Robertson & Anor v Byrne & Ors

Robertson & Anor v Byrne & Ors - [2022] NSWSC 1713 - NSWSC 2020 case summary — Zoe

[5]

Judgment

Spicer Street Woollahra, a suburb in Sydney's East, is graced with 19th century cottages and Victorian terrace houses, like those of nearby Paddington. After World War II, three generations of the Robertson family lived in one of these Spicer Street Victorian terraces ("the Woollahra property").
Now there is a dispute about the ownership of the Woollahra property. The main contest is whether in 1965 one of three stepsiblings of the second generation of the Robertson family made a promise to a member of the first generation of the family, to bequeath the Woollahra property by will to the other two stepsiblings. The promise was said to have been made to benefit the two second-generation stepsiblings directly and the third generation indirectly.
All the family members and other witnesses to these proceedings referred to one another by their first names. Without intending any disrespect to any party or witness, the Court will refer to family members the same way in these reasons.
Most of the parties to these proceedings come from the second and third generations of the family. The first generation, who are now all deceased, moved into the property in 1946. In that year the late Richard Edward Robertson (referred to in these reasons as "Richard senior" to distinguish him from a member of the third generation of the same name) first moved into the Woollahra property with his new domestic partner, Ethel Reside. Richard senior's wife Cora had died five years earlier. Richard senior and Ethel later married.
Each of Richard senior and Ethel brought a child by a prior relationship into the household at the Woollahra property. Ethel's daughter, Gloria May Reside and Richard senior's son, Raymond Robertson joined each of their parents there, creating a blended family of four. And when they lived at the Woollahra property Ethel and Richard senior had one child together, Trevor.
The first generation, Richard senior and Ethel, both died by the early 1980s. And in 2006 Trevor was the first to die of the second generation, after falling on hard times. Gloria died in 2018, leaving Raymond as the sole surviving member of the second generation. Raymond died during these proceedings.
Gloria had several domestic partners during her lifetime. She was at various times known as Gloria Reside, Gloria McDonough, Gloria Martinsen, and Gloria Dunn. In these reasons she will be referred to as "Gloria", or "the deceased", as these proceedings concern claims made against her estate.
Raymond, (and later his estate) as the first plaintiff, and the estate of his late stepbrother, Trevor, as the third plaintiff claim in their Statement of Claim that in 1965 Gloria promised Richard senior that at her death she would bequeath the Woollahra property to her stepbrothers, Raymond and Trevor. The first defendant, Lucy Byrne, Gloria's neighbour and the executrix of Gloria's will, contests the claim that a promise was made and she says that she has already distributed Gloria's estate inconsistently with the claim.
Gloria made her last will on 12 July 2017 and died on 7 January 2018. Ms Byrne was granted probate of Gloria's will on 14 May 2018. After giving a specific gift of real property (other than the Woollahra property) to persons who are not parties to these proceedings, the will gave the residue of Gloria's estate, including the Woollahra property to her godson, Reece Purser, the second, defendant and to two charities, the Salvation Army and the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA"), the third and fourth defendants. Gloria had no children. Her will gave nothing either to Raymond or to Trevor.
Ms Byrne engaged solicitors, Nicholas Eddy & Company, to advise and assist her in the administration of Gloria's estate. Before the commencement of these proceedings, she had sold the Woollahra property and distributed the proceeds to the second, third and fourth defendants. She says this distribution occurred after giving proper notice of her intended distribution of the estate and without any notice of the plaintiffs' claim, therefore defeating that claim. In reply the plaintiffs say that they gave sufficient notice of their claim prior to distribution of the estate.
Raymond's estate and Trevor's estate claim that by reason of Gloria's 1965 promise, after her death Gloria's executrix held the Woollahra property on constructive trust for them but that in breach of trust, she sold it and distributed the proceeds to the second, third and fourth defendants. To the extent that those defendants still hold any of those sale proceeds, Raymond's and Trevor's estates claim that those defendants are volunteers and subject to any available defences of change of position, must now return those proceeds to Gloria's estate to answer the claims brought in these proceedings.
Another claim was brought by members of the second and third generation of the Robertson family. Raymond and his son, Richard ("Richard junior") also apply for further provision out of Gloria's estate under Succession Act 2006, Chapter 3. They allege that they lived in the same household as Gloria at the Woollahra property for periods in the 1960s and 1970s when they were dependent upon her and are thus "eligible persons", able to make a claim against her estate under the Succession Act. They claim that Ms Burns' distribution of the residue of Gloria's estate is therefore recoverable as Succession Act notional estate. This claim was withdrawn before the Court finally reserved judgment.
Mr J. E. Armfield of counsel, instructed by John R. Quinn & Co solicitors appeared for the first and second plaintiffs. Mr G. E. Underwood of counsel, instructed by Nicholas Eddy & Company, appeared for the first defendant. Ms R. Bianchi of counsel, instructed by Makinson and d'Apice Lawyers, appeared for the second, third and fourth defendants.
These proceedings have been conducted over a protracted period. They were first heard in 2020 but were adjourned to allow further evidence to be adduced. Then they needed to be further adjourned because of the death of Raymond and his former wife, Jacqueline, together with the discovery of further evidence. Ultimately the Court sat in the proceedings over the period of two years as follows: 8, 9 and 10 December 2020, 23 and 25 February, 28 April, 22 and 23 June, 13 August ,12 November, 14 December 2021, 20 April, 11 May 2022.
When these proceedings commenced Trevor's estate was not a party. Raymond was the first plaintiff and Richard junior the second plaintiff. But on the evidence adduced in the plaintiffs' case, Trevor's estate was also a proper plaintiff to seek to enforce Gloria's promises as the promises were said to be made for the benefit of both her stepbrothers, Raymond and Trevor. The parties accepted that Trevor's estate needed to be joined and the Court made orders doing so. Raymond and Jacqueline's daughter, Tammy Short, consented to be appointed as a representative of Trevor's estate. The Court made orders appointing her as a representative of his estate under Uniform Civil Procedure Rules, r 7.10(2)(b) ("UCPR").
Later in these proceedings it emerged that the second defendant, Mr Purser had transferred some of the funds he had received into bank accounts in the names of family members, his wife Jona and their children, Travis and Alana. They were joined as the fifth, sixth and seventh defendants.
A narrative of the relevant history follows. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.
But before the narrative commences some observations are first made about the credibility of some of the witnesses who gave evidence. Observations about the credibility of other witnesses are made in these reasons during the factual narrative below. Anticipating the need to provide flexibility to the parties to adduce further evidence because of the late emergence of some of the issues, the Court made its own notes about the credibility of each of the witnesses contemporaneously with each witness giving evidence. The Court's assessment of the credibility of other witnesses is recorded throughout these reasons as their evidence becomes relevant.

[6]

Observations on the Credibility of Some Witnesses

Mr Raymond Robertson. At the time of the trial Raymond, the first plaintiff, was an elderly gentleman in his late 80s, who had long retired from active employment. He was perhaps the most important witness in the proceedings, who gave the most direct evidence of the promise that Gloria allegedly made to Richard senior. His memory showed some of the deficiencies to be expected in a person of his age. He had trouble recollecting some events in the past, especially events outside the scope of the immediate issues. He candidly conceded that the events he was attempting to recall were a long time ago and he had difficulty in recalling them. But he appeared to the Court to be genuinely attempting to draw on his actual recollection of true historical events rather than attempting to create a false narrative from past events.
Raymond's accounts of the central conversations did not vary greatly in fundamentals. He well recalled conversations between his father, Richard senior, and the landlord who had offered the Woollahra property to his father in 1965. He recalled conversations between his father and Gloria. He gave an account of these conversations in slightly different ways in his oral evidence, occasionally leaving out some details that had been included in his affidavit. He was reasonably easily distracted by his own wandering train of thought. The inconsistencies that his evidence revealed were well within the range of what might be expected from a person of his age.
Raymond's evidence was punctuated at times with random thoughts. This might be thought to be an indicator of unreliability. In a somewhat arresting style of evidentiary narrative, he would occasionally interrupt himself and interrogate himself about his own thinking. The force of this self-examination would cause his attention to wander from the topic. Although he made efforts to try and stay focused, these efforts were not always successful.
The lack of detail and context in some of Raymond's evidence would be a serious basis to question the recollection of a younger witness. But it was acceptable for a person of Raymond's age and life history.
Raymond had spent some time as a Defence Civilian, working in Royal Australian Navy shore establishments in Sydney. Although not formally qualified as an accountant, he had a good head for figures and had been a bookkeeper for the Australian Defence Force. Although not formally educated to the tertiary level, his syntax, vocabulary, and subject matter responses to questions showed he had engaged in reasonably sophisticated white-collar professional work during much of his career and retained the residue of that sophistication.
Raymond had a good comprehension of the questions asked of him and appeared to be able to understand them well. With the occasional blemish, his answers to his interrogator were generally appropriate and responsive. The Court saw no signs that his age impaired his ability to give accurate and reliable evidence, other than to slow him down somewhat. The slowing was due to the greater burden at his age in drawing on memory and organising his thoughts, than it would be for a younger person.
Importantly, Raymond was prepared to make concessions about matters that he did not remember. Yet his evidence about the conversations about Gloria were at times quite detailed and he could spontaneously add detail to them. His evidence showed him calling upon actual memory of these conversations about Gloria, rather than merely rehearsing memorised lines.
It would have been a challenge beyond the resources of a 90-year-old with Raymond's capacity limitations to memorise and consistently sustain a falsely fabricated story under strong cross-examination. He was cross-examined well and firmly. But throughout his testimony he maintained generally consistent evidence, giving the Court confidence in his honesty and reliability. The Court generally accepts his evidence.
Jacqueline Robertson. The Court mostly accepts the evidence of Jacqueline, Raymond's former wife. She tended to add additional colour to her account of events but her accounts were correct in the fundamentals, and distorted only slightly by her passion for the plaintiffs' cause. But the Court accepts her as a witness of truth. To the extent the Court does not accept her evidence is clear from the more detailed findings below.
Richard junior. Richard junior was an enthusiastic, strong-minded witness, who gave clear evidence that generally coincided with the credible evidence of other witnesses. The Court finds him to be an honest witness and generally reliable, whose evidence can be accepted. His evidence at times directly dealt with contentious controversies in the proceedings. For example, Richard junior said he often saw Gloria drunk. The Court accepts that evidence. It can be reconciled with evidence of other witnesses who attest to her habits of sobriety and general temperance. The time in her life during which these observations were made is very important.
Mr Mark Phipps. Mr Phipps volunteered to give Raymond assistance to write correspondence to the estate on a pro bono basis. He was an honest, reliable and credible witness.
Mr Jeffrey Barnes. Mr Jeffrey Barnes was one of the late Trevor Robertson's best friends. He helped organise Trevor's 2006 funeral. Mr Barnes was a generous minded individual who had helped Trevor during the hard times that he faced. Mr Barnes went out of his way to assist the Robertson family after Trevor's death. He continued that assistance with committed and independent evidence to assist the Court to find the true facts. His recollection was sound, his evidence was honest, and his account was wholly reliable.
Ms Lexie Webber. Ms Lexie Webber had been a good friend and close companion of Trevor. She gave evidence by video link. The Court found her to be a witness of truth who attempted to give a clear recollection about relevant events. Some of these events had not been particularly significant to her at the time that she had been involved in them. But she nevertheless displayed a good memory of them. She was careful only to say in evidence what she recalled. Within those limitations, she was of valuable assistance to the Court. Except in minor respects the Court accepts her evidence.
Mr Nicholas Eddy. Mr Eddy has at all material times been the solicitor for the first defendant, Ms Byrne. He practices as a sole practitioner in Paddington under the name Nicholas Eddy & Company. He had known Gloria and her domestic partner, John McDonough for many years. He prepared her will of 12 July 2017. He gave reliable and credible evidence which the Court accepts except in minor details, including that at no stage did Gloria mention to him the plaintiffs in this case. He said that Gloria did not name Raymond or Trevor or anyone related to them as beneficiaries in her 12 July 2017 will, or her previous will of 13 February 2008.
Ms Lucy Byrne. Ms Byrne was a neighbour of Gloria who Gloria came to know and trust. She was a highly credible honest and reliable witness who impressed the Court greatly with her solicitude for Gloria's welfare over many years and for the care with which she attended to the affairs of Gloria's estate as executrix. Her evidence is accepted.
Mr Reece Purser. Mr Purser is Gloria's godson and a one third beneficiary of Gloria's residuary estate. He gave sound and credible evidence which is accepted. This specific findings about the relief sought against him and other family members to whom he distributed funds from Gloria's estate, have been deferred for the reasons explained later in this judgment.

[9]

A Letter from the Landlord - June 1965

The year following Ethel's death, in June 1965, the landlord of the Woollahra property offered Richard senior an opportunity to purchase the property for £2,200. At that time Richard senior had not yet decided upon his retirement plans. He was contemplating a move to Queensland. In that context it made sense to him for the next generation of the family to take up an opportunity to buy the Woollahra property. So, Richard senior first suggested to Raymond that he buy the property. But in 1965 Raymond's work and income were intermittent. He felt that he could not afford to commit to such a significant purchase. He declined the opportunity offered to him.
So, Richard senior looked elsewhere. He spoke to Gloria about the purchase. He told her about the landlord's offer to sell the property for £2200 and to provide vendor finance. With the support of John McDonough, Gloria appeared to be in a financial position to make mortgage repayments to enable her to acquire the Woollahra property. She suggested to Richard senior that she buy the property instead of Raymond. Richard senior agreed. Their conversation, witnessed by Raymond, was to the following effect: "Gloria: 'John and I might be able to buy it, but I would need a loan. Could you lend me some money? I will pay you back'. Richard Snr: 'I will help you with an interest free loan of £1,100 on the condition that you allow the whole family to live at the property rent free and that you leave your share of the property to your brothers Trevor and Ray'. Gloria: 'Yes I agree'"
Why did Gloria agree to Trevor and Raymond having the house? One explanation is that the expected fulfilment of the promise was deferred a very long way into the future, and Gloria had no children of her own at that time who might have been a priority for inheritance. Her greatest foreseeable family responsibilities were to Trevor, who at that time was only about 10 years of age.
At one stage in giving his account of this conversation Raymond left out the sale price from the landlord of £2,200 and he left out the amount of the loan to Gloria of £1,100. But he mentioned those amounts sufficiently often that the Court is persuaded that his memory of those figures is sound. Raymond had a strong recollection that his stepsister Gloria also agreed with Richard senior to pay the loan back at the rate of £3 per week. This seems to have been a reasonable reflection of what she could have afforded to pay with John's assistance, and which would have led to repayment of the whole loan from Richard senior of £1,100 in about 7.5 years. But Raymond's memory of the repayment terms was enhanced because Gloria had trouble meeting the £3 per week repayment obligation.
Richard senior encouraged the purchase. He advanced Gloria £1,100, as an interest-free loan to help her acquisition of the Woollahra property. The transaction proceeded with Gloria and her husband as the purchasers. On completion, the landlord transferred the Woollahra property into Gloria's and her husband's name.

[10]

The Conveyance and Mortgage Back - 28 April and 29 June 1965

Gloria acquired the Woollahra property for £2,200. But the evidence of her available funding well exceeded this figure. She had the £1,100 loan from Richard senior, as well as a £1,600 vendor loan. These advances totalled £2,700 for a purchase of £2,200, giving her an excess of £500. There was much debate in attempting to reconcile these figures. But without Richard senior's advance Gloria was £600 short in completing the purchase.
Gloria acquired the Woollahra property in April 1965 as a tenant in common with her then partner Mr John McDonough. The conveyance to them dated 28 April 1965 record Gloria as a "feme sole" and Mr McDonough as a truck driver. They are recorded as agreeing to a consideration £2,200 for the property. The vendor gave them on 29 June 1965 a mortgage back for £1,600 secured over the property. The difference of £600, ignoring stamp duty and other costs of acquisition, was a substantial sum.
Even at this distance the evidence allows the Court to infer that Gloria was likely to have required funding assistance from her stepfather to acquire the property. Gloria did unskilled housework as a cleaner. She was born in 1938, so in 1965 she had just passed her mid-twenties and was unlikely to have accumulated enough capital from her work to make a major contribution to acquiring the property. Mr McDonough's financial resources are an unknown factor. But the Court can infer that Gloria needed to find at least £600. Her financial need fits with the evidence of her stepfather's offer.
The defendants use the conveyancing documents to show the disparity of £500 between the claimed loan of £1,100 and the £600 needed to complete the purchase after deduction of the vendor's mortgage.
But this criticism is not compelling. Gloria and Mr McDonough undoubtedly faced other conveyance related outgoings such as stamp duty and legal expenses. They may have had other incidental expenses associated with acquiring the property. The mortgage back seems to have required the making of weekly payments of £6 to the vendor mortgagee, a widow. Perhaps Gloria and Mr McDonough established a small sinking fund to act as a resource to ensure they did not default on these mortgage payments, which appear to be designed to provide reliable income to support the vendor/mortgagee. It is unnecessary and unhelpful to speculate about the precise nature of these expenses. But some such expenses were likely and therefore a £500 surplus is not jarringly inconsistent with the plaintiffs' case of promises made, which is otherwise well-established by independent evidence.
It is probable that Richard senior advanced the £1100 to Gloria to assist her and Mr McDonough to acquire the property. It is likely that the sum was not repaid. Witnesses that the Court accept speak of the tension between Gloria and Richard senior about the non-payment of the £1100. Paying the vendor mortgagee was undoubtedly a priority for Gloria and Mr McDonough, given the mortgagee's powers to deal with the property in the event of default and the terms of the mortgage. It would not be surprising that Gloria's family financial obligations to Richard senior would be deferred behind the vendor's mortgage, despite the family discontent that caused.

[13]

Gloria's Repayment Troubles - the second half of 1965

Three or four weeks after the loan was made Richard senior followed up with Gloria for the first loan repayments of £3 per week, which were by then due and had not been forthcoming. This resulted in the following conversation between Richard senior and Gloria, which the Court also accepts Richard junior witnessed: "Richard senior: 'Gloria, you need to pay me back. You haven't paid me anything. Ray and his family are to stay here rent free until you pay back the money'. Gloria: Well, I can't pay yet because I'm not earning anything much'."
Gloria was slow in making repayments to Richard senior. A few weeks after Richard senior made the loan to Gloria, Raymond heard his father engage in the following exchange with Gloria on this subject: "Richard senior: 'You have paid nothing, Gloria'. Gloria: 'I can't afford to pay anything back now, things may improve. But it won't matter because I will leave the house to Trevor and Ray'. Richard senior: 'I want you to honour what you promised in relation to Trevor and Ray'."
The Court also accepts Raymond's evidence that his father, Richard senior, said to him about this time that, "Gloria gave me nothing". But this is not to be interpreted literally. It is probable that Gloria paid a few weeks of the loan at three pounds per week, rather than pay nothing at all, and then thereafter it is probable that she paid intermittently.
Richard senior continued to chase repayment from Gloria. About a month or so after Gloria originally made the promise, the Court accepts that Raymond heard his father and Gloria conversing in the following way: "Richard senior: 'Have you got anything for me for the loan'. Gloria: 'No I don't. I only cleaned 2 houses. I can't pay this week'. Richard senior: 'Well don't forget about the promise to leave everything to Trevor and Ray'."
Raymond did not recall that Gloria made a specific response to this last statement of his. But she did not dissent. Her silence is a basis to infer her consent to Richard senior's statement, as it is consistent with her other declarations at the time.
From time to time in the years that followed, Raymond made inquiries of Richard senior about whether Gloria was honouring the repayment component of her arrangement with her father. The Court accepts Raymond's evidence that on several subsequent occasions a conversation to the following effect took place between Raymond and Richard senior: "Raymond: 'How is Gloria going with the repayments?' Richard senior: 'She hasn't paid anything, but she is still adamant that you and Trevor are the ones getting the house when she dies'."
Raymond recalls hearing this consistent response from his father when Raymond inquired about the financial arrangements for the Woollahra property. And the same conversation took place at times in different words, such as the following: "Raymond: 'How is she getting on with paying you back?' Richard senior: 'She's not paying nothing. I say to her as long as you remember to leave the property to Trevor and Ray.'"
Not long after Richard senior and Gloria made this arrangement, family disharmony surfaced. But before that, two more distant family members came to know of the arrangement, Richard Blackett and Lorraine Carrol.

[14]

Richard Blackett Has a Discussion with Gloria - Mid-1960s

Mr Richard Blackett is a cousin of Raymond Robertson. Mr Blackett's mother, Ms Harriet Elsie Blackett, was the sister of Richard senior. Richard senior was Mr Blackett's uncle and Gloria, though not a blood relation of Mr Blackett, was in a cousin-like family relationship to him. Mr Blackett's mother, Harriet, and his father also lived in Spicer Street, Woollahra between 1936 and 1957, only a few doors away from the Woollahra property. And Richard senior's and Harriet's mother also lived nearby at this time.
Mr Blackett gave a compelling account of a conversation with Gloria relevant to the issues in these proceedings. Mr Blackett puts the conversation as having occurred in the mid-1960s. His affidavit said it occurred in 1965, but on closer questioning it was clear that he was given information to fix it in that year. But his own unaided recollection put the timing in about the 1960s.
Mr Blackett was an excellent witness. He was a retired gentleman and at the time of giving evidence in his early 80s. He had been a Latin, English and Ancient History teacher. He gave evidence in a thoughtful and precise manner. He was careful about giving as truthful and as accurate evidence as he could to the Court. He paused as he thought through the exact wording of his answers. He was careful not to venture beyond what he was sure of saying. The Court accepts all his evidence.
Mr Blackett had a habit of visiting his mother, Harriet, and his father after work at least once a week in the mid-1960s. He was then teaching at St Andrew's Cathedral School and would stop in to visit his parents in Spicer Street before proceeding on to his family home in North Bondi. When calling in to see his parents he would sometimes be walking in the vicinity of the Woollahra property. On one of these occasions, he remembers stopping at the Woollahra property as Gloria was sitting on the front veranda. The Court accepts that he had the following conversation with her: Richard Blackett: "Hello Gloria, I hear that you now are half owner of 12 Spicer Street?" Gloria: "Hello Richard, how did you hear that I'm the owner?" Richard Blackett: "I heard it from Dick, he told me. Dick said that he lent you 1,100 pounds to help purchase the home." Gloria: "Yes, Dick was able to give me the money and it will be repaid." Richard Blackett: "You have been in this home since you were a little girl." Gloria: "Yes, I'm looking after Trevor now, so the home is for him too." Richard Blackett: "Repaying the 1,100 pounds is important, so make a Will to assure the family." Gloria: "I'll repay the 1,100 pounds and leave a Will to Ray and Trevor Robertson."
Mr Blackett clearly remembers this conversation in part because it presented a happy outcome for the family who could take up the opportunity of purchasing a house in Spicer Street which came with future stability for Gloria and young Trevor. As a cousin, Mr Blackett was concerned for Gloria and Trevor's welfare.
Some aspects of the conversation were questioned in the defendants' cases. Mr Blackett was unsure where he got the notion that Gloria was a half-owner of the Woollahra property, and he was unaware that the co-registered proprietor with Gloria was Mr McDonough. In this conversation, Gloria does not admit taking upon herself an obligation to make a will for Raymond and Trevor, so it does not support that element of the plaintiffs' case. But Gloria's statement to Mr Blackett implies that in the long-term, Trevor was a beneficiary of the arrangement as she says, "the home is for him too", which is consistent with the plaintiffs' case.

[15]

Lorraine Carrol Attends a Family Conference - 1965

Ms Lorraine Carrol, a niece of Richard senior, put important structure around the events of 1965. Ms Carrol is the daughter of William Robertson, another brother of Richard senior and a niece of Harriet Blackett, Mr Blackett's mother.
Ms Carrol was an excellent witness who had a startlingly good memory of an important family conference that occurred in 1965. Ms Carrol gave clear evidence of the events about which she spoke. She was able to add detail to her account of the events when questioned and under cross-examination her memory did not show any deficiency in what she recalled. The Court fully accepts the account she gave, which is set out below.
Ms Carrol recalls that Ethel Robertson (Ethel Reside) who was known to Ms Carrol as "Aunty May" came to live at the Woollahra property with her daughter in the late-1940s. But in 1964, Ethel Robertson died, leaving Gloria, who was then aged about 26 to raise Trevor, who was then aged about eight, with the help of Raymond Robertson and his wife, Jacqueline.
Ms Carrol distinctly remembers visiting her uncle, Richard senior, in early 1965 and a family conference taking place at the Woollahra property. In her recollection, present at this family conference were Richard senior, Raymond Robertson, Jacqueline Robertson, and Gloria. Richard senior seemed to Ms Carrol to be convening a discussion about what was to happen with the Woollahra property, announcing to the assembled family members with sufficient flourish that Ms Carrol remembered it, saying that he wanted to discuss "the family home with the family".
Ms Carrol recalls that she was specifically invited to this meeting. She then had a baby who was about six months old who she left with her mother. Her baby was born in 1964 and this meant that she could place the meeting in early 1965 independent of being told any dates. She has a clear recollection of being surprised at being invited to this meeting as she was only quite young, about 18 years of age. She had an older sister, but her recollection is that her older sister was away. Her memory is that she was being invited as part of the wider family to witness the discussion that was taking place at this family conference. She clearly recalls the following conversation taking place in her presence: Richard senior: "I received an offer to buy this house. I couldn't take up the offer to buy the house because I work as a driver and don't earn enough money. I have saved some money, but I am close to retirement. Would you like to buy this house?" Jacqueline: "We can't buy the house because Ray is concerned about his uncertain income and does not have secure employment and has insufficient means to repay any loan." Gloria: "Can I buy the house if you loan me £1,100 as a deposit?" Richard senior: "Well only if you promise me that I, Raymond and Trevor can live here for life and if anything happened to you that you leave Raymond and Trevor the house at 12 Spicer Street, Woollahra in your Will." Gloria: "Yes, I will do that." Richard senior: "Gloria can manage the repayments and she has agreed for me to live here for the rest of my life until I pass away and on condition that she will leave the house at 12 Spicer Street, Woollahra to Raymond and Trevor and also that she will repay the loan I make to her." Gloria: "That's fine. I agree to that."
In Ms Carrol's recollection, Gloria made a clear promise to Richard senior in the presence of other family members to leave the Woollahra property to Raymond and to Trevor in her will. The Court accepts that Gloria made that promise to all present at this meeting. Ms Carrol's evidence of a family conference is consistent with the somewhat less formal conversations that Raymond recounts. It is likely that both took place: Richard senior gathered family to formally witness Gloria's perhaps less formal earlier promises. Richard senior's strategy of convening a family conference worked, with surprising success: some 60 years later Ms Carrol, the youngest participant still remembered the solemn event at its core.
One incidental issue arose during Ms Carrol's evidence. A call was made for a letter passing between her and the plaintiffs that she had mentioned during her cross examination. The plaintiffs claimed client privilege over the contents of the letter. The Court determined that she had not waived privileged over this communication by mentioning it in her evidence. The Court determined that because of her family relationship Ms Carrol was not an independent witness, but rather a witness who owes a duty of confidence to the plaintiffs: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988) 14 NSWLR 132 per McClelland CJ in Eq at [134]; Handley v Baddock [1987] WAR 98. The Court is of the view that the client privilege belongs not to Ms Carrol but to the plaintiffs. As such, the reference Ms Carrol made to the letter during her evidence could not amount to a waiver of privilege. The Court therefore did not grant the defendants access to Ms Carrol's letter.

[16]

Jacqueline also Attends a Family Conference

Jacqueline gave an account of Richard senior attempting to formalise Gloria's commitment to Raymond and Trevor in a broader family meeting, corroborating Ms Carrol's version. Jacqueline's evidence was strongly challenged as self-interested, and the Court was asked to assess her credibility cautiously. But she gave an account of a family conference which in its essentials was very similar to Ms Carrol's account. The Court accepts Jacqueline's evidence generally and accepts most of her evidence of this family conference. Jacqueline says that on one occasion in early 1965 Richard senior called his son Raymond and Jacqueline into the lounge room of the Woollahra property. Present at the same time were Gloria, Trevor, and Richard and Jacqueline's children, Tammy, and Richard. Jacqueline does not refer to Ms Carrol. But apart from that, Ms Carrol identifies many of the same people in the room for this meeting.
The Court mostly accepts Jacqueline's evidence that Richard senior, Raymond, Gloria and Jacqueline said the following at this family conference: Richard senior: "The owner of this place wants to sell to me for 2200 pounds and asks whether I want to buy. I have half the price saved to help, but I'm aged 58 and near retirement, so Ray and Jacqui can you please consider whether you'll buy it." Raymond: "I'll need a loan as well as your deposit, Dad, but my work is unstable and Jacqui is busy with Tammy, Richard and helps Gloria with Trevor as Gloria works." Jacqueline: "Oh dear, we wouldn't be able to afford a loan for half it without stable work". Gloria: "Dad, I've got stable work and I'd like to try to buy it with your help." Raymond: "It's in the family's best interest if Gloria is to buy it as Trevor is just nine." Richard senior: "Gloria, what could you do to secure my 1100 pounds deposit as a loan." Gloria: "A loan for the rest would have to be repaid first, so I can only promise." Richard senior: "I'll loan 1100 pounds without interest if you leave a will to Ray, Trevor and their children, and in return for my rent-free accommodation here for my life". Gloria: "Yes I'll do a will to Ray, Trevor and the children, I won't have any of my own, repay 1100 pounds no interest and you get rent-free accommodation for life."
This further confirms that Richard senior made his loan to Gloria conditional upon her promise to give the property to Ray, Trevor and the children. Although parts of Jacqueline's version here must give way to the different versions of Mr Blackett and Ms Carrol which are discussed below.

[17]

Family Members Move Out of the Woollahra Property - 1966 to 1983

In 1966 disagreements about the household at the Woollahra property and other personal issues arose between Gloria on the one side and Raymond and Jacqueline on the other side. Gloria asked Raymond and his family to move out of the Woollahra property and they did. Whatever the precise cause of the intra family tension was at this time, it appears to have caused a lifelong distance between Gloria and Raymond and goes a long way towards explaining the contest at the root of these proceedings.
Jacqueline explains the reason for the family tension at this time, an explanation the Court accepts. She says that Richard senior and Gloria began to fight about repayment of the loan. Richard senior was demanding that Gloria repay the money, but Gloria refused, saying, "I haven't got the money". This led to Gloria demanding that Richard senior and other family members leave the property. But Richard senior resisted. He felt entitled to stay and did so. Richard senior did not move out until 1977. In the meantime he continued to complain to Jacqueline about Gloria not paying him back, saying, "I am cross about it".
Gloria reacted to these demands for loan repayment. She began to make it difficult for Raymond and Jacqueline to stay at the Woollahra property, repeating that she wanted them, "all to leave the house". It took Raymond and Jacqueline about six months to find a housing commission unit at Maroubra before they could move.
In about November 1966 Raymond and his family moved out of the Woollahra property to live in Maroubra. Raymond and Jacqueline's children were born when they were living at the Woollahra property before they moved. Tammy was born in 1960 and Richard Aaron was born in 1962. Raymond says it was time to leave. He says, and the Court accepts, that he, his wife Jacqueline, their son Richard junior, and their daughter Tammy all moved to Maroubra. There is conflicting evidence about Gloria's consumption of alcohol. The Court's findings about that appear below. But the Court does accept that Gloria began to drink alcohol to excess by 1966 when friction was developing within the family, who were all housed together at the Woollahra property, which was only a small two storey cottage that was overcrowded, before Raymond and Jacqueline moved out.
Raymond says that Gloria precipitated the move forcing him and his family out of the Woollahra property. Raymond says, and the Court accepts, that matters came to a head when he had a conversation with Gloria in about mid-1966, in which she asked him to leave the Woollahra property. The conversation was in the following terms: "Gloria: 'I want you [Raymond] and your family to leave these premises'. Raymond: 'But you agreed to allow me and my family to stay here for life rent free'. Gloria: 'I don't care, I want you out'.
Gloria, Richard senior, Trevor and John McDonough remained at the Woollahra property. It was another eight years before Richard senior decided to resettle in Queensland.
Raymond and Jacqueline's marriage became troubled after they moved to Maroubra. Raymond moved back to live with Richard senior, Trevor and Gloria at the Woollahra property. Raymond lived there on and off until Trevor was about 21 in 1976 or 1977, although Raymond would return to live with Jacqueline from time to time. Jacqueline recalls that Raymond generally spent about half of each year at the Woollahra property. Raymond described his relationship with Jacqueline as troubled. He said and the Court accepts that at times their marriage was, in his words, "torrid". Jacqueline would visit the Woollahra property from time to time partly because Raymond was living there. She judged the house to be generally untidy and unclean during these visits.
Gloria and John McDonough still had financial obligations under the vendor mortgage from the landlord and to Raymond senior. John McDonough appears to have been a positive influence in the administration of Gloria's financial affairs. By mid-1972, Gloria and John had between them paid off the loan secured by the vendor's mortgage. But their debt to Richard senior was left outstanding.
Richard senior finally moved out of the Woollahra property in 1973 and resettled in Queensland. But the Woollahra property always remained a base for him, whenever he was in Sydney.
The Court accepts Raymond's evidence that Richard senior's move out of the Woollahra property was not harmonious. Richard senior told Raymond in 1973 that the timing of his departure from the Woollahra property was not his own choice. Richard senior explained to Raymond about the time he left: "Richard senior: 'Gloria is tossing me out of the house'."
Raymond was very unhappy to hear this from his father. He was resentful about the pressure being placed upon his father to leave the Woollahra property and wanted to do something about it. So, he went over to see Gloria to discuss the issue and initiated the following conversation with her: "Raymond: 'Why are you kicking Dad out when he is the one that lent you the money to buy this house and when you agreed that he could stay here rent free with the whole family including myself, my wife and children.'"
Raymond says, and the Court accepts, that Gloria did not reply. This is not entirely surprising. By then there was tension between them. She did not feel any need to give an account of her conduct to him. She wanted to divert their conversation away from the subject.
Richard senior visited the Woollahra property from Queensland from time to time. But he was not always welcome. The Court accepts that Gloria told both Raymond and Richard senior to leave the property several times. Raymond says he did not leave the first time he was asked. But eventually he says they did leave, as Gloria had become insistent.
Throughout most of the 1970s Gloria, John and Trevor occupied the Woollahra property, with occasional stays by Richard senior and Raymond. Gloria and John separated in the late 1970s. That left just Gloria and Trevor at the Woollahra property until the early 1980s.
During this period Raymond sincerely worried about the example that Gloria's lifestyle was giving to Trevor, her much younger stepbrother. Raymond says, and the Court accepts, that in the late 1960s and early 1970s Raymond would often observe her to drink more than two bottles of wine, or a bottle of brandy, in one sitting. In 1970 Trevor was only about 15. Raymond says, and the Court accepts, that he once had an argument with Gloria about the neglected state of the Woollahra property due to her lack of attention and the effect her alcohol consumption was likely to have on Trevor: "Raymond: 'Gloria you need keep this place a bit tidier. It's no place for the boy [Trevor] to grow up'. Gloria: 'Don't worry about it. You lucky buggers [referring to Trevor and Raymond] will get this place soon'. Raymond: 'And you better mind your drinking, or you will drink yourself to an early death'. Gloria: 'Then you'll get this place sooner!'"
On many occasions during the 1970s Raymond says that when he visited the Woollahra property, he would give Gloria cash. He observed she spent a lot on alcohol and at the local hotel. But when it came time to buy groceries or pay a bill he explained, "she never seemed to have any money left."
Raymond's and Richard junior's evidence was convincing as to the squalor in which at times Gloria lived because of her drinking. Raymond felt an obligation to look after his stepsister because of this weakness. He did the best he could for her. And he was careful to look after Trevor when Gloria neglected him. Other quite different accounts by other witnesses were given in the proceedings about Gloria's alcohol consumption at a later time in her life: these were to the effect that Gloria's alcohol drinking habits were not deserving of adverse comment at that later time. These other accounts are to be reconciled with Raymond's and Richard junior's evidence on the basis that it appears that Gloria's management of alcohol significantly improved as she aged.
Raymond's evidence that Gloria was "drunk most of the time …." was probably an overstatement but is likely that Gloria drank strongly in her younger years. But Ms Byrne would see her several times a day later in her life and did not observe heavy drinking habits then. Ms Byrne would go into her house after shopping and would converse with her in a neighbourly way on a regular basis without observing any signs of heavy drinking in Gloria. Ms Byrne saw Gloria at the Woollahra Hotel on occasions but said she would not consider Gloria "a big drinker". Moreover, Ms Byrne's evidence is supported by the evidence of Reece Purser and Jerry Besanko which the Court wholly accepts on this subject. Both were reliable witnesses.
The defendants submitted that any rejection of Raymond's, Richard junior's and Jacqueline's strong evidence about Gloria's drinking habits should damage their credibility and compel the Court to conclude that they were not truthful witnesses. But Gloria was a heavy drinker in her younger years, an image which persisted with these other family members. They did not invent this side of her character which made a strong impression upon them, but Gloria had become a much more balanced drinker later in life.
Richard senior died in 1983. The same year Trevor moved out of the Woollahra property. Born in 1955, he was then about 28. He never returned.

[18]

Probate of John McDonough's Will - 1984

John McDonough died in January 1979. Gloria obtained probate of his will somewhat later in 1984, probably to secure the transfer of John's half share of the Woollahra property to her. By his will Mr McDonough had given his half share as tenant in common of the Woollahra property to Gloria, subject to legacies of $2000 to each of his two sisters. But the transfer to Gloria was held up because the original mortgage to the vendor was still on the title to the Woollahra property, which was old system title. Gloria believed that the mortgage had been fully discharged but could not find a copy of the original discharge of mortgage or any other title documents.
So, she swore a statutory declaration, presumably for the purposes of obtaining replacement title documents. After confirming the purchase of the Woollahra property in June 1965, the vendor mortgage, and her de facto relationship with Mr McDonough "for approximately 16 years" until January 1979 when he died, the statutory declaration continued as follows: "6. The deceased was responsible for the payment for the principal and interest on the mortgage. To the best of my knowledge and belief all monies due to the mortgagee were paid in or about August 1979 and the mortgagee executed a form of discharge of mortgage, a true copy of which is annexed and marked with the letter 'B'. 7. I have searched the deceased's personal belongings and papers. I have been unable to locate the original discharge of mortgage or any other original document of title relating to 12 Spicer Street, Woollahra. 8. I have lived at the property 12 Spicer Street, Woollahra since the deceased and I acquired it. No claim has been made to me by any person in respect of any outstanding mortgage or monies owed in respect of mortgage Book 2750 No 553. To the best of my knowledge and belief all monies secured by that mortgage have been repaid."
The statutory declaration is carefully worded to refer to the deceased, John McDonough as being "responsible for the payment for the principal and interest on the mortgage". But it is unclear how much of the mortgage he actually paid. John McDonough had died in January 1979 and Gloria says that all the monies due under the mortgage were paid in "August 1979" leading to the discharge of mortgage being executed. This statutory declaration should not be read as declaring that John McDonough paid off the mortgage during his lifetime. The final payment to the mortgagee appears to have been arranged after his death. The transmission application under the Real Property Act 1900 was not ultimately registered until July 2005. The delay may have been occasioned by converting the Woollahra property's old system title to Torrens title.
This statutory declaration does not assist the defendants' case and is consistent with the plaintiffs' case. It is consistent with Gloria paying off some of the vendor mortgage herself. It does not make clear who is "responsible" for paying off any other monies owed to Richard senior under Gloria's arrangement with him. Mr McDonough being "responsible" for the vendor mortgage is consistent with Gloria being "responsible" for paying off the £1,100 advance that had been made by Richard senior, as the plaintiffs' case alleges.

[22]

The 17 March 2002 Handwritten Document and Trevor's Death in 2006

After leaving the Woollahra property in 1983, Trevor preferred to lead his own life away from the Robertson family. He formed a close personal friendship with Ms Lexie Webber. For the next 23 years he lived life simply on the north coast of New South Wales near Byron Bay. But he did not look after his health. He was often unwell, and he died in 2006.
Gloria felt a continuing obligation to look out for Trevor. How much she stayed in touch with him in the years he lived on the North Coast is unclear. When Trevor died, his good friend Mr Barnes telephoned her about arranging his funeral. Without hesitation she paid for the organisation of his funeral service at Byron Bay.
After his death (in circumstances which will be described in more detail below) a testamentary document apparently authored by Trevor was discovered among what was said to be his papers. It is convenient to consider the contents of the document now in correct chronological sequence. The circumstances of its discovery are considered in chronological sequence later in these reasons.
The 17 March 2002 handwritten document appears to have been written by Trevor and witnessed by a Mr Donald King. The letter was dated 17 March 2002 and read as follows: "My name is Trevor A. Robertson D.O.B 31/8/1955 I have been very sick and I am writing this letter to my family. Ray Robertson my brother and my nephew Richie Robbo Robertson who I love as a brother. Tammy my niece and Paul Robertson and my sister Gloria and Aunt Jacquie Robertson. My sister Gloria is leaving her house at [address of the Woollahra property] where we lived as a family to myself and my brother Ray Robertson in her will as she was never able to pay back the eleven hundred pounds leant to her for the deposit on the house from my father Richard Robertson. If I should die before my brother Ray or sister Gloria my share of my inheritance is to go to my brother Ray, Richie, Tammy and Paul and Aunt Jacquie Robertson. I have not been able to afford a solicitor so I have written this letter in my own hand. Signed - [signature, T A Robertson] 17-3-2002 Witnessed by - [signature, Donald King] 17/3/2002"
The authenticity of this document should be assessed by reference to at least three sources, its contents, its provenance, and from handwriting evidence.
As to its contents, much in the 17 March 2002 document is consistent with what is known of Trevor's life as at March 2002. Those contents suggest that it is likely to be genuine. It is improbably detailed to be a forgery. If a forgery, it contains much unnecessary incidental detail that is accurate and unlikely to be part of a forger's modus operandi. It includes Trevor's correct date of birth. It refers to Trevor being sick. All the evidence suggests that he was not in good health, and he died about four years later. The document accurately names other close family members. The document correctly refers to the address of the Woollahra property and to the £1100 loaned to Gloria. The document appears to connect a failure to repay the £1100 with the promise to give by will, even though the connection does not appear in all versions of the earlier conversations on that subject. The document deals with the disposition of the only asset to which Trevor is likely to have believed that he might be entitled, the Woollahra property. What is known of Trevor's personal circumstances suggest he is unlikely then to have been able to afford a solicitor, as the document declares.
The accuracy of the 17 March 2002 document's multiple points of reference strongly favours an inference that it is genuine rather than fabricated. Its provenance, referred to below, also supports the same inference.
Research was undertaken to identify the witness to the 17 March 2002 document. The solicitor for the plaintiff, Mr William Beilby undertook searches through the electoral rolls and the National Library of Australia, to attempt to ascertain the whereabouts of Mr Donald King. Through the National Library, Mr Beilby found several Donald Kings and selected the most likely one as a person who lived in the Ballina area. He ultimately discovered that this Mr Donald Noel King was buried in the east Ballina cemetery following his death on 1 April 2011. He was alive and living in the local area on 17 March 2002 and was probably known to Trevor. It is likely that this Mr King was the witness to a document created by Trevor. These reasons will return later to analyse the provenance and chain of custody of these documents.

[23]

Gloria's Death, Her Will, and the Beneficiaries of Her Estate - 2017 to early 2018

In about 2006, Gloria took in a lodger, Mr Trygve Mathinson. Soon afterwards Trygve became her close personal companion until his death in May 2017, a little over six months before hers. Gloria benefitted under Trygve's will and inherited a house in Woy Woy from him.
Gloria made her last will in July 2017, appointing her neighbour, Lucy Byrne as her executrix. Gloria died in January 2018. Her will (clause 3) left the house in Woy Woy she had inherited from Trygve to two family groups of beneficiaries, all in equal share as tenants in common. These beneficiaries are Darren, Kelly and Matthew Gifford ("the Giffords"), and Shane, Try, and Kristie Malcolm ("the Malcolms"). They are not parties to these proceedings. The plaintiffs make no claim against them or to the Woy Woy property.
Gloria did not dispose of the Woollahra property specifically in her will. It fell into residue. In her will Gloria left (clause 5) a one-third share of her residuary estate to each of her godson, Reece Stewart Purser, to the Salvation Army, and to the RSPCA, the second, third and fourth defendants respectively. They were added as defendants to the proceedings by the Amended Summons filed 18 April 2019.
On or about 20 September 2018, the residuary beneficiaries each received a distribution of $619,234.34 respectively from Gloria's estate, representing their one-third share of residue, an amount largely accounted for by the sale proceeds of the Woollahra property. The second, third and fourth defendants' dealings with these distributions to them are analysed in more detail below.
It is difficult to know exactly why Gloria did not give the Woollahra property to Raymond and Trevor under her will. The Court is persuaded that she made the promise to do so. The Court does not have to make findings about her motivation or her memory. Although the history shows that tension had developed between Gloria and Raymond which may account for the change of heart. The fact is her will did not correspond with the promise she made to Richard senior about its contents.

[24]

The Administration of Gloria's Estate

The defendant, Ms Byrne, was Gloria's next-door neighbour in Spicer Street. Her agreement to become executrix of Gloria's estate was generous. She could not have anticipated any of the trouble and legal complexity that was later to befall the administration of Gloria's estate.
Gloria made a wise choice of executrix. Ms Byrne was a most impressive witness who fulfilled her duty as executrix with diligence and loyalty to her memory of the deceased. She took advice. But as these reasons find, due to an omission in the administration of this estate (giving proper notice of intended distribution) has left it open to this claim. Ms Byrne was not aware of that omission at the time.
Gloria died on 7 January 2018. As earlier indicated, her principal estate assets included the Woollahra property and a property in Woy Woy. Probate of Gloria's estate was granted to Ms Byrne on 14 May 2018.
The inventory of property of the estate declared total assets of $2,829,234.71 comprised of the Woollahra property, with an estimated value of $2,200,000 and the Woy Woy property with an estimated value of $540,000. The balance of the estate's funds were held in liquid form in bank accounts in Gloria's name.
Ms Byrne retained Mr Nicholas Eddy of Nicholas Eddy & Co to act in the administration of Gloria's estate. Nicholas Eddy & Co had been responsible for the drafting of Gloria's will of 12 July 2017.
Ms Byrne gave general instructions to Mr Eddy to handle the correspondence from the Robertsons. She trusted him, followed his advice, and did not need to look at the detail of the estate correspondence. The Court accepts Ms Byrne's evidence that Gloria never mentioned Raymond or Richard junior to her, and Gloria did not discuss any obligations of the kind now asserted on behalf of the estates of Raymond and Trevor. Moreover, Ms Byrne did not recall any visitors from Gloria's side of the family visiting her during the six years Ms Byrne lived next door to Gloria.
On 15 May 2018, contracts were exchanged for the sale of the Woollahra property at a price of $1,865,000. The property at Woy Woy was sold at about the same time and its net proceeds of sale were divided six ways into sums of $85,958.72 and paid to each of the six beneficiaries entitled to proceeds of sale of that property. All other outstanding liabilities of the estate were paid between 18 May and 17 September 2018.

[25]

Jacqueline Visits Ms Byrne's Home and Mr Eddy's Office - February 2018

In the first half of February 2018 Jacqueline telephoned Ms Byrne and left a note under her door to press Raymond's claim on Gloria's estate and to seek a copy of Gloria's will. This was very intrusive on Ms Byrne's privacy and her disquiet about it was understandable. Ms Byrne had engaged lawyers to assist her to administer the estate who were the appropriate point of contact. Ms Byrne did not feel comfortable speaking to someone she did not know about Gloria's affairs. Eventually, Jacqueline found Nicholas Eddy & Company.
Jacqueline attended at Mr Eddy's offices on 21 February 2018 to try and obtain a copy of Gloria's will. There she encountered Ms Russo in what became a tense confrontation. Jacqueline broke down in tears.
Jacqueline gave a very vivid account of her visit to Mr Eddy's office in February 2018. She said that Ms Russo came running down the stairs screaming and pointing at her: "What are you doing here? We're getting out an AVO on you". She says that she asked Ms Russo: "Oh, what have I done wrong." And Ms Russo threatened to get an apprehended violence order taken out and said that Mr Eddy was upstairs preparing one and that Ms Byrne was thinking of taking one out. This was said to be so improbable that it damaged Jacqueline's credit. But a file note that Ms Russo wrote supports parts of Jacqueline's version and Ms Russo undoubtedly reacted very strongly to Jacqueline's visit to the office in a manner which was quite confronting for Jacqueline.
Ms Russo wrote a file note summarising her interaction with Jacqueline from her point of view. Ms Russo's file note was an accurate contemporaneous account of her meeting with Jacqueline except in one respect. The file note does not record that Raymond came into the office with Jacqueline, which is what happened.
The file note recorded that Jacqueline was asking for a copy of Gloria's will. It clearly assumes that Jacqueline wanted a copy of the will to pursue a claim against the estate on behalf of her ex-husband, Raymond. Mr Eddy says that he was given a copy of this file note only in December 2018 after he came back to work after his illness. That evidence can be accepted, but Ms Russo had verbally briefed Mr Eddy with the substance of the file note very soon after 21 February 2018. The file note is therefore an accurate record of the substance of that briefing.
Mr Eddy was therefore fully aware of what had happened on this occasion, and that Jacqueline was seeking a copy of Gloria's will and that Jacqueline had been sent away to obtain a lawyer to communicate with Mr Eddy. Like Ms Russo, he was unaware from the interaction of the precise connection between Jacqueline and her ex-husband and Gloria. But what must have been clear to Mr Eddy by the end of February 2018 was the connection between this request for Gloria's will and the making of a claim against her estate by at least Raymond.
The principal parts of Ms Russo's file note recording what happened were as follows: "Today I received a telephone call from Lucy Byrne saying that she has been left a note under the door by a Jacki Robertson the ex wife of Raymond Robertson and has called Lucy in relation to obtaining a copy of the late Gloria McDonough's Will. Lucy phone our office feeling anxious and uncomfortable that these people have come to her home and keep contacting her and invading her privacy. Within 10 minutes of getting off the phone with Lucy Jackie Robertson walked into our office to ask for a copy of the late Gloria's Will. I advised that I was not in a position to give her this as it is a matter for the The Executor to carry out the late Gloria's wishes. I further stated that they needed to obtain a lawyer to correspond with us and to also advise them if any claim could be made on the Estate. I advised Jackie that we are on the verge of taking out an AVO against her and her ex-husband if they do not stop contacting our client Lucy. I explained their best option was to obtain legal advice from a lawyer in relation to their situation in claiming on the estate."
The file note continues with Ms Russo making some adverse personal judgments about Jacqueline. Nothing is served by those comments being published in these reasons. But parts of the file note vividly bring Ms Russo's encounter with Jacqueline to life and hinted Ms Russo's somewhat imperious style in dealing with Jacqueline. When Jacqueline burst into tears during their interaction, describing how she was trying to help her ex-husband who was "very ill and old" (which the Court finds to be an accurate description of Raymond's then age and medical condition), Ms Russo records that she said to Jacqueline "put your tears away as I have no sympathy for lies and I am here stating our client's rights and hers". Ms Russo recorded that Jacqueline "told me I was speaking to her like a schoolgirl" to which Ms Russo records her response as "I said that is because I have repeated myself four times and you are obviously not listening or understanding what I am saying".
Ms Russo summarises her advice to Jacqueline in the file note as, "I politely asked her to leave and to obtain a lawyer to communicate to Nick Eddy".
Ms Russo briefed Mr Eddy about Jacqueline's visit to the office. Mr Eddy could recall, when giving oral evidence that Ms Russo had told him that she had asked them to leave and not to annoy the executrix, "otherwise she was going to get an apprehended violence order out".
Mr Eddy admitted in cross-examination that from 21 February 2018 he was aware "there might be a claim made on the estate" when he qualified that by saying "I did not know what it was" or "who…was making claim". But he qualified this by saying that he knew that the people who had come into the office "wanted the will" but they did not say "they were making a claim" and he decided he would not give the will to them because he did not know who they were. He was prepared to concede that it was "possible" that those who wanted the will would be making a claim.
This presented, from 21 February 2018 something of a stalemate. Mr Eddy's visitors wanted Gloria's will to help formulate a claim. Mr Eddy would not give them a will because he did not know who they were. But by the time of Mr Phipps's correspondence on behalf of Raymond, Mr Eddy was aware that Raymond was making a claim against the estate.
This incident does not diminish Jacqueline's credit, but it does show Jacqueline's interest in obtaining a copy of Gloria's last will, because of her expectation that Raymond and Trevor would benefit in it.

[27]

Mr Mark Phipps Corresponds on Raymond's Behalf - 2018

Raymond's account of his conversations with Gloria and the conversations he says he witnessed between Gloria and Richard senior were strongly challenged based on some 2018 correspondence initiated on his behalf to the solicitors for the estate. It was sent from an email address using Raymond's name. Whether Raymond authorised the precise form of this correspondence is a matter of contention in the proceedings. Another issue arising was whether the correspondence notifies Raymond's claim to the estate. Before looking at the detail of the correspondence it is useful to analyse how it was composed.
The defendants' case is that Raymond did not assert in this 2018 correspondence that Gloria and Richard senior agreed as a condition of the loan that the property must go to Raymond and Trevor in Gloria's will. The defendants' case is correct at least to the extent that it says that any such allegation is missing from this correspondence.
Raymond denied he was the author of this correspondence, although he conceded that he had requested it be sent on his behalf. Given his age, his lack of facility with modern technology, and the language of the emails, the Court readily accepts that Raymond was not their author. He could not operate a computer on his own either at the time of the hearing or earlier in 2018. Moreover, the emails make legal claims and speak in legal language that was wholly beyond Raymond's abilities. Raymond has no legal training and was not capable of writing the letters in the form which they appear. The Court accepts Raymond had little knowledge of this correspondence and had only the most general input to it.
This correspondence was composed and sent by a Mr Mark Phipps, a law clerk at the Consumer Law Association, a non-profit organisation providing pro bono legal services to persons unable to afford to engage legal practitioners. At the time Mr Phipps was not admitted as an Australian legal practitioner under the Legal Profession Uniform Law as it applies in New South Wales under the Legal Profession Uniform Law Application Act 2014. He had by then undertaken limited legal studies, had no legal qualifications and had little professional legal experience. The Court is not confident Mr Phipps took detailed instructions from Raymond as a fully trained and admitted solicitor would do, before sending these letters off on his behalf. The letters show little comprehension of the real legal issues that the plaintiffs have propounded in these proceedings.
This has important consequences about the proper inferences to be drawn from this correspondence. The Court does not infer from this or any of this correspondence that Raymond failed at an early opportunity to tell Mr Phipps the case that he later put to the Court. The better inference is that Mr Phipps did not draw out Raymond's recollection. Given Raymond's age in 2018, it would have been immensely challenging even for an experienced lawyer to glean the long and somewhat complex backstory from Raymond, before composing adequate correspondence propounding a constructive trust case in equity on his behalf. An experienced lawyer would have had to manage Raymond's propensity to wander off the topic, which was so commonly demonstrated in his evidence. The Court infers that in a private meeting with Mr Phipps he would have been equally difficult to keep focused.
Moreover, the correspondence shows little contextual evidence of Mr Phipps having obtained from Raymond detailed instructions about the facts now before the Court. The correspondence addresses issues of law and when it comes to the facts, appears to be speculative in character.
The Court accepts the evidence of Mr Phipps about how he became involved with the Robertson family and wrote this correspondence. He gave coherent, reasonably detailed evidence of his involvement in this correspondence which accords with the objective facts. He confirmed that he was first contacted by Jacqueline in late February 2018 when he was working as a conveyancing clerk for the Law Consumer's Association. The origins of his involvement were simple. He was the person who answered the phone when she made her first enquiry. He recalls that Jacqueline wanted to get a copy of Gloria's will from Mr Eddy, the solicitor administrating the estate. That objective is consistent with the correspondence that he ultimately wrote.
Notwithstanding that it does not appear in correspondence that he wrote on Jacqueline's behalf, Mr Phipps clearly recalled, and the Court accepts, that Raymond called him in March 2018 and explained that Richard senior had given a loan of £1,100 to Gloria as a deposit to help her buy the Woollahra property in early 1965 and in return the family could live there rent free. Raymond explained to Mr Phipps that Richard senior had sorted an assurance that Gloria would leave the home to Trevor and Raymond in her will if she wasn't repaying the loan.
Mr Phipps said he was approached again in May 2018 and telephoned about the auction of the Woollahra property, and he began assisting Raymond and Jacqueline with research.
The Court is satisfied that Mr Phipps had general authority from Raymond to send this correspondence. But the form of the correspondence shows Mr Phipps' legal inexperience. He did not focus upon the correct claim on behalf of Raymond as ultimately formulated in these proceedings. He focused on a family provision claim instead.
Mr Phipps did get many of the basics right. He spoke to Raymond and Jacqueline separately. He did not seek Jacqueline's approval for sending the emails on behalf of Raymond. His management of his instructions insulated Raymond from any inference that his instructions were really being driven by Jacqueline. But he was hamstrung by a lack of documentation. All he had was a few letters from Mr Eddy's office.
The logic Mr Phipps employed in relying on Succession Act, s 54 was that he assumed that Gloria had honoured her promise to Richard senior and had made a will benefiting Raymond and Trevor. He surmised that therefore a right of inspection would arise under s 54(2)(a) with respect to a present will, or s 54(2)(b) with respect to an "earlier will". That logic on his part tends indirectly to confirm that he was told about Gloria's promise to make a will benefiting Raymond and Trevor.
Mr Phipps ultimately took responsibility in his oral evidence, saying it was "an omission on my part" to mention in his 29 June letter Gloria's promise to Richard senior to leave the Woollahra property to Raymond and Trevor. But he was clear that he had been told of the promise and the Court accepts his evidence of how the omission occurred.
The defendants submitted that the Court should not accept Mr Phipps' admission of "an omission" on his part and that an omission of mention of Gloria's promise from the correspondence is incredible. But this submission does not take adequate account of Mr Phipps's inexperience. His admission of error was a genuine reflection upon what he had failed to do and not part of an attempt to obfuscate the truth.
The defendants also submitted that the omission the promise the text of these letters escaped Raymond's own scrutiny. The Court accepts that Raymond read the letters before they went out. But Raymond was not one to question in any way the pro bono legal assistance that Mr Phipps was giving him. The correspondence may now be briefly described.

[28]

The Phipps Correspondence

On 22 June 2018, Mr Phipps drafted and sent the first letter on behalf of Raymond to Nicholas Eddy & Co. entitled in the "Estate Gloria May McDonough". It was addressed to Mr Eddy, who neither Mr Phipps nor Mr Robertson knew by his first name. It expressly drew upon Succession Act, s 54(2)(g) which imposes a duty on a person who has control of a will of a deceased person to give copies of the will to persons including any person "who has or may have a claim in law or in equity against the estate of a deceased person".
This first letter of 22 June was very short on detail as to the basis upon which Raymond might have a claim against the estate. In addition to Succession Act, s 54(2)(g), the letter also relied upon the parts of Succession Act, ss 54(2)(a), (b), and (e) that grant rights to persons who may be referred to in a will, or who may benefit upon intestacy, to inspect a will of a deceased person. But the letter was speculative, as it sought access to the will on a number of bases apart from having a claim against the estate. It was not signed but typescript at the foot of the letter attributed authorship to 'Raymond Robertson'.
On 28 June 2018 Mr Eddy wrote back inquiring as to the capacity in which Raymond was apparently seeking a copy of the will and noting "you are not a beneficiary mentioned in the will nor the surviving spouse or the de facto partner or parent or guardian". Mr Eddy's question was correct: Raymond's letter had not identified with any precision the capacity in which he was seeking the will. But Mr Eddy's response did not address or seek information about the nature of the claim that Raymond was contemplating that warranted reference to Succession Act, s 54(1)(g).
Mr Phipps drafted a further response to Mr Eddy's letter which was sent on 29 June 2018. This letter to the estate was a more detailed letter that Mr Phipps had previously sent to Mr Eddy. It contains several facts that were ultimately advanced in these proceedings. But the 29 June 2018 was more focused on quickly explaining Raymond's entitlement to a copy of Gloria's will than articulating a claim against the estate. It claimed an entitlement to the will under Succession Act, s 54(2)(g) and continued as follows. "In regard section 54(1)(2)(g), as above, the deceased and myself were both members of our parents' household at 12 Spicer Street Woollahra leased by my Father from time before 1947 until April 1965. The home was then offered for sale to him near retirement at €2200 which he offered Gloria and me as the then adult children with a €1100 no-interest cash loan in return for rent-free accommodation of the family which then included my wife of 9 years, Jacqualine, daughter, Tammy and son, Richard. I had unstable work so Gloria accepted buying 12 Spicer Street in shares with new man, McDonough. Gloria subsequently neglected to make repayments and in 1967 reneged to provide accommodation and accordingly she became my Father's debtor and he, her creditor and I remain as his Next-of-Kin. I, my pregnant then wife, Jacqueline, daughter, Tammy and son, Richard were members of Gloria's home also, and I believe they and I may qualify to have a claim at law or in equity against her estate."
The defendants' case rightly points out that this letter does not articulate the plaintiffs' present constructive trust claim against Gloria's estate. Instead, in a legally unsophisticated way, it articulated two kinds of claim, a claim that Gloria was a debtor to Richard senior and implied that Raymond had inchoate rights against her estate as Richard senior's next of kin and a claim arising out of being part of Gloria's household in the Woollahra property. But it clearly signalled a belief in a claim: "I believe they and I may qualify to have a claim in law or in equity against [Gloria's] estate".
Mr Eddy did not reply to Raymond's letter of 29 June 2018. By then Mr Eddy was ill and this was understandable. So, Mr Phipps wrote again on behalf of Raymond on 6 July 2018.
This new letter of 6 July 2018 reiterated Raymond's claim to entitlement to see Gloria's will. This letter of 6 July continued to focus upon factual matters that are not central to the current proceedings. The letter reiterated an entitlement to either see Gloria's will based upon Succession's Act, ss 54(a), (e) and (g). To the extent that a claim was articulated it was again put on the same basis that Gloria failed to repay Richard senior or to provide accommodation to other family members and that accordingly "she became my father's debtor and he, her creditor and I remain as his next of kin". This was formulated in the same text as had appeared in a similar position in Raymond's letter of 29 June 2018.
Mr Phipps recycled the content of these letters. He sent a further letter of 7 July 2018, setting out the same material as had appeared in his letters of 29 June and 6 July 2018. Each of those letters of 6 July and 7 July 2018 also contained the following sentence: "please provide the executor's assurance that they will not distribute the estate before resolving my claim". Although poorly articulated, Raymond's letters called upon the executor not to distribute the estate prior to addressing the matters raised in the letter. That was a signal to Mr Eddy that the author believed he had a money claim against the estate that must be resolved before distribution.
But on 3 July 2018, Mr Eddy had suddenly became very unwell, was hospitalised, and was not able to attend to his practice. In his absence the clerk at the practice, Violette Russo conducted some correspondence and then a locum, Ms Brownyn Smith, took over the practice until Mr Eddy was well enough to return, which he did by December 2018. The administration of Gloria's estate continued in Mr Eddy's absence.
Mr Eddy wrote back on 9 July 2018, referring to previous correspondence, apologising for delay and responding to that correspondence and saying, "Your email does not provide any justification for the executor to provide you with a copy of the will". As will be seen from the Court's analysis later in these reasons, the statement was not correct. This is where the correspondence stayed for some time. Mr Eddy's letter of 9 July also reported that probate of the will had been granted and that it was now a public document available for inspection at the Registry of the Supreme Court.
This letter appears to have been signed by Ms Russo. Mr Eddy was by then in hospital. He is a sole practitioner, and it is unclear whether the locum, Ms Brownyn Smith, who came in to take over soon after he became incapacitated on 3 July, was yet working in his practice. Ms Russo says Mr Eddy dictated this letter before he was incapacitated, and she signed it. The Court accepts this as correct. But whoever made the judgment that Raymond's correspondence did not justify the provision of a copy of the will, the judgment was not correct as the correspondence had disclosed and formulated a claim against the estate.
On 15 August 2018 Ms Russo forwarded by email to the Sydney Morning Herald a notice of intention to distribute Gloria's estate for publication in the Sydney Morning Herald for Nicholas Eddy and Co. A copy of the notice of the intended distribution appears below.
Under Mr Eddy's direction Ms Russo had long given notice of intended distribution of estates to the Sydney Morning Herald. What she did not appreciate, and it appears Mr Eddy did not appreciate, was that the probate rules had changed some years before, such that notice of distribution was required to be given on the Court's website. It was no longer a requirement that notice of distribution be published in a newspaper. The notice of distribution was published in the Sydney Morning Herald on 16 August 2018, as follows: "Notice of Intended Distribution of Estate: Any person having any claim upon the estate of GLORIA MAY McDONOUGH (previously known as Gloria May Dunn and known as Gloria May Marthinsen) late of Woolahra, Retired who died on the 7 January, 2018 must send particulars of her/his claim to Nicholas Eddy & Company, Solicitors, 194 Underwood Street, Paddington, NSW. 2021 within thirty days from publication of this notice. After that time and after six months from the date of death of the deceased the assets may be conveyed and distributed having regard only to the claims of which at the time of the conveyance or distribution Nicholas Eddy & Company has notice. Probate was granted on the 14 May, 2018."
After the expiry of the 30 days referred to in the notice, the firm commenced distribution of the estate in mid-September 2018.
On 19 September 2018 under the direction of Ms Smith, who was then acting as the practice locum, Nicholas Eddy & Co. made a distribution of $619,234.34 to each of Mr Purser, the Salvation Army and the RSPCA by trust account cheque.
A few months later Raymond retained MistryFallahi Lawyers ("MistryFallahi") to further his claims against the estate. MistryFallahi wrote to Mr Eddy on 4 December 2018 giving notice of a claim for family provision under the Succession Act and requesting that the executrix be informed that the estate should not be distributed. The letter only showed awareness of the publication of Ms Byrne's application to apply for probate and showed no awareness of the notice of intended distribution published on 16 August 2018. Raymond did not have any legal representation before approaching MistriFallahi and he did not retain that firm for very long. After the receipt of Mr Eddy's letter of 7 December 2018 MistriFallahi advised Raymond that he had one year to file a claim after Gloria's death, which Raymond interpreted as meaning that he had until 7 January 2019 to file a Summons.
The defendants also point to the lack of reference to Gloria's claimed promise in the MistryFallahi letter of 4 December 2018. No one from MistryFallahi gave evidence. It is clear from the form of the letter that MistryFallahi took the view that a simple family provision claim was the most readily recognised way to get the attention of the executrix and to stop distribution from the estate. MistryFallahi requested Gloria's will. As the Court accepts Mr Phipps evidence that he was told of Gloria's promise it is likely that MistryFallahi were told as well but chose to use the simpler Succession Act claim.
Mr Eddy, who by then had returned to the practice, wrote back on 7 December 2018, pointed out that probate of the estate had been granted on 14 May, that a notice of intended publication in the Sydney Morning Herald was published on 16 August and pointing out, "we received no correspondence or claims by anyone in relation to the estate. Your claim is far too late for any non-distribution of the estate". Mr Eddy did not regard the correspondence drafted by Mr Phipps as qualifying as a claim.

[30]

Gloria's Reseach, Trevor's Estate and the 17 March 2002 document - 2018/2019

The contest in these proceedings about Gloria's claimed promise to Richard senior spurred closer investigation in 2018 and 2019 of the papers that Trevor had left behind when he died in 2006. Jacqueline Robertson contacted Trevor's former companion, Ms Webber and through her discovered the 17 March 2002 handwritten document among other papers, apparently belonging to Trevor. As will be seen below, Trevor's old friend, Mr J Barnes facilitated this discovery.
The Court accepts the 17 March 2002 document as a genuine document that Trevor created. But the provenance of the document is strongly contested, so its origins need to be examined more closely. It was found by other papers that the plaintiffs claim belonged to Trevor. The defendants dispute that claim. So, a contest about the provenance and chain of custody of all the documents ensued. The Court's findings on that question appear in this section.
Jacqueline Robertson Investigates - 2018/2019. Late in 2018 or early in 2019 Jacqueline commenced some investigations to see what could be found among Trevor's personal effects that may be useful to these proceedings. Jacqueline started making inquiries of Mr Phipps about how to obtain a copy of Gloria's will. She speculated that Trevor might still have a copy of Gloria's will. So, she asked Mr Phipps whether the people organising Trevor's funeral could be traced. Mr Phipps did some detective work through death notices and funeral homes and eventually found Mr Barnes, who had organised Trevor's funeral.
Having become aware of the friendship between Trevor and Mr Barnes, she telephoned Mr Barnes and introduced herself. She asked, "on behalf of the family" whether he had "access to any of Trevor's records, papers and any family photographs and his will, if he had one".
Mr Barnes immediately explained that he did not have any of the things she wanted. But he explained that he had indeed been involved in gathering Trevor's personal effects after his death and giving them to Ms Webber. He told Jacqueline that Ms Webber might have a better idea where Trevor's personal effects were now.
Mr Barnes evidence was highly credible. He is an engineer. He regarded himself as one of Trevor's best friends. He helped organise Trevor's funeral and was present at it.
He had a vivid recollection of Jacqueline's initial telephone call to him. He answered on his mobile phone when he was in New York during an ice hockey game with his children. His first short conversation competed with the ice hockey crowd. He invited her to call him later when he returned to Australia. She did. Despite the crowd noise, Jacqueline managed to explain who she was and to ask for access to any of Trevor's records, papers or family photographs and a will if he had one. Mr Barnes said he would put her in touch with Ms Webber. Mr Barnes recalls Jacqueline being a persistent caller from then on about the issue of finding Trevor's personal effects.
Prompted by Jacqueline's call, Mr Barnes took the initiative. He telephoned Ms Webber himself, even before Jacqueline called her. He urged Ms Webber to send to Jacqueline any of the documents she had that Jacqueline was requesting, stressing to Ms Webber that "they are of no value to you".
Mr Barnes call to Ms Webber was remarkably productive. Ms Webber still had Trevor's personal effects. Mr Barnes recalls being more than surprised that Ms Webber had kept Trevor's personal effects for so long after Trevor's death in 2006. He recalls Jacqueline ringing him in December 2018 and early 2019.
Mr Barnes gathers Trevor's personal effects - 2006. Mr Barnes was the right person for Jacqueline to call. To understand why requires a journey back to the time of Trevor's death in 2006. Trevor had lived on his own in a caravan in a caravan park. Mr Barnes was one of a small group of Trevor's friends who cleaned out Trevor's caravan after he died. No one associated with Trevor claimed an interest in occupying his caravan after his death. Ms Webber did not need caravan accommodation. The owners of the caravan park wanted the caravan cleaned out, so it could be relet to other tenants. Trevor's friends chipped in and volunteered to do the job. They all agreed that once the task was completed Ms Webber should have Trevor's personal effects. As Mr Barnes explained, "it was just a matter of cleaning it up and all personal stuff went to Lexie".
When asked to explain what he meant by "personal stuff", Mr Barnes said that "Trevor's knapsack was sacred" to him. As to the rest, Mr Barnes sent Ms Webber any pictures, photos and "stuff like that". The balance he assessed as "rubbish".
Two other people helped clean out Trevor's caravan, Mr Johnny Brukar and Mr Paul Elroy. They have since died. Mr Barnes said, and the Court accepts, that Ms Webber was also there at the cleanout and was personally involved but that the men did the removal of any heavier items. Mr Barnes recollection is that Ms Webber also selected what she wanted to keep from the caravan. This mostly accords with her account.
Mr Barnes explained, and the Court accepts, that Trevor treasured his knapsack and put everything of importance to him in it, including his pocket diaries and his personal telephone book. Mr Barnes says that Ms Webber had the knapsack before Trevor died at the hospital. His recollection is the knapsack was "probably sitting beside his bed" in the hospital because "he didn't go anywhere without it". Mr Barnes recounts that Ms Webber visited Trevor in hospital, and he infers that she took the knapsack home with her with Trevor's permission. Ms Webber is unclear on this, but Mr Barnes is likely to be correct given the good quality of his recollection.
The Court accepts as result of the clean-up of the caravan Mr Barnes and his companions "probably really only [gave] photos and stuff" to Ms Webber because they did not have any commercial value, but he thought that they may have had sentimental interest to the Robertson family.
Mr Barnes says, and the Court accepts, that the other material that was not wanted was placed in a utility, taken away and dumped. He recalls that anything that they wanted to keep, "which wasn't much", was "dropped off" at Ms Webber's place in Suffolk Park, in the Byron Bay area. Mr Barnes' best recollection of what he dropped off to Ms Webber was clear. It was just a single box which would not have been much more than what he described as "a packing box".
The Court accepts Mr Barnes' recollection as establishing that a box of material that he and others, including Ms Webber, collected from Trevor's caravan, was given to Ms Webber and that it contained photos and other personal effects. Mr Barnes knew where Trevor lived. There is no doubt he was going through Trevor's personal effects in Trevor's caravan.
This evidence is mostly consistent with Ms Webber's evidence. She says that someone sent or brought Trevor's personal effects to her in a box at the time of Trevor's death, rather than her collecting them from Trevor's caravan with Mr Barnes. She does not confirm that she took any knapsack away from Trevor's hospital room. Ms Webber cannot remember who brought the box of personal effects to her or having a conversation with Mr Barnes about it. Notwithstanding that, she seemed confident that the material had, "come out of Trevor's caravan" and in that she was undoubtedly correct.
But the Court accepts Mr Barnes' version as more accurate. His detailed recollection of the process of cleaning out the caravan and Ms Webber's involvement in it is more convincing than Ms Webber's more vague recollection of events. The two are generally consistent but where the detail differs Mr Barnes's version is preferred.
It is probable that Ms Webber did pick up Trevor's knapsack from the hospital, and that what ended up in the cardboard box that Ms Webber kept in her possession was a combination of items that came from the knapsack and the box that came from Trevor's caravan.
Ms Webber Sends Trevor's Effects to Jacqueline. Once Jacqueline established with Mr Barnes' assistance that Ms Webber had Trevor's personal effects, Jacqueline was keen to secure them because of their potential importance to the plaintiffs' case in these proceedings. She sent a padded postbag to Ms Webber, to make it easy for her to send the material onwards to her. Jacqueline asked Ms Webber to place Trevor's personal possessions, which were still in a cardboard box, into a padded postage bag and post them. Ms Webber recalls getting photographs out of the cardboard box into which Trevor's goods had been placed, together with notepads.
Ms Webber does not recall individual documents that she handled. She was vague about whether the writing in the notepads she handled was Trevor's handwriting. She had been in what she describes as a loose "boyfriend-girlfriend" relationship with Trevor for about 15 years but she did not seem to recognise his handwriting very well.
When Ms Webber was asked how she knew that the box had "Trevor's things in it and not someone else's", she said that she did not really know. But she explained, "just he's in all the photos and things". But she did not recognise his handwriting because, "I never saw him write anything". Of course, Mr Barnes had arranged to give her the box from Trevor's caravan, a primary reason connecting it to Trevor. But her evidence adds another reason connecting the contents of the box with Trevor: its contents appeared generally to her to contain his photographs and other personal effects.
Jacqueline was directly involved on the telephone with Ms Webber in deciding what Ms Webber would put into the padded postbag to be sent onto Jacqueline. When Ms Webber was taking items out of the cardboard box and putting them in the padded postbag, Ms Webber described to Jacqueline what she had, and Jacqueline instructed her what to send. The Court is satisfied that what Ms Webber sent to Jacqueline came out of the box Ms Webber received from Mr Barnes.
The remaining material in the cardboard box retains sentimental interest for Ms Webber, who still has it at home. She had not been able to bring herself to dispose of it 15 years after Trevor's death. After the material sent on to Jacqueline was extracted, according to Ms Webber the box was left only with photographs in it. All the other documents had been sent to Jacqueline.
Inferences from the contents of the cardboard box. The Court infers from these events that the written material Ms Webber sent to Jacqueline was Trevor's and the documents sent were in Trevor's handwriting. Mr Barnes had placed the material found in Trevor's caravan into in the cardboard box. He placed nothing else in the box. The photographs of Trevor placed with the written material confirm the association of the written material with Trevor himself, that is consistent with Mr Barnes's testimony about how the material was obtained.
The evidence accounts for the continuous custody of the cardboard box in Ms Webber's possession for her own sentimental reasons between 2006 and 2019. Ms Webber gave no evidence of adding anything else into the box. But it is probable that she put some material from Trevor's knapsack into the cardboard box as well. It is not consistent with Ms Webber's sentimental reasons for keeping the box that she would have added anything which was not Trevor's into it. And it was only material from in the cardboard box that was sent to Jacqueline, and which found its way into evidence from there.
This is a sufficiently sound chain of custody from Trevor's possession to Mr Barnes, to Ms Webber, to Jacqueline and then to the courtroom. The Court accepts the evidence of those involved in this chain of custody about the course of events but preferring Mr Barnes over Ms Webber where they are in conflict.
From this evidence the Court infers that the notebooks were Trevor's and that he wrote the document that describes the arrangement between Gloria and Richard senior upon the transfer of the Woollahra property to Gloria.
Apart from the content of the documents and the expert handwriting evidence, the Court can infer with confidence that the handwriting on the testamentary document is probably Trevor's, because the documents are probably Trevor's, and because the chain of custody from Trevor to the courtroom is accepted.
The chain of custody evidence is especially important because the expert handwriting evidence about the 17 March 2002 document is inconclusive. A thorough examination of the document was undertaken by a handwriting expert, Ms Melanie Holt who could not reach a firm conclusion in her report about the authorship of the signature "TA Robertson" that appears on the questioned 17 March 2002 document. In could not be said to be Trevor's. On the other hand, Ms Holt's report is not a basis to conclude that the signature was not Trevor's. This means the expert handwriting evidence can be put to one side, whilst the Court draws inferences from other factors.
The 2002 Diary and the Personal Organiser. The two central documents found among Trevor's papers were the 2002 diary and a personal organiser. Each of them strongly points to Trevor being their author.
The 2002 diary was not used as a diary in the traditional sense but to mark the birthdays of Trevor's relatives. On its inside page in what appears to be Trevor's writing it is entitled "Trevor Robertson Birthdays" and then throughout the document the diary has circled dates against which the birthdays of various family members are mentioned. They include all his near relatives who have been mentioned in these proceedings and a number of others. The particular class of family members included in the diary grounds a powerful inference that this was Trevor's diary.
As well as the 2002 diary, among the papers that Jacqueline received from Ms Weber was a personal organiser which appears to have been used by Trevor as an address and telephone book. Mr Beilby undertook extensive research by telephoning the numbers in the organiser to ascertain who they were. The research does not need to be detailed in this judgment, but it was thorough and establishes beyond doubt that the names in the personal organiser are connected to Trevor. They include a number of the parties and witnesses to these proceedings. For example, Mr Barnes and Gloria herself were listed in the personal organiser. It is not necessary to prove that every one of these entries was for a person known to Trevor. The fact that only a limited number of them did so is sufficient to connect the document and Trevor. Another contact in the personal organiser was Raymond. In addition, a number of persons unrelated to the proceedings were telephoned and Mr Bielby confirmed they were Trevor's acquaintances, or acquaintances of Ms Webber or Mr Barnes. In summary the evidence arising from the personal organiser is compelling that it too related to Trevor's affairs and was his. This finding supports the conclusion that the other documents with it were also Trevor's.

[31]

Mr Bosanac Looks for a Lost Key - June 2019

Jacqueline delayed in bringing forward the papers and photographs of Trevor in her possession. She was criticised for that delay and challenged concerning her dealings with Trevor's 2002 diary and the 17 March 2002 testamentary document. There was a strong contest between the parties about the provenance of this evidence. The Court accepts Jacqueline's account of her handling of this evidence and that the diary is Trevor's diary and that it indeed went missing for a period in 2019 and then was found, as Jacqueline and her husband described. The resolution of that contest is dealt with in this section of these reasons.
Jacqueline says that after these proceedings were commenced in January 2019, she was sorting through Trevor's personal papers received from Ms Webber at home, probably in February 2019. She found the 2002 diary among those personal papers. Jacqueline immediately thought it was Trevor's diary. But the diary then went missing for about five months between February and June 2019.
Jacqueline went through the diary to review its entries. She says after looking through it she put the diary back into the box in which she held Trevor's personal effects. She was sitting at a sofa lounge at home at the time she undertook this review. But subsequent events reveal that she must have dropped the diary at the time. The diary is not large (11 cm by 8 cm) and is coloured black and could readily be mislaid. It appears to have fallen out of her sight into the parts of the sofa that are pushed together. Jacqueline's first inspection of the diary did not lead to her discovering the 17 March 2002 document.
In June 2019 Jacqueline's husband, Mr Bosanac dropped a key near the sofa lounge at his and Jacqueline's home. He began looking for the key. To do so he pulled the sofa apart and found the missing key. Whilst looking for it he found the 2002 diary. He noticed Trevor's name on it. Knowing Jacqueline's interest in Trevor's effects he gave it to her and asked her "is this yours?". She took it from him. Jacqueline then examined the book and found the 17 March 2002 document folded in the inside cover pocket of 2002 Diary. The Court accepts both Jacqueline's and Mr Bosanac's account of finding the diary under the sofa in June 2019 and that they then found the 17 March 2022 document in the pocket of the 2002 diary.
Jacqueline had not noticed this piece of paper in the cover pocket when she was looking at the contents of the diary earlier. But that does not throw doubt upon her story, as she appears to have been more interested in the writing in the 2002 diary before she put it away.
Inspection of the 2002 diary reveals that Jacqueline's delayed discovery of the 17 March 2002 document is not surprising. The diary is covered in black plastic. On the inside front cover, where the reader would first open the diary, there is no pocket. But the back cover of the diary has an accessible pocket formed where the black plastic sheathes the cardboard backing of the diary. The pocket is small and could easily be missed. It is quite probable that a document folded and tucked into the back pocket would not be noticed at first glance.

[32]

Analysis of the Plaintiffs' Claims for Relief

In their final form, these proceedings are brought by the following four plaintiffs, the estate of Richard senior, the estate of Raymond, Richard junior and the estate of Trevor. The plaintiff pursued three main claims.
First, the plaintiffs claim equitable compensation against the first defendant, Ms Byrne's for breach of trust due to her failure to distribute the Woollahra property to the persons entitled to it under Gloria's will, Raymond and Trevor's estate.
Second, the plaintiffs claim declaratory relief against the second, third and fourth defendants that they hold the proceeds of sale or assets acquired with the proceeds of sale of the property on a constructive trust or alternatively subject to a charge for Raymond and Trevor's estate, together with consequential orders including tracing orders and orders for the payments of monies or compensation to Richard's and Trevor's estate.
This relief is based on three causes of action or doctrines: 1. an alleged agreement between Gloria and Richard senior under which Gloria agreed to make and not revoke a will leaving the Woollahra property to Raymond and to Trevor; 2. an estoppel arising from a representation made by Gloria to Richard senior or, alternatively, a common intention constructive trust to the effect that if Richard loaned Gloria £1,100 she would purchase the Woollahra property and then make and not revoke a will leaving that property to Raymond and Trevor; and 3. an estoppel arising from a representation made by Gloria to Raymond or, alternatively a common intention constructive trust that if Richard senior loaned Gloria £1,100 pounds she would make and not revoke a will leaving the property to Raymond and Trevor.
Third, it was claimed that family provision orders sought in the alternative in favour of Raymond and Richard junior against Gloria's estate should be given effect to by designating as notional estate of Gloria, the property of the second, third and fourth defendants (and if necessary, the fifth, sixth and seventh defendants) who received distributions from Gloria's estate derived from the proceeds of sale of the Woollahra property. After Raymond's death the claim in his favour was abandoned. The family provision claim made by Richard junior was pursued in the alternative.

[33]

The Claim in Contract

The chronological narrative of findings above provides a basis for the Court to conclude here that that Richard senior and Gloria made a binding agreement in 1965, the terms of which were: Richard senior would advance to Gloria £1,100 to assist Gloria to acquire the Woollahra property; in exchange, Gloria would make and not revoke a will leaving the Woollahra property to Raymond and Trevor.
The Court is comfortably persuaded that the agreement the plaintiffs plead was made between Gloria and Richard senior and that Gloria made the representations founding the estoppel and the common intention constructive trust upon which the plaintiff relies. Several sources of reliable and generally consistent evidence accepted by the Court point to this conclusion. This evidence is sourced both in documents and in the testimony of wholly reliable witnesses. Drawing upon the findings made in the factual narrative above this evidence is briefly summarised here.
Gloria admitted to Mr Blackett that Richard senior loaned her £1,100 to purchase the Woollahra property and that in exchange she would make a will in favour of Raymond and Trevor. Mr Blackett was a most reliable witness who corroborated Raymond senior's recollection in essential details, that the events happened in 1965, that the sum of £1,100 was agreed to be loaned and that Gloria agreed to make a will in favour of Raymond and Trevor.
Another highly reliable witness, Lorraine Carrol was present at the family conference in 1965 formalising the arrangement reflected in Gloria's promise. Her evidence also corroborates the year 1965, the sum of £1,100 pounds being the amount discussed as being loaned and Gloria's promise to make a will leaving the property to Raymond and Trevor.
Jacqueline was another mostly reliable witness. The Court assesses her as generally reliable although others did not see her that way in the lead up to the hearing. Her overall reliability is confirmed by the several other sources that confirm her version. Her passion for the cause of the plaintiffs' case was self-evident during her testimony. And before trial in her dealings with Mr Eddy and Ms Russo Jacqueline was uninhibited, unconventional, and not one to wrap her words with diplomatic courtesies when it came to pressing what she thought was a just claim. Her communication style was so blunt at times that it moved Mr Eddy and Ms Russo to suspect dark motives in her. Their working hypothesis was that she had invented a dubious story to financially advantage herself and her family. This attitude to Jacqueline's claim persisted and so dominated the thinking within the office of Nicholas Eddy & Associates, that this claim was never taken seriously. But that view was mistaken. Jacqueline gave direct evidence of Gloria's recognition of her obligation to leave the property to Raymond and Trevor, acknowledging her liability to repay Richard senior and that the "only thing I can do" to leave the Woollahra property by will to Raymond and Trevor.
The Court's conclusion that Trevor wrote the 17 March 2002 document that Mr Barnes found in Trevor's caravan and gave to Ms Webber, who in turn gave it to Jacqueline, provides strong supporting evidence of Gloria's promise. Trevor was present at the early conversations and a beneficiary of the promise. He appeared to put great store by it, so much so that he dealt with the Woollahra property in his testamentary document of 17 March 2002. The document confirms Trevor's view that Gloria was leaving the property to him and Raymond, as she was never able to pay back the £1,100 lent to her by his father, Richard senior.
The Court accepts Raymond's evidence which also confirms the essentials of the agreement and the representations, rebutting any presumption of advancement that might otherwise apply. And the conveyancing documents support the conclusion that Gloria would have needed funding assistance from her stepfather, Richard senior, to acquire the Woollahra property.
The defendant's submissions are correct to the extent they contend there is little evidence independent of Robertson family members supporting Gloria making the pleaded promises to Richard senior. The plaintiffs' case needs to contend with the many judicial warnings against Court's accepting uncorroborated evidence against deceased persons to found claims against an estate. It can be accepted that uncorroborated evidence of an alleged oral contract made some 55 years ago must be approached with very considerable caution.
The defendants point out that the promise is not recorded in writing that is created independently of family members. For example, Trevor's 17 March 2002 testamentary document is perhaps explicable on the basis that the idea of Gloria making a promise to Richard senior became Robertson family folklore, which Trevor absorbed from a young age and simply repeated as accepted fact in his 17 March 2002 document.
It could perhaps be argued that Jacqueline and Raymond had convinced themselves a promise had been made, as they have every reason to believe that it had, as the promise would benefit their immediate family financially. Perhaps as McClelland CJ in Eq said in Watson v Foxman (1995) 29 NSWLR 315, at 319, the processes of their memories had become overlaid subconsciously by perceptions of self-interest, as well as conscious consideration of what should have been said as well as what could have been said. But this hypothesis does not explain the clear witness testimony of Mr Blackett and Ms Carrol, who gave direct evidence of Gloria's promises and admissions of making earlier promises. Then the congruence between their evidence and that structure of the other witnesses assists the credit of the other witnesses.
I am indebted to McMillan J for her Honour's comprehensive summary in Flocas v Carlson [2015] VSC 221 at paragraphs [178] to [192] of the principles governing the enforcement of agreements to make wills, whether in the form of mutual wills or otherwise. To be enforceable such agreements must constitute a contract, supported by valuable consideration, expressed in terms that are sufficiently certain, and be formed with the intention the contract be legally binding. Of
These requirements are all satisfied here. The core mutual promises of £1100 to acquire the property in exchange for leaving the property to Trevor and Raymond were straightforward, as described here.
But the evidence is complicated by two other associated non-core promises. At various times witnesses, particularly Raymond, have referred to (1) Gloria promising to allow Richard senior to live in the property rent free during his life and (2) Richard senior expecting repayment of the £1100 in instalments over time.
Neither of these additional matters detracts from the core promise constituting the contract. Gloria and Richard senior did discuss him living in the Woollahra property rent free after it had been acquired. But he seems to have abandoned or varied any requirement to insist upon that promise by moving to Queensland. There seems to have been no difficulty in him staying in the Woollahra property when he was in Sydney, confirming that this was a supplementary part of their arrangement.
But the Court is not persuaded that Gloria agreed to a particular repayment schedule, given her young age and limited income and her and John McDonough's obligations under the vendor mortgage that she and he had taken. It is unlikely that she made a binding commitment of this kind in those circumstances. There appears to have been a loose understanding that she would attempt to make regular payments if she could, but the evidence does not support a finding that Gloria bound herself to repay the whole £1100, or to commence doing so in an agreed amount per week. But like many loose understandings within families, this one became a source of discord between Richard senior and Gloria. A recurring theme in the evidence is that was unhappy with the rate of repayments that he was receiving from Gloria. At one point in her oral evidence Jacqueline suggested that the money advanced was agreed to be paid back by Gloria within a few weeks. But this is improbable at many levels and finds no support elsewhere.
The promises on both sides constitute valuable consideration and are expressed in sufficiently certain terms. The exchange of promises represented valuable consideration. Raymond senior performed the contract by advancing the substantial sum of £1100, otherwise Gloria and her partner were unlikely to have been able to acquire the Woollahra property.
The defendants argue that the circumstances show that Gloria and the other members of the Robertson family did not intend or cannot be regarded as having intended to subject their agreement to the adjudication of the courts and that it was intended to be an informal family arrangement: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95.
But this is not persuasive. Ms Carrol's evidence as to the formality of Richard senior bringing the family together to witness Gloria's promise and Jacqueline remembering the same event show this was something beyond an informal, or casual family arrangement. It was not documented but Richard senior tried to have Gloria's promise witnessed by the wider family who were not financially interested in the promise. The size of the advance and the language used at the time point to a binding and enforceable agreement.
The defendants point to John McDonough's absence from discussions about Gloria's alleged promise to Richard senior and the family conference. But his absence was readily explicable in the circumstances. Gloria and he were in a de facto relationship from sometime in about 1963, perhaps for only about 18 months before the family conference. This was by then hardly a well-established domestic relationship with the young Gloria. Richard senior was to be advancing £1100 to Gloria to enable her to make the purchase. That advance together with the vendor mortgage accounts for the whole of the purchase price. These circumstances do not compel an inference that Mr McDonough put any funds into the completing the initial acquisition of the Woollahra property. Yet it is clear that Gloria was consenting to the property going into joint names as tenants in common with Mr McDonough. In those circumstances it is quite understandable that Richard senior would want to hold Gloria closely to a promise to keep the Woollahra property in the family for Richard and Trevor. This was a promise to Gloria's stepsiblings. It is quite understandable that Gloria might have to navigate with Mr McDonough later how she could deliver on her promise. The rather blunt alternative mechanism of extracting a promise from him as well as Gloria at a family conference is not the obvious way for that to be achieved.
This discussion illuminates how Gloria's promise should be construed. The promise to Raymond senior was in substance to give to Raymond and Trevor as much of the Woollahra property that she possessed at the time of her death. Just what that would be was uncertain in 1965. Economic misfortune or discord with Mr McDonough may have taken the property from her. But whatever she turned out to own at the time of her death was captured by the promise.
The defendants argue that it was not clear that the promise to make a will was irrevocable. They cite the statements of Young CJ in Eq in Barnes v Alderton [2008] NSWSC 107 at [58] that it is difficult to make a testamentary promise form the basis of the proprietary estoppel. A frequent difficulty in such cases is plaintiffs attempting to show that the promise to make a will was irrevocable, rather than just a statement of general intent, whilst accepting that freedom of testation is a central feature of English law.
But several features of the plaintiffs' evidence support the plaintiffs' asserted belief that the promise was irrevocable. First, they treated it that way, only enquiring after Gloria's death that it had been honoured and assuming in their inquiries that it had been honoured. Second, in their own writings over many years (Trevor's 17 March 2000 document is an example), are consistent with such a belief. Third, the formality of witnessing Gloria's promise in the family conference is far more consistent with Gloria making an irrevocable promise. Fourth, the size of Richard senior's advance, representing half the purchase price of the Woollahra property makes an irrevocable promise to keep the property within the family proportionate to the benefit being conferred on Gloria.
The part of Gloria's promise not to revoke the will she would make in Raymond and Trevor's favour was implied rather than express. But the circumstances clearly allow it to be implied. Her words undertaking to make the will in favour of Raymond and Trevor would make little sense, if it could be revoked at any time, and makes even less sense given the very substantial financial benefit Raymond was conferring during his lifetime on Gloria. It is to remembered that although Gloria, Raymond and Trevor were all children in Richard senior's and Ethel's household, Gloria was not Richard senior's biological child. It made much sense for him to bargain for a permanent promise to be made by the nonbiological child he was then assisting, to ensure later favour of his two biological children. It can be inferred even at this distance in time as a likely motivation that Richard senior did not wish for his biological children to be disadvantaged in the long-term by his generosity towards his nonbiological child Gloria.
But these considerations in turn raise a question whether it is also to be implied from the nature of the promises made and the circumstances that Gloria's promise was to leave the Woollahra property to such of Raymond and Trevor as were alive when she died, and whether the promise is enforceable on behalf of the estate of Trevor who predeceased Gloria. The promise might perhaps only be effective in relation to Raymond because Trevor predeceased her without leaving children. After all Richard senior was primarily focused in 1965 in reaching this agreement with Gloria to protect financially his two living children and treat all the children fairly. And then the question arises if it is not enforceable by Trevor's estate whether Raymond's estate is entitled under the agreement made to the whole or only half of the proceeds of sale of the Woollahra property.
It is relevant here to observe that there is an important difference between Ms Carrol's recollection and Mr Blackett's recollection of the promise Gloria made from that which is remembered by Jacqueline. Jacqueline recalls in her affidavit account Richard senior saying that the £1100 was provided "if you leave a will to Ray Trevor and their children". But both Mr Blackett and Ms Carrol simply recall the statement that the Woollahra property would be left "to Raymond and Trevor", without referring to children. To the extent the two versions differ the Court prefers Mr Blackett's and Ms Carrol's recollections. They were excellent witnesses, who had no interest in the outcome of these proceedings. And when Jacqueline was cross-examined she effectively abandoned any clear recollection of the words "and the children".
This issue has not been the subject of submissions and it will be necessary to hear submissions on the matter before the Court decides the final outcome of these proceedings. The contract is enforceable on behalf of Raymond who survived Gloria - and now on behalf of his estate. But there is a real question as to whether this contract is enforceable by Trevor's estate in view of its terms and the mutual intent that can objectively be inferred from the language of the contracting parties used. And if the contract is not enforceable by Trevor's estate, does the share in the Woollahra property that would have been enforceable by Trevor fail or does it instead go wholly to Raymond's estate.
The Court will direct further submissions on this issue. These reasons refer elsewhere from time to time to recovery by Raymond's estate and Trevor's estate, but those references should be construed as being subject to the Court hearing further submissions on this issue. Were the Court not to call for further submissions on this issue there is a chance that the parties may be denied procedural fairness because it was not properly elucidated in the previous exchanges of submissions.
The Court will enforce an agreement such as that found here by imposing a constructive trust on the executrix or upon the beneficiaries who take under the will, namely the second, third and fourth defendants, to hold either the property (or the proceeds of sale) for Raymond and Trevor's estates (subject to argument about whether the property is recoverable on behalf of Trevor's estate: Palmer v Bank of New South Wales (1973) 2 NSWLR 244 at 248G - 249A ("Palmer")).
Ms Byrne was a constructive trustee of the Woollahra property. The sale of the property and subsequent payment of the proceeds to the second, third and fourth defendants were breaches of trust, because the property should not have been sold and the proceeds were not distributed to the persons entitled to the Woollahra property or its proceeds. Ms Byrne is liable to pay equitable compensation to Raymond and possibly to Trevor's estate for the loss. A constructive trustee must make good to the trust estate the loss which has been caused by the wrongful act. And subject to the further issues discussed below Raymond's estate, and potentially Trevor's estate, are entitled to trace the funds received and dealt with by the second, third and fourth defendants and the other defendants.

[34]

The Equitable Estoppel and Common Intention Constructive Trust Claims

The equitable estoppel and common intention constructive trust claims against the estate are made out. But one potential procedural obstacle to the success of the claim point should be mentioned first. The defendants originally pleaded in their defences that the estate of Richard senior, to whom the plaintiffs claimed Gloria made the promises relied upon, was not a party to the proceedings and was a necessary party. Whether Richard's estate is a necessary party need not be debated because this issue was swept away after several days of hearing, on 28 April 2021. On that day the Court ordered that the estate of Richard Robertson be joined as a plaintiff and that pursuant to UCPR, r 7.10(2)(a) that the proceedings continue in the absence of a representative of Richard senior's estate. A defence that the plaintiffs' case lacked the proper parties was thereafter not maintainable.
The plaintiffs claim in the alternative that the conversations between Gloria and Richard senior created a mutual assumption between them himself upon which Richard senior and they acted. That assumption is said to be in conformity with its promise that, if Richard senior loaned her £1100 to acquire the Woollahra property, then she would gift the property to Raymond and Trevor in her will.
The legal principles invoked by this claim are well-established. The most recent statement of High Court authority in relation to the doctrine of equitable estoppel is in Sidhu v Van Dyke (2014) 251 CLR 505; 308 ALR 232; [2014] HCA 19 at [1]: "In Commonwealth v Verwayen [(1990) 170 CLR 394 at 409] Mason CJ described estoppel as "a label which covers a complex array of rules spanning various categories." His Honour went on to say of "titles such as promissory estoppel, proprietary estoppel and estoppel by acquiescence" that they are all "intended to serve the same fundamental purpose [Giumelli v Giumelli (1999) 196 CLR 101 at 112-113 [7]], namely "protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted". [Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 at 419 and 404; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675] "
The accepted formulation of the doctrine of equitable estoppel requires four principal elements to be established to make out. These elements are sometimes formulated differently into a larger number of less comprehensive requirements. The requirements are explained in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ("Waltons Stores") at 428-429 per Brennan J, Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; [1989] ANZ ConvR 621 at 601 per Priestley JA, and in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 as follows: 1. one party ("the first party") creates or encourages another party ("the second party") to adopt a particular assumption or expectation that a particular legal relationship existed or would exist between them; 2. the second party relies upon that assumption or expectation; 3. the second party's reliance is known or expected by the first party; and 4. the second party would suffer detriment if the assumption or expectation was not fulfilled by the first party.
If the first party then fails to act to avoid the detriment then equity may intervene. Here, the plaintiffs have made out each of these elements.
First, Gloria encouraged Richard senior to assume that if he advanced to £1100 to acquire the Woollahra property that she would gift it in her will to Raymond and Trevor if it was part of her estate at her death.
Second, Richard senior adopted and relied upon that assumption by advancing the £1100 to Gloria. Given the family members he arranged to witness Gloria's statements creating the assumption, it can readily be inferred that he would not have advanced the £1100 unless Gloria had made the statements that created his assumption. The defendant's submissions point to a lack of reliance on Raymond on Trevor's part. But Richard senior relied on the promise and that is sufficient. And in any event Trevor and Raymond took no steps to compel Richard senior to recover the advance from Gloria because of their expectations of benefit on her death.
Third, as a participant in the conversation and the family conference that Richard senior arranged, Gloria must have known of Richard senior's reliance upon the assumption.
Fourth, Richard senior, his estate and those who benefit from Gloria's promise would suffer detriment if Gloria did not fulfil the assumption. The detriment is suffered by the estates of Raymond and Trevor by the loss of the benefit of the Woollahra property or its proceeds of sale.
By allowing the Woollahra property to be sold and its proceeds distributed in the course of administering estate Gloria's estate, her executrix has not acted to avoid the detriment. The appropriate relief is to make good the representation, protected because of the size of the advance and the mutual understanding that Richard senior wanted his biological children, who he named in the conversations to have their financial futures protected.
The defendants' submissions challenge these elements. They submit there is no evidence of the representations to Raymond or Richard junior. There was a representation to Richard senior. They submit there was no inducement to each plaintiff and no detriment was suffered by either plaintiff. But the Court's reasons have already provided the answer to those challenges. Representations were made to Richard senior. That is sufficient to raise the estoppel as Richard was the one who suffered the detriment by advancing the £1100 and not recovering from Gloria. The family discord about recovery indicates it was not recovered.
Little needs to be said in addition about the common intention constructive trust case. Such a constructive trust is established. Both Richard senior and Gloria had a common intention that Raymond and Trevor would receive the property in Gloria's will and on that basis Richard senior loaned and did not seek to recover the £1100: see for example Saliba v Tarmo [2009] NSWSC 581 at [27] to [54].

[35]

Laches and Acquiescence

The defendants argue that equitable relief should be denied to the plaintiff on grounds of laches and acquiescence. It is not in contest that the elements of these defences are knowledge of the wrong, delay and unconscionable conduct caused to the opponent by the delay: Crawley v Short [2009] NSWCA 410 at [163].
As to laches, the defendants submit that Richard senior took no action to enforce any rights he may have had prior to his death. Raymond took no action until after Richard senior had died. That means that neither party to the original alleged 1965 agreement is now alive to give evidence and the passage of time means that no documents are available that may shed light on whether the agreement was made. The defendants emphasise that the alleged conversation is said to have occurred some 55 years ago and the defendants are now greatly prejudiced by the delay.
This submission is not persuasive. Richard senior and after him Raymond and Trevor were all entitled to assume that Gloria would keep her promise. After all it was confirmed and witnessed a family conference and there is no evidence in the intervening years of Gloria actively denying the promise or saying that she would renege on it. And Raymond and Richard junior are to be accepted when they say that they believed that Gloria had honoured her promise. Raymond's conduct in instructing Mr Phipps to obtain a copy of Gloria's last will, rather than to threaten to bring proceedings on the basis that Gloria's will did not give the Woollahra property to him and Trevor is consistent with his belief that Gloria had honoured her promise to Richard senior.
As to acquiescence, the defendants argue that neither the plaintiffs nor Richard senior ensured that Gloria had signed a will leaving the Woollahra property to Trevor and Raymond. The defendants also argue that even after Gloria's death in January 2018 Raymond was aware of the auction of the Woollahra property in May 2018, but he took no steps to seek injunctive relief to prevent the sale, even though he claimed he knew that Gloria was bound to leave it to him and Trevor.
The defendants further submit that at no stage did Richard senior take steps to recover the sum of £1,100.00 from Gloria, the recovery of which has been statute barred under Limitation Act 1969, s 14 since 1971 (six years after the advance in 1965), if in fact it had been wholly or partly loaned to Gloria. But the only delay here has been since September 2018 when Ms Byrne distributed inconsistently with Gloria's 1965 promise.
But these submissions are not persuasive. Raymond did not have ready access to legal resources to enjoin the sale of the Woollahra property and did not have the capacity to conjure up such a remedial solution without competent legal assistance. Moreover, the sale of the Woollahra property was not so inconsistent with his rights as was the later distribution the proceeds of sale in September 2018, which took place without proper public notice. And the recovery of the £1,100 Gloria is not significant. It is quite understandable that Richard senior would not lightly bring legal proceedings for recovery of this sum from his stepdaughter when he knew that she had made a promise to ultimately benefit the family with the property at the end of her life. The nature of the promise that Gloria made explains why debt recovery was not the main driving force for Richard senior.

[36]

Richard Junior's Succession Act Family Provision Claim

Richard junior's alternative Succession Act, Chapter 3 family provision claim is weak and should be dismissed.
Richard junior lived with his parents at the Woollahra property for a short period between March 1962, when he was born, and about 1966, when they moved to Maroubra and then to Canley Vale. As an adult he visited Gloria about once every two years although at times more frequently than that. He did not visit Gloria in the last few years of her life. Richard junior lived in Sydney from 1986 to 1992 and 2005 to 2008. He says that he provided financial assistance to Gloria when she was on her own at times.
Richard junior's claim is an "eligible person" is under Succession Act, s 57(e)(i) and (ii) that he was wholly or partly dependent on Gloria and lived as a member of the household which she was a member. There is no doubt that he was a member of the household of which she was a member but there is an active contest about his dependency upon her.
To succeed Richard junior must establish factors warranting the making of an award under Succession Act, s 59, which are facts which would give Richard junior the status of one who would be generally regarded as natural object of Gloria's testamentary recognition: Churton v Christian (1988) 13 NSWLR 24 and Re Fulop (1987) 8 NSWLR 679 at 681. The defendants submit that Richard junior did not appear in Gloria's will and there is no basis for her to have recognised him in that way.
But Richard junior fails at the threshold of this claim. He cannot establish dependence upon Gloria. He lived in the same household as Gloria in his early years but to the extent he was dependent upon anyone he was dependent upon his parents Raymond and Jacqueline who would have provided to him at that time. In the early to mid-1960s when Richard was living in the household at the Woollahra property Gloria was in early to mid-twenties. There is no evidence, only speculation at this distance in time, that Gloria's work as a cleaner and later as a seamstress would be likely to have materially contributed in any way to the financial support of Richard junior.
Moreover, there are no factors warranting Richard junior's claim. Richard junior did not feature in any of Gloria's wills. Although there is no direct evidence of Gloria's earlier wills, the Court does not accept that she expressed any testamentary intentions in Richard junior's favour. She had favourites within the Robertson family. She was undoubtedly close to Trevor all her life and paid for his funeral. But this did not extend to Richard junior. And he saw her only intermittently through her life and had very little contact with her towards the end.
It is convenient now to deal with the separate position of Ms Byrne and then to consider the progress of the claims against the other defendants. The claim against Ms Byrne for equitable compensation depends upon the plaintiffs making out their claims against Gloria's estate which they have done.

[37]

The Claim against Ms Byrne

The relevant legal principles relevant to the claim against Ms Byrne may be briefly stated. The operation of Probate and Administration Act 1898, s 92 protects an executor for liability to any person with a claim against the estate for distributing the assets of the estate after having given notice in the approved form of distribution of the assets of the estate. Without that statutory protection the executor may be personally liable to satisfy the claim: Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 ("Brown") at 53-54.
But if the executor had notice of the claim before distribution the executor may seek protection by employing a mechanism provided for in Probate and Administration Act 1898, s 93, by serving notice on the claimant disputing the claim and calling on the claimant to take proceedings to enforce the claim within three months. After the executor gives such notice to the claimant, the Court is empowered on the application executor to make orders barring the claim or make such other order as is just or equitable. The failure to give the relevant notice means that the executrix is personally liable to satisfy the claim.
Supreme Court Rules 1970, Part 78, r 93(a) ("SCR") requires that a notice under Probate and Administration Act 1898, s 93 "must be published" on "the New South Wales online Registry website" if the notice relates to the intended distribution of the estate of a deceased person in relation to which a grant of representation has been made by the Court. In any other case publication can be in a Sydney daily newspaper: SCR, r 93(a). A grant representation to Ms Byrne was made by the Court and the relevant notice did relate to the intended distribution of the estate, so SCR, r 93(a) clearly applied in this situation and the relevant notice must be published on the New South Wales Online Registry. In this case publication was made in the Sydney Morning Herald. This did not comply with SCR, r 93(a) which is in mandatory terms.
Mr Eddy conceded that SCR, r 93(a) required advertisement on the Online Registry. He explained that his office had a policy of both publishing notices in the Sydney Morning Herald and in the Online Registry. But if that was his office policy there is very little evidence that it was being implemented. In any event Online Registry publication did not take place before distribution occurred.
At the time the estate was distributed, Ms Byrne had several sources of notice of the plaintiffs' claim. The Court accepts that Mr Eddy was in hospital and incapacitated when distribution occurred. But Nicholas Eddy & Company was still the firm acting for Ms Byrne upon distribution responsible for advising her as to the steps required to be taken before distribution.
The parties debated in final submissions whether Raymond had made a claim against the estate before distribution. The Court concludes that he had clearly made a claim. Many circumstances point to this conclusion.
First, Mr Eddy ultimately conceded that the June correspondence from Raymond was "clearly asserting a claim against the estate" because "that's what [Raymond] is saying" in his correspondence. And Mr Eddy agrees that that he was a notice of it no later than 2 July 2018. After assenting to this question, in his answer Mr Eddy pointed out that it was the following day, 3 July 2018, that he be suddenly became ill. And that circumstance goes a long way towards explaining what happened here: a day after Mr Eddy was given notice of the claim, he was suddenly incapacitated from attending to his practice.
Second, the language of the 29 June 2018 letter describes Raymond and his pregnant wife, daughter and son being members of Gloria's household, "and I believe they and I may qualify to have a claim at law or in equity against her estate". The reference here is clearly enough an assertion that they qualified as "eligible persons" under Succession Act, Chapter 3, as persons living in the same household as Gloria, a deceased person and dependent upon her. The fact that he expresses it as a belief and that he "may qualify" does not diminish the proper characterisation of the letter as a claim. It is still expression of belief in the "may qualify" is merely an appropriate concession that obviously would have to be judicially determined if disputed. But reference to the claim being "in Equity" is brought up to encompass any equitable claim, not necessarily under the Succession Act, which was foreshadowed by the facts set out in Raymond's correspondence.
Third, the recent and longer-term context of Raymond's 29 June 2018 letter strongly suggests he was making a claim, quite apart from the text. The 29 June 2018 letter and the other letters sent at the same time were a follow-up to Jacqueline and Raymond's visit to the premises of Nicholas Eddy & Company on 21 February 2018 and in furtherance of the objective of that visit. Raymond's persistence should not have been interpreted as an idle or busybody request for access to a will, but action motivated by a belief of the claim on the estate. And the 29 June 2018 letter should be interpreted as a response to a specific request in Mr Eddy's 2018 letter, which had complained about the lack of specificity in Raymond's 22 June 2018 letter and asked, "you have not told me what your capacity is seeking the will". The 2019 letter should be interpreted as attempting to make good statement of that capacity, which was clearly enough an assertion of belief he qualified as a claimant against the estate.
Fourth, Mr Eddy protested on several occasions under cross-examination that despite Ms Russo telling Jacqueline and Raymond to "get a lawyer", they had not done so and that was one reason why he tended to discount what they had sent to him as a claim. But this is not persuasive. Raymond's further correspondence appeared on its face to have been drafted with assistance from a person with familiarity with the law, whether formally qualified to practice law or not. As a result, Mr Eddy was not able to say that the potential claimant had not taken the next step to be expected in making a claim. On the contrary, the potential claimant was furthering action against the estate by consulting legal expertise.
Fifth, Raymond's 29 June 2018 letter should be read as propounding a claim on behalf of Richard senior's estate, with Raymond as Richard senior's next of kin, for a debt of £1,100 owed by Gloria to Richard senior arising out of the original arrangement alleged between Richard senior and Gloria. Although this claim was not ultimately pursued in this form its investigation would have undoubtedly led to the unfolding of the present claim.
Mr Eddy was influenced by another factor to discount the communications from Raymond as being a valid claim. He had acted for Gloria and her previous husband and had drafted both their wills. He knew Gloria and her previous husband quite well. He could not recollect that Raymond or Trevor had ever been mentioned in conversations with Gloria or her husband.
And he went so far as to say that he thought the claim that Raymond was advancing was "dishonest". But he had no proper basis for saying that without investigating the claim further. Mr Eddy was somewhat disdainful of this correspondence amounting to a claim because it was not "substantiated". But he never corresponded with Raymond requesting substantiation.
But he never had an opportunity to request substantiation. He was very ill and admitted to hospital shortly afterwards. Ms Smith then took over. Estate distribution proceeded through Ms Smith and Ms Russo. The handover from Mr Eddy to Ms Smith had been in emergency circumstances and the extent to which she was briefed about the conversations with Jacqueline in February 2018 and the June/July 2018 correspondence in this matter remains uncertain and outside the scope of the evidence. But some communication gap seems to be the most likely explanation for what should have been detected as a claim being ignored before distribution occurred.
Ms Byrne had actual notice of the plaintiffs' claim before she distributed. She did not bring proceedings under Probate and Administration Act, s 93 to bar the claim. She remains personally liable to the plaintiffs subject to another argument raised on her behalf.

[38]

The Civil Procedure Act 2005, s 14 Issue

Ms Byrne submits the Court should exercise its discretion under Civil Procedure Act, s 14 to dispense with the requirements of SCR, Part 78 Rule 93. The plaintiffs oppose this course. The Court does not find Mr Eddy submissions persuasive and will not dispense with the requirements of SCR, Part 78 Rule 93.
Civil Procedure Act, s 14 provides as follows: "In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case."
A relevant consideration in the Court exercising the discretion under s14 is whether any objection is taken by the opposing party, or any prejudice is likely to be suffered due to failure to comply with the rules, the exercise of the discretion being predicated upon fairness to the parties: Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169; [2012] NSWCA 34 at [24].
First, the Court accepts the plaintiffs' submission that it would be futile to make such an order. Mr Eddy had notice of claim prior to the estate being distributed. The Court may be able to dispense under s14 with the requirement of SCR, Part 78, Rule 93 to publish the notice of distribution in the online registry. But that would only allow Ms Byrne to be treated as if she had published a notice of distribution and no more. But a simple dispensation under s14 will not offer protection for the circumstances that have arisen in this case, where Ms Byrne was already on notice of the plaintiffs' claim and had attracted personal liability because she had distributed in the face of that claim: Probate and Administration Act, s 92(2). The operation of Civil Procedure Act 2005, s 14 would not amend the effective operation of Probate and Administration Act, s 93. The exercise of its discretion would neither itself create a notice to the plaintiffs' under Probate and Administration Act, s 93(1), nor make an order of the Court under s 93(2)(a) barring the plaintiffs' claim. Those further steps would be unaddressed and Ms Byrne's liability for distribution would remain.
Second, even if Ms Byrne was not on notice of any claim at the time that she distributed the estate, and more so because she was in this case on notice of the plaintiffs' claim, the circumstances weigh strongly against exercising the dispensation power. To exercise the s 14 power would be prejudicial to the plaintiffs, potentially depriving them of a remedy against Ms Byrne and would condone a breach of trust, which should not obviously be excused. Moreover, the omission to publish in the Online Registry occurred in the face of a publication requirement that had been in place for several years before 2018 and had been the subject of notifications from the Law Society of New South Wales to all NSW practitioners.
Third, it was submitted on Ms Byrne's behalf that she should not suffer the consequences of the mistake of Nicholas Eddy & Company. The Court is forced to choose between the plaintiffs and Ms Byrne suffering the consequences of the firm's mistake. There is no compelling reason why Ms Byrne should be safe from the consequences of the errors of the firm when she has potentially arguable remedies either against that firm for breach of retainer or for negligence. Those claims may be potentially defensible. But it would be a misuse of s 14 for the Court to sweep away a contest that might allow liability to rest, where the mistake had occurred.
And Mr Eddy argues for the making the dispensation order because of his grave medical situation. Mr Eddy was wholly incapacitated from 3 July 2018 through until the distribution of the estate. The other solicitor, Mr Smith who oversaw the practice during this period who did not give evidence. It is difficult to unravel the decision-making processes within the firm during this period in relation to publication. But the firm remained responsible for advising Ms Byrne. Notwithstanding Mr Eddy's great personal trials at the time, the judgments to be made about s 14 dispensation must be made on a wider basis than his personal situation. Mr Underwood of counsel put every available argument on the issue but for the reasons stated a s 14 dispensation order should not be made.

[41]

The Course of the Claims against the Other Defendants

The second third and fourth defendants' dealings with the distributions from Gloria's estate have been the subject of extensive evidence. In all cases, there was delay between these distributions taking place and the second third and fourth defendants receiving notification of the plaintiffs' claims in these proceedings. For example, on 20 September 2018, Mr Purser received his $619,234.34 portion of the net residuary estate. Before Mr Purser was made aware of the plaintiffs' claims, he had spent much of this money on legal fees, a holiday, house renovations, and he had made a superannuation contribution. In addition, he had placed $100,000 in each of the bank accounts of his wife and two young children. The sum of $100,000 remains in his savings account. The Salvation Army and the RSPCA have each given a detailed account of their dealings with the funds in the administration of their affairs.
The Court's findings against Ms Byrne in these reasons and the circumstances in which the Court has determined she has become liable raise a question as to the timing of the conduct of the proceedings against the other defendants. Apart from the operation of the Probate and Administration Act, the ordinary rule is that even if a personal representative has paid or transferred assets of the estate to beneficiaries the mere fact that the personal representative has done so in good faith and without notice of an outstanding claim against the estate does not excuse the personal representatives from the payment or satisfaction of it: Brown, at 53. The personal representative's own assets, together with any assets remaining in the estate may be insufficient to satisfy the debt.
If because of the operation of Probate and Administration Act barring recovery, or insufficiency of assets of the executor, the estate creditor cannot have the debt paid by the personal representative, equity will assist by allowing a direct suit against the beneficiaries who have received the assets. But the rule which applies is that the creditor may pursue the beneficiaries only when he has exhausted his remedy against the personal representative, Brown at 54.
The plaintiffs in this situation must establish "that there is no other way" he may obtain sufficient refund by direct suit against the beneficiaries. Citing Ministry of Health v Simpson [1951] AC 251; [1950] 2 All ER 1137 ("Simpson"), at 267 Kitto J said in Brown: "The rule which [equity] applies is that when, and only when, the creditor has exhausted his remedy against the personal representative, "so that there is no other way", he may obtain a sufficient refund by direct suit against the beneficiaries who have received their assets."
It was clearly the efficient course for the plaintiffs to join the second to seventh defendants into the one proceeding and to have them bound by the findings made against the first defendant. But before the Court proceeds to deal with the claims against these subsequent defendants, it is necessary for the Court to examine how the plaintiffs have demonstrated compliance with the principles in Brown and Simpson to exhaust their remedies against the executrix, or to consider any argument that those principles do not apply.
The plaintiffs submitted that the second, third and fourth and subsequent defendants receive the funds as volunteers. On this basis the plaintiffs submit they can recover the funds either pursuant to the principles of tracing, or pursuant to principles of restitution citing Heperu Pty Limited v Belle [2009] NSWCA 252 at [127] - [163] ("Heperu"). The principles in Heperu are applicable but subject to the statements made in cases such as Diplock and Simpson relating to the principles that apply where the mistaken payment occurs by the executor in the administration of an estate.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Cases Cited (22)

Cited By (2)