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[2025] NSWSC 1183
General information, not legal advice.
Supreme Court of NSW
2025-10-09
Peden J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rowe v Van Den Ende [2025] NSWSC 1183
Hearing dates: 29 and 30 September 2025
Date of orders: 9 October 2025
Decision date: 09 October 2025
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: Peden J
Decision: At [113]
Catchwords: EQUITY – undue influence – separate question – transfer of property by wife from sole ownership to joint tenants with husband – whether transfer should be set aside – where insufficient evidence to demonstrate actual undue influence – where undue influence sought to be inferred from “snippets of events” – no undue influence established
EQUITY – unconscionable conduct – special disability or disadvantage – wife said to be “susceptible” to husband’s influence in relation to transfer of property to joint tenants – no special disability established – no knowledge of special disability pleaded – transfer explicable
Legislation Cited: Succession Act 2006 (NSW) s 59
Cases Cited: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Crawley v Short [2009] NSWCA 410
Johnson v Butress (1936) 56 CLR 113
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392
Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221
Louth v Diprose (1992) 175 CLR 621
Nitopi v Nitopi (2022) 109 NSWLR 390
Sze Tu v Lowe (2014) 89 NSWLR 317
Thorne v Kennedy (2017) 263 CLR 85
Texts Cited: The Laws of Australia (2024, Thomson Reuters)
Category: Principal judgment
Parties: Nardi Maria Rowe (Plaintiff)
Simon James Van Den Ende (First Defendant)
Geoffrey Ralph Surgeon (Second Defendant)
Representation: Counsel:
F Tregenza (Plaintiff)
A Stevens with J Lee (Second Defendant)
Solicitors:
Bartier Perry (Plaintiff)
Gavin Parsons and Associates (First Defendant, submitting appearance)
Fox and Staniland (Second Defendant)
File Number(s): 2022/00326253
Publication restriction: Nil
In October 2014, Robin Nardi Rowe transferred her unencumbered home in Wahroonga, New South Wales, into the names of herself and her husband of 24 years, John Charles Colussi, as joint tenants for no consideration. In this judgment I refer to family members involved by their first names, meaning no disrespect.
Robin died in 2021 and John died in 2022 and this dispute concerns their estates. Robin’s daughter, Nardi Maria Rowe, seeks to have the transfer set aside based on undue influence or unconscionability.
For the reasons that follow, I do not consider Nardi has satisfied her burden of proof. Below I set out the relevant chronology of events that gives rise to my decision.
Nardi is the eldest child of Robin and her first husband, Pieter Bakker. Nardi was born in March 1959. Nardi has a younger brother, Peter Rowe.
Nardi considered Robin had a very successful career as a marketing researcher; she was university educated and climbed the corporate ladder.
In about 1972, Robin separated from Mr Bakker and they divorced after that.
In about 1974, Robin married Terry Rowe. Terry unfortunately died unexpectedly in 1980. Robin inherited the Wahroonga property they had bought together. She also inherited some superannuation and life insurance, which she used to pay off the property’s mortgage and buy other investment properties. It is unclear whether Robin received compensation for Terry’s death.
Following Terry’s death, Nardi claimed that her relationship with Robin was very close. Robin also provided Nardi with significant financial support, including purchasing Arabian horses for Nardi to develop a stud, and provision of a car and accommodation.
In about 1989, Robin met John Colussi, and, in 1990, they married. At all times, Nardi considered Robin and John’s relationship was “crazy” and “totally out of [Robin’s] character”. She claimed that John “demanded that I accept him as my new father and head of our family. That is when the relationship between my mother and I changed”. Nardi considered that John caused “difficulties” between her and Robin. Nardi also claimed that she said to Robin: “I accept that you would like him in your life and I hope you’re happy, but I don’t want him in mine because I just didn’t feel comfortable with the way he had spoken and arrogantly told me that my mother’s money was now his.” Nardi “refused to have anything to do with him”, and she had a “total dislike of him”.
It is evident from their letters that Nardi’s relationship with Robin was generally fraught, particularly because of Nardi’s dislike of John.
For example, in June 1989, Nardi wrote to Robin referring to “damage done to our personal relationship” and needing “settling time after the past/recent events which has [sic] been greatly upsetting to both of us”. What the damage and events were was not identified.
Shortly thereafter, Robin wrote to Nardi including:
Following our telephone conversation … in which you told me that … you would never again want to see me or talk to me, and that you would find your own accommodation …
My dear Nardi, let me tell you how disappointed and hurt I am at the way you have behaved over my relationship with John. …
Because of your stubbornness you have been prepared to give up working in my business, abandon the most cherished project in you[r] life [horse stud] and even sever your relationship with me. You would have denied me the right to choose my companion in life and dictate to me that I have a husband as long as I did not make him a full partner… Neither John nor I want that kind of relationship. I think you have been most unfair, but I cannot … give in to your childish petulance.
Since you have chosen to cut off communicating with me, this may be one of our last letters. It is, therefore, important for me to assure you that whenever you wish to re-establish contact, accepting me and all the choices I make for my life, you will be most welcome. I will always love you and John wishes no more than be a friend to you.
… the experience of the last two years leads me to conclude, sadly, that [Nardi’s] concerns are more about material things (horses, car and money) rather than about our relationship. …
For my part, there is no substitute for the pain of the loss of my daughter and crave for any sign of compromise on her part about my relationship with my husband. …
You have not accepted my offer of Nirvana [horse] and thus you force me to pursue the horse matter in court. Just as I have written in my letters before, our relationship can hardly be expected to survive that. … I have hoped that you would come back [home], but you have not, and you say you will not …
I shall say it again. I do and always will love you. I am hurt and saddened more than words can express by your unloving, disloyal behaviour and attitudes, and by the feeling that I am writing a ‘goodbye’ letter.
With my 33rd Birthday nearly upon me and the completion of 32 years of life, it seemed timely and appropriate to write now in order to complete with you. …
…I now realise that there is no trust and respect left in me for you. As these are two essential ingredients for a quality relationship, I also realise that there is nothing left for either one of us to cling to in the hope that we could ever begin again. …
Mum, this will be the last time that I let you off the hook by being the only one willing … to take the responsibility to finally face up to the painful reality that there is no realistic chance for a reconciliation between us, and the one left to say goodbye.
Believe me Mum, I never wanted this and wished that you could have found it in your heart to continue our once close relationship in the way I suggested in the beginning.
Nardi did not explain what she had “suggested in the beginning”.
Since 1994, Nardi has not worked and states she has been receiving a disability support pension.
In about 2004, Robin retired.
In July 2006, Nardi’s daughter, Lauren, was born. In 2007, Lauren’s father, Andrew Hardwood, died, leaving neither Lauren nor Nardi any provision in his will. Nardi brought family provision proceedings in her own name and in Lauren’s, and in 2009 that litigation was settled by:
Nardi receiving $600,000 from the estate as trustee for Lauren, with the money to be used to purchase a home for Lauren. It appears that in 2012, Nardi purchased a home in Kurrajong for $745,000 with the benefit of the First Home Buyers Assistance scheme and a financial gift from Robin. As at 2022, the home was unencumbered.
Nardi receiving a legacy equal to at least just over $170,000 plus legal costs of $272,000.
John wrote an affidavit in support of Nardi’s claim. She asserted she did not want his help but claimed she “had no say over how [her] matter was being handled”, which I consider unlikely.
The tone of Robin’s correspondence to Nardi and her complaint to others about Nardi’s attitude to John remained consistent. In about 2007, Robin wrote what appears to be a draft letter to Nardi, including:
The accusations and vitriol have increased in your latest email… with threats that we are to be cut off from you and from Lauren as grandparents. ...
John is my husband of 17 years. We have together worked willingly and tirelessly for you – as parents do for their children – spending the majority of our spare time and a great deal of money to do so. He is not a second-class citizen in our marriage. … Are we just O.K. to get things you want – build stables, mend fences, be the Jack of all trades to get things done that you could not have afforded to pay for – spend John’s and my money, pay your rent etc. – but are expendable when it suits you. …
You were so worried that John married me for my money and bath-mouthed him publicly to that effect, but its you that has had a lion’s share of my money and a considerable amount of his. …You claim John has “ruined” your life. I need to remind you that neither John, nor me, nor Andrew, nor King Billy can “ruin your life”. Your choices, decisions and attitude to life’s challenges determine whether or not your life is ruined. Only you have the ultimate responsibility for and power to ruin or to make a success of your life.
Nardi reluctantly accepted that, as set out in Robin’s letter, John did provide her with assistance building stables and a shed, but her interpretation of that help was that it was in an attempt to “annoy” her, or “manipulate” her; she considered he caused her “so much grief and trauma”. Why John would take time and energy to carry out building works simply to annoy Nardi was not apparent, nor explained. Instead, it appeared from other evidence that John sought a harmonious relationship with Nardi for Robin’s sake.
Another undated apparent draft of a letter by Robin to Nardi included:
You have chosen to dismiss John and me from your life. … You claim you have felt “terrified all the time” in John’s presence and that you “don’t want his help” – yet you took it for years!
… You threatened that “if you or John contact me again, I will have a restraining order taken out on you”.
You also wrote that you “don’t care about our feelings”. This has been obvious over the years, yet we, especially John, have persevered with goodwill and kindness and much energy to help you and to create a more relaxed, family relationship with you. He has done this despite your overt and often public rudeness and nastiness to him. Nonetheless, we genuinely thought that there was more warmth, especially since Lauren’s birth than there had ever been before. …
You play the “blame game” Nardi and fail to examine your own role and responsibility…
In about June 2014, Nardi had surgery. Robin went to stay with Nardi to assist her and Lauren for a few weeks after Nardi returned from hospital. However, Robin only returned to the Wahroonga home in mid-September 2014 and shortly thereafter she signed the transfer in question.
While Robin was living with Nardi she took steps which appeared to indicate an intention to separate from John. She registered with Centrelink for a single aged pension, however there is no evidence about the application. However, John’s “notes” attached to his affidavit referred to below, indicated that Robin was eligible for the highest level of pension, because she had spent all her money “on her two children who believed [her money] was theirs”. This cannot be verified because none of Robin’s, nor John’s, financial records were in evidence.
On 28 June 2014, Nardi took Robin to a police station and a report was prepared, in which it was recorded that John was “unhappy with [Robin] … residing at the residence of the witness [Nardi] after [Nardi’s] surgery for the last eight days.” It also recorded that John “threatened to attend the location of the victim [Robin]”, but also that Robin “is satisfied with a report only made of the incident” and that the police had “no fears”.
On 30 June 2014, Nardi took Robin to see lawyers and Robin executed a new will, in which John was completely removed and Robin’s whole estate went to Nardi and Peter.
On 5 July 2014, John wrote a letter to Nardi, which she accepted she received. The letter included:
I am concerned about the state of health … of your mother. … She is also stressed and distressed by your attitude towards me.
I have asked her to come home because she cannot continue doing the work she is doing for you and living with the stress your attitude imposes on our marriage.
I am happy to offer my help to you as I have done before, and as you have accepted before. … Best wishes John Colussi
While Robin was living with Nardi, two of Nardi’s friends saw her there. Ms Heather Cumming had met Robin in about 2008 and considered her a confident, well-spoken woman. When she visited Nardi in 2014 and Robin was there, she claimed Robin said “I have left John. … I am not going back to him.” Robin also told her “I’m making sure that Nardi and Peter will get the family home when I go”. However, Ms Cumming considered that when she was with Nardi, Robin was not confident, but instead hesitant, timid and unsure of herself.
Nardi’s other friend, Mrs Michelle Darlington, had met Robin in 2012 when Nardi and Lauren were moving into their home. Mrs Darlington stated that when she visited Nardi in about mid 2014 when Robin was there, Robin “looked contented and happy”, and she complained about John and indicated she would divorce him.
In mid-2014, Nardi took Robin to Ms Audrey Diliberto’s law firm, however, she was away. Ms Diliberto had acted for Robin from between about 2007 to 2014 in relation to conveyancing and in about 2012, she provided Robin with some unidentified advice about family law proceedings against John. She also considered herself a friend of Robin’s. Ms Diliberto’s evidence was that, before 2014, Robin always presented as a well-groomed intelligent woman.
A solicitor at Ms Diliberto’s firm sent a letter to John demanding that he vacate the Wahroonga property and that Robin would be seeking a property settlement with him. It appears that after that, Robin spoke again with Ms Diliberto about family law proceedings. However, again, there was no evidence about the details of any advice, but Nardi understood her mother knew she would need to pay legal fees and a property settlement to John.
On 7 August 2014, Nardi attended a local “Women’s Cottage”. On Nardi’s “intake form” the reason for her attending was because of “DV” (domestic violence). The Cottage’s notes for Nardi on 11 August 2014 recorded that Nardi took Robin there and asserted that Robin was unable to return home because John had changed the locks. There is no evidence that is true. On 28 August 2014, Robin received approval for counselling under the Victims Rights and Support Act 2013 (NSW), however, it is not clear who made the application, what it contained, nor whether Robin attended any counselling session. However, it appears that Nardi continued to seek counselling at the same Women’s Cottage over the years until 2019.
While Robin was at Nardi’s house, John expressed concern about Robin’s well-being to various people. Geoffrey Surgeon is the executor of John’s last will. At the time of John’s death in 2022, Mr Surgeon had known him for about 27 years, and considered they were good friends. He was not challenged on his evidence that he never saw John being aggressive or overbearing towards Robin. Mr Surgeon knew John was distressed when Robin did not return from Nardi’s home, as he had expected; John had expressed worry about Robin’s mental well-being.
Nardi hates John. This upsets me. I don’t know why as he has never done anything but try and help her … My children only contact me when they want something.
Can you please telephone Robin and ask how she is doing and find out when she is coming home. She hasn’t come home as planned after a few days at Nardi’s and I haven’t been able to speak to her on the phone. Whenever I call, Nardi answers the phone and won’t let me speak to her. I drove to the farm to try and visit but Nardi called the police when I arrived so I had to leave without seeing her.
When Mr Dobson called Robin two or three times while she was at Nardi’s house, Nardi answered Robin’s phone and wanted to know who he was and why he wanted to talk to Robin. When Mr Dobson did speak to Robin, she answered his questions with one-word answers and seemed “nervous and hesitant”, which he found different to her usual conversations when she was “confident, chatty and talkative”.
Mr Dobson said that Robin told him that she knew John was worried about her “but I can’t leave yet” and on another call: “It’s difficult for me to call him when Nardi is around. She doesn’t want me to speak to John. I can’t speak freely to him with Nardi in the room”.
On one phone call Nardi said Mr Dobson could not speak to Robin and then she “launched into an attack on John, running him down and saying a lot of terrible things about him”. Mr Dobson was not surprised by this; he “already knew what Nardi was like”.
Another person who spoke to Robin was Juniper van den Ende. She considered Robin her friend, who “took on the role of grandmother to my children”. Robin told Juniper that she and John considered her their daughter, even after she separated from John’s son, Simon van den Ende.
I accept Juniper’s evidence, on which she was not really challenged. That evidence included that Robin had told her over the years from 2001 to 2018:
Nardi is always presenting me with ultimatums. She says I need to leave John or she will cut contact it me [sic].
It distresses me that they do not accept John. I have tried to do everything I can think of. It makes things with them very difficult.
Nardi got upset that John drove me to [her] property. She refuses to allow him there but I am not well enough to drive on my own … John won’t tolerate Nardi’s bullying behaviour, so she won’t have anything to do with him … I feel really sad that I cannot see [Nardi or Lauren] without all this conflict.
It is hard for me to talk to Nardi about the business when I am constantly having to defend my decision to marry John … I have told Nardi that she cannot expect my financial support if she cannot respect the choices I make about my own life.
Juniper stated that Robin often told her that Nardi had cut off contact with her, but then it would start up again.
While Robin was staying with Nardi, Juniper called Robin at John’s request. First, Nardi “went on a rant for approximately 10 minutes about John … accusing John … Nardi was hysterical”. Juniper indicated that she sometimes agreed with Nardi to try and appease her.
Significantly, while Juniper was on the phone to Robin the following was said:
Juniper: Hi Robin how are you?
Robin: Oh I’m just terribly tired by it all.
Juniper: I’ve spoken to John and he’s worried about you, are you and John separating?
(At this time I could hear Nardi in the background saying “Yes she’s going to leave him, she’s leaving him”)
Juniper: Whatever you want to do Robin I will support you.
Robin: Thank you that’s very kind I appreciate that.
[At Nardi’s place] I was starting to feel like a hostage there, I felt bullied and confused all the time. It was really hard to communicate with Nardi, and it was only getting worse with my condition [Alzheimer’s].
… John is caring for me well … I trust him to do continue to care for me when it gets worse so that’s been a relief [sic].
After Robin returned to the Wahroonga home in September 2014, she and John attended Ms Diliberto’s office without an appointment. During that attendance, Robin did not greet or speak to Ms Diliberto. Ms Diliberto recalled noticing that Robin was dishevelled and Ms Diliberto was “horrified” by the interaction. According to Ms Diliberto, John was “loud and aggressive” and accused Ms Diliberto of colluding with Nardi and Robin to have Robin leave him. John thereafter complained about Ms Diliberto to the Legal Services Commissioner; the complaint was later dismissed. Ms Diliberto did not have any contact with Robin after that day.
After Robin returned to Wahroonga, Ms Cumming and Mrs Darlington made a few attempts over a few days to speak with her.
Ms Cumming claimed John answered the phone and wanted to know who she was and why she wanted to speak to Robin. Ms Cumming said when she did speak to Robin she said:
I am fine. Can you please apologise to John for not telling him who you are and how you know me. He is upset that you are suspicious of him.
Hello Heather, who are you? I am very suspicious of you and of who has been talking about me to you. … I am Robin’s husband and I have every right to say who will speak to my wife. … How do you know my wife? Is Nardi putting you up to this?
Ms Cumming sent some text messages to Robin’s phone and received responses she considered to have been sent by John.
Ms Cumming did not give any evidence that she ever attempted to contact Robin again. Since that time, Nardi claimed Ms Cumming has unfriended her on Facebook and has no contact with her.
As with Ms Cumming, Mrs Darlington tried to call Robin, but claimed a man answered the phone and wanted to know who she was and why she was calling Robin and then hung up. Apparently once in October 2014, she did speak to Robin who “spoke very quietly and was stammering” and possibly “whimpering” but could not recall any response when she offered to go with Nardi and pick her up, and the phone call ended.
Mrs Darlington did not indicate that she told Nardi of this or made any other attempt to contact or see Robin.
At some time around then, John wrote a letter to Nardi including:
Now that your mother is back from the last two months’ assistance to you and the problems that have been generated, we would like to establish our relationship on an agreed, constructive basis.
I am asking of you that you accept your mother’s and my relationship for what it is, wife and husband. I am asking you to treat both of us with the normal basic courtesy. We do not expect you to treat us demanding [sic] that one of us be excluded from your relationship. Our marriage is not subject to your approval.
I am also asking you that you stop badmouthing us, and especially me … This behaviour is destructive of you, damaging to Lauren, humiliating to your mother and offensive to me. It also gives all of us, and especially you, a bad name.
…
Feeding off hatred and taking pleasure in the ills of others, true or imaginary, is destructive of all concerned, but especially of the one doing it. The most damaged and innocent victim is Lauren. …
Nardi’s evidence was that Robin told her “John and I are going to give it another go” and that the police reported to Nardi that Robin “had advised she would stay”. After that, despite claiming she had concerns for Robin’s welfare and that John was “manipulating” her, Nardi did not make any attempt to see Robin until 2019, as detailed below.
On 20 October 2014, a solicitor, Ms Susan Kirkby, was contacted by a financial planner, Scott Herrald, who asked if Robin could go and see her about a power of attorney. On the same day, Robin and John attended her offices. Her recollection was that “Robin did very little talking and seemed a little over awed by the presence of [John]. He did all the talking and he had a fairly direct tone to his voice”. John asked for the certificate of title to the Wahroonga property and Ms Kirkby carried out searches without finding where the title was held.
I do not accept that Ms Kirkby’s evidence demonstrates that John was overbearing Robin. Being “direct” is neutral and it is unclear what Robin being “over awed” was intended to convey. Ms Kirkby did not state she had any impression that Robin did not agree with what John was saying or was prevented from saying anything.
On 21 October 2014, Robin executed a transfer of the Wahroonga property, with the result that she and John were registered as joint tenants. There is no evidence whether she obtained specific legal advice about the transfer; her signature was witnessed by a local justice of the peace. However, over the years, Robin had bought and sold many properties and around the time of the transfer she appears to have sought advice from lawyers and a financial planner, the details of which were not in evidence.
In late 2014 or early 2015, Robin and John went to Adelaide to visit John’s son, Mr Simon van den Ende, who also considered himself Robin’s stepson; he referred to them as his “parents” who “trusted [him] implicitly”. During that visit, John and Robin discussed Simon becoming their executor.
Simon was not challenged on his evidence that John explained that Robin had placed John’s name on the title to the house because they had concerns that Robin’s children who were “money grabbers” would try and control the property.
I note that Nardi did give evidence that at some point she intended to go to the “guardianship board … to try and get help for Mum … and get my power of attorney and … enduring guardianship back for Mum, and I needed help against [John]”.
I accept Simon’s evidence that he had a private conversation with Robin during the visit, during which he checked with her that he had understood her wishes.
Although there was no clear evidence of the timing of the diagnosis, it appears that in about late 2014 Robin was diagnosed with early onset dementia. On 19 December 2016, Robin executed her final will, which was witnessed by a lawyer, in which John was left all of her real and personal property, should he survive her by 30 days. In about 2016, John was diagnosed with bowel cancer and commenced treatment.
Ms Elisabeth a’Donau-Szpindler, Mr Dobson’s partner, considered herself a close friend of Robin and became her carer at times when John was in hospital and unable to care for her. I prefer her evidence to Nardi’s about her relationship with Robin. I accept her evidence that Robin told her she was disappointed about her time at Nardi’s place, where she could not talk to anyone because Nardi was there. Ms a’Donau-Szpindler considered Robin was depressed and sad when she returned from Nardi’s place.
Mr Dobson’s opinion was that after her stay with Nardi, Robin was never quite the same again, she was less confident.
Mr Surgeon considered that after Robin returned from Nardi’s, she looked “vacant and confused” and that her mental state had considerably declined. Thereafter, Mr Surgeon went over to Robin and John’s house at least three or four times a week and he saw Robin decline over that time until she moved to a care facility in 2019.
It is impossible to know with certainty the exact timing or cause of the change in Robin noticed by her friends; possibilities other than John “manipulating” her are that Nardi had been overbearing, or Robin was suffering what Ms a’Donau-Szpindler referred to as depression or her dementia. I note in an unsigned typed letter to the Windsor Police Station dated 15 February 2015, stated to be from Robin, reference is made to suffering from a “major depressive disorder” diagnosed by a psychiatrist. However, there was no medical evidence whatsoever about Robin’s mental or physical health or cognitive capacity at any time.
On 8 July 2019, John wrote a letter to Nardi and Peter including:
NARDI – Your recent approach to the police hurt your mother and annoyed me. It ignored my many letters to you to keep you informed about your mother’s health. I showed those letters to the police. As a result, in future I will no longer provide you with updates on your mother’s health.
For the thirty years of our marriage you gave much pain to your mother and whenever you were pleasant to her it was never without exacting a return from both of us (work, money, flat, horses, stables, home and health assistance, care of Lauren…) and when you did not get what you wanted [you] resorted to retaliation and threats, even threats of suicide, the first time in a letter to your grandmother. …
Your mother has kept all this correspondence, including Lauren’s emails and a recording of her anguished plea for a phone-call from her grandmother… which you refused.
… You can have access to your mother, but only on condition that you do so for the sole reason of pleasing her…
Soon it may be too late. You will, then, be left only with memories of hatred and regret… especially for Lauren who, one day, will discover the truth. Remember, Nardi, if you teach your daughter to hate, one day she may end up hating you.
Ciao.
In November 2019, Robin moved into a care facility.
On 2 November 2021, Robin died at the age of 87. On 15 June 2022, her 2016 will was admitted to probate without any challenge from Nardi.
On 20 August 2022, John sold the Wahroonga property. On 3 September 2022, John died.
On 1 November 2022, Nardi commenced proceedings seeking Court ordered provision under s 59 of the Succession Act 2006 (NSW). Peter Rowe has also brought a family provision claim.
In 2024, Nardi added to her claim, by seeking to set aside Robin’s transfer. On 4 April 2025, Kunc J ordered that Nardi’s claim concerning the transfer be heard as a separate question before her family provision claim.
The doctrine of undue influence is concerned with the prevention of the “unconscientious use of any special capacity or opportunity” for a party to affect the weaker party’s “will or freedom of judgment” in relation to the transaction: Johnson v Butress (1936) 56 CLR 113 (Johnson) at 134 (Dixon J). Its focus on the “quality of the consent or assent of the weaker party” distinguishes it from the related, but distinct, doctrine of unconscionable conduct: Thorne v Kennedy (2017) 263 CLR 85 (Thorne) at [86] (Gordon J); see also DA Pittavino, The Laws of Australia (2024, Thomson Reuters) at [35.8.10].
Undue influence may be proved by “direct evidence of the circumstances of the transaction” or by presumption: Thorne at [34] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). The former requires the alleging party to demonstrate that the transaction was the result of “actual influence over the mind of the [weaker party] that it cannot be considered [their] free act”: Johnson at 134 (Dixon J). Undue influence may be presumed when suggested by “common experience”, and particularly where (a) the person is proved to be in a particular relationship, and (b) the transaction is one, commonly involving a substantial benefit to another, which cannot be explained by ordinary motives or is not readily explicable by the relationship of the parties: Thorne at [34] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
Nardi’s case was one of undue influence in the particular circumstances, not from any presumption; she accepted she must prove that John exercised actual undue influence over Robin when she signed the transfer. I was invited to infer that because of the “circumstances”, or “snippets of events”, the transfer was not the result of Robin’s free and deliberate judgment: Thorne at [33] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ), quoting Johnson at 126 (Starke J).
The “circumstances” or “snippets of events” were said to be that:
Robin and John had been married for 24 years at the time of the transfer, during which period Robin remained the sole registered proprietor of the Wahroonga property.
Robin and John had been separated for a few months before the transfer.
There was an apparent absence of legal advice on the transfer, and no consideration given by John.
Robin was suffering from dementia.
Robin had previously made a will in mid-2014 leaving her estate to Nardi and Peter, and the effect of the transaction was to “possibly deprive the estate of significant assets”.
Witnesses had seen and heard:
(a) John being angry on occasion and Robin being timid and quiet in his presence; (b) Robin and/or Nardi complain about John’s conduct towards Robin.
John allegedly wrote Robin’s correspondence.
As I explain below, in circumstances where there is no evidence of John exerting actual influence over Robin at the time of the transfer, even if the “snippets of events” relied on by Nardi were accepted, they are not sufficient to discharge her onus.
Nardi has experienced some difficult circumstances during her life. According to her, she has had a “history of violence and grief”. She says she witnessed her late birth father, Mr Bakker, abusing her younger brother sometimes multiple times a day.
In 1975, Nardi changed her surname from Bakker to Rowe. She wrote to Robin after Terry Rowe’s death, that Terry gave her the “opportunity to correct my father’s image”. In contrast, she hated John and did not want to have anything to do with him. Nardi had a fractious relationship with Robin. It may well be that Nardi was disappointed when John came into Robin’s life after Terry’s death, as she had less time for Nardi and she stopped being so forthcoming with financial assistance for Nardi.
Nardi likely believes her evidence and what she has communicated to various other people over the years. However, I do not accept her evidence about John or Robin, where there is contradictory evidence. She was an unimpressive witness and made many rambling non-responsive statements in cross-examination to the following effect, and in relation to which there was no objective evidence:
John hated her and was “dangerous” to her. The nature of the “danger” was not explained, and the other objective evidence is to the contrary.
On the last occasion Nardi visited the Wahroonga property in the 1990s, John (who was Italian) cooked her food she did not like containing olives, anchovies and sardines, in relation to which she said: “I couldn’t leave with [Robin’s] the car until I ate it. I mean, what - who wants to be degraded like that”.
She did not believe John’s letter updates to her about Robin’s declining health from 2014 to 2019, even though she never visited Robin during that period. He considered John’s updates were attempts to manipulate not only Robin, but also her, for “power games” and to “get access” to Lauren. It is unclear the benefit John would have received from any access to Nardi or Lauren. Instead, it appears from letters signed by Robin that she wanted to see both of them, but Nardi refused, unless it was on her terms of John being excluded.
Nardi alleged that letters were written by John for Robin, from which it ought to be inferred that John controlled Robin. In particular, Nardi relied on one letter in June 2014 where there were some notes written by Robin:
Wrote while John dictated
This was written by John & dictated to me to write it as if it had come from me…
However, I do not accept that it can be inferred when and why Robin made those notes about John assisting her. Robin gave Nardi another typed version of a similar letter. However, the typed letter contained significant changes, such as from the handwritten “I will not come to your place if exclude [sic] John from being with me” to the typed “I’ll get to your home in your car and I’ll go back with John if you do not agree to respect my marriage to him”. One interpretation is that John did assist Robin with the first handwritten version of the letter, but she changed the typed version, which contained sentiments consistent with Robin’s earlier letters in 1989 and 1992.
I do not accept it can be inferred from that one letter, or at all, that John generally wrote Robin’s correspondence and that demonstrated that he had some control over her. Robin was a successful and intelligent businesswoman and there is no reason to think she was unable to write her own letters to her daughter, or that she disagreed with any input John had to those letters, if it occurred.
I accept Ms Diliberto’s evidence, as outlined above. However, I do not accept that it ought to be inferred that because of John’s behaviour with Ms Diliberto on a particular day, he was inappropriately causative of the transfer for the following reasons.
First, it may well be that John believed that Nardi had taken Robin to see lawyers and that she manipulated or encouraged Robin to leave him. While that would not excuse rude behaviour towards Ms Diliberto, it may provide a reason for it.
Secondly, witnesses called for John’s estate, Mr Dobson, Ms a’Donau-Szpindler, and Mr Surgeon, were close friends of John and Robin. As outlined above, their unchallenged evidence was that, in about July 2014, John was very concerned about Robin’s unexplained failure to return to their Wahroonga home after Nardi’s operation, and they found it difficult to speak to Robin while she was with Nardi, as did John.
On 18 August 2022, John affirmed an affidavit in Peter Rowe’s family provision claim, which was served on Nardi’s lawyers in January 2023, after John had died. In that affidavit, he indicated that he had been diagnosed with a terminal illness and was not “expected to survive much longer”.
He annexed to his affidavit a 6-page document he had prepared “some months” before, outlining the “unfortunate and very strained relationship between [Peter] and [Nardi] and their mother”. Nardi engaged with the assertions in that document. It is apparent from other evidence that not all John’s assertions, dates or facts were accurate. It is not possible to know John’s mental or physical state at the time he prepared that document. However, the statement generally provides a version of events quite different to that of Nardi concerning Robin, but is supported to a large extent by the defendant’s witnesses and other documents.
The weight of the evidence around the time of the transfer was that Robin and John had reconciled and she wanted to live with him and for him to care for her. Robin had earlier received legal advice about family law proceedings and domestic violence, but informed Nardi and the police she wanted to stay with John.
While I accept John appeared angry at times after Robin returned home to him, I do not accept that his anger was directed at Robin. I do not accept his behaviour on certain occasions affected Robin’s decision to execute and register the transfer.
There was no clear evidence that Robin was suffering any medical impediment at the time. In fact, Nardi disbelieved John’s updates on Robin’s declining health until 2019.
The other matters relied upon by Nardi can be explained in ways other than inferring that Robin’s will was somehow affected by some unspecified pressure from John.
It appears that at the time, Robin’s financial situation was that her primary asset was her home. Nardi and Peter had received Robin’s significant financial support their whole lives but had had fractious relationships with Robin. It is entirely plausible that Robin was engaging in estate planning when she signed the transfer. She had attended a financial planner. After the transfer she also later saw lawyers to prepare a will. She spoke to Simon about being their executor. The effect of the transfer was that even though Robin’s then will left her estate to her children, if she predeceased John, then he would become the owner of their home of 24 years.
Therefore, I do not accept that John exerted actual influence in relation to the transfer, which can be readily explained by reference to ordinary motives and the relationship between Robin and John: see Thorne at [34] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
My submission is much to be inferred from that as to the overbearing nature, which is likely to have been exercised on Robin Rowe in making the transfer.
Those submissions elided the distinction between unconscionable conduct and undue influence: Thorne at [86] (Gordon J) and [40] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); see also Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (Amadio) at 462 (Mason J) and 474 (Deane J).
Unconscionable conduct is concerned with an unconscientious taking advantage by one party of some special disability or disadvantage of a weaker party which seriously affects the ability of the weaker party to make a judgment as to their best interests: Amadio at 474 (Deane J); Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 (Kakavas) at [118] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ). Knowledge of the existence and effect of the special disadvantage must be established, which could include wilful ignorance: Thorne at [38]; Kakavas at [156]. It may also include constructive knowledge, although that is a matter of some debate: see eg Nitopi v Nitopi (2022) 109 NSWLR 390 at [6]-[9] (Bell CJ).
Nardi relied on two cases involving unconscionable conduct in the context of a personal relationship. First, in Louth v Diprose (1992) 175 CLR 621 (Louth), Deane J at 638 considered Mr Diprose to be under a special disability because of his “infatuation” with Ms Louth and his
extraordinary vulnerability … in the false ‘atmosphere of crisis’ in which he believed that the woman with whom he was ‘completely in love’ and upon whom he was emotionally dependent was facing eviction from her home and suicide unless he provided the money for the purchase of the house.
Secondly, in Thorne, Ms Thorne was subject to a special disadvantage in relation to her entry into pre-nuptial and post-nuptial agreements with Mr Kennedy because he had “created the urgency with which the pre-nuptial agreement was required to be signed and the haste surrounding the post-nuptial agreement and the advice upon it”, leaving Ms Thorne “powerless, with what she saw as no choice but to enter the agreements”: Thorne at [64]-[65].
Here, Nardi claimed Robin’s special disability was that she was “susceptible to [John’s] influence”. No explanation was given for how that disability arose or what impact it had on Robin’s ability to decide in her own best interests in relation to the transfer. There is no evidence that John exerted any influence or pressure on Robin or created any false sense of urgency in relation to the transaction so as to give rise to a special disability as understood in Thorne and Louth. Further, even if Robin was under the alleged disability, there was no pleading, nor evidence, that John was aware of (or wilfully disregarded) the disability or his influence, if it existed.
As I have explained above, in the context of the claim of undue influence, I accept that the transfer was entirely explicable and fair, just and reasonable in the circumstances where Robin had been married to John for 24 years.
On the contingency that the above conclusions are erroneous, I deal with the defence of laches to the equitable claim.
The defence of laches requires knowledge of the wrong, delay and unconscionable prejudice to the opponent by the delay: Sze Tu v Lowe (2014) 89 NSWLR 317 at 391 (Gleeson JA, Meagher and Barrett JJA agreeing). The question is whether, in the circumstances, “it would be practically unjust to give a remedy”: Crawley v Short [2009] NSWCA 410 at [164] (Young JA, Allsop P and Macfarlan JA agreeing), citing Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221 at 239–240 (Lord Selborne LC).
The defendants initially asserted that Nardi had knowledge of the transfer from, at the latest, June 2022 because she gave instructions it was made “under duress”. Defendants’ counsel submitted that must be the relevant date from which to judge the defence of laches.
However, in oral closing submissions, the defendants’ counsel accepted that the relevant delay was between (a) Nardi’s lawyers making assertions in May or June 2022 that the Wahroonga property was held on constructive trust for Robin and (b) John’s death in September 2022, after which time he was not available to answer the allegations. He frankly conceded that this was “not his strongest point”.
I do not accept that Nardi can be said to have delayed, such as to make good the defence of laches. I consider she had acted with appropriate haste. It was incumbent on the solicitors to ensure they had a proper basis to make a claim about the transfer, and that was delayed by the unfortunate medical issues suffered by the solicitor with carriage of the matter.
Further, there is no basis to conclude that Nardi ought to have acted more swiftly because was aware that John had terminal cancer before his death. While she understood earlier that he had cancer, she did not know the extent or his prognosis until January 2023, when his August 2022 affidavit was served on her lawyers. By that time, John had died and it cannot be said that there was unconscionable prejudice to his estate by reason of Nardi’s delay in commencing the proceedings.
For the above reasons, the appropriate orders are:
Prayers for relief 2, 3, 4 and 5 in the Statement of Claim filed on 16 May 2024 are dismissed.
Plaintiff to pay the defendants’ costs.
Grant liberty to the parties to apply for an alternative costs order within seven days of today's date, setting out the application and any evidence and submissions of no more than 3 pages upon which they rely.
Should such an application be made for an alternative costs order, the responding party is to provide evidence and submissions of no more than 3 pages opposing any alternative costs order within 7 days of receiving the first application.
The Court will determine any such alternative costs application on the papers, if appropriate.
Matter listed for directions before the Registrar in Probate on 30 October 2025.
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Rowe
Van Den Ende [2025] NSWSC 1183
(1983) 151 CLR 447
(1936) 56 CLR 113
(2013) 250 CLR 392
(1992) 175 CLR 621
(2022) 109 NSWLR 390
(2014) 89 NSWLR 317
(2017) 263 CLR 85
Two friends called Robin at John’s request, Mr Ian Dobson and Ms Juniper van den Ende.
Mr Ian Dobson had been Robin’s friend and met John through her. I accept his evidence, as follows.
Robin had told Mr Dobson in many conversations over the years that Nardi did not like John and that she often said: