SHEPHARD -v- TUANIE PAUL GALEA as executor and trustee of the estate of THE LATE JOSEPH GALEA [2020] WASCA 152 (11 September 2020)

1. The claim of unconscionability suffers from the same defects as the undue influence claim. Your client must prove that her father was vulnerable, in the legal sense, to a stronger party. Whilst the onus will shift to the defendants if your client is able to show that [Joseph] was vulnerable, there is no evidence at all that supports the assertion that he was vulnerable, so your client's case will fail at that hurdle.
2. The fact that your client had no contact with her father during the last 4 years of his life does not mean he was vulnerable, it means that she has no personal evidence on which she can rely to establish vulnerability. She is not assisted by the evidence of her brother Mario or her husband and son, the sum total of which is that none of those witnesses had any contact during the relevant period so can say nothing as to vulnerability. Assertions in a statement of claim do nothing to improve the paucity of the evidence your client has to rely on.
3. Furthermore, even if the court were to take the view that there is a scintilla of evidence of vulnerability, the fact that [Joseph] consulted Mr Levitan regarding the transaction as well as Ms Leon's evidence, the medical evidence at the time of the transaction and Mr Brook's file notes clearly demonstrates that [Joseph] entered into the transaction with full understanding, cognitive ability and consent.
4. Consequently, it is our view that your client simply cannot succeed in meeting the threshold necessary to reverse the onus, and even if she can, the independent evidence clearly establishes no unconscionability.

1. Your client pleads that [Joseph] had $200,000 as at August 2011, in a locked drawer at his home in Bassendean. As we understand your client's evidence, she has not been to [Joseph's] home since June 2011 and had apparently not entered the house since some date prior to that. She gives no evidence at all which could be the foundation for the plea in paragraph 25 of the statement of claim. None of the remaining evidence filed on your client's behalf, assuming it is admissible, provides a foundation for the plea.
2. Furthermore, if we assume that your client is ultimately able to prove that in August 2011 [Joseph] had $200,000 in cash in a locked drawer in his home, the proof of that does not advance your client's case to the point that the first defendants are liable to account for those funds; to do that you will need to prove that he had the funds at the time of his death in September 2015, over 4 years later.
3. You have seen the affidavits of the defendants in which both say they conducted a thorough search of the house and could not locate any sum of that nature, consequently there is no evidence that any significant sum of money existed in the house at the time of his death. There can be no accounting for funds which did not exist.
4. As your client should be well aware, [Joseph] was entitled during his life to spend his money as he chose. During his lifetime [Joseph] owed no obligation to account to your client, our clients or any other person for what he did with his money. In short, the defendants do not know and cannot account for [Joseph's] spending during his lifetime and nor are they obliged to account for him.
5. This part of your client's claim is bound to fail.

1. The claim for an account of the proceeds of sale of the Moat Street property in March 2014 must also fail. In summary:

(a) your client has sought an account of the proceeds, which she is not entitled to, but in any event, the proceeds of the sale have been fully accounted for in the affidavits filed by the defendants in these proceedings;

(b) [Joseph] was entitled to gift part of the proceeds he received from his children to our clients, or anyone else he chose, during his lifetime and was not liable to account to your client or any other person for that;

(c) the executors are not liable to account for an inter vivos gift of [Joseph]; and

(d) there is no pleaded basis for your client or the estate having any interest in the proceeds of the sale as they did not form part of the estate, having been part received by [Joseph] over 18 months prior to [Joseph's] death. (emphasis added)

1. The article by Ms Burns, referred to in par 3 of the letter of 8 June 2018, included the following:[318]

[A] claimant may be able to set aside a transaction by convincing the court of the existence of a special relationship of influence without proving that undue influence was actually exercised ...

[T]he presumption arises without the need to prove that the defendant is guilty of any wrongdoing whatsoever. Rather, the central issue is the plaintiff's lack of capacity for self‑management by reason of their excessive dependence on the other person in the relationship ...

Although the relationship between an elder and his or her adult child does not result in an automatic presumption of undue influence, it is open to an elder to prove that as a matter of fact there was a relationship of trust and confidence between himself or herself and the relative or caregiver. Courts have made it clear that the 'normal' or commonplace relationship between elderly parents and adult children will not be sufficient evidence for a presumption of relational undue influence ...

In Johnson v Buttress, Dixon J pointed out that parties must stand in an antecedent relationship which gives one person an authority or influence over the other so that the weaker party must be protected from the possibility of abuse. In practice, courts in Australia and New Zealand have set a high standard for proof of an antecedent relationship of trust and confidence where elders are concerned. Generally elders had to demonstrate a physical, emotional and/or financial dependence on the defendant. An elder will be dependent upon a relative or caregiver if the elder relies on that person for the basic necessities of life, leaves the management of their financial affairs in that person's hands and/or is incapable of looking after himself or herself without the intervention of the relative or caregiver. Severe physical or mental impairment can be an important factor leading to the conclusion that the elder is dependent ...

However, where an elder is unable to show the level of dependence illustrated above, it has been difficult to raise a presumption of relational undue influence ... Indeed it could be said that where the elder lives independently and is self‑reliant, courts are reluctant to find a presumption of undue influence at all[.]

1. The judge, amongst other things, said:[319]

For present circumstances, I am of the view that this action, unlike the 'case of substance' assessed by the trial judge in Lo Presti v Ford [No 2], was never a case of arguable merit. Here, it cannot be reasonably suggested in my view that, properly advised, this plaintiff at 8 June 2018 might legitimately have thought that she held a reasonably arguable or respectable cause of action - predicated upon the twin undue influence or unconscionable conduct causes of action ...

In the primary reasons, I collected all [Georgina's] trial evidence, which, apart from documents, essentially came from herself, her husband, her son, her brother Mario plus from her uncle Angelo (see primary reasons [13] - [16]). But none of that came close to being enough. There had been real substance in the 8 June 2018 Calderbank offer criticisms by the defendants to the effect that none of these persons appear to have been in regular contact with [Joseph] (after the passing of his wife ‑ their mother) ‑ for the purposes of providing some substantively direct trial evidence bearing on making good those twin causes of action against the defendants.

...

Here, the twin causes of action directed against the defendants, in my view, were allegations of serious misconduct. The defendants were also of course the named executors under [Joseph's] will which had been admitted to probate.

Where then, was the factual (not necessarily strong, overwhelming or conclusive, but respectably persuasive, potentially) evidence held in the hands of [Georgina's] lawyers which could provide some proper basis to sustain serious misconduct allegations of undue influence and unconscionable conduct? Nothing is evident other than internal family squabbling and suspicions. No submission is put to me now by [Georgina] that her case had once looked a lot better for her back in June 2018 ‑ but then later had deteriorated before trial, due to a loss of a key witness or something like that. Her case on what I saw at the trial was always deficient. Properly advised, this action should not have been convened until such a platform of evidence was held.

The 8 June 2018 Calderbank offer pointed out at length the forensic difficulties manifesting for a then future trial - as regards proving undue influence and the absence of any presumption favouring [Georgina]: see pars 4, 5 and 6. As regards unconscionable conduct, the absence of any evidence persuasively pointing to [Joseph's] relevant special vulnerability, was rendered explicit: see pars 7, 8 and 9. All this was seemingly ignored as [Georgina] pressed on to a trial valley, resonating with Tennyson's verse for the Light Brigade's charge.

At par 9 of the 8 June 2018 Calderbank offer, express attention was directed towards the evidence of [Joseph's] legal representative - who prepared his penultimate and final wills, Mr Melvyn Levitan, concerning how that evidence would demonstrate [Joseph's] full understanding, cognitive ability and consent. How could that likely evidence therefore be ignored or downplayed?

Faced with all that the adverse looming trial evidence from [Tony and Carmen], including evidence from Mr Levitan, loud warning bells should then have been tolling for [Georgina].

Yet the tenor of [Georgina's] position under her present costs submissions is that subsequent to the 8 June 2018 Calderbank offer, more evidence emerged from [Tony and Carmen] which rendered [Georgina's] (assumed) arguable undue influence and unconscionable conduct cases to become vulnerable to be lost at trial. That submission, however, wholly displaces and ignores the fundamental starting responsibility of a plaintiff and their legal advisers to gather together at least some respectable body of evidence to support a trial position concerning serious allegations of undue influence and unconscionable conduct in order to plead that at all in the first place - before starting a litigious war to follow.

In the present circumstances, a proper level of trial preparation for [Georgina] at a time 15 months after issuing the writ would at least have envisaged trying to get a statement of evidence from the longstanding general medical practitioner of [Joseph] (Dr Sciberras) upon [Joseph's] cognitive capacity. Dr Sciberras' affidavit evidence (at trial he was not required for cross‑examination on his affidavit) was, of course, totally inconsistent with [Georgina's] advocated case theory of [Joseph] as an emotionally fragile and incapable old man, that was effectively 'putty' in the hands of his manipulative younger children. No medical evidence supported that theory. (emphasis added)

The fourth factor contended [by Georgina was] that this was a heavily factual case depending upon the ultimate factual findings of the trial judgment. That submission does not, in my view, engage against what was coherently put to [Georgina] on 8 June 2018 - as regards the substantive demerits at trial of her undue influence and unconscionable conduct causes of action, viewed at that time. At that time, [Georgina] after 15 months essentially had nothing of an evidentiary persuasive nature other than what appeared to be beliefs held on her side by members of her direct family. That position needed to be coolly and unemotively weighed against looming trial evidence from Mr Levitan as to [Joseph's] unimpaired cognitive capacity around the time he made his last will and after. Evidence from the settlement agent, Ms Leon, who transferred the Bassendean family home to the second and third defendants on the deceased's instructions, concerning her practices and the independence prerequisites that she required from someone seeking to transfer property in circumstances of [Joseph], was also likely to be problematic for [Georgina]. None of that supported [Georgina's] twin causes of action.

Hypothetically, for instance, if [Georgina's] solicitors had obtained a statement from Dr Sciberras, as [Joseph's] long standing general practitioner, to gain at least some foothold of evidentiary support for their contentions as regards [Joseph's] cognitive impairment, emotional fragility, or some level of special vulnerability, then that might have been said to be a countervailing factor for [Georgina] to put against the present application.

But [Georgina] never held any evidence of that nature. Indeed, the medical evidence at the trial about [Joseph] from Dr Sciberras was overwhelmingly to the contrary and uncontested.

It is one thing for a plaintiff to hold a respectively arguable case predicated upon evidence that proves later to be discredited at a trial. It is quite another to not hold any independent supporting evidence and run a four day trial in the Supreme Court on belief or hope.

On my assessment, there was no point at which this plaintiff possessed some body of potentially persuasive independent evidence to support her twin causes of action. As I assess matters, this case should not have been started - especially given the pre-requisite standing requirement of showing special or, exceptional circumstances for a derivative action. That requirement was 'bootstrapped', as I earlier explained. (emphasis added)

1. The question of error is to be determined in accordance with the principles in House v The King.[321] The effect of the grounds is to allege (1) express error, and (2) inferred error in the sense that the conclusion that the rejection of the Calderbank offer of 8 June 2018 was unreasonable was one which was 'unreasonable or plainly unjust ... [and] that a substantial wrong has in fact occurred'.[322]
2. As to the first ground, express error is alleged in two respects:
   1. The judge acted upon a wrong principle in that he considered that because the relationship between Joseph on the one hand and Carmen and/or Tony on the other was not one of the established categories of presumptive undue influence, Georgina necessarily had to establish the existence of actual undue influence.
   2. The judge mistook the facts, in that he failed to appreciate that Georgina's case was premised on the existence of an antecedent relationship of influence, notwithstanding that the relationship was not within an established category.
3. Whether the judge made the express errors imputed in the first ground depends, in substance, upon a proper construction of the judge's reasons in the costs decision.
4. His Honour's reference[323] to the 8 June 2018 letter pointing out 'forensic difficulties manifesting for a then future trial - as regards proving undue influence in the absence of any presumption' is, arguably, capable of being read as the judge making the error of assuming that because the relationship between Joseph and Tony and/or Carmen did not fall within the recognised categories of presumptive influence, Georgina necessarily had to establish actual undue influence.
5. On the other hand, it is also arguable that his Honour's reference in that regard, read in the light of pars 2 and 3 of the letter of 8 June 2018, and the reference in the letter to 'relevantly' in the last sentence of par 3 of the letter, is to be understood as accepting that absent viable grounds for an inference of a relationship of presumptive influence, Georgina had to establish actual undue influence. On balance, the latter construction of his Honour's reasons is to be preferred.
6. At the outset, it should be observed that the inference of error ought, prima facie, not be too readily drawn, given that the judge (as explained in [128] ‑ [129] above) had dealt with the claim for presumptive undue influence in the primary decision, and it could not easily be inferred that his Honour was unaware of, or had forgotten that in the costs decision. That is particularly so where the judge's remarks, referred to in [180] above, were immediately preceded by a paragraph including the statement that, 'Her case on what I saw at the trial was always[324]ficient'.324
7. Further, his Honour had been involved in case‑managing the litigation and may be taken to have been familiar with its procedural history. As counsel for Tony and Carmen in effect submitted, as at 8 June 2018, Georgina's pleading of an antecedent relationship of influence lacked the clarity with which it emerged in the later pleading. The 2017 statement of claim did not, in terms, refer to an 'antecedent relationship' (unlike the statement of claim at trial), and did not clearly distinguish between claims for presumed undue influence and actual undue influence.[325] The 2017 statement of claim pleaded (amongst other things):
   1. that Joseph lacked independent legal advice - a plea that may contribute to an inference of actual undue influence,[326] and, moreover, is commonly made by defendants in rebuttal of a pleaded claim of presumed undue influence;[327]
   2. reliance on the fact that Tony and Carmen were the 'lawful' children of Joseph as contributing to a relationship of trust and influence for the purposes of undue influence;
   3. that Joseph lacked familiarity with English; and
   4. that after Josuarda died, Joseph was unable to live at home without assistance.
8. By the time of trial, Georgina had withdrawn from the statement of claim the allegations referred to in points 1 ‑ 4 above.
9. The 2017 statement of claim did not plead (1) the fact of the power of attorney given to Carmen and Tony, (2) the allegation that Tony was authorised to conduct Joseph's legal affairs, and (3) the assertion that Joseph had authorised Carmen to receive his confidential legal documents by email from his solicitors.[328]
10. In the costs decision the judge found, in effect, that as at 8 June 2018, the affidavit evidence filed by Georgina indicated that the witnesses had little or no personal knowledge of the alleged social, physical or financial dependence of Joseph, particularly given their limited contact with Joseph after Josuarda's death.[329] On the other hand, Georgina, by that stage, had been served with evidence filed by Tony and Carmen to the effect that Joseph was not socially isolated (which included evidence from Father Leong), as well as evidence from Mr Levitan, Ms Leon, and the medical reports dated 5 and 19 September 2011 of Dr Sciberras (attached to the statutory declaration). The judge found that Dr Sciberras' evidence (the kernel of which was contained in his documents dated 5 and 19 September 2011) was 'totally inconsistent with [Georgina's] ... case theory of [Joseph] as an emotionally fragile and incapable old man, that was effectively "putty" in the hands of his manipulative younger children'.[330] Moreover in this context, the judge noted that it was not as though Georgina's case unexpectedly took a turn for the worse because she lost a material witness between 8 June 2018 and the trial.[331]
11. The better view of the costs decision, read as a whole, is that the findings referred to in the preceding paragraph addressed Georgina's claim for undue influence, both presumed and actual. These findings in turn form part of the context in which the judge's reference, outlined in [180] above, is to be understood.
12. In light of the matters in [181] ‑ [187] above, we are not persuaded that his Honour made the first express error imputed to him, when the costs decision is read as a whole.
13. Nor would we infer that the judge mistook the facts, insofar as it is alleged that his Honour 'failed to appreciate' that Georgina's case was 'premised' on the existence of an antecedent relationship of influence, notwithstanding that the relationship was not within an established category.
14. As at 8 June 2018, Georgina's pleaded case was not 'premised' on a claim for presumed undue influence. Although it may be accepted that the 2017 statement of claim included (albeit without the clarity of the later pleading) allegations referable to such a case, in substance, the 2017 statement of claim treated the claim for undue influence generically. The other pleaded claims involved unconscionable conduct and the alleged failure to account. The judge's observation that the materials sought to be relied on by Georgina were 'always deficient', may be read as applying to the generic claim of undue influence, whether allegedly arising from a relationship of presumptive influence or from the exercise of actual undue influence.
15. Ground 1 has not been established.
16. In relation to ground 2, we see no error in the judge's assessment[332] of the first, second, third, fifth and sixth factors outlined as ordinarily relevant in Ford Motor Company of Australia Ltd v Lo Presti.[333] As to the fourth Lo Presti factor (the offeree's prospects of success assessed as at the date of the offer), the burden of the 2017 statement of claim was that Joseph was old, limited in his capacity to write and understand English, suffering from mild memory loss, physically enfeebled, socially isolated, and, against that background, 'dependent' upon Tony and Carmen to meet his physical needs, and 'entirely dependent' upon them to meet both his financial needs and his emotional needs. As the judge in effect found, as at 8 June 2018, Georgina's affidavit evidence was lacking in cogency in that regard. Further, Georgina's pleaded claim that a relationship of presumptive undue influence was contributed to by the fact that Tony and Carmen were the children of Joseph could not reasonably have been regarded as meritorious, at least without otherwise establishing the burden of her pleaded case, and given that the parent/child relationship does not fall within the recognised categories of influence. Nor could the fact that Tony and Carmen were Joseph's executors reasonably be seen, absent establishing the other pleaded factors relied upon by Georgina, as contributing to a conclusion of presumed or actual undue influence or unconscionable conduct. That is particularly so given that, on Georgina's evidence, the appointment of Tony and Carmen as executors arose at a time when Georgina had a good relationship with her father.
17. Also, as noted earlier, the allegations referred to in [185] above (on which Georgina placed considerable emphasis in the appeal against the primary decision) had not been pleaded in the 2017 statement of claim, and there is no evidence that amendments to that effect were in contemplation as at 8 June 2018. Even assuming those matters were to be taken into account in assessing the unreasonableness or otherwise of Georgina's rejection of the Calderbank offer, the first allegation (the fact of the power of attorney) had limited significance absent Georgina otherwise establishing the burden of her pleaded case. The second allegation (that Tony had been authorised to conduct Joseph's legal affairs) is an overstatement of the effect of the evidence derived from Mr Levitan's file, as is the third allegation (that Joseph had authorised Carmen to receive his confidential legal documents by email from his solicitors).
18. Further, assuming that the matters referred to in [185] above, together with the matters referred to in [150] above, might be pressed in argument as establishing that in all the circumstances as at 8 June 2018 it was not unreasonable for Georgina to reject the Calderbank offer, the ultimate question remains, for present purposes, whether the judge's conclusion is unreasonable or plainly unjust. As Mitchell JA observed in Joyce[334]Anderson:334

Even where the appeal concerns the inferences to be drawn from established primary facts, it remains necessary for the appellant to demonstrate error. As Beaumont and Lee JJ observed in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher:

'... The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.'

That observation has been adopted by this and other intermediate appellate courts.

1. The judge in the primary decision described Georgina's characterisation of her father's condition and circumstances at the date of the transfer as 'overblown'.[335] Although this was said with reference to the position at trial, this characterisation appears equally accurate when considering the nature of Georgina's case, actual or prospective as at 8 June 2018, in the context of the question of the unreasonableness or otherwise of Georgina's response to the Calderbank offer as at 8 June 2018. Overall, we are not persuaded that error has been established in the requisite sense as alleged in ground 2.
2. There is no point in giving an extension of time to appeal against the costs decision as there is no merit in the appeal. The appeal against the costs decision should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164.

[2] Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea [2019] WASC 164 (S) (costs decision).

[3] The background is taken from the findings of fact made by the primary judge and uncontested evidence.

[33] There is no reference to the Moat Street property.

[34] Mr Levitan's file note, GB 448. See also ts 323 - 325 (Carmen XXN), ts 405 (Tony XXN).

[35] Mr Levitan's email, GB 449. See also ts 324 (Carmen XXN).

[36] Primary decision [61] - [62], [269].

[39] Primary decision [219]. See ts 451 (Tony XXN).

[49] Primary decision [100]. Georgina's evidence in cross‑examination was to the effect that although she made some attempts to telephone her father at least between 1 August 2011 and 30 March 2012, she did not visit or speak to her father again until a few days before he died: ts 101, 104 - 106.

[51] Primary decision [77] - [78]; see also primary decision [245], [248].

[52] Joseph called Mario at 4.53 am and the call lasted for around 24 minutes: primary decision [79], [81], [126].

[56] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 3; GB 107 - 108; see also Mr Levitan's file note, GB 468.

[59] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 4; GB 108; see also Mr Levitan's file note, GB 447.

[62] Primary decision [86]. See GB 103.

[63] Primary decision [145]. See GB 447.

[64] Primary decision [87], [145]. See GB 447.

[67] Primary decision [89]; GB 104 - 105.

[69] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 6; GB 108.

[71] Primary decision [134]; affidavit of Janet Scott Leon sworn 14 July 2017, par 2; GB 89.

[75] Primary decision [93], [135]. See GB 116 - 118.

[76] Primary decision [135]. See GB 159. There was also a handwritten document expressed in similar terms to the statutory declaration, which stated that 'we agree that this transfer is made conditional that I Joseph Galea will reside at the [Bassendean property] rent free for all the days of my life or when I so wish to relinquish the tenancy': GB 188.

[77] The documents attached were Dr Sciberras' documents of 5 September 2011 and 19 September 2011.

[78] Primary decision [94]. See GB 119.

[79] Primary decision [136]. See GB 88 - 91.

[82] Primary decision [276]; see also primary decision [213].

[85] See GB 514 - 515, 517, 525 - 526, 531, 536, 540, 542, 545, 550.

[86] ts 438 - 440 (Tony XXN). See GB 515, 517, 545.

[89] Primary decision [149] - [151].

[98] Primary decision [101]. Although the solicitor's file note appears to have errors in it, the errors appear to reflect on the author of the file note, rather than Joseph: GB 585.

[100] Primary decision [103] - [104].

[104] Primary decision [108] - [110].

[109] Primary decision [115] - [116].

[111] Primary decision [118] - [119].

[113] Re-amended substituted statement of claim, pars 27 - 32; BB 109 - 113. See also 'Plaintiff's Outline of Submissions', pars 39 - 41; BB 143 - 144.

[114] Re-amended substituted statement of claim, par 27; BB 109 - 110.

[115] Re-amended substituted statement of claim, par 28; BB 110.

[116] Re-amended substituted statement of claim, par 29; BB 111.

[117] Re-amended substituted statement of claim, par 30; BB 111 - 112.

[118] Re-amended substituted statement of claim, par 32; BB 112 - 113 (emphasis added).

[119] Re-amended substituted statement of claim, par 31; BB 112; Plaintiff's Outline of Submissions, par 55; BB 148.

[120] Re-amended substituted statement of claim, pars 34 - 35; BB 114.

[121] Re-amended substituted statement of claim, par 34; BB 114.

[123] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [34].

[124] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113.

[125] Primary decision [203] - [205].

[126] Primary decision [215] - [221].

[127] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392.

[129] Primary decision [271] - [272].

[130] Appellant's written submissions, pars 1 - 5.

[131] Appellant's written submissions, par 8.

[132] Appellant's written submissions, par 7.

[133] Appellant's written submissions, par 11.

[134] Appellant's written submissions, pars 15 - 47.

[138] Reference was made to primary decision [213], [276].

[142] Primary decision [83] - [84], [100]. See also primary decision [63] - [66], [79] - [81], [85].

[145] Primary decision [108] - [117].

[149] ts 323 - 325, 404 - 406; exhibit 1.45.

[150] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 3; GB 107 - 108. See also GB 468.

[151] Affidavit of Melvyn Levitan affirmed 15 June 2017, par 4; GB 108. See also GB 447.

[155] Affidavit of Georgina Veronica Shephard sworn 31 October 2018, pars 641 - 642; GB 33.

[158] Exhibit 1.39; GB 124, 135 - 136, 137 - 139; ts 440 - 444.

[159] GB 193 (Mario's cross-examination on this is at ts 441 - 444).

[160] Appellant's written submissions, par 47.

[161] Appellant's written submissions, pars 48 - 56.

[162] Appellant's written submissions, pars 59 - 85.

[163] Appellant's written submissions, pars 59 - 71.

[164] Appellant's written submissions, pars 72 - 85.

[166] Primary decision [206], [275].

[167] Reference was made to Stivactas v Michaletos (No 2) (1993) NSW ConvR 55‑683, 59, 903.

[168] Whereat v Duff [1972] 2 NSWLR 147, 181 (Asprey JA), 182 (Holmes JA).

[169] Respondent's written submissions, par 6, referring to Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 577.

[170] Respondent's written submissions, par 6, referring to Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675.

[171] Respondent's written submissions, par 7, referring to Kerr v West Australian Trustee Executor Agency Co Ltd [1937] WALawRp 6; (1937) 39 WALR 34; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353.

[172] Respondent's written submissions, par 12.

[173] Respondent's written submissions, par 17.

[174] Respondent's written submissions, par 20.

[175] Respondent's written submissions, par 23, referring to exhibit 1.39.

[176] Respondent's written submissions, par 24.

[177] Respondent's written submissions, par 25.

[178] Respondent's written submissions, pars 27 - 28.

[179] Respondent's written submissions, par 32.

[180] Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 [166] ‑ [173], [175] ‑ [176]; approved in Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495 [381].

[181] Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42, 61; Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 Ch D 145, 183.

[182] Symons v Williams [1875] VicLawRp 116; (1875) 1 VLR (E) 199, 216.

[184] Goldsworthy v Brickell [1987] Ch 378, 401; Quek v Beggs (1990) 5 BPR [97405], 11,762; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55‑683, 59,908.

[186] Stivactas (59,903); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 577; Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30, 35 ‑ 36.

[190] Huguenin v Baseley [1764] EngR 89; (1807) 14 Ves 273; (1807) 33 ER 526.

[192] Spong v Spong [1914] HCA 52; (1914) 18 CLR 544.

[198] Spong (549); see also (551 - 552) (Isaacs J).

[201] Jenyns v Public Curator (Qld) [1954] HCA 2; (1954) 90 CLR 113, 132 ‑ 133.

[211] In re Coomber; Coomber v Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723.

[213] See also Dowsett v Reid [1912] HCA 75; (1912) 15 CLR 695, 703.

[215] In re Coomber (730); see also Dowsett (704).

[216] Dowsett (703 - 705), (707); Union Fidelity Trustee (576); Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed) [15‑100].

[218] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 461. See also Thorne [40].

[219] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]. See also Joyce v Anderson [2020] WASCA 48 [105] ‑ [108], [206] ‑ [213].

[221] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [144].

[224] Thorne [41] - [43]; as to appellate caution in relation to an evaluative judgment, such as a testator's state of mind, see also Craig‑Bridges v NSW Trustee Guardian [2017] NSWCA 197 [118], referred to in Smart v Power [2019] WASCA 106 [106].

[225] Mills v Mills [1938] HCA 4; (1938) 60 CLR 150, 161.

[228] Primary decision [214] - [221].

[230] Primary decision [203] - [205].

[236] Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353, 365; Nelson v Nelson (1994) 33 NSWLR 740, 745 (presumption applied to the relationship of mother with adult child); Callaghan v Callaghan [1995] SASC 5064; (1995) 64 SASR 396, 404 ‑ 405 (presumption applied to the relationship of father with adult child).

[237] ts 82 - 83 (Georgina); ts 139 (David).

[238] ts 122 (Georgina); ts 205 (Jason).

[244] It is unnecessary, for present purposes, to determine whether the circumstances gave rise to an equitable lease.

[247] Primary decision [213] read with primary decision [276] in the context of the primary decision read as a whole.

[254] Primary decision [149] - [150].

[255] ts 458 - 459 (Tony XXN); ts 333, 346 - 347 (Carmen XXN).

[260] Primary decision [215] - [216].

[267] Exhibit 13, pars 8 - 14, 23 - 26; GB 82 - 84.

[274] Primary decision [87] - [88].

[277] Affidavit of Janet Scott Leon sworn 14 July 2017, pars 10 - 11; GB 90.

[279] Costs decision [6], [71] - [98].

[280] CACV 101 of 2019, WB 1 - 6, 12.

[281] CACV 101 of 2019, WB 14.

[282] CACV 101 of 2019, WB 15 - 16.

[283] Georgina filed a re‑amended substituted statement of claim on 14 February 2019, and a 'Plaintiff's Outline of Submissions' on 21 December 2018: BB 101 ‑ 121, 136 ‑ 154.

[284] CACV 101 of 2019, WB 16.

[285] CACV 101 of 2019, WB 21 - 22.

[286] Costs decision [76] - [77], [82], [95].

[288] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [84].

[289] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447.

[290] 2017 statement of claim, pars 2 - 3.

[292] 2017 statement of claim, par 13.

[294] 2017 statement of claim, pars 8.1 - 8.3.

[295] 2017 statement of claim, par 8.4.

[296] 2017 statement of claim, par 8.5.

[297] 2017 statement of claim, par 10.1.

[298] 2017 statement of claim, par 10.2.

[299] 2017 statement of claim, par 10.3.

[300] 2017 statement of claim, par 10.4 (emphasis added).

[301] 2017 statement of claim, par 10.5 (emphasis added).

[302] 2017 statement of claim, par 10.6 (emphasis added).

[303] 2017 statement of claim, par 11.

[304] 2017 statement of claim, pars 14.1 - 14.2.

[305] 2017 statement of claim, par 12.

[306] 2017 statement of claim, par 14.3.

[307] 2017 statement of claim, par 15 (emphasis added).

[308] 2017 statement of claim, par 16.

[309] 2017 statement of claim, par 17.

[310] 2017 statement of claim, par 18.

[311] 2017 statement of claim, par 19.

[312] 2017 statement of claim, par 20.

[313] 2017 statement of claim, pars 21 - 28.

[314] 2017 statement of claim, pars 29 - 30.

[315] The parties had been ordered to give discovery by 31 March 2018, and to complete inspection by 13 April 2018.

[318] F Burns, Undue Influence Inter Vivos and the Elderly, [2002] MelbULawRw 27; 2002, 26 Melbourne University Law Review 499, 506 ‑ 507, 517 ‑ 519.

[319] Costs decision [73] - [74], [77] - [83].

[321] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[325] Compare the plea at trial referred to in [79.5] above.

[327] See [106] above; Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed) [15.135].

[328] Compare the plea referred to in [79.4] above.

[329] Costs decision [73] - [74], [78], [92].

[332] Costs decision [47] ‑ [56], [63] ‑ [64].

[333] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 [19].

[334] Joyce v Anderson [2020] WASCA 48 [107].