Robert been unable to raise finance to fund the shortfall between the purchase price and the amount Emilia was prepared to provide Nicola.

406 However, based upon the facts as found, it seems highly unlikely that, if Emilia had received independent legal advice, that she would have done anything differently. The only documents she signed in connection with the purchase of the Melbourne Road property were the contract of sale and the nomination form. She did not give evidence to the effect that she did not understand the consequences of signing the contract of sale. As for the nomination form, while she said she could not read the nomination form, it is a simple, one page document, with both Emilia's and Robert's names spelt out in bold. Nicola gave evidence that he told Emilia that the purpose of the nomination form was to transfer the Melbourne Road property to Robert, as they had discussed In any event, it was not her case that she expected to be the registered proprietor of the Melbourne Road property after the purchase was completed: her primary case is that Robert would be, but would hold the Melbourne Road property on trust for her.

407 Accordingly, Emilia's claim that Robert took unconscientious advantage of her special disability must be dismissed.

Issues regarding the availability and nature of equitable relief

408 Given my findings regarding Emilia's claims in this proceeding, her claims in this proceeding must be dismissed. However, in the event that I am found to be wrong, I will comment, briefly, on the nature, form and quantum of the relief claimed by Emilia, and the assertions in the defence about the availability and appropriateness of the relief sought by Emilia.

409 Prior to doing so, I make two overarching observations, as follows:

(a) first, the nature and quantum of relief would differ according to my findings as to which of Emilia's alternative claims was successful; and

(b) Robert's assertion that Emilia is not entitled to relief by reason of impropriety or illegal conduct on Emilia's part would be largely overtaken by an undertaking by Emilia to inform the relevant authorities, including Centrelink,[301] that she held the beneficial ownership of the Melbourne Road property from December 2018.143F[302] Accordingly, it would not be necessary for present purposes to make a positive finding that Emilia had engaged, or has intended to engage, in social security fraud, as that is a matter for the relevant authorities.

410 Turning first to (a) above, if Emilia had established a resulting trust in her favour, there seems to me to be no good reason why she should not be entitled to have the Melbourne Road property transferred to her, unencumbered, or its equivalent in damages. If I had made a finding that Emilia had always intended to retain the beneficial interest in the Melbourne Road property, that would almost certainly have been founded upon, at least in part, a finding that Emilia had paid Robert $90,000 in cash, and that the advance to Nicola for the purpose of the renovations was intended to be for Emilia's benefit. A consequential finding would be that Robert was in breach of trust by obtaining the Secure Funding loan and arranging the further borrowings. Accordingly, the appropriate relief would be for the Melbourne Road property to be transferred to Emilia, subject to an appropriate undertaking being provided by Emilia.

411 However, the position would be different had I concluded that Emilia had intended to make a gift to Nicola, but that Robert had taken unconscientious advantage of Emilia when procuring the execution of the nomination form. None of the following findings of fact would be disturbed:

(a) my finding that Emilia did not pay $90,000 in cash to Robert for the purchase of the Melbourne Road property;

(b) that the intended beneficial owner of the Melbourne Road property was Nicola;

(c) Robert acknowledged Nicola's beneficial interest in the Melbourne Road property, and sought and obtained Nicola's permission to arrange for the further borrowings;

(d) the funding of the renovations was arranged between Emilia and Nicola; and

(e) Robert devoted considerable time and effort to planning the subdivision and redevelopment of the Melbourne Road property, and has incurred associated liabilities to Mr Tull which have not yet crystallised.

412 In those circumstances, an appropriate remedy would be for the payment of equitable compensation to Emilia in the sum of $352,000, being the funds actually advanced by Emilia, plus an appropriate amount of interest. Equity would not require Robert to disgorge the benefits of any increase in value to the Melbourne Road property caused by the renovations and the plans and permits obtained through Robert's efforts. Emilia would have recourse to Nicola, not Robert, for the $127,000 she paid for the renovations.

413 I shall hear further from the parties on the question of costs.

(a) did Emilia pay the Deposit?

(b) did Robert or Nicola make any contribution towards the Deposit?

It is common ground that Emilia paid the deposit. The issue in dispute is whether the payment of the deposit was in effect a gift to Nicola.

(a) If, as is admitted, Emilia advanced funds towards the Purchase Price:

(i) did she advance $330,000 to Nicola ($80,000 on 23 October 2018, $150,000 on 3 December 2018, and $100,000 on 6 December 2018)? If so, did Nicola advance, from such funds, $328,616.56 to CCS, prior to Settlement?

(ii) did she advance $90,000 to Robert, in cash, ($50,000 on 2 October 2018,

$30,000 on 15 November 2018, and $10,000 on 29 November 2018)?

(b) did Robert or Nicola make any contributions, from their own funds, towards the Purchase Price, other than those that had been provided to them by Emilia?

The only issue in dispute is whether Emilia gave Robert $90,000 in three tranches between 2 October 2018 and 11 December 2018.

1. Following the sale of the Evansford Property, did Robert tell Emilia that she:

(a) should not purchase another property in her own name, as this would result in her losing her aged pension and other social security entitlements?

(b) should seek his assistance in respect of any property purchase she might make.

At trial, Emilia contended that Robert made the representations referred to above after Emilia signed the contract of sale for the Melbourne Road property, which was six weeks prior to the sale of the Evansford farm. Robert denies making any such representations at any time.

1. Following execution of the Contract of Sale and payment of the Deposit, did Robert tell Emilia:

(a) that he had spoken to a financial advisor, who had confirmed that Emilia would lose her aged pension and other social security entitlements if the Melbourne Road Property was registered in her name;

(b) that the Melbourne Road Property should be registered in his name;

(c) that he would receive and hold funds advanced to him by Emilia in respect of the Purchase Price and advance such funds to the Vendor (via the conveyancer), at or prior to Settlement; and

(d) that, after Settlement, he would hold the Melbourne Road Property on trust for Emilia.

1. Was Emilia, in respect of the conveyance of the Melbourne Road Property, in a position of special disability with regard to Robert by reason of:

(a) lacking proficiency with the English language sufficient to, without assistance, read and understand the nature and effect of legal documents in English relating to the conveyance of real property (such as a contract for the sale of land or a nomination of a purchaser) and being dependent upon Robert to provide such assistance?

(b) requiring assistance in the conveyance of real property, including in attending to financial and banking arrangement in order to enable such conveyance and being dependent upon Robert to provide such assistance?

In dispute, save that it is accepted that Emilia did not have an email address to which legal documents could be sent, and needed someone to take her to banks and offices to conduct transactions that were required to be conducted by Emilia in person.

(a) from 2 October 2018 until 17 October 2018, did Robert act on Emilia's behalf in relation to the conveyance of the Melbourne Road Property?

(b) On 17 October 2018, did Robert engage CCS:

(i) to act on Emilia's behalf?

(ii) to act solely on his behalf, to the exclusion of, and without the knowledge or consent of Emilia, the purchaser under the Contract of Sale? If so, should the Purported Nomination or any substitution of Robert as purchaser be set aside?

(c) did Emilia provide separate instructions to CCS, to amend the Contract of Sale, to nominate under the Contract of Sale, or to substitute a purchaser under the Contract of Sale, in the absence of any engagement by her of a conveyancer or lawyer?

(d) was the absence of any representative acting on behalf of Emilia known, actually or constructively, by Robert?

Robert disputes that he acted on Emilia's behalf in relation to the purchase of the Melbourne Road property, or that he engaged CCS to act on Emilia's behalf. He says that, based upon what Nicola told him, which was confirmed during later discussions involving him and Emilia, Emilia consented to Robert being substituted as the purchaser of the Melbourne Road property. It is common ground that Emilia had no dealings with CCS, and did not instruct CCS to amend the contract of sale or prepare the nomination form. Robert knew that Emilia was not represented by a lawyer or conveyancer, but he contends that it was open to Emilia to access such assistance at any time.

1. With respect to the Purported Nomination and the October Representations:

(a) in respect of handwritten amendments to the Contract of Sale, including with respect to purchaser details did Robert and/or CCS provide such amended copy of the Contract of Sale to Emilia, with an explanation of the handwritten amendments? If not, was the Contract of Sale materially altered or varied without the knowledge, consent or approval of Emilia?

(b) did Robert instruct CCS to draw the "Sale of Real Estate Nomination Form"?

(c) did Robert, alternatively CCS, provide any explanation of the "Sale of Real Estate Nomination Form" to Emilia, other than simply requiring her execution of the document?

(d) did Robert obtain the consent or authority of Emilia to substitute him as purchaser, under the Contract of Sale?

(e) was there any agreement between Emilia and Robert, to nominate Robert as substitute purchaser under the Contract of Sale?

(f) could Nicola agree to offer nomination to Robert, under the Contract of Sale, as additional purchaser?

7(a) It seems that Emilia was not provided with a copy of the contract of sale, as amended or otherwise, and Robert does not contend that she was. However, in his evidence, Nicola contended that Emilia instructed and authorized him to make the necessary arrangements to have Robert be nominated as the purchaser of the Melbourne Road property;

7(b) There is no dispute that Robert instructed CCS to draw the nomination form;

7(c) CCS did not provide any explanation of the nomination form to Emilia. Otherwise, the issue of what Emilia intended and understood at the time she executed the nomination form is in dispute;

7(f) The question is unclear. However, the question of whether there was an agreement between Emilia and Nicola to the effect that Robert would be nominated as the purchaser of the Melbourne Road property is in dispute.

1. With respect to the Purchase Price and the October Representations:

(a) Could Nicola and Robert agree that Nicola, as the holder of funds provided to him by Emilia for the acquisition of the Melbourne Road Property, could be made available, by way of gift, to Robert, in the absence of agreement of Emilia?

(b) Could Robert and Nicola agree that Robert was authorised to raise additional amounts in order to complete the Contract of Sale, in the absence of the knowledge and consent of Emilia, as purchaser?

(c) Could Robert and Nicola agree to vary the Contract of Sale orally, in the absence of any written consent of the vendor and Emilia, as purchaser?

(d) did either Robert or Nicola show to Emilia a form of Statutory Declaration, dated 26 October 2018, referring to a proposed transaction between Nicola and Robert (and not Emilia), at any time?

(e) Did Nicola or Robert tell Emilia that funds contributed by her to the purchase of the Melbourne Road Property were to form any advance against Nicola's inheritance from her?

(f) With respect to any Will drafted by Mr Mdu Radebe:

(i) did Emilia engage Mr Radebe to draft any Will on her behalf?

(ii) did Emilia execute any Will drafted by Mr Radebe, at any time?

(g) Has Robert bought any application to enforce any agreement reached between him and Nicola in respect of any gift of funds towards the Melbourne Road Property, or sought any relief against him in this proceeding?

(h) Did Nicola have any authority to grant funds contributed by Emilia, by way of gift or an advance in inheritance, to Robert?

(i) Was Nicola dependent upon social security payments and did not have any personal funds to the level of any purported gift, other than those that had been contributed by Emilia, for the purchase of the Melbourne Road Property?

(j) Was the sum of $328,616.56 calculated not by way of gift but as the balance of the Purchase Price, after taking in account borrowed funds and adjustments, which was not authorised by Emilia?

(k) In the premises:

(i) did Emilia make a gift of $328,616.56 to Nicola, which he then gifted to Robert?

(ii) did Emilia provide $328,616.56 as an "advance against inheritance" to Nicola, which Nicola then gifted to Robert?

(iii) did Emila make a gift of $328,616.56 to Robert?

Apart from 8(d), 8(f)(ii), 8(g) and 8(i), all of the above matters are in dispute.

1. If, as admitted, Robert encumbered the Melbourne Road Property to his own advantage:

(a) would it be unconscionable for him to claim any interest in the Melbourne Road Property or any proceeds of sale thereof?

(b) were any such borrowings done with Emilia's knowledge, consent or approval?

It is common ground that, save perhaps for the funds provided by Secure Funding at settlement, that Emilia was not aware of and did not consent to the further borrowings. The resolution of the question of whether encumbering the Melbourne Road property amounted to unconscionable conduct is dependent upon the resolution of the foregoing issues in dispute.

(a) did Robert and Emilia enter into an agreement with respect to temporary occupation of the Melbourne Road Property? If so, were there terms of such agreement as follows:

(i) Robert could reside at the Melbourne Road Property with his family on a temporary basis until he had completed construction of a residence at Roycroft;

(ii) in lieu of rent, Robert would pay the rates and all outgoings in respect of the Melbourne Road Property, while residing there;

(iii) upon completion of the residence at Roycroft, he would return vacant possession of the Melbourne Road Property to Emilia?

1. Did Robert advise Emilia to sell the Doncaster Property and to purchase Yea Springs Drive?

(a) That he would coordinate renovations at the Melbourne Road Property while he was residing at Yea Springs Drive, prior to her return to the Melbourne Road Property?

(b) That he would receive and hold funds advanced by him for the purpose of renovations and for the purposes of undertaking that renovation.

(c) Did Emilia advance the total sum of $127,000 to Robert and/or Nicola, to be applied in respect of the renovations of the Melbourne Road Property?

(d) Did Robert make any financial contribution to the renovations to the Melbourne Road Property?

12(c) Robert accepts that Emilia advanced Nicola $127,000 for the purposes of the renovations to the Melbourne Road property. Nicola contends that this advance was a gift or loan to him, and now accepts that he is liable to repay the advance. Emilia denies that the advance was a loan or gift to Nicola.

12(d) Robert agrees that, save for some minor works carried out when he commenced residing at the Melbourne Road property, he did not make any material contribution to the renovations of the Melbourne Road property.

(a) If, as admitted, Emilia advanced the sum of $127,000 to Nicola in respect of the Renovation Financing, was it:

(i) in respect of the Renovation Financing?

(ii) are such funds due and owing?

(iii) have any of the funds been expended on the Melbourne Road Property?

(a) does Emilia hold the Melbourne Road Property on resulting or constructive trust?

(b) is Robert estopped from claiming an equitable interest in the Melbourne Road Property?

(c) is Emilia entitled to claim against Robert equitable compensation against the Melbourne Road Property?

(d) should Robert provide possession of the Melbourne Road Property or pass the same to Emilia?

(e) alternatively, has Emilia suffered loss and damage in the total amount of $567,000 or such other amount (and if so, what amount)?

(f) should Robert:

(i) pay any liabilities associated, and to discharge, Mortgage dealing number AS742678S and any other liabilities in respect to which the Melbourne Road Property has been encumbered or otherwise utilised as security?

(ii) thereafter, transfer the Melbourne Road Property to Emilia, as sole proprietor, including by signing such documents or doing such other things as are required to effect such transfer?

[1] As the parties and some of the witnesses share the surname 'Matteo', I will use first names for family members in these reasons. No disrespect is intended.

[2] Yea Springs Drive was ultimately purchased in the names of both Emilia and Nicola as joint tenants.

[3] It seems that Linda was involved in the conveyancing transaction associated with Emilia's purchase of Yea Springs Drive, which is the subject of some allegations, but not any claims in this proceeding.

[5] T126 L2-4; T133 L2-23. She gave evidence that she attended the real estate agent's office alone that day, but that seems unlikely, as in recent years, Emilia has been dependent upon others to drive her to appointments and the like. She also gave evidence that Robert took her to see the Melbourne Road property and took her to the real estate agent's office (T153 L10-11), but that also seems unlikely.

[9] But, it seems, only obtained by her solicitors from the vendor's solicitors in August 2022.

[14] In her evidence, Emilia repeatedly maintained that she paid the real estate agent $22,000 in cash, but this is directly contradicted by the real estate agent's trust account receipt (and Nicola's evidence).

[15] Although Mr Morgan gave evidence that he discussed with Emilia how the proceeds of sale were to be disbursed when he met with her in November 2018. Emilia gave evidence that she never met Mr Morgan.

[17] However, Emilia also gave evidence that she told Robert that she was short of cash to complete the purchase of the property, and told him to contribute $20,000 in lieu of repaying her part of the funds she had previously lent him for the purpose of purchasing equipment for his pizza shops (see T258 L27-31; T259 L1-5). However, this assertion was not pleaded or led in evidence-in-chief.

[20] T513 L10-11; T515 L26-31; T517 L7-11.

[24] Exhibit 7. There is no evidence regarding the value of Emilia's unit in Miami, Queensland ('Queensland unit'). However, given that the Doncaster property was sold for $1.7 million a year later, a reasonable estimate of the value of Emilia's estate at the time (insofar as it comprised of real property) would be in the order of $2,100,000. Under the terms of the draft will, Rosa and Roberto Snr would receive $900,000 each, and Nicola would receive $300,000 from Emilia's estate upon her passing had she executed the draft will.

[28] Rosa gave evidence that she believed $1.7 million was a gross undervalue of the Doncaster property, but there was no other evidence to that effect. There was no evidence to suggest that the sale was other than an arms length transaction, with the Doncaster property having been on the market for a number of months through a reputable real estate agent.

[32] That may have been done to shield from Centrelink the fact that he was living with Linda at her home in Croydon at the time, so while this supports a conclusion that Nicola believed he owned the Melbourne Road property, not much turns upon this for the purposes of determining the beneficial ownership of the Melbourne Road property.

[34] Nicola now says this was a loan from Emilia, which he is liable to repay.

[38] However, as will be seen later in these reasons, the timing and purpose of the family meeting, and who was present and what was said at the family meeting remains unclear.

[41] Mr Tull gave evidence that his sister was forced to leave the Melbourne Road property in around Christmas 2022.

[43] Mr Tull gave evidence that the house on the Melbourne Road property remained vacant for six to eight months after his sister's departure.

[45] Exhibit 8. Emilia gave evidence that Nicola called her three times (T180 L26-28), but the transcripts of the August 2024 call suggest that there were two separate conversations.

[46] This statement cannot be correct, given the timing of the further borrowings.

[47] Emilia gave evidence that while living at the Doncaster property, she had propagated and cultivated a collection of exotic plants, which were taken to the Melbourne Road property when she moved to Yea Springs Drive. She is keen for the plants to be returned to her, but Nicola refuses to allow any family members to attend the Melbourne Road property to collect them.

[48] These allegations are also inconsistent with the actual chronology of events and Emilia's own evidence, both in the answers she provided in response to interrogatories served by Robert, and her evidence at trial. Emilia's evidence was to the effect that the Evansford representations were made some time between the date Emilia executed the contract of sale and the date she signed the nomination form, that is, between 2 October 2018 and 23 October 2018. Accordingly, the allegations made by Emilia regarding what happened in the pre-purchase period were not pressed at trial.

[49] Cf the allegation at paragraph 94(d) of these reasons.

[50] Referred to by Robert later in the pleading as the 'October representations'.

[51] The second reference to 'the Plaintiff' in (i) and the reference in (ii) must have been a typographical error. Robert should be permitted to amend his defence to substitute the word 'Defendant' for the 'Plaintiff'.

[52] While Emilia questioned the veracity of her signature on the nomination form in the course of giving her evidence, no submissions were made questioning the authenticity of the nomination form.

[53] As noted by Emilia in her reply, the 'Plaintiff's Purpose', which is referred to on a number of occasions in Robert's defence, is undefined. However, reading the defence as a whole, it is tolerably clear that what Robert contended to be Emilia's purpose in executing the nomination form was the purpose set out in the particulars reproduced at paragraph 100(c) of these reasons.

[54] (1980) 32 ALR 153. See also Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

[56] [2023] VCC 2141 ('Charbord').

[57] In the case before his Honour, a daughter was relying upon the presumption of advancement in a claim against her father, but the authorities make it clear that the presumption applies when a parent, regardless of gender, makes a transfer of land or other property.

[58] Charbord [2023] VCC 2141 [459].

[59] [2007] VSCA 35.

[60] [2021] NSWSC 947.

[61] Bosanac v Federal Commissioner of Taxation [2022] HCA 34; (2022) 275 CLR 37 [98] ('Bosanac').

[62] [2019] VCC 1277.

[63] (1995) 184 CLR 538.

[65] [1956] HCA 28; (1956) 95 CLR 353.

[66] [1984] HCA 81; (1984) 155 CLR 242.

[68] [2022] HCA 34; (2022) 275 CLR 37.

[73] The terms 'special disadvantage' and 'special disability' are used interchangeably in the authorities and in these reasons.

[74] [2022] HCA 6; (2022) 276 CLR 1.

[77] [2013] HCA 25; (2013) 250 CLR 392.

[78] [1983] HCA 14; (1983) 151 CLR 447.

[80] [2017] HCA 49; (2017) 263 CLR 85.

[82] [2023] VCC 2141 (under appeal).

[85] Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 128; Maxwell v Maxwell [2022] NSWSC 1028 [208].

[86] Kennedy v Proctor [2021] VSC 521. See also Nolan v Nolan [2003] VSC 121; (2003) 10 VR 626 [131].

[87] [2022] NSWSC 1028.

[90] Bosanac [2022] HCA 34; (2022) 275 CLR 37 [22].

[91] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 350.

[92] Noting, among other things, Emilia's evidence that Robert and Nicola were 'in cahoots'. See T165 L2; T252 L5-L8.

[93] While Robert referred to himself as the owner of the Melbourne Road property, it is apparent that he acknowledges that Nicola has a beneficial interest in the Melbourne Road property.

[94] For the purpose of evaluating the evidence of the parties and preparing these reasons, I not only reviewed the transcript, but also listened to the recordings of the witnesses giving their evidence, noting there were gaps in the recordings (but not the transcript) on two occasions, during Emilia's evidence-in-chief and Nicola's cross-examination.

[98] Although Roberto Snr's witness outline refers to the family meeting taking place in late 2023, which is almost certainly not correct.

[99] I understood Robert to mean his immediate family, not the broader Matteo family, but I could be mistaken.

[102] T320 L25-31. I assume that I am expected to draw the inference that Nicola believed that he had triumphed over other family members in arranging for Robert to become the registered proprietor of the Melbourne Road property, and by arranging to become the joint proprietor of Yea Springs Drive.

[103] T545 L9-10. He also referred to the dispute between Nicola and Emilia at T481 L29-31 and 'a massive argument' between them at T517 L19-20.

[105] Given this issue was raised on the fifth day of trial, the potential complications associated with the ventilation of the underlying allegations, and the principles governing late applications to amend pleadings, as set out in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, the prospects of success of such an application would have been shaky, to say the least.

[106] See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[118] T153 L2-7. However, at another point she said that Nicola took her to see the Melbourne Road property, and at another point she said she went alone. She explained the discrepancies in her evidence by saying 'there was a lot of confusion'.

[128] However, the draft will was prepared in March 2020, and Emilia lived with Nicola and Linda in Croydon in 2021. Both Emilia and Nicola referred to the draft will being prepared while Emilia lived with Nicola and Linda, but both must be mistaken.

[131] This evidence will be discussed in further detail later in these reasons.

[134] T246 L2-5. I infer that what she kept secret was the fact that Robert became the registered proprietor of the Melbourne Road property.

[161] T335 L19-22. This visit presumably occurred in late 2021, but Robert had left the Melbourne Road property by September 2020.

[175] However, Yea Springs Drive was purchased after the Doncaster property was sold.

[185] I shall not provide details of this explanation in these reasons, as the allegation made by Rosa is not relevant to the issues in the proceeding, and was not put to Nicola when he gave his evidence.

[198] Such as the representations said to have been made by Robert to Emilia, or the nature and the purpose of the renovations and the quantum advanced by Emilia for the renovations.

[209] T421 L19-24. This is consistent with Mr Morgan's evidence.

[211] In his evidence, Robert initially said that he used some of these funds for expenses associated with the subdivision of the Melbourne Road property, but later during the course of cross-examination, conceded that he used them for a range of personal and business purposes.

[212] T509 L20-25. Mr Tull gave evidence that he witnessed trucks taking building supplies from the Melbourne Road property to Roycroft Way, but Robert gave evidence that all he took was some fencing and some scrap metal.

[230] Later, under cross-examination, Nicola said that he asked Linda to contact the real estate agent about getting the nomination process under way, rather than contacting the real estate agent himself (T630 L15-16), and that the real estate agent prepared and sent him the nomination form. However, it is clear from the CCS conveyancing file (Exhibit EE) that the nomination form was prepared by CCS, not the real estate agent.

[231] T557 L31-T558 L4. However, the evidence suggested that Emilia was having difficulties with Rosa's children in 2021, not 2018.

[233] T559 L20-21. I understand this to mean that by the time Nicola was able to return to Yea Springs Drive, Emilia had resumed contact with Rosa and her children and Roberto Snr, although it is unclear from the evidence whether Emilia had ever been estranged from or lost contact with Roberto Snr.

[245] T655 L23-26. However, the draft will was prepared in March 2020, not early 2021.

[248] T658 L14-15. Both Roberto Snr and Rosa gave evidence that they had conversations with Nicola about the sale of the Evansford farm, the purchase of the Melbourne Road property, and the sale of the Doncaster property. Roberto Snr gave evidence that Nicola was present at the family meeting. It was not put to either Rosa or Roberto Snr that their evidence that they spoke with Nicola about these matters was incorrect.

[261] I note that on 31 March 2020, residents of Melbourne were subject to COVID-19 'stay at home' orders, such that email transmission of documents would have been more feasible at this time.

[263] Evidence Act 2008 (Vic), s 122.

[268] Particularly given that he agreed to act for both parties to the conveyancing transaction for the sale of the Evansford farm, so he would have needed to ensure that Emilia provided her informed consent to him acting for her as well as the purchaser.

[269] Emilia may have been concerned about, among other things, Robert's gambling habits.

[270] Notwithstanding the dispute between Robert and Mr Tull.

[271] Exhibit 9. In evidence were records of Emilia's visits to her bank and her communications with bank officers. These records show that on 14 September 2021, Emilia attended a bank branch with Nicola. Emilia said that she was moving to a 'new to be built granny flat in Yea', and arranged to transfer $100,000 to Nicola. Emilia informed the bank officer that she may need to make further cash withdrawals to pay contractors.

[273] T223 L28-31 - T224 L1-9. See also T225 L6-10.

[274] Probably less than half a million dollars for a single person in 2018.

[275] See paragraph 129 of these reasons.

[278] Noting that according to Google Maps, the return trip between Doncaster and Yea is approximately three hours.

[282] Between 3 June 2018 and 7 December 2019, Robert spent nearly $35,000 on gambling, mainly through Sportsbet. Curiously, there is a gap between 29 September 2018 and 7 January 2019 where no gambling transactions were recorded, but it was not put to Robert that he gambled in cash during this period. Robert's bank records showed regular cash deposits were made into his bank accounts between January 2018 and March 2023, but there was no noticeable change in the pattern of cash deposits in the period during which Emilia said she gave Robert $90,000 in cash.

[283] See Evidence Act 2008 (Vic), s 140(2).

[284] That Emilia was unable to provide Nicola with the full amount of the purchase price for the Melbourne Road property was said by counsel for Robert to be consistent with Emilia's bank statements, which showed that after the settlement of the sale of the Evansford farm and the purchase of the Melbourne Road property, Emilia only had $3,513.85 in her Commonwealth Bank account (Exhibit U) and $5,682.79 in her Westpac account (Exhibit O).

[285] These files have not been discovered by Emilia, either as documents in her possession, or documents which had been in her possession but were no longer in her possession.

[286] However, Emilia said that she had also given Nicola money for a car (she says at a cost of $160,000). Robert said that the value of the car Emilia purchased for Nicola was about $40,000, so it may be that the sum of $400,000 was intended to reflect other gifts by Emilia to Nicola.

[287] While it is correct to say that no person has an 'entitlement' to an inheritance, the proposition that, all other things being equal, parents generally prefer to treat their children equally is unremarkable.

[288] Banks v Goodfellow (1870) LR 5 QB 549.

[290] Being the family meeting referred to by Roberto Snr in his evidence, and the meeting Nicola said took place, but was not present at. Given the inconsistencies in the evidence of Emilia and Roberto Snr regarding the family meeting, and the failure to put to Robert and Nicola the assertions about what was said at the family meeting, all I can really conclude is that there probably was an acrimonious family meeting sometime in the first part of 2022.

[291] I have listened to the recording of the call as well has having reviewed the transcript of the call.

[292] Although that is also consistent with the existence of the occupancy agreement.

[293] Indeed, given Nicola's evidence that Emilia questioned him about the wisdom of Robert being on the title to the Melbourne Road property, no doubt she would have been concerned for the security of Nicola's position vis-à-vis Robert had she seen the statutory declaration.

[294] While at various points in his evidence Robert referred to being the owner of the property, and to Nicola having given him the funds, it is tolerably clear from the evidence that both Nicola and Robert believe they have an interest in the Melbourne Road property.

[296] By way of example, she gave evidence that she asked Rosa to record the August 2024 call because Nicola might say something that was useful to her (see T268 L21-23).

[297] [2023] VCC 2141.

[300] Although Emilia did say she overheard Nicola and Robert discussing borrowings from 'Croydon'.

[301] Which would go beyond the undertaking proffered by Emilia in her reply, which was limited to potential taxation liabilities.

[302] Nelson v Nelson (1995) 184 CLR 538.