SIMPSON v HODGES

CATCHWORDS : SUCCESSION - Probate - Whether in circumstances it is appropriate for court to pass over the defendant from being granted probate - Fit and proper person - Due administration of estate - Whether or not misappropriation by the defendant of money from the deceased - Whether or not money was gifted by the deceased to the defendant - Intention of gifting - Deceased's capacity and condition - Relevant standard of proof for misappropriation allegation - Credibility of witnesses - Acceptance of part only of a witness's evidence - Referral to Director of Public Prosecutions

LEGISLATION CITED : Evidence Act 1995 Powers of Attorney Act 2003

Bowler v Bowler (No 2) Young J, unreported 7 June 1990) Briginshaw v Briginshaw (1938) 60 CLR 336 Cubillo v Commonwealth [2000] FCA 1084 Evans v Tyler (1849) 2 Rob Ecc 128 Georginis v Kastrati (1988) 49 SASR 371 In the Marriage of P and P (1985) Fam LR 1100 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Magafas v Carantinos [2007] NSWSC 416 Marsh v Patten (1868) 7 SCR (NSW) Eq 18 Neat Holdings v Kurajan Holdings Pty Limited (1992) 67 ALJR 170 Normandy Woodcutters Limited v Simpson [2002] NTSC 43 Petera Pty Limited v FAG Pty Limited (1985) 7 FCR 375 Rejfek v McElroy (1965) 112 CLR 517 Sodeman v The King (1936) 55 CLR 192 Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193

PARTIES : HOWARD COLLINS NEWBY SIMPSON v SHELLEY EMMA ELIZABETH HODGES

P: In person (4 to 6 June 2007) COUNSEL : E Young (19, 20 July 2007) D: L Ellison SC

SOLICITORS : P: Mackenzie & Goldstein Legal (19, 20 July 2007) D: Miller Noyce

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HOWARD COLLINS NEWBY SIMPSON v. SHELLEY EMMA ELIZABETH HODGES JUDGMENT 1 HIS HONOUR: The deceased, the late Pamela Amy Simpson, died on 14 July 2004. She was the mother of the plaintiff and of the defendant to the present proceedings. 2 The deceased made a validly executed Will on 8 March 2004 appointing both the plaintiff and the defendant as executors of her estate. 3 The plaintiff commenced proceedings by way of statement of claim on 24 May 2005 in which he claimed a variety of relief. He alleged that, by reason of circumstances referred to in the statement of claim, including the alleged misappropriation by the defendant for her own use of monies belonging to the deceased, that the defendant was not a fit and proper person and that, accordingly, due administration of the estate of the deceased could only be assured by the grant of Letters of Administration with the last Will annexed of the deceased's estate to the Permanent Trustee Company Limited, or such other fit and proper trustee corporation, or, alternatively, two persons as joint administrators, as the Court considers appropriate. 4 The plaintiff also claimed an order that the defendant account for all monies alleged to have been appropriated or transferred by her from any bank account or investment of the deceased, whether during the lifetime of the deceased or since death. 5 Mr L J Ellison SC, who appeared on behalf of the defendant, observed that relief concerning the claimed appropriation of funds from the bank account of the deceased is the type of relief that would normally be sought in the nature of an administration suit and would not ordinarily be canvassed until after a grant of probate. 6 However, Mr Ellison stated that no point was taken in this regard, as all relevant persons were parties to the proceedings and that all issues raised in the statement of claim could conveniently be heard and determined at the one time. 7 When the proceedings were commenced, the plaintiff, who is domiciled and resident in Marton, New Zealand, was represented by a solicitor, Kristjan Geering. However, he appeared at the hearing of the proceedings as self-represented on the first three days. He was subsequently represented by counsel, namely, Mr Erik Young, on the fourth and fifth days of the hearing.

Facts 8 In the statement of claim it was alleged, and the evidence establishes the fact that the deceased, up until 8 March 2003, was domiciled and resident in New Zealand and that on 8 March 2003 she became domiciled in New South Wales. It was also alleged and established that Mr John Hodges, the husband of the defendant, brought the plaintiff to New South Wales to take up residence with the defendant and himself at their home in Pymble, New South Wales. 9 It was alleged in the statement of claim that the deceased became physically and emotionally dependent upon the defendant and her husband until her death for day-to-day support and for her financial and physical wellbeing. 10 The deceased had been hospitalised in New Zealand in February 2003. On or about 1 March 2003, Mr Hodges travelled to New Zealand and spent a week with the deceased assisting her in arrangements for her move to New South Wales. It is said that he also assisted her in making a new Will with the New Zealand Public Trust. 11 In the statement of claim, the plaintiff alleged that on 6 March 2003 the deceased made a Will described as "the second last Will" in contemplation of her imminent change of domicile and residence to New South Wales. 12 By that Will, the Public Trust of New Zealand was appointed as her executor. The deceased made various gifts or legacies to her sister in law and the Wellington SPCA and gifted her jewellery to the defendant and the residue of her estate equally to the plaintiff and the defendant. 13 The plaintiff claims that on the date on which the second last Will was made, the deceased's estate comprised two parcels of real estate in New Zealand and various investments and bank accounts, personal items and an amount of gold. The properties are particularised in the statement of claim as:-

(a) A house at 1 Rosetta Court, 268 Rosetta Road, Raumati, New Zealand.

(b) A retirement villa, Villa 103, Summerset Village, Paraparaunu, New Zealand. 14 The plaintiff also claims that the deceased's estate comprised:-

(a) Various investments in shares in public companies. (b) Various New Zealand sited bank accounts. (c) Personal items and an amount of gold. 15 I observe at this point that, apart from the appointment of the plaintiff and the defendant as joint executors, the last Will made on 8 March 2004 was in similar terms to the second last Will. 16 The plaintiff further alleges that shortly after her arrival in Australia on 8 March 2003, the deceased, with the assistance of the defendant, opened a bank account in her name ("the St George account") with St George Bank Limited. 17 The account was styled as a "Pensioner Account". The defendant was an authorised additional signatory of the account with power to operate it using her own signature alone (Exhibit 2). The deceased made application to open that account on 12 March 2003. The defendant's evidence was that she had telephone banking authorisation to use the account and to make deposits and withdrawals by telephone and internet. 18 The plaintiff alleges that the defendant's additional signatory power did not extend to making gifts of money sourced in the credit balance of the St George account to herself or to her husband or to third parties without the express instructions and directions of the deceased to make such gifts. 19 On 13 March 2003, St George Bank Limited wrote to the deceased informing her that her MultiAccess Card would be forwarded to her within the next five working days. 20 The plaintiff alleged that a relationship of trust and, in particular, a fiduciary relationship existed between the deceased and the defendant. In this respect, the plaintiff relied, inter alia, upon the fact of the defendant's relationship as the deceased's only daughter and her subsequent status as the deceased's attorney under the Power of Attorney and as one of two named co-executors in her last Will. 21 On 28 March 2003, the deceased's New Zealand solicitors transferred to the deceased's bank account at the Westpac Bank, Wellington, an amount representing the net proceeds of sale of her home at Rosetta Road, Raumati. This amount is particularised in the statement of claim as NZ$254,747. 22 On 2 September 2003, the deceased's New Zealand solicitors transferred to the Westpac account an amount representing the net proceeds of the sale of the deceased's retirement unit at Summerset Village. The amount of the net proceeds was NZ$149,820.56. 23 On 13 October 2003 the deceased wrote to Somerset Villages protesting over a late account sent for her in the sum of $1,544.62. The only significance of the letter to the issues in the proceedings is that it reflects the deceased's mental capacity and her physical ability to write letters as at that time. 24 On 16 October 2003 the deceased signed a typed request addressed to "Westpac Foreign Exchange Department", in Wellington New Zealand, requesting a withdrawal from her Westpac account in the amount of NZ$250,000 to be converted into Australian dollars. The defendant's husband referred to this withdrawal request in his affidavit sworn on 7 August 2006 (paragraph 38). He there stated that "she told me that she wished to transfer the money, that the bank would require details and requested him to type the letter for her". He said he typed it in accordance with her instructions. Mr Hodges stated that there was a need to re-fax the request which was done by letter dated 16 October 2003 (Exhibit 2, p.26). 25 On 20 October 2003, the deceased took steps to transfer the credit balance of her Westpac account to the St George account. The credit transfer was in the amount of NZ$250,025. 26 On 20 October 2003, the St George account was credited with AUD$214,140 being the Australian equivalent of NZ$250,025. 27 The plaintiff's evidence was that on 2 July 2004, shortly before his mother's death, she informed him that she had become aware that a large amount of money was missing from the St George account, that she believed the defendant had taken it, that she was seeking the plaintiff's assistance to ascertain what had become of it and, if her suspicions were correct, to assist her to recover it from the defendant. 28 On 6 July 2004, the defendant arranged for the deceased's treating physician to admit the deceased to Neringah Private Hospital, Wahroonga for palliative care. The deceased remained there until her death eight days later on 14 July 2004. The deceased was aged 84 years at the date of her death.

The plaintiff's allegations and contentions 29 The plaintiff alleged that the transfer of funds by the deceased was made with the intention that the credit balance in the St George account would be used to pay for her living expenses until her death. 30 The plaintiff also alleged that on 6 November 2003, the defendant misappropriated AUD$200,000 from the St George account. He claimed that she caused that amount to be transferred, without the knowledge, approval or consent of, or pursuant to any direction or instructions from, the deceased and arranged for it to be paid to the credit of a joint loan account in the name of the defendant and her husband at St George Bank. This is referred to in the statement of claim as "the first St George account appropriation". 31 In relation to the physical condition of the deceased, the plaintiff contended that from the time she took up residence in New South Wales until her death she suffered from glaucoma which seriously impaired her eyesight and her ability to read. He also contended that she suffered from other disabilities which affected her ability to comprehend her own financial affairs and impaired her ability to operate the St George account. 32 The plaintiff alleged that after the deceased commenced living in the Hodges' household, the defendant misled the deceased as to the true nature and extent of her financial affairs. 33 I note at this point that it was on 19 February 2004 that the deceased granted a general Power of Attorney to the defendant pursuant to Part 2 of the Powers of Attorney Act 2003. The plaintiff relied upon the Act as expressly excluding the power to make gifts as provided by s.11(2) of that Act. 34 In respect of the alleged appropriation, the plaintiff particularised the following:-

(a) On 6 November 2003, a transfer of AUD$200,000 was made from the deceased's St George account to the joint Portfolio account with the bank in the names of J L & S E Hodges.

(b) That transfer was made on the instructions of the defendant as the additional signatory to the St George account.

(c) Those instructions were given over the telephone under the power to operate the account of the defendant alone under her telephone banking facility for that account.

(d) No instructions were ever provided by the deceased, or relied on by the bank, to effect that transfer. 35 The plaintiff contended:-

(a) That the deceased had disclosed to the plaintiff that she had not authorised, directed, instructed or acquiesced in the making of any transfer of funds.

(b) That the deceased was too afraid of the defendant and her husband when they were present in the Hodges' household to disclose to the plaintiff her suspicions about the defendant's conduct in appropriating funds from the St George account. 36 The plaintiff sought relief in the statement of claim, on an alternative basis, namely, that in the event that it was determined that the alleged appropriation was a gift by the deceased, then "… that gift is vitiated by undue influence or duress exerted on the deceased by the defendant and/or her husband". However, the plaintiff's counsel, Mr Young, indicated in the course of submissions that the plaintiff no longer relied upon this alternative basis. Orders sought for the due administration of the Estate 37 The plaintiff has claimed that, by reason of the refusal by the defendant to respond to his inquiries as to the alleged appropriation or application of the funds from the St George account or to account for those funds as a step in the administration of the deceased that she is not a fit and proper person to take a grant of probate of the last Will, whether as one of its co-executors or as the only named executor resident in the jurisdiction. 38 The grounds relied upon in this respect are essentially as follows:-

• The fact of the alleged St George account appropriations by the defendant.

• The defendant's alleged conduct in misleading the plaintiff as to the deceased's financial affairs as they existed during her life time.

• The communication dated 22 April 2005 from Miller Noyce, solicitors, in which the allegation was made of an oral gift by the deceased to the defendant on 6 November 2003.

• The defendant's claimed refusal to communicate with the plaintiff.

• The conditional consent to make a joint application for probate. 39 The plaintiff also relied upon the fact that he is domiciled and resident in New Zealand and has no capacity to exercise any day to day or practical periodic supervision over the activities of the defendant as co-executor in the administration of the estate of the deceased. 40 The plaintiff claimed that only an experienced professional trustee company, which is independent of both the plaintiff and the defendant, should be appointed as the executor cum testamento annexo. 41 The plaintiff claimed, accordingly, that the due administration of the estate can only be assured by the grant of letters of administration with the last Will annexed of the deceased's estate to the Permanent Trustee Company Limited, or to such other fit and proper trustee corporation, or two persons as joint administrators, as the Court deems appropriate. 42 In terms of standing to claim the relief sought in the statement of claim, the plaintiff relied upon the fact that he is a co-executor named in the last Will and is a residuary beneficiary named in the last Will. 43 The plaintiff did not, in the statement of claim as originally filed or as amended, contest the validity of the Will or the testamentary capacity of the deceased to make the Will.

The defence and cross-claim 44 On 15 July 2005, the defendant filed a defence to the statement of claim. In summary, she denied any breach of duty, denied that the deceased was physically and emotionally dependent or reliant upon her or her husband, denied that her husband assisted the deceased to make a new Will, denied any impropriety and stated that the monies referred to in the statement of claim were gifted to the defendant and her husband to use at their discretion. The defendant also stated in the defence that she is willing and competent and ready to take out a grant and denied the plaintiff's entitlement to the relief claimed or any relief. 45 On 15 July 2005, the defendant filed a cross-claim against the plaintiff. The defendant in it claims that probate in solemn form of the Will dated 8 March 2004 be granted to the defendant.

The plaintiff's affidavit evidence 46 The plaintiff relied upon his own affidavit sworn on 1 May 2006 (the "primary affidavit") and his affidavit in reply sworn on 6 October 2006. 47 The plaintiff initially indicated on the first day of the hearing that he relied upon some aspects of the affidavit of Yvonne Mary Collins sworn on 6 October 2006. As the exhibits to it were missing (copies of diary notes) I deferred ruling upon the affidavit until they could be located. However the hearing proceeded without copies of the notes being produced. 48 In his primary affidavit, the plaintiff gave evidence as to the following matters:-

• The deceased lived most of her life in New Zealand.

• She executed her second last Will on 6 March 2003.

• In February 2003, the deceased was hospitalised by reason of physical illness.

• On 8 March 2003, the deceased changed her residence from New Zealand to live with the defendant and her husband, John Hodges, at their family home at 98 Pentecost Avenue, Pymble.

• Mr Hodges travelled to New Zealand and was with the deceased from 1 March 2003. He assisted her to pack her belongings and arranged for them to be transported to his home.

• As at the date of the deceased's second last Will (6 March 2003), his mother owned the following assets:- (a) Property at 1/268 Rosetta Road, Raumati, New Zealand (estimated value NZ$254,747). (b) A licence to occupy Villa 103, Summerset Village, Paraparaunu, New Zealand (sold in June 2003 for NZ$149,820.56). (c) Investments with PSIS, ANZ Bank, UDC, AGC, and other shares and savings (total unknown). (d) Gold, furniture, antiques, stamp collection, jewellery, family heirlooms (value not known).

• On 12 March 2003, the deceased opened an account with St George Bank Limited known as a "Pensioner Account".

• The defendant was an authorised signatory of the St George account.

• On 28 March 2003, the deceased sold her property at 1/268 Rosetta Road, Raumati for the amount of NZ$254,747 which was paid into her Westpac Bank account in Wellington (account no. 0502 0147483 00).

• On 29 August 2003, the deceased sold her unit occupation licence for Villa 103, Summerset Village, Paraparaunu for the amount of NZ$149,820.56 which amount was paid into her Westpac Bank account.

• On 20 October 2003, the St George account was credited with a transfer of funds from the Westpac account in the amount of AUD$214,140 (equivalent to NZ$250,025). 49 The defendant's evidence was that, as at 6 June 2003, the deceased owned two properties referred to by the plaintiff and that:-

• So far as she was aware, her mother did not have any investments with PSIS, UDC, AGC or any shares. Any amount in an ANZ account would have been small.

• The deceased had furniture, a stamp collection and her jewellery. She was not aware that she had any gold, antiques or family heirlooms at that time. 50 In relation to other matters, the defendant said that, so far as she was aware, her mother never owned a Visa card whilst she lived with them in Sydney. She said that her mother left the money in New Zealand after the sale of the house and the retirement village and did not transfer those funds until months later (20 October 2003). 51 The plaintiff also gave evidence that he had spoken to his mother in February 2003 in which she advised that she had set up the St George account and that the defendant used it so that it was easy for her to do things for the deceased such as cashing cheques and paying her Visa card. 52 He said that he visited his mother several times a month, staying several nights on each visit in the year prior to her leaving New Zealand and that he had a close relationship with her.

The plaintiff's conversation with his mother in hospital on 2 July 2004 53 The plaintiff stated in his primary affidavit that on 2 July 2004, at his mother's bedside, he had a conversation with her. He said that during the conversation, he asked his mother whether she had thought of leaving any money to a person "Allison" (a cousin of the plaintiff in New Zealand who was said to be chronically ill). The plaintiff recorded the following conversation from that point as follows:- MOTHER: "There isn't any money to spare, as there's not much left." ME: "What do you mean?" 54 The plaintiff said his mother pointed to the bedside drawers and said, "Find the envelopes". 55 The plaintiff said he found some Westpac Bank envelopes, some opened and some unopened. He said he opened one of them and read it to her, being a statement from the Westpac Bank in New Zealand. 56 A little later, the plaintiff said that he took from the drawer more bank statements. One of them was the latest St George Bank statement which had a balance of $33,000 in it. He recorded the conversation as follows (paragraph 36 of the primary affidavit):- ME: "$33,000 in St George, Mum." MOTHER: "Is that all? Is there anything else on the statement?" ME: "No." MOTHER: "There's not much left. Shelley has spent it." ME: "Did you want Shelley to spend this money?" MOTHER: "No." ME: "Do I need to do anything about this?" MOTHER: "Yes." ME: "Is any of this in writing?" MOTHER: "No." ME: "Don't worry, Mum, I'll sort this out." 57 There is no evidence of the plaintiff having made a record of this conversation before proceedings were instituted on 26 May 2005. I will return below to an examination of the terms of the alleged conversation with the deceased on 2 July 2004. The first known record of it is contained in paragraph 27 of the statement of claim. Given the importance which the plaintiff attached to the alleged conversation and the absence of a contemporaneous record of it the evidence concerning it calls for careful consideration. The account set out in the statement of claim is not completely consistent with the plaintiff's principal account in paragraph 36 of his affidavit. The differences are:-

• The statement of claim stated that the deceased said she had become aware that a large amount of money was missing from the St George account. That statement does not appear in the plaintiff's affidavit.

• The statement of claim stated that the deceased "believed the defendant had taken it". That is a different account to the way the plaintiff describes the conversation in his affidavit.

• The statement of claim records that the deceased said that she was seeking his assistance to ascertain what had become of it and if her suspicions were correct to assist her to recover the missing money from the defendant. That is not the way the plaintiff recounted the conversation in his affidavit. 58 I note at this point that before proceedings were commenced in May 2005 Miller Noyce, solicitors for the defendant, wrote a letter to the plaintiff, the month before, namely on 22 April 2005 (Exhibit C) in which it was stated that his allegations were disputed by the defendant. A number of factual matters and observations were made in the letter. Point 8 of the letter stated:- "We understand your mother regularly spoke to you and yet it appears that she never raised with you any allegation that monies had been stolen from her account. Had she done so, you would invariably have had the matter thoroughly investigated and raised the issue with your sister and her husband and also the police. Nevertheless, no such issue or complaint was ever raised by you until the matter was first obliquely raised in your email to your sister on 15 August, which was just on one month after your late mother's death." 59 The plaintiff said that following the Hodges family return from holiday in July 2004, he decided not to raise with the defendant the conversation that he had had with the deceased, as he stated he did not wish there to be any discord during what he considered to be the last days of his mother's life. I also observe that, save for an oblique reference to "discussions" with the deceased (email 19 August 2004), there was no reference in the plaintiff's emails in 2004 and 2005 to any particular statements by the deceased as set out above. In his email sent on 24 December 2004 he accused the defendant and her husband of "conspiracy to defraud, theft and embezzlement". In support he simply stated that, "I have considerable documentary evidence supporting this". 60 The deceased was subsequently transferred to Neringah Private Hospital on 6 July 2004. The plaintiff then visited her each day until her death on 14 July 2004. 61 The plaintiff's evidence was that he took a number of steps following his conversation with his mother on 2 July 2004 to ascertain what had happened to her money which he claimed was missing. He said he returned to New Zealand on 17 July 2004. 62 It was not until the plaintiff received a copy of the Will from Roland & Townend on 23 July 2004 that he realised a new Will had been made and that the Public Trust in New Zealand was not the executor and that he and the defendant had been made executors. 63 He retained Gibson Sheat Lawyers in New Zealand to act for him and sought to obtain information through them.

64 The plaintiff referred to the fact that he obtained records from St George bank in relation to the transfer from the deceased's St George account to the account in the joint names of the defendant and her husband. The information confirmed that an amount of $200,000 was transferred from one account to the other on 6 November 2003. 65 He exhibited to his affidavit correspondence between himself and the defendant and the defendant's solicitors in the period 16 August 2004 and 3 March 2005. That correspondence is analysed below.

The defendant's affidavits 66 The defendant, Shelley Emma Elizabeth Hodges, swore two affidavits, the first on 11 October 2005 and the second was sworn on 7 August 2006. 67 In her first affidavit, she attached a copy of the Will of the deceased made on 8 March 2004. The deceased had made provision, inter alia, that all her jewellery and personal affects be bequeathed to her daughter and the sum of $10,000 to her sister in law. She also bequeathed the sum of $5,000 to Wellington SPCA and to divide the residue equally between the plaintiff and the defendant. 68 In her second affidavit, the defendant stated that the deceased resided in her Pymble home from 8 March 2003 until 14 July 2004, although she was hospitalised in the last nine days of that period. She said that she had an extremely close and loving relationship throughout her life with her mother even though she herself had lived in Australia for over 24 years at the time of the deceased's death. She said that she and her mother never argued and that her husband also enjoyed a very close relationship with the deceased over the 35 years that he knew her. 69 According to the evidence of the defendant, her father died on 17 May 2002 and thereafter her mother lived on her own. The plaintiff did not live nearby and the deceased was reliant upon friends and neighbours to help her. The defendant stated that she was concerned for her mother as she was lonely and was concerned should anything happen to her. She said that on several occasions she and her husband had requested the deceased to consider moving to Australia to live with them. 70 The deceased visited the defendant in October 2002 to celebrate the defendant's 50th birthday and again on that occasion spoke to her about moving to Australia to live with her family. The deceased said at that time that she would "think about it". She stayed with the defendant's family for approximately three weeks at that time. 71 The deceased was admitted to Kenepuru Hospital on 14 February 2003 until 22 February 2003. 72 Mr Hodges, during his annual leave, went to New Zealand and visited the deceased on 28 February 2003 in order to help the deceased move to Australia. They arrived in Sydney on 8 March 2003. 73 On 12 March 2003, the deceased opened a St George bank account. The defendant says that the deceased filled out the account whilst she was at the bank at St Ives. The deceased, at that time, had a bank cheque for AUD$10,000 which she needed to deposit. The defendant said that her mother asked her to sign as an additional signatory which she was happy to do. 74 On 9 May 2003, the defendant's family celebrated her mother's birthday at their home and, two days later, Mothers' Day (on 11 May 2003). 75 The defendant's evidence was that in 2003, she and her husband commenced to make arrangements for a fairly significant renovation to their home involving the addition of a new level. It was said that this would also provide the deceased with her own living quarters. The defendant and her husband had made arrangements to fund the cost with a draw down facility from their bank, the St George Bank. 76 The defendant stated that on or about 10 September 2003, the deceased stated to her and her husband that she was going to give the defendant $200,000 which she was "free to do with as I wished". The defendant said that she indicated that she would put the money towards the cost of the renovations of the house. She said that they were grateful and surprised at the deceased's statement. She said that her mother had previously referred to making a gift to her beforehand but had not mentioned the amount she had in mind. 77 On 24 September 2003, the defendant, the deceased and the defendant's son attended a school Grandparents' Day. 78 On 9 October 2003, a meeting was held with the proposed builder employed to do the home renovations, Mr Robert J Richardson, from Heritage Homes. I will return to Mr Richardson's evidence in some detail below. The defendant stated that the deceased was present on that occasion. She said her mother confirmed to Mr Richardson that she was going to provide the defendant with the amount of $200,000, which amount she told Mr Richardson her daughter had decided to put towards the cost of the renovations. 79 As noted earlier on 20 October 2003, the deceased transferred NZ$250,000 into her St George Bank account. 80 On 6 November 2003, the defendant stated that her mother, with her assistance, transferred the $200,000 from her account to the defendant's joint account. This occasion is outlined in detail below. 81 On 5 December 2003, the deceased was admitted to Concord Hospital for a stent replacement. 82 On 9 February 2004, the deceased was admitted to Hornsby Hospital, having suffered burns from an electric blanket. At that time, the plaintiff visited from New Zealand, arriving on 10 February 2004 and stayed with the defendant and her family. 83 It was on the afternoon of 11 February 2004, according to the defendant, when she and her husband were inspecting the renovations to their home that she told the plaintiff that her mother had given her $200,000 and that she had decided to put the money towards the cost of the renovations. 84 On 12 February 2004, they all visited the deceased in hospital. According to the defendant, it was during that visit that her mother told the plaintiff that she had given the defendant money and that the defendant was putting it towards the cost of the renovations. 85 On 14 February 2004, after the deceased came home from hospital, a discussion instigated by the plaintiff about their mother making a new Power of Attorney took place as a result of which she said she would appoint the defendant as her attorney. The plaintiff indicated that he would arrange for this to be done. 86 On 15 February 2004, the defendant said that there was a further discussion between her mother, the plaintiff, her husband and herself. During this conversation, the deceased is said to have again confirmed to the plaintiff that she had given her $200,000 and that the defendant had decided to apply it towards the cost of the renovations. The plaintiff returned to New Zealand on 17 February 2004. 87 The defendant stated that after opening the St George Bank account, her mother received the Multi Access Card for the account to effect ATM withdrawals. She said that she and her mother regularly went shopping at the St Ives Shopping Centre. When the deceased required cash, she would go to the St George ATM and withdraw whatever amount she required. The defendant said that, if necessary, she was there to make sure that the deceased collected her card and the money afterwards, but that it was her mother who performed the transactions. 88 On occasions, according to the defendant, the deceased would ask her to get some money for her and she would use the deceased's card to withdraw funds required. On such occasions, the deceased gave her the PIN which she would use. 89 The defendant gave evidence of one occasion when she was doing some phone banking on her own account for her credit card payment and found that she could access her mother's account. She stated that she was surprised as she was not aware that phone banking was available for her mother's account. She advised her mother about it. 90 The defendant's evidence was that after the deceased commenced living with them, she and the deceased and her husband had a discussion about the defendant and her husband paying most of her expenses on their Visa card and then making adjustments with her from time to time, usually to be at the end of the month. 91 The defendant said that, as a result of this discussion, when the Visa card statement came in, she would go through the statement with her mother and check off items which related to her. A tally would be made of the expenses. She said that her mother was insistent that she would pay some board towards the cost of food and other household expenses. Initially, an amount of $30 was paid, but she insisted on making it $50 per week. Adjustments would be made for the assessed expenses. On occasions, it was some months before adjustments were made. The defendant says that all the reimbursements (except for the first one) were done by phone banking. The defendant annexed a schedule (marked "A" to her affidavit) setting out the dates and amounts transferred from her mother's account to her joint account in respect of the deceased's living expenses.

Facts concerning the alleged gift of $200,000 92 In relation to the amount of $200,000, which the defendant claimed was made by way of gift, the defendant stated that over the years, her father and mother had said to her words to the effect, "We're going to give you some money to balance the books". She said that this meant balancing up what they had given the plaintiff over the years. 93 The defendant's evidence was that when her husband and herself commenced discussions about the home renovations, her mother said to her on several occasions words to the effect (paragraph 34 of her second affidavit):- "I want to help you with the renovations as I am going to benefit from the extra room, and you might as well have the use of it now when you need it." 94 Her evidence was that on or about 10 September 2003 when she and her husband and her mother were looking at the cost of the renovations, her mother said to her words to the effect, "look, I might as well give you that money now. It will save you from drawing down all the money from the bank". The defendant says that she did not mention an amount at that time but she recalls shortly afterwards the deceased said to her husband and herself, "I'm going to give you $200,000 and if you want to, you can put it towards the house". She says that she and her husband were "gob smacked" at the amount and she made a comment to the effect, "thank you Granny. That really is very generous and really handy". Her husband also expressed his appreciation and surprise at the amount. 95 Subsequently, there was discussion about exchange rates and, in due course, the deceased indicated that she would have the monies transferred stating that the exchange rate was only going to get worse. 96 The defendant gave evidence as to a meeting with Mr Robert Richardson said to have taken place on or about 9 October 2003. The meeting took place in the family room of the defendant's home and the deceased was present. During the discussion, when Mr Richardson raised the question of ability to pay for the extensions, the deceased, according to the defendant, said words to the effect "Rob, I'm giving Shelley $200,000 and she has decided to put that towards the extensions". It was either the defendant or husband, who then said, "we can fund the rest. We have got a facility with St George". 97 The defendant stated that on the evening of 6 November 2003 when sitting at the dining room table, her mother said words to the effect, "Shelley, let's go and transfer the money now". They went into her husband's office. She says that she took out her St George card that she used for phone banking. She dialled the number, put in her access card number and her password/PIN. When the options came up, she pressed number 2 to transfer funds. She then changed seats with her mother and gave her the telephone and her mother selected her pensioner cheque account. The defendant said that her mother then keyed in the amount of $200,000 and pressed the appropriate button to select "our joint home loan account", as the account to receive the funds. 98 The defendant said that the deceased then went back into her account and checked that the money had gone through. 99 The defendant says that as the deceased was going through the procedure, she listened to the telephone and confirmed what buttons she needed to press but that it was the deceased who pressed the required entries. 100 The defendant stated that at that time or shortly afterwards her mother said words to the effect, "I will tell Howard I have given you your money and that will finally balance the books". 101 The defendant's second affidavit provided evidence of a conversation she said she had with the plaintiff on Wednesday 11 February 2004. They were walking through the incomplete renovations when, according to the defendant, the plaintiff said, "I suppose Mum's contributing to this". She said that she replied, "Yes, she has given me some money". A little later, she said that she said to him "she has given me $200,000 and I'm putting it towards the house". 102 On the following day, according to the defendant, they visited the deceased at Hornsby Hospital (12 February 2004). During the course of the visit, the defendant said to her mother that she had told the plaintiff about the money and that her mother said "Yes, Howard, I have given Shelley her money to balance everything up and she has chosen to put it towards the house". The defendant said that the plaintiff did not make any comment. 103 The defendant referred to a letter written by her solicitor on 22 April 2005 correcting a statement made by her. She said that her mother did not mention the amount of the gift in the last mentioned conversation. She said that it was in a conversation on 15 February 2004 that her mother mentioned that the amount was $200,000. 104 The defendant said that, on Sunday 15 February 2004, her mother having been discharged from hospital the previous day, there was a further family discussion. The defendant said that, in the presence of the plaintiff and her husband, her mother made a comment to the effect, "As I said the other day, I have given Shelley her money. I gave her $200,000 and that balances the books and everything is now settled". 105 The defendant gave evidence of the relationships and activities of the deceased and her family in the period between March 2003 and July 2004 (paragraphs 43 to 69 of her second affidavit). It is unnecessary here to refer to all of the details other than to say she provided an account of a harmonious and interactive relationship with her mother which she claimed her husband and son participated in. She also gave an account of the living arrangements and the deceased's engagement in various activities as described. She also gave evidence of minor home modifications such as the addition of rails to assist the deceased in using the toilet, bathroom and improving access arrangements. 106 The building renovations commenced at the defendant's home on 27 January 2004. The work was finished on 27 March 2004. The defendant said that her mother took an interest in the extensions as they proceeded.

The defendant's evidence as to the deceased's health 107 The defendant stated that she was aware that her mother suffered from glaucoma and possibly macular degeneration, but stated that it did not seriously affect her sight or significantly restrict what she could do. She disputed the contention that the deceased suffered from jaundice when she arrived in Sydney. She says that she was alert and did not necessarily need anything more than a normal night's sleep. She disagreed that she suffered from chronic vertigo to the extent that it severely restricted her mobility. She had vertigo for many years but that that had not interfered with her leading an active life. She agreed that her mother had osteoarthritis in her hands. She took Prednisone. The condition did not affect her mobility. She said that upon her arrival in Sydney in September/October 2002 and in March 2003, the deceased walked out of Customs unaided and did not need a wheelchair. She disputed the plaintiff's account as to her mother's disabilities and claimed that their extent were overstated by the plaintiff, save for the last fortnight of her life when her condition deteriorated significantly. She stated that had her condition been otherwise, she would not have taken holidays. 108 In relation to her mother's general activities, the defendant stated that she was able to get her own breakfast and lunch and regularly made unaided calls on the press button telephone to friends and family in New Zealand. She stated that her mother also regularly read magazines and books and she enjoyed watching television.

Email correspondence between the parties regarding the transferred $200,000 109 In relation to the $200,000 transaction, the defendant's evidence was that the plaintiff did not mention any serious concerns that he had with her until she and her husband received an e-mail from him on 15 August 2004 (Exhibit 2, at p.53). A copy of this email is also included in the exhibit to the plaintiff's primary affidavit, however it is dated 16 August 2004 in the plaintiff's copy. 110 In relation to her executorial role, the defendant stated that it was the plaintiff's "very serious and untruthful allegations" that caused the relationship between them to completely break down. She stated that she would do everything within her power to ensure that her mother's estate was properly administered in accordance with her Will. Given that the estate is a relatively small one, she stated that did not wish the Permanent Trustee Company Limited to be appointed to administer it. If granted probate, she stated that she was prepared to give an undertaking that she will not make any distribution of the estate until such time as any claim by her brother has been determined. 111 On 31 July 2004 and 10 August 2004, the plaintiff emailed the defendant regarding probate matters. He did not raise in either email any concerns over any withdrawals from the deceased's account. On 15 August 2004, the defendant sent an email to the plaintiff regarding probate matters and also stated that she had received a letter from the lawyer acting on behalf of the deceased's estate, Fiona Townend. The defendant wrote to the plaintiff, "received a letter from Fiona Townend wherein she states you may have some dispute with me regarding mum's assets. I have no idea of what you are talking about as you have not voiced this to me in the past". 112 The plaintiff first raised with the defendant the issue of his having "considerable concerns" over withdrawals from the deceased's account by email to Mr Hodges' email address on 16 August 2004, when he stated that:- "I have just received copies of Mum's St George Pensioner account statements. As you know Shelley, you were placed in a position of trust over Mum's finances by me in my [Enduring Power of Attorney]. I have considerable concerns over the phone transfers to an unknown sav/chq account totalling A$208,412 [sic]." 113 The defendant replied on 16 August 2004 denying any wrongdoing in her use of the St George account as its authorised additional signatory. She stated that her involvement in the deceased's financial affairs "has been limited and always only on matters requested at the time by Mum. Further, any involvement by me has always been completely honourable and transparent". The defendant requested that the plaintiff set out his concerns in detail. 114 In an email dated 17 August 2004 to the plaintiff, the defendant stated:- "If you care to check the bank statements you will see that all these 'large sums of money' that you referred to took place prior to transfer to me of Power of Attorney. Further the transfers of this money were at the specific request by Mum, I therefore would think does not fall within the Powers of Attorney Act [sic]." 115 In an email also dated 17 August 2004, the defendant wrote to the plaintiff:- "As I stated in my email dated 16th Aug, I am finding your line of commentary and questioning illogical, erratic, and difficult to follow. I have ask you to set out specific concerns in detail, which to date you have elected not to do. You do however continue with the one-liners and innuendo of wrong doing. I object strongly to this line of commentary which suggests my dealings with Mum's affairs may have been a deliberate attempt to defraud and therefore unlawful." 116 The defendant stated that she would cease all communications with the plaintiff and that communication should only occur through the parties' legal representatives. 117 The plaintiff by email to the defendant on 19 August 2007 stated:- "… thank you for your carefully worded emails in responce [sic] to my concerns, questions and requests. They and discussions with Mum have enabled me to more rapidly and accurately define my policy." 118 It is not at all clear whether this was intended as a reference on the part of the plaintiff to the conversation with his mother in the hospital prior to her death. Certainly, by this date, he had not made mention of any statement by the deceased about her finances.

119 The first reference to a "gift" in the evidence of correspondence between the plaintiff and defendant is found in the email of the plaintiff to Mr Hodges on 8 December 2004. In it he inquired as to the existence of any supporting material for the claim of gift or if Mr Hodges could shed any light on the claim:- "Hello John,

I have just written and emailed Fiona Townend in connection with this query. This email will be sent to you also by post. I require a written reply to this query before Monday 20 December 2004. Do you have any evidence to support the claim that Mum gifted the moneys transferred to your and Shelley's bank accounts? Did you witness anything that could have a bearing on this claim? Shelley made this claim of gifting and it is referred to in several letters from Fiona Townend . Regards Howard Simpson. " 120 It may be inferred from this email that the defendant or her husband must have, at some point prior to 8 December 2004, made the claim to the plaintiff that the $200,000 was a "gift". 121 In a letter from Fiona Townend of Rowland & Townend Solicitors (lawyers administering the deceased estate), dated 8 December 2004, addressed to Gibson Sheat Lawyers (the plaintiff's lawyers at the time), it was stated that an email from the plaintiff had been received which raised the issue of gifts being made by the deceased to the defendant and that Rowland & Townend had "no evidence" in relation to that issue (Exhibit F in the proceedings). 122 The plaintiff specifically accused the defendant and Mr Hodges of misappropriating funds from the deceased prior to her death, in his emails of 24 December 2004 and 16 January 2005 as referred to above. The plaintiff stated:- "Shelley has had almost two years to legitimise her financial advantage gained by 'gift' and has failed to even begin the process … I accuse both you and Shelley of conspiracy to defraud, theft, embezzlement, call it what you like, of $250,000 from Pamela Amy Simpson before her death, while she was in your care." 123 In response, Mr Hodges, on behalf of the defendant, in his emails of 24 December 2004, 24 January 2005 and 31 January 2005, stated, inter alia, that the defendant "is not inclined nor obliged to answer any of these questions and will continue not to respond". It was also stated on 24 December 2004, that the defendant was ready to apply for probate of the last Will as one of the two co-executors, but that she would not communicate with the plaintiff personally. 124 In a lengthy email sent on 23 January 2005 the plaintiff raised a number of issues - the interment of the deceased's ashes, publication of allegedly defamatory material to the plaintiff, the lack of evidence of what was described as "the gifting of $200,000…", the claimed lack of action by the defendant with respect to the deceased's estate. There was no reference by the plaintiff to any statement having been made by the deceased suggesting or asserting that the defendant had misappropriated any of her funds. 125 The first reference to the plaintiff's alleged prior knowledge of the gift in the email correspondence between the parties is in the email of Mr Hodges to the plaintiff dated 31 January 2005. In that email the defendant's husband stated that he placed on record a number of matters including:- "Howard Simpson advised during a family discussion in Feb 04, of AUD200K gifting to Shelley Hodges, by P A Simpson (S Hodges and J Hodges both present). Comment made by P A Simpson that time 'Shelley was entitled to this'. Howard Simpson seemed comfortable and acceptable to this at that time so it is very curious that he has decided to challenge this gifting only after PAS death [sic]." 126 The plaintiff responded to the assertion that he had prior knowledge of the gift. In an email to the defendant and her husband dated 4 February 2005, he stated:- "Thank you for placing me as a witness beside you both, but what was it that I am supposed to have witnessed (advised, comfortable and acceptable)? This scene described and my response sound very foreign to me." 127 There followed further correspondence by email between the plaintiff and defendant on probate matters and some discussion of a similar nature to that which had previously passed regarding the transfer of $200,000. 128 I have earlier referred to the defendant's solicitors, Miller Noyce, wrote a letter to the plaintiff on 22 April 2005 (Exhibit C in the proceedings) denying the plaintiff's allegations of misappropriation and setting out the defendant's position with regard to the transfer of $200,000. It was stated in that letter that in September 2003 the deceased indicated to the defendant that she had decided to give her the sum of $200,000 and that the deceased personally transferred that amount to the bank account of the defendant and her husband on 6 November 2003.

The plaintiff's case on the deceased's capacity and condition 129 As earlier noted, the plaintiff stated in evidence that when the deceased left New Zealand, she suffered from glaucoma and macular degeneration which seriously affected her vision. He claimed that it significantly affected her ability to read, stating that her central vision was very poor. He also stated that she was unable to read the newspaper, magazines or books and that it forced her to stop doing jigsaw puzzles and that she used a magnifying glass to read small print. The plaintiff relied on the report of Dr Neil Aburn dated 6 March 2003 (Exhibit B in the proceedings), which stated that the deceased had vision impairment due to glaucoma. 130 The plaintiff said that the deceased also suffered from other medical illnesses including a blocked bile duct, vertigo and osteoarthritis. The plaintiff gave observation evidence in his affidavit of the day-to-day abilities of the deceased, in particular, difficulties she had in movement. In the sixth months before leaving New Zealand, he stated that she was increasingly reliant upon other people such as himself in various ways. He referred to her inability to cook for herself substantial or nutritious meals, losing weight, being unable to do her shopping, inability to undertake movements requiring movement over a significant distance outside the house, inability to do gardening and inability to keep the house clean. 131 The plaintiff stated that, in the months leading up to her death, she required personal care and was attended to by visiting nurses. She was unable to visit the hairdressers in June 2004 because of her illness. He stated that ill health was the reason he visited her in July 2004. At that time the defendant and her husband and family wished to take a holiday in New Caledonia. 132 The "Aged Care Client Record" from Northern Sydney Health dated 19 May 2004 (exhibited to both the plaintiff's and defendant's primary affidavits) provided on page 4 that at the time of assessment at that time, the deceased had the following diseases or disorders that had an impact on her need for assistance with activities of daily living and social participation: "CA pancreas; pressure sores; glaucoma; hypotension; mild hearing impairment". On page 5, it is noted under the heading of "Nutrition" the deceased was "dependant (unable to manage)" with regard to shopping and preparation of meals; that she needed some assistance with eating; that she did not need assistance with drinking, oral hygiene or swallowing. On page 6, under the heading of "Functional and Activity Profile", it is noted that the deceased required "some assistance" with personal hygiene, location change, taking medication and changing of bed sore dressings. It is further noted that the deceased:- "Has [cancer] of pancreas (not acknowledged by the client). Has pressure sores on coccyx due to a self-inflicted burn. Needs minimal assistance [with] showering and washing hair. Can dress & toilet independently. No continence problems. Walks slowly and [with] stick but only limited distances. Glaucoma prevents her from reading, sewing, etc. Is depressed. No cognitive impairment." 133 Whilst it was at one stage submitted by the plaintiff that the deceased was cognitively impaired at the time of the relevant transaction, the evidence suggested that she was, in fact, mentally capable.

Issues for determination 134 It was submitted on behalf of the plaintiff that the two primary issues for determination in these proceedings were:-

(a) whether he had proven, on the balance of probabilities, that the defendant wrongfully procured the amount of $200,000 from the deceased on 6 November 2003; and

(b) whether in all of the circumstances it is appropriate that the Court pass over the defendant from being granted probate, and the Public Trustee instead be granted letters of administration of the estate of the deceased with her Will dated 8 March 2004. 135 With regard to the first of these matters, the primary question of course is whether or not the deceased intended to give and, in fact, approved and assisted in the transfer of the $200,000 to the defendant on 6 November 2003. 136 The plaintiff's case contended that the deceased did not know of the transfer at the time that it was conducted, and did not approve of the transfer was primarily, though not exclusively, based upon his evidence of the conversation he alleges he had with the deceased while she was in hospital on 2 July 2004 set out in paragraphs [52], [53] and [55] above. The plaintiff additionally submitted that the defendant's evidence was unreliable and lacked credibility. 137 The defendant contended that the money transferred was a gift from the deceased, approved of by the deceased, and that the transfer was physically conducted by the deceased in her presence. The defendant asserted that the deceased had clearly expressed to the defendant and her husband, as well as to Mr Richardson, her intention of gifting the money. It is also submitted that the plaintiff was informed by the deceased of the gift, subsequent to the transfer of the money. 138 The evidence put forward by the plaintiff and that put forward by the defendant as to the central factual matters in these proceedings, is in direct opposition. The credibility of each party, and of each party's witnesses, is accordingly important in resolving the conflict. A good deal of the evidence has been directly related to this aspect. 139 In the determination of the second issue, (b) above, the major factor to be taken into consideration is whether or not misappropriation of the money, referred to in (a) above, has occurred. The plaintiff also relied on other factors outlined above, such as delay by the defendant in dealing with matters of probate, failure to account for the property of the deceased and failure to communicate with her co-executor, in his claim that the defendant should be passed over as executor.

The relevant standard of proof on the issue of the alleged misappropriation 140 In civil proceedings the standard of proof is the balance of probabilities. The evidence must be found to show that a matter more likely than not occurred. In Rejfek v McElroy (1965) 112 CLR 517 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ at 521-522, it was held that the standard goes to the degree of persuasion of the mind:-

"No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge."

141 However, in Sodeman v The King (1936) 55 CLR 192 per Dixon J at 216, the High Court held that, "questions of fact vary greatly in nature and in some cases greater care in scrutinizing the evidence is proper than in others, and a greater clearness of proof may be properly looked for". 142 In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court determined that in a civil case involving allegations of criminal conduct, fraud or moral wrongdoing, which may result in grave consequences for a party, the judicial approach should involve a close scrutiny of the evidence. 143 In Briginshaw (supra), Dixon J (as he then was) stated at 362:- "[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters 'reasonable satisfaction' should not be produced by indefinite testimony, inexact proofs or indirect inferences." 144 Later, in Neat Holdings v Kurajan Holdings Pty Limited (1992) 67 ALJR 170, the High Court observed that this principle is to be understood:- "[A]s merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 145 The approach which I have accordingly adopted in determining whether the plaintiff has discharged the onus of proof upon him is to apply the Briginshaw standard in assessing the evidence and in making factual findings concerning the allegation of misappropriation. 146 The plaintiff did not, as earlier indicated, press the pleaded allegations of undue influence. Accordingly, the legal onus remained upon him to prove to the abovementioned standard the alleged misappropriation.

Whether or not the deceased made a gift of $200,000 to the defendant

(a) Plaintiff's conversation with his mother in hospital on 2 July 2004 147 The plaintiff submitted that despite her physical and mental illness at the time of the conversation in hospital on 2 July 2004 (set out in paragraphs [53] to [57]), it was clear to him that his mother was communicating in the abovementioned conversation that money from her bank account had been spent by the defendant that she had not intended the defendant to spend. He contended that despite his mother not referring to a specific amount of money during the conversation, the Court would find that she was in fact making complaint over the transfer of the $200,000. 148 Mr Ellison, on behalf of the defendant, adopted the position that, there being no other person present, he was not in a position to challenge the plaintiff on his alleged account of the conversation. However, he submitted that the conversation as related by the plaintiff does not give rise to an inference of impropriety on the part of the defendant. There was no direct complaint by the deceased alleging any criminality, fraud or embezzlement. He further submitted that one interpretation of it was that the deceased did gift the money and knew of the money being transferred but did not want her to spend it on a purpose that the deceased did not agree with. It was further submitted that if the conversation was so construed as to constitute an allegation of fraud, then in light of the deceased's deteriorated state of health at the time, or possible ulterior motives as a testator, the conversation cannot be relied on. The defendant also submitted that as it is a conversation said to have occurred after the transfer, the Court would rely upon the evidence of the contemporaneous conversations concerning the transfer and statements made by the deceased, as deposed to by the defendant and her husband. 149 Mr Ellison further submitted that, even taking the statement attributed to the deceased set out in paragraph 36 of the plaintiff's affidavit, on its face, one may see, firstly, that the St George Bank statement balance of $33,000 and the deceased's alleged statement "is there anything else on the statement?", to which the answer given by the plaintiff was "No", are all capable of constituting mere statements of fact, not carrying any sinister meaning. The further statement "there is not much left. Shelley has spent it" is consistent, Mr Ellison contended, with the fact that the deceased's funds had been diminished by virtue of the gift and other outgoings and that the statement may simply be taken as a reference to the fact that the defendant had indeed spent monies including those provided to her by her mother. 150 In reference to the question the plaintiff claims he put to his mother "did you want Shelley to spend this money?", to which his mother is said to have answered "No", this was capable of a number of interpretations but that, in any event, there was no statement made by the deceased indicating that the defendant had unauthorised access to the deceased's funds or had committed any impropriety. The statement attributed to the deceased, it was contended by Mr Ellison, could not of itself indicate or support an allegation of criminality, in particular, of fraud on the part of the defendant. 151 Mr Ellison further submitted that the statement as to the balance of the account being low was again merely a statement of fact and that it could simply have been another way of saying that she was not in a position to leave money to anyone else, the plaintiff himself having initiated the conversation with the question "Mum, have you thought of leaving any money to Allison?". 152 The plaintiff during cross-examination on the extent of his recollection stated (transcript, 4 June 2007, p.59):- "… this was a conversation with a dying woman spread out over a long period, finding stuff that I was absolutely astounded to find on my hands and knees on the carpet, reading things in poor light because the room was partly darkened. Now, this is the essence of what was covered. The absolute word perfectness of it is beyond me at three years' time." 153 In terms of the precise content of the conversation the plaintiff says that he had with his mother, it is noteworthy that no record was created by him of the conversation. Further there is no reference to the conversation in the plaintiff's email correspondence with the defendant in and after August 2004 or later. In the context of allegations of impropriety being raised by the plaintiff, had he interpreted what he said his mother said on 2 July 2004 as he asserted during the hearing of the proceedings, then one might have expected there to have been some reference made to the conversation (or at least his understanding of it) in the email correspondence. 154 In resolving the issues based upon the conversation the plaintiff said he had with his mother, I have had regard to the following matters:-

(a) Whatever the deceased said on 2 July 2004, she was then extremely ill and was literally in her last and declining stage of life. The plaintiff himself said that his mother's speech was stilted and halting and that statements by her on the occasion in question were made over a considerable period of time whilst he was with her. The plaintiff said in cross-examination "… it was a conversation where I often had to offer words and Mum had to accept them or not" . He added "She was very, very ill physically and mentally. She was extraordinarily tired …" .

(b) The plaintiff's own evidence in cross-examination to which I have referred, indicated that he was not able to recall the precise terms of the statements made by the deceased.

(c) The fact that there was no reasonably contemporaneous record created by the plaintiff of what precisely the deceased did say to the plaintiff on that occasion.

(d) The account included in the plaintiff's affidavit sworn on 1 May 2006 was made in circumstances in which the plaintiff himself admitted to difficulty in recalling three years or more precisely what was said by the deceased. He said that the terms of the conversation set out in paragraph 36 were intended to convey "the essence" of the conversation rather than its precise terms.

(e) There are some variations in the account of the conversation set out in the statement of claim filed on 26 May 2005 and that appearing in the plaintiff's affidavit as identified in paragraph [57] above. 155 In relation to the plaintiff's account of the conversation with the deceased on 20 July 2004, I make the following findings:-

(a) The deceased at the time was extremely ill both physically and mentally and had difficulty in expressing herself.

(b) The deceased's mental and physical condition plainly indicates the need for caution in accepting that she was able to reliably and rationally express herself in relation to past financial matters.

(c) The plaintiff's account of what the deceased said is not a verbatim account of what she actually said. This, together with the deceased's difficulty in expressing herself gives rise to a level of uncertainty as to precisely what she said.

(d) The account of the conversation as given by the plaintiff does not make reference to a statement by the deceased specifically alleging fraud, misappropriation or other impropriety by the defendant. 156 I do not consider that the plaintiff's evidence as to what his mother said on the occasion in question to be at all a reliable account and I do not accept it as an accurate account. The plaintiff did not, himself, before the proceedings were commenced, disclose that a conversation to which he now attached great significance had occurred. I have earlier noted that a similar point was made to the plaintiff the month before he commenced proceedings in the letter from Miller Noyce (see paragraph [58] above).

(b) Intention of gifting expressed to the defendant and her husband 157 As outlined above, both the defendant in her affidavit sworn on 7 August 2006 and the defendant's husband, Mr Hodges, in his affidavit sworn on the same date, referred to occasions on which the deceased expressed to each of them her intention of gifting the amount of $200,000. The defendant additionally said that the deceased stated that by making the gift of $200,000 to the defendant, the deceased wanted to "balance" that which had been given to the plaintiff over the years. 158 If accepted, the evidence of the defendant and her husband makes it clear that the deceased had intended the $200,000 to be a gift to the defendant (and possibly to them both). The extent to which the evidence of the defendant and her husband is to be accepted is dependent in part upon findings required to be made in relation to their credibility on specific matters and generally. Those are considered below.

(c) The evidence of Mr Richardson as to the deceased's intention allegedly conveyed by her to him 159 Mr Richardson was called by the defendant to corroborate evidence as to the intention of the deceased. Mr Richardson, as earlier stated, had carried out extensions to the home of Mr and Mrs Hodges in 2004. Prior to the commencement of work he had a number of discussions with them at their home. As discussed below, Mr Richardson's affidavit evidence was in several respects false evidence. 160 The defendant and her husband in their respective affidavits sworn on 7 August 2006 both stated that in about October 2003 the deceased told Mr Richardson of her intention to provide, by way of gift, $200,000 to the defendant. I have referred earlier to the meeting with Mr Richardson on 9 October 2003 (paragraph [96]). The deceased's stated intentions with respect to the gift was according to the defendant and her husband also confirmed by the deceased to Mr Richardson on 2 December 2003 at the time of signing of the building contract.

161 In his affidavit dated 21 June 2006 in these proceedings, Mr Richardson's evidence corroborated the account of the meetings put forward by the defendant and her husband that the deceased said to him that she was giving her daughter $200,000. However, very early in his oral evidence, Mr Richardson stated that various statements made in his affidavit were incorrect, including those statements corroborating the evidence of the defendant and her husband. Mr Richardson said that the position he had adopted in his affidavit was one that he had been asked to take by Mr Hodges. He said that the statements attributed to the deceased in his affidavit were not made by the deceased to him or made in his presence. In his oral evidence he said that a statement to that effect was made to him by the defendant and by Mr Hodges at their meetings. 162 Mr Richardson also stated that he had been present at the Hodges' home on various occasions at meetings where the deceased was also present in the home. However, he did not hear statements be her confirming her intention to give $200,000 to the defendant and her husband.

163 In oral evidence Mr Richardson said that he swore the affidavit as a favour to Mr Hodges. He later said he swore the affidavit "to help Mr and Mrs Hodges" (transcript, p.179). He said Mr Hodges had called him in October 2005 and asked for his assistance in a probate matter that he was having trouble with (transcript, p.167, 174). Mr Richardson could not recall the words used or the precise terms of the telephone conversation, nor whether there was a figure of $200,000 mentioned. He stated that it was Mr Hodges who had asked him to use the word "gifting" in his affidavit (transcript, p.218).

164 Mr Hodges, according to Mr Richardson, stated that he would send an email to Mr Richardson outlining what he needed Mr Richardson to state in an affidavit. Mr Richardson claimed that he did so and that they both agreed to later delete Mr Hodges' email from their respective computers, and that this was done.

165 There was evidence put forward in these proceedings of correspondence between Mr Richardson and the defendant, her husband, and the defendant's solicitor, Mr Spencer. 166 Exhibit 16 includes a copy of an email sent on Tuesday 18 October 2005 at 11.57 am by Mr Hodges to Mr Richardson. A further copy of it has earlier been admitted as Exhibit 7. It said in part:- "Hi Rob It was good to catch up with you on the phone a little earlier this morning. Trust you and Gregg managed to claw your was through the city and got to your appointment on time. I take a moment to confirm points discussed. We are presently having some problems with application for probate for Shelley's late mother, Pam Simpson. The issue being the financing of the top floor extension of our home by your company at 98 Pentecost Ave, Pymble. During our conversation this morning I was please (sic) that you were able to recollect and confirm for me that during the meetings held at our home with Shelley and I, that on numerous occasions Pam Simpson was party to these discussions and that she had confirmed clearly to yourself on one or more of these occasions that financing of the works would be by way of a $200,000 gift from Pam to Shelley which was in part proceeds from sale of properties in NZ. As you have agreed this morning this point was the bases (sic) of Heritage Homes building contract requirement for us to demonstrate a capacity to fund the works. Rob, whilst I am delighted that you had no difficulty in recollecting that the above took place we do require you to confirm such in writing. Both Shelley and I would be appreciative if you could assist us in progressing application for probate by attending to this matter as soon as you are able. Thanks and regards John"

167 Exhibit 16 also includes Mr Richardson's reply on 18 October 2005 at 8.08 pm. It read:- "Hi John I received your email today and will be more than happy to give the background of your brief to Heritage Homes for the home extension for Gran as a matter of urgency. Regards Rob" 168 That exhibit also includes a copy of a further email from Mr Richardson sent on 19 October 2005. It simply stated:- "Hi John and Shelley Please let me know if this draft letter is OK. Please feel free to make any changes and email them to me." 169 A letter was sent by Mr Richardson addressed to the defendant dated 20 October 2005 (Exhibit 8). In oral evidence Mr Richardson said, "the letter was copied from some information that we got from Mr Hodges" (t.176). The terms of that letter were as follows:- "Dear Shelley I can recall quite clearly the first and subsequent meetings leading into the contract for your home extension with Heritage Homes. The first of many meetings took place around your kitchen table and always included Pam Simpson (whom I called Gran), you, John and me (Rob Richardson). There were at least six such meetings and the four of us were present at each meeting. As a condition of the building contract, "Evidence of capacity to pay" was required, and as a result Pam Simpson told me that she was gifting $200,000 to Shelley and that Shelley had decided to use this gift towards the cost of the extensions and renovations. She confirmed to me that this gift was a portion of proceeds from the sale of her New Zealand properties. Because Pam Simpson demonstrated a high level of credibility, her confirmation to me of the gifting to Shelley satisfied the funding clause in the building contract. Yours faithfully R J Richardson - Director HERITAGE HOMES" 170 A draft of that letter in somewhat different terms was included in Exhibit 16. 171 On 24 April 2006, Mr Spencer wrote to Mr Richardson and included a copy of a draft affidavit for his consideration. The letter stated the draft had been prepared on the basis of his letter to the defendant dated 20 October 2005 (Exhibit 8). 172 On 15 June 2006, Mr Richardson sent an email to Mr Spencer confirming, inter alia, that the deceased, "satisfied the contract 'capacity to pay' clause by advising that she had gifted $200,000 to Shelley. Mrs Simpson had also mentioned this gift at previous meetings." (Exhibit 11). 173 On 21 June 2006, Mr Spencer wrote against to Mr Richardson enclosing a revised affidavit. Mr Spencer wrote:- "… This has been prepared after checking both Mr and Mrs Hodges recall of the circumstances. You might check the same against your own recollection of the circumstances …" 174 Mr Spencer later emphasised the need for the affidavit "to record what you recall of the situation" (Exhibit 12). 175 In oral evidence, Mr Richardson stated, "Well, what's in the affidavit is what Mr Hodges has asked me to put together" (t.184). In later evidence he said, "… I believe that it was Mr and Mrs Hodges told me about the $200,000 not Pam Simpson…" (t.208). 176 In circumstances in which Mr Richardson, not only retracted significant parts of his affidavit evidence but stated that specified paragraphs in his affidavit were false, it follows, that his affidavit evidence plainly is incapable of providing corroboration for the defendant's account or that of her husband of what was said at the meetings and the statements said to have been made by the deceased. Mr Ellison, however, submitted that one way of dealing with the evidence of Mr Richardson would be to reject his oral evidence on the basis of his limited reliability as a witness and to accept the evidence in his affidavit as the truth. I cannot accept that submission.

177 It was against Mr Richardson's interests for him to admit initially that his affidavit evidence was incorrect and later that it was false. I find that the evidence of Mr Richardson cannot and does not corroborate the evidence of the defendant or that of Mr Hodges that the deceased confirmed to Mr Richardson her intention of giving $200,000 to the defendant. 178 I will refer in greater detail below to the communications between Mr Richardson and Mr Hodges. Mr Richardson's oral evidence raises significant credibility issues in relation to the evidence of both the defendant and her husband. (d) Information concerning the gift expressed by the deceased to the plaintiff 179 I will deal with the defendant's assertion that on 11 February 2004, the plaintiff had been informed by her that the deceased had made a gift to her of $200,000 and that on 12 February 2004, and again on 15 February 2004, she was present when the deceased told the plaintiff that she had given $200,000 to the defendant. 180 The plaintiff denied the above conversations occurred. He contended that the deceased did not at any time inform him that she had given $200,000 to the defendant. His evidence also was that the defendant did not mention to him the fact of the gift of $200,000 to her until some time subsequent to him making inquiries about the transfer of the money.

181 It was the plaintiff's case that for a time after the abovementioned conversation he said he had with his mother in hospital he had no knowledge of the transfer of the $200,000 to the defendant. According to his evidence, it was following that conversation that he set about making inquiries about withdrawals of money from his mother's account of the St George Bank. It was not until after he had received a copy of the deceased's bank statements that he inquired of the defendant by email on 16 August 2004 about the transfer of funds in excess of $200,000. 182 There is no precise evidence from the plaintiff in these proceedings as to the actual date upon which he became aware of the transfer of the $200,000. As noted earlier, the first mention of a gift in the email correspondence between the parties is in the plaintiff's email of 8 December 2004. There is also the letter dated 8 December 2004 from Fiona Townend, the deceased's solicitor, from which it may be inferred that the plaintiff had made inquiries as to a possible "gift", on or prior to the date of the letter.

183 The plaintiff submitted that the failure by the deceased to tell him about any gift, despite what he described as their close and loving relationship, is evidence from which an inference against the defendant should be drawn, namely that it was highly unlikely that the deceased would not have told him about such a large gift being made. I accept the plaintiff's evidence that his relationship with his mother was a close and loving one. However, I do not find it to be so unlikely that the deceased would not have told him about the gift. There is no evidence that indicates that the deceased had in the past confided in the plaintiff about her financial matters.

184 The plaintiff submitted that the evidence given by the defendant and her husband as to him being informed of the gift is false and was simply an attempt by the defendant to strengthen the defendant's case. The issue as to the credibility of the defendant is discussed below. (e) Deceased did not inform her solicitor of the gift 185 The plaintiff submitted that at the time of drafting the deceased's last will, her solicitor, Ms Townend, would have been likely to ask of the deceased whether any large gifts had been made to either of her two children.

186 In oral evidence, Ms Townend stated that the deceased did not mention the making of a gift to the defendant. However the extent to which, if any, the deceased was questioned by her solicitor about the making of gifts was not clarified.

187 I consider the evidence of Ms Townend to be neutral in this regard, and do not consider it to be either supportive of, or inconsistent with, either the plaintiff's or of the defendant's version of the facts.

(f) Whether or not the deceased physically affected the transfer 188 This issue concerns the deceased's actual involvement in the transaction whereby she is said to have electronically transferred monies from her account by way of gift to the defendant. As noted earlier, the defendant's evidence was that the deceased physically activated the electronic process required to affect the transfer by telephone banking. The plaintiff's evidence , in this regard, called into question the deceased's visual impairment. 189 The plaintiff submitted that it is highly unlikely that the deceased would have been the one to physically conduct the transaction for various reasons including the fact of the deceased's glaucoma - that that condition would have prevented her from being able to see the buttons on the telephone accurately, and, additionally, the deceased did not trust electronic banking processes. 190 On this issue, the defendant tendered a number of exhibits: a portable telephone belonging to the defendant (Exhibit 3); a quick dial phone book (Exhibit 4); the defendant's television remote control (Exhibit 5); and a photograph of the deceased using a television remote control (Exhibit 6). I note that Exhibit 3 is not the same telephone that was used in the transfer of the money. 191 Mr Young of counsel submitted that a Jones v Dunkel (1959) 101 CLR 298 inference arises from the failure of the defendant to tender the actual telephone used to make the transfer, inviting the conclusion to be drawn that provision of that telephone would not have assisted the defendant's case. He submitted, and I accept the submission, that Exhibits 3, 4, 5 and 6 are of little weight in determining whether it is more likely than not that the deceased used the telephone in Mr Hodges' home office to transfer the money and that they are also of limited use in determining the level of independence of the deceased. 192 The plaintiff related conversations between March 2003 and July 2004 in which the deceased, inter alia, is said to have referred to the fact that she could not use the telephone for direct dialling as she could not read the numbers and needed assistance. The plaintiff gave evidence that when he received phone calls from his mother, it was usually Mr Hodges who would speak first then pass the phone to the deceased.

193 The evidence shows, and I accept, that the deceased's glaucoma prevented her to some extent from being able to read small print. However, I find that the glaucoma would not have prevented the deceased from being able to enter numbers in the phone of her own accord.

194 The evidence is that the defendant was a woman who was cognitively alert at the relevant time, and that her ability to see was to some extent affected by glaucoma. Evidence was put forward by the defendant of the deceased's handwritten letters and notes. It is clear from looking at the notes and letters and photographs tendered in evidence that as at October 2003, the deceased had sufficient visual acuity to be able to write neatly and legibly by hand and to read to an extent.

195 In his affidavit, the plaintiff gave evidence as to the deceased's "… distrust of automatic teller machines, telephone banking and electronic banking in general and … she would not use them" (paragraph 27 of the primary affidavit sworn on 1 May 2006). The defendant, however, stated in her second affidavit that her mother did use ATMs from time to time, both in New Zealand and in Australia but that the defendant was generally there to help and make sure she collected her card and money afterwards.

196 The plaintiff submitted that an inconsistency arose between the defendant's evidence and that of her husband. Mr Hodges gave evidence that, to the best of his memory, the telephone in his home office at the time of the transfer would have been a standard Telstra telephone that did not have loudspeaker capability. However, he also stated that he could not be certain as to the precise date on which the phones in his office were changed. 197 The plaintiff argued that there is inconsistency between the defendant's account in her affidavit that the deceased effected the transfer and her email to the plaintiff of 17 August 2006 wherein it was stated that the transfers of money were being done at the request of the deceased.

198 I do not, however, consider that this alleged inconsistency carries any substantial weight in the ultimate determination of the defendant's credibility. That is to be assessed with regard to the whole of the evidence, including the relationship that existed between her and the deceased. 199 Although I accept that electronic banking was not something the deceased was completely comfortable with and that she had some visual limitations, the evidence does reveal that she was intellectually competent at the time the funds were transferred and she had the capacity to read and write. I do not consider that the evidence relied upon by the plaintiff is sufficiently cogent for the plaintiff to be able to prove on the balance of probabilities that the deceased could not and did not effect the transfer in the way described by the defendant. Credibility of the defendant and her husband 200 The credibility of the defendant and her husband and their reliability is, of course, of central importance in these proceedings. Equally so the plaintiff.

201 It was submitted by the plaintiff's counsel, Mr Young, that the evidence of the defendant and that of her husband, Mr Hodges, ought not to be accepted by the Court, because they are not witnesses of truth in various respects. He submitted that the defendant's case as to the $200,000 being a gift rests solely upon the evidence of Mr and Mrs Hodges, both of whom have an interest in denying that the transfer was a wrongful misappropriation.

202 The plaintiff questioned the credibility of the defendant and the reliability of her evidence, as well as that of her husband, on various grounds. The significance of each of the grounds is to be assessed both individually and cumulatively. (a) Delayed response from the defendant regarding accusations of impropriety 203 The plaintiff submits that an adverse inference against the defendant should be drawn on the basis that she failed to respond in any detail to the plaintiff's accusations of impropriety made in his email sent on 16 August 2004. The plaintiff contended that the defendant significantly delayed in explaining, justifying or admitting her position regarding the transfer of the money. This, he submitted, limited her credibility.

204 He further submitted that an inference against the defendant should be drawn on the basis that the defendant did not include in of her emails of 16 or 17 August 2004 any indication that the total of $208,412 that he had questioned was largely made up of a $200,000 gift made to her by the deceased. Further, on the defendant's version of the facts, she omitted to refer to the fact, as she contended in these proceedings, that the plaintiff had been made aware of the $200,000 gift on 11 February 2004 when speaking to her as well as on two subsequent occasions by the deceased. These occasions are referred to in the defendant's affidavit sworn on 7 August 2006. 205 The plaintiff, accordingly, submitted that the defendant's delay in asserting that the amount of $200,000 had been given to her by the deceased, and the further delay in asserting that the plaintiff had previously been advised of this gift on more than one occasion are matters that adversely affect her credit. This, it was contended, must weigh against the truth of her assertions as to a gift having been made.

206 From the evidence of email correspondence between the parties, the date on which a "gift" was first mentioned by the plaintiff was, as earlier noted, 8 December 2004. The first time the defendant asserted in the email correspondence that the plaintiff had prior knowledge of the 'gift' was on 31 January 2005. However, as set out in paragraphs [119] and [120] above, it may be inferred from the plaintiff's email of 8 December 2004 that the defendant, at some point prior to that date, had made the claim to the plaintiff that the $200,000 was a "gift".

207 There is no specific evidence that would explain why the defendant or her husband failed to mention the gift in the earlier emails, or the fact that the plaintiff already knew about the gift, following the plaintiff's email inquiry on 16 August 2004. I will return to this matter below.

(b) Effect of Mr Richardson's evidence on the defendant's credibility

208 The plaintiff submitted that the credibility of the defendant and her husband was diminished by the oral evidence given by Mr Richardson.

209 Mr Young of counsel submitted that Mr Richardson's evidence in the witness box effectively condemns the defendant and her husband as dishonest and shows that they are prepared to fabricate evidence in order to support their case.

210 It was further submitted that Mr Richardson had no reason to give false evidence in the witness box. In particular, it was observed by Mr Young that there was no benefit to be obtained nor any detriment to be avoided by Mr Richardson giving evidence as to false swearing of his affidavit.

211 The plaintiff contended that there was a close similarity between the affidavit of Mr Hodges dated 7 August 2006 (at paragraph 64) and the affidavit of Mr Richardson dated 21 June 2006 (at paragraphs 4 and 5). That similarity, it was submitted, was not coincidental. 212 Mr Young submitted that the conduct of Mr Hodges could not be separated from that of the defendant, despite Mr Richardson's evidence that it was Mr Hodges who drafted the substance of Mr Richardson's affidavit and that it was he who had the contact with Mr Richardson. Mr Hodges gave evidence that he and the defendant "came to the conclusion, both of us, Shelley and I, that Rob was involved in discussions with [the deceased]". Mr Hodges in evidence denied that he had sought to improperly induce Mr Richardson to make a false affidavit.

213 Whether the defendant was involved in the production of Mr Richardson's affidavit is not established by the evidence. There was no evidence by Mr Richardson that to his knowledge the defendant had involved herself in asking him to swear a false affidavit. There was no other evidence which could, in my opinion, adequately support such a serious finding. I do not consider that it can be inferred and found from the defendant's use of her husbands email address, or her knowledge of her husband's contact with Mr Richardson regarding the proceedings, that she participated in the steps that led to the production of Mr Richardson's false affidavit.

214 In reaching this conclusion I have not overlooked the defendant's own evidence to the effect that her mother spoke to Mr Richardson, and advised him that she was giving the defendant $200,000 and that she, the deceased said to him that her daughter, the defendant, had decided to put the money towards the extensions. I also have had regard to Mr Richardson's oral evidence on 5 June 2007 that "the old lady" was sitting in an adjoining room to the kitchen where he had a meeting with Mr and Mrs Hodges and that on both 5 and 6 June 2007 it was not the deceased who told him about the $200,000. 215 In order to satisfy the Briginshaw standard of proof, there would need to be cogent evidence that either Mr Hodges or the defendant or both acted so as to induce Mr Richardson to give false evidence. I do not consider that the evidence of Mr Richardson could alone constitute a sound or proper basis for such a finding. I have in so concluding, in this respect, taken into account the conflicting and unsatisfactory evidence of Mr Richardson and the absence in the present proceedings of corroborative evidence that is capable of supporting his oral evidence. I have also taken into account Mr Hodges' sworn denial of Mr Richardson's oral evidence.

216 Finally on this aspect I should observe that even if it had been possible to determine that Mr Richardson's affidavit or parts of it included false material at the instigation of Mr Hodges, this would not, of course, in itself be sufficient to prove on the balance of probabilities that the $200,000 was not a gift. It would, for example, be consistent with a desire on Mr Hodge's part to strengthen his wife's case in the absence of any written document proving that the $200,000 was a gift. Analysis

(a) A lack of contemporaneous evidence 217 In evaluating the defendant's credibility, it is relevant to bring into account the defendant's response to the allegation of impropriety. The plaintiff's email of 8 December 2004 suggests that the defendant or her husband had raised the subject or a claim of a gift having been made by the deceased. However, I also note that there is no specific reference in the defendant's emails prior to December 2004, as one might have expected, to the fact of the deceased having made a gift to her of the $200,000 in November 2003. Additionally, the first reference in those emails to the matter of a gift having been openly discussed with the deceased, as the defendant claimed in her evidence, is on 31 January 2005. I refer in this respect to the alleged conversations of 11 February 2004, 12 February 2004 and 15 February 2004 deposed to by her. In a case such as the present where a court is required to determine whether a particular matter has been discussed orally on a previous occasion, it is, of course, material to have regard to whether there had been an assertion made about such a discussion once a dispute over a relevant matter arose.

(b) Specific matters 218 In evaluating the credibility of the defendant, I have regard to the following:-

(a) There was no challenge to the defendant's evidence that she said she had a good and close relationship with her mother. The plaintiff did not suggest that the defendant and her husband acted otherwise than bona fide in arranging for the deceased to live with them and had her best interests in mind in doing so.

(b) There is no past history (before November 2003) impugning the integrity or honesty of the defendant or of her husband. The plaintiff, it is to be noted in this respect, without reservation, supported the defendant taking a Power of Attorney from the deceased on 19 February 2004.

(c) The plaintiff sought to use Mr Richardson's admissions as to his false affidavit evidence as a basis for imputing dishonesty in the defendant and her husband. Without more, as I have earlier stated, it would not be open on the evidence for a finding to be made that the defendant herself was involved in the events that led to Mr Richardson's affidavit.

(d) The fact that the method employed to effect the transfer (by telephone banking), did not generate documentary evidence under the deceased's hand (as would have been the case with a handwritten cheque) or otherwise confirming her knowing and willing participation. The absence of such evidence increases the need for careful scrutiny of the defendant's evidence.

(e) In determining the disputed issue of "gift" , I have, of course, had due regard to the large amount of money involved ($200,000) and the fact that the contract price of the renovations of the Pymble home was $197,580 including GST. The latter fact, however, is an equivocal one.

(f) The first documentary reference to the alleged disclosures to the plaintiff of the alleged gift (which the defendant claimed occurred on 11, 12 and 15 February 2004) was not immediate. Whilst, as discussed earlier, there had been some discussion in late 2004 of the question of a gift, partial disclosure in the email correspondence did not occur until the email from the defendant's husband dated 31 January 2005 was sent in the terms as set out in paragraph [125] above. 219 I note that the plaintiff made a general rejection rather than a specific denial of this matter in his email of 1 February 2005.

(c) The significance of the alleged dealings between the defendant's husband and Mr Richardson 220 The involvement of Mr Hodges in obtaining evidence from Mr Richardson is a matter of particular concern given the latter's oral evidence. As noted earlier Mr Richardson's evidence was that Mr Hodges had asked him for an affidavit for the purposes of the proceedings. He said in relation to the word "gifting" (which he used in paragraph 4 of his affidavit sworn on 21 June 2006 being the paragraph that falsely gave an account of a statement attributed to the deceased) "I have never heard of that term, your Honour". In reference to the phrase he attributed to the deceased in paragraph 4 of his affidavit, "I am gifting", he said "that wasn't what was said" (transcript, 5 June 2007, at p.143). 221 I note that the word "gifting" was in fact used by Mr Hodges in his email of 31 January 2005 to the plaintiff. That term first appeared in the email sent by the plaintiff on 8 December 2004. Mr Richardson stated that he thought that it was Mr Hodges who had told him that the deceased had given $200,000 to the defendant and went on to say that when Mr Hodges contacted him it was he who asked Mr Hodges to send an email "… of what you want me to do and I'll do it". 222 As earlier noted, according to him Mr Hodges sent an email. Mr Richardson subsequently said Mr Hodges sent two emails. He said, "He sent another one, which we both agreed to delete". Mr Richardson stated Mr Hodges said, "We can't have this in writing. Would you delete it? And I deleted it." (t.234). He indicated in later evidence that his laptop computer is backed up by his desktop computer (t.227). Whether all copies were, on Mr Richardson's evidence, deleted is unclear. Mr Richardson said that his letter addressed to the defendant dated 20 October 2005 (Exhibit 8) was based on Mr Hodges' email (t.232). As also noted earlier, the draft affidavit was made some time after the above emails and Exhibit 8. The affidavit was initially sent in draft to Mr Richardson by Mr Spencer, solicitor, who was acting for the defendant. 223 At the time Mr Hodges made contact with Mr Richardson on 18 October 2005, Mr Spencer had been acting for his wife, the defendant for some time. For some reason, Mr Hodges took it upon himself to speak and deal directly with Mr Richardson, rather than leaving it to Mr Spencer to do so. Mr Spencer only came into this aspect of the matter at a comparatively late stage in preparing a draft affidavit for Mr Richardson's consideration. Mr Spencer gave evidence, which I unreservedly accept, that at no time did he become aware of any false or misleading material in Mr Richardson's affidavit or in the defendant's affidavit or that of her husband. Whilst Mr Hodges denied having told Mr Richardson what to say in his affidavit, by some means and for some reason, Mr Richardson proceeded to include in it information which he said in his oral evidence was not based on his recollection and which was in fact false. 224 There is no satisfactory explanation in the evidence as to what motivation Mr Richardson would have had to fabricate evidence beyond his account that Mr Hodges sought his assistance. Mr Richardson claimed, as earlier noted, that Mr Hodges said, "he was in financial difficulties and he thought he would lose his house and business due to a probate problem". Mr Hodges denied making such a statement. Mr Richardson insisted that he agreed to give false evidence on the basis, as he understood it from what he maintained was said by Mr Hodges, namely that, "It's for lodgment of probate. It won't go to court". 225 From the moment he entered the witness box, Mr Richardson exhibited marked discomfort and at an earlier stage in his evidence stated that he was "very stressed about this", and in due course, made damaging admissions against himself under the protection of certificates I issued pursuant to s.128 of the Evidence Act 1995. 226 The oral evidence given by Mr Richardson against his own interest cannot be dismissed as having no probative value. Witnesses called in legal proceedings do not, of course, readily admit to perjury. There is no evident reason why Mr Richardson would lie when he said he falsely swore an affidavit. His evidence that he did so makes it essential that the defendant's evidence and that of her husband's be carefully scrutinised. 227 In considering this aspect of the matter I have taken into account the fact of Mr Richardson's admitted perjury together with the fact that the admissions he made about it were effectively volunteered by him against his interest. Having done so, I am of the opinion that his evidence that the deceased did not at any meeting make the relevant statements to him should be accepted. However, having so concluded, the fact of his perjury itself would render it dangerous to use his oral evidence for the purpose of making any findings of impropriety against Mr Hodges who denied the oral evidence of Mr Richardson and who denied any impropriety on his part. Additionally, as earlier observed, there is no clear evidence that implicates the defendant in the preparation of the Richardson affidavit and it follows that no finding of impropriety can or should be made against her.

Conclusions 228 The evidentiary basis relied upon by the plaintiff to establish, to the required standard, that the defendant misappropriated $200,000 from her mother's account, essentially rests upon the following matters:-

(a) The fact of the transfer of $200,000 from the deceased's account to the defendant's account on 6 November 2003. 229 Plainly the amount of the money in question is a significant fact in assessing the likelihood of a gift having been made.

(b) Whether the deceased's impaired vision tends to disprove the defendant's evidence of the deceased herself effecting a transfer of funds 230 It is plain, as earlier stated, that the glaucoma did impair the deceased's vision to a point. However, there is evidence that affirmatively indicates that the deceased possessed sufficient vision to write letters and read books (at least to an extent) quite apart from the defendant's own evidence of having seen her use the ATM on occasions whilst shopping at the St Ives Shopping Centre. I refer, in particular, to letters written by the deceased (Exhibit 2, p.17, letter dated 13 October 2003) and the photographs showing the plaintiff reading a book at the defendant's home (Exhibit 2, p.3). Accordingly, whilst the deceased suffered from glaucoma and reference to the impairment of her vision appears in medical records (see Exhibit 2, p.24 as to the deceased's glaucoma assessed on 5 April 2004), the evidence also establishes that, with assistance from the defendant, the deceased had the ability to see and activate telephone buttons necessary to effect the transfer of funds.

(c) The statements attributed to the deceased to him a few days prior to her death. 231 The submission for the defendant was that the plaintiff's account of his mother's statements to him in her last days cannot, by his own admission, be taken as a verbatim account. I do not consider for reasons earlier stated, that the plaintiff's account of his mother's alleged statements to him is a reliable account of what the deceased said. The interpretation urged by the plaintiff on his account does not in any event plainly follow. Additionally, the reliability of the deceased's account must be considered, having regard to her mental and physical condition at that time. 232 Accordingly, I do not accept the plaintiff's version of the statements which he attributed to her as having been made on 2 July 2004.

(d) The failure or omission by the defendant or her husband to state in email correspondence in the months following the deceased's death that the deceased had made a gift of the money to her 233 Although the defendant asserted that on three occasions in February 2004 statements were made to the plaintiff by her and by the deceased confirming the gift of $200,000, I cannot accept, on the probabilities, her evidence or that of her husband in that respect. Had such statements been made, then the most obvious response to the plaintiff's emails sent in 2004 suggesting impropriety would have been a firm and precise statement to the effect that he had already been told, not once but, on a number of occasions that a gift had been made of the money by the deceased. There was no reference to any such alleged statement having been made until the expiration of approximately six months following the deceased death. 234 The required analysis on the issue of gift or misappropriation requires careful examination of the evidence relied upon by the plaintiff and whether that evidence is sufficient to satisfy the Briginshaw standard. A central part of the plaintiff's case in that regard (which as earlier stated I do not accept) is the conversation which he alleges took place with his mother while she was in hospital on 2 July 2004 and the interpretation of it which he urged be accepted in these proceedings. 235 In evaluating the evidence relied upon by the plaintiff I have, as earlier discussed, closely considered the conversation that he said he had with his mother while she was in hospital in her last days. It is clear that there is some variation and imprecision in the accounts which he has given as to exactly what his mother said to him. Leaving to one side doubt that arises as to what the deceased meant by whatever she said having regard to her mental and physical state at the time the conversation is said to have occurred, the variability in his own accounts and the imprecision in them are required to be taken into account in assessing whether or not the evidence in the plaintiff's case is sufficient to satisfy the Briginshaw standard. Dixon J in Briginshaw, as set out earlier in paragraph [143] above, in applying that standard, cautioned that "reasonable satisfaction" should not be produced "…by inexact proofs, indefinite testimony, or indirect inferences…". I consider that the plaintiff's account of the plaintiff's account of the conversation with the deceased must be considered to suffer from inexact and indefinite testimony and, in particular, the discrepancies and defects to which reference has earlier been made. 236 As to the defendant's case, it is clear from what I have stated that I am unable to accept all evidence given by the defendant and her husband. I have referred in particular in this respect to their failure to refer in email communications to information or advice which they maintained in these proceedings they gave directly to the plaintiff as to the deceased having made a gift. I have also indicated that I do not accept the evidence of the defendant or that of her husband to the effect that the deceased made statements directly to Mr Richardson of her having made a gift to the defendant. 237 As earlier noted, it was submitted by Mr Young of counsel that Mr Richardson gave evidence "which effectively condemns the defendant and her husband as being dishonest in a critically significant way, and shows them to be prepared to concoct evidence in order to support their case" (Outline of submissions for the plaintiff, paragraph 16). When the defendant was recalled by Mr Ellison to give further evidence following that of Mr Richardson she again stated that her mother had advised Mr Richardson of the $200,000 gift as she had stated in the affidavit. She said she had no knowledge of any suggestion by anyone that "people should get together" and prepare a false affidavit. 238 The plaintiff initially failed to further cross-examine the defendant on her further evidence given on 6 June 2007. However, a little later on that date he did put a number of questions. These, however, were of no relevance and I need not deal with here. 239 When Mr Young appeared for the plaintiff on 19 July 2007 leave was granted to him to further cross-examine the defendant and her husband on particular matters Mr Young identified in advance. He asked the defendant whether she had discussed with her husband his communications with Mr Richardson. The defendant admitted that she knew that he had spoken to him and that Mr Richardson would write a letter. She also said she spoke "afterwards" to her husband about what her husband had discussed with Mr Richardson but not before. She did not discuss with him what Mr Richardson would be putting in his letter. She conceded that she had spoken to her husband about what her mother had said to them on the subject of the gift. 240 In order to support the submission made that the defendant and her husband had acted dishonestly and were prepared to "concoct evidence" to support the defendant's case there would have been a need to have put such a grave proposition or propositions in one form or another, but clearly, to the defendant in cross-examination thereby providing her with the opportunity of responding. However that was not done and the evidence in my opinion does not permit such adverse findings to be made. 241 The matters to which I have referred on which I do not accept the defendant or her husband are important in evaluating the defendant's credibility. However, they are to be assessed in light of all the evidence. I accept, as I have elsewhere indicated, that the evidence does establish the existence of a good relationship between the defendant and the deceased as reflected in the living arrangement which she and her husband provided for the support and benefit of the deceased. Such matters provide a basis for explaining why it may have been that the deceased wished to return the generosity by making a significant financial gift to her daughter. 242 In relation to the defendant's case I have given careful consideration to the whole of the evidence relied upon including the evidence of the defendant, her husband and that of Mr Richardson. Whilst I have given close attention to Mr Richardson's admissions as to false swearing and the corresponding need for caution in relation to his oral evidence, for reasons earlier stated, I accept his evidence that no statement was made by the deceased as he had originally stated in his affidavit. 243 Whilst that conclusion does not of course entirely exclude the possibility that the deceased did say something on the subject of a gift but that Mr Richardson did not hear it or failed to recall it, that would be a generous interpretation of the possibilities. Additionally, it must be said that there is no specific evidence supporting that proposition. 244 Whilst I am unable to accept the evidence of the defendant or that of her husband that statements were made by the deceased to Mr Richardson as claimed by them, that conclusion does not necessarily preclude acceptance of that evidence given on other matters. 245 In this respect it is not unusual for a court to accept part only of the evidence of a witness. There are a number of authorities that have dealt with that proposition. They are collected and referred to by O'Loughlin J in Cubillo v Commonwealth [2000] FCA 1084. In that case His Honour stated:- "… Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions…" (at [118]). 246 In accordance with the above stated principle, having considered the issues and the evidence in these proceedings, I do not consider that the evidence given in the defendant's case which I have accepted and which supports the probability of a gift having been made of the $200,000 could be said to be tainted by the rejection of the evidence given by her and her husband on the two matters earlier discussed. 247 I have concluded that the evidence adduced in the plaintiff's case in support of the allegation of misappropriation is incapable of satisfying the Briginshaw standard. Such evidence is not, in other words, capable of establishing that the defendant wrongfully procured the amount of $200,000 from the deceased on 6 November 2003. 248 I, accordingly, find, on the balance of probabilities, that the amount of $200,000 was paid by the deceased to the defendant by way of gift. 249 Having regard to the very serious matters concerning Mr Richardson's evidence I will below deal with the question of referring the papers in this matter for investigation.

Passing over of the defendant from being granted probate 250 The deceased appointed the plaintiff and the defendant as the co-executors of her Will. There has not been to date any grant of probate of the Will of the deceased.

251 The further issue for determination in these proceedings is whether or not in all of the circumstances it is appropriate that the Court pass over the defendant from being granted probate, and the Public Trustee instead be granted letters of administration of the estate of the deceased with her Will dated 8 March 2004.

252 The grounds relied upon by the plaintiff with regard to this aspect of his claim are outlined above. In particular:- (a) Additionally to the alleged actions of the defendant regarding the $200,000 as a relevant matter in passing over the defendant as executor, reliance was placed upon her behaviour following the death of Mrs Simpson, in particular, delay in dealing with matters of probate, failure to communicate with the plaintiff regarding matters of probate, and delay in applying for probate. (b) The fact that the plaintiff is domiciled and resident in New Zealand and has no capacity to exercise any day to day or practical periodic supervision over the activities of the defendant as co-executor in the administration of the estate of the deceased.

253 The general rule is that, prima facie, all who are nominated the office of executor by a testator, are entitled to a grant of probate: Marsh v Patten (1868) 7 SCR (NSW) Eq 18. It has been held that to exclude anyone, very stringent grounds must be alleged: Evans v Tyler (1849) 2 Rob Ecc 128; 163 ER 1266. See also Bowler v Bowler (No 2) (Young J, unreported, 103687/1989, 7 June 1990) and Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070.

254 In Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193, Windeyer, J observed (at [15], [16]) that:- "… there are a few occasions when it is proper to refuse a grant to a testator's nominated executor … It is clear that a person nominated as executor is entitled to a grant absent special established exceptions …" 255 The plaintiff stated that between 31 July 2004 and 19 March 2005, he requested the defendant on numerous occasions to make a joint application with him for probate of their mother's Will. He said that he received no response. Copies of the e-mails were exhibited to his affidavit.

256 The plaintiff submitted that if he was successful in proving, on the balance of probabilities, that the defendant misappropriated $200,000 of the deceased's money prior to her death, then the court would be satisfied that the defendant should be passed over as executor.

257 The defendant submitted that even if the Court were to find that the $200,000 had been misappropriated by her, the Court would not find that to have been in the defendant's capacity as executor and would not have been with regard to the estate (transcript, p.11).

258 In light of the above finding that the defendant did not misappropriate $200,000 from the deceased during her lifetime, I do not need to deal with the effect that such a finding would have had on appointment of the defendant as co-executor. However, I do not consider that it would have been consistent with principle and the relevant authorities for the Court to permit a person to act as a co-executor who had been the subject of a finding of misappropriation occurring either during or subsequent to another's death.

259 I do not find that in the circumstances of this case, the defendant's delay in dealing with matters of probate, the level of communication with the plaintiff regarding matters of probate, and the failure in making an application for probate, would warrant the passing over of the defendant as co-executor. I consider that with regard to each of the above issues, the defendant was not in a position to properly deal with matters of probate due to the preoccupation of the parties with the plaintiff's complaint regarding the $200,000 transfer, and that probate matters could not be continued until that primary issue was resolved.

260 The fact that that plaintiff is domiciled in New Zealand and therefore unable to exercise control as co-executor of the estate is not a proper reason for passing over the defendant as co-executor.

261 I do not accept the plaintiff's submission that only an experienced professional trustee company, which is independent of both the plaintiff and the defendant, should be appointed as the executor cum testamento annexo.

262 I consider that notwithstanding the ill will and lack of cooperation between the plaintiff and defendant, both should be entitled to take a grant of probate in respect of the deceased's Will. They are both bound to act properly as executors and I note that it has been submitted by counsel that there is very little left to do in terms of administering the estate.

Referring the papers 263 The evidence of Mr Richardson given in the defendant's case to the effect, firstly, that his affidavit sworn on 21 June 2006 contained false evidence and, secondly, that, in effect, such false evidence was included at the behest of Mr Hodges raises the question as to whether the papers in these proceedings should be referred to the Director of Public Prosecutions for investigation. 264 The evidence of Mr Richardson, as indicated earlier, was given under the protection of two certificates dated 6 and 7 June 2007, which I issued pursuant to the provisions of s.128 of the Evidence Act 1995. Whilst that evidence in accordance with those provisions cannot be used against Mr Richardson in any proceeding in a New South Wales Court, that evidence does nonetheless disclose an offence of perjury. 265 As to the second aspect of Mr Richardson's evidence, I have previously recorded Mr Hodge's evidence by way of a complete denial of the conversation which Mr Richardson said took place with him. I have also referred to his denial of the subsequent conduct which Mr Richardson said led to the making of his false affidavit and that which he claimed was designed to avoid detection of at least one email by deleting it from their computers. 266 The evidence of Mr Richardson having been given on these matters, the question arises as to whether the papers should be referred to the appropriate authority. It is important to observe that such a referral, if it is to be made, simply has the effect of directing the attention of the executive arm of government to a possible breach or breaches of the law so that it may, if it sees fit, investigate the matter and, as a consequence of that investigation, take such steps as it sees to be appropriate: see In the Marriage of P and P (1985) Fam LR 1100 per Lindenmayer J; Normandy Woodcutters Limited v Simpson [2002] NTSC 43 at [53]. 267 In a number of cases, the question of a referral of papers has arisen with respect to breaches of revenue laws as disclosed in evidence: see Magafas v Carantinos [2007] NSWSC 416; Petera Pty Limited v FAG Pty Limited (1985) 7 FCR 375 and Georginis v Kastrati (1988) 49 SASR 371 and the cases referred to in the preceding paragraph. A question of referring the papers equally arises, in my opinion, where the evidence in proceedings discloses an offence or a possible offence involving an abuse of this Court's process or otherwise concerning the proceedings of this Court. 268 A judicial officer who believes that offences have been committed is under a duty to refer the proceedings to the relevant authority: Normandy Woodcutters (supra) per Mildren J at [53]. Accordingly, where evidence is given in proceedings in this Court that reasonably suggests that an offence has or may have been committed in relation to proceedings conducted before it, the Court has a duty to refer the proceedings. As Mildren J observed in Normandy Woodcutters (supra), referring the papers is not an exercise of judicial power and no findings are made and no injury to anyone's reputation arises by a mere referral. Nor, as his Honour observed, is the judicial officer required to give anyone an opportunity to be heard in such a matter. 269 In light of the evidence to which I have referred and for the above reasons, the Registrar of this Court will be directed to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions. 270 It follows from the findings made and conclusions that I have expressed that the plaintiff is not entitled to the relief claimed in paragraphs separately numbered 1, 2, 3, 4, 5 and 6 set out and following paragraph numbered 51 of the Statement of Claim. 271 I, accordingly, make the following orders:-

(a) I direct the parties to lodge with my associate within 14 days, a minute of orders in light of the reasons for judgment with respect to the plaintiff's proceedings and the cross-claim proceedings. (b) I direct the Registrar of this Court to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions.

(c) Grant leave to the parties to make submissions as to costs. **********

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