Smith v Smith

A Starting Point: One Family Merges into Another

1. In the aftermath of his first wife's death, and before he met the first defendant (she says, in January 1997), the deceased made a Will dated 19 January 1996 in favour of his three sons (in which the plaintiffs were appointed executors and trustees), and he granted a power of attorney dated 29 January 1996 to the first plaintiff.
2. As evidenced by the Will, the deceased had by this time retired from his occupation as a refrigeration consultant. Apart from his residence, his principal asset (until it came under the first defendant's management a decade or so later) was a portfolio of shares.
3. Between January 1996 and June 2005 the deceased appears to have executed no new wills, powers of attorney or the like. It was during this time, however, that the deceased met, cohabited with and married the first defendant: a change in direction, away from a first family, towards a new one, at an advanced age, that created tensions and engendered in the plaintiffs (especially the first plaintiff) suspicions about the first defendant's motivations.
4. Those suspicions, and perhaps those the first defendant harboured in return, became self-fulfilling as the deceased's sons and his wife allowed themselves to be drawn into a competition for control of the deceased's affairs.

The First Defendant Favoured

1. On 3 June 2005, at the urging of the first defendant, the deceased made a Will, substantially in favour of the first defendant, and executed an enduring power of attorney, also in her favour.
2. The Will did not wholly exclude the plaintiffs (whose brother, Maurice had died about 20 months earlier); but it did give the bulk of the deceased's estate (including the property at Glenmore Park at which he and the first defendant resided) to the first defendant; reduce the plaintiffs' respective shares of the estate to one quarter each; displace the plaintiffs as their father's executors; and (contentiously, in the eyes of the plaintiffs) confer on the first defendant authority to dispose of his ashes after cremation.
3. The Will introduced the deceased's accountant (the second defendant) and Mr Low (a principal of the defendants' firm of solicitors) as his prospective executors. Mr Low had acted as the deceased's solicitor before the events of 2005-2008 to which attention must be given in these proceedings.
4. The powers conferred on the first defendant by the power of attorney dated 3 June 2005 included specific powers, identified by reference to sections 11(2) and 12(2) of the Powers of Attorney Act 2003 NSW, to make gifts of the deceased's property and to confer benefits on his attorney (the first defendant) to meet her reasonable living and medical expenses.

The Pendulum swings back to the Plaintiffs

1. On 18 January 2006 the deceased executed, in favour of the first plaintiff, an appointment as enduring guardian and an enduring power of attorney. Those documents were prepared by a solicitor (Mr JP Dominello) arranged by the first plaintiff, he says, at the request of the deceased. Mr Dominello had previously acted for the first plaintiff.
2. The functions conferred on the first plaintiff as guardian included authority to make decisions about the deceased's accommodation, health care, medical treatment and personal services. The power of attorney conferred on the first plaintiff the specific power, identified by reference to section 11(2) of the Powers of Attorney Act 2003, to make gifts; but it excluded the section 12 (2) power to confer benefits on the first plaintiff as attorney, and the section 13 power to meet the reasonable living and medical expenses of persons other than the deceased.
3. No new will was made by the deceased in or about January 2006.
4. In February 2007 the deceased, in conjunction with the first plaintiff, conferred with Mr Dominello about his affairs, for which purpose he sought and obtained a copy of the Will and power of attorney dated 3 June 2005 from Mr Low on terms, in effect, that Mr Low not disclose this to the first defendant. According to Mr Dominello, the deceased indicated an intention to review his Will after (and only after) completion of conveyancing transactions then in train.

And Back towards the First Defendant

1. On 8 June 2007 the deceased did make a new Will, maintaining the general structure of his 2005 Will, using the services of Mr Low as his solicitor. The occasion for a new will appears, primarily, to have been the deceased's sale of his residence at Glenmore Park and his purchase of a home unit at Emu Plains. In the new Will, as in the old one, provision was made for the deceased's residence to pass to the first defendant.
2. On 26 October 2007, in the wake of a recent medical assessment that the deceased had been suffering from a progressive cognitive impairment over the preceding 18 months (likely, it was thought, to be an early stage of Alzheimer's disease with prominent memory impairment), he and the first defendant opened a joint bank account with the Commonwealth Bank.
3. On 1 November 2007 the deceased executed, in favour of the first defendant, a direction to his stockbroker (Andrew West) authorising the first defendant to act as his agent in operating his accounts with the broker. The terms of the authority made no reference to the Powers of Attorney Act. Its validity, or otherwise, was governed by the common law.
4. Having regard to the deceased's mental decline in 2007, it is at best doubtful whether this document conferred any actual authority on the first defendant to act as the deceased's agent. In any event, if it did, that authority was revoked by the deceased's loss of capacity, an event which occurred (I find) no later than 13 May 2008.

Then Towards the Plaintiffs Once More

1. Between 26 November and 4 December 2007 or thereabouts the deceased, in conjunction with the first plaintiff, arranged for the provision to Mr Dominello by Mr Low of copies of the documents that held by Mr Low, on behalf of the deceased, in safe custody: the deceased's Will dated 8 June 2007, his power of attorney dated 3 June 2005 and the certificate of title relating to the Emu Plains home unit (recording the deceased as the registered proprietor).
2. On 18 December 2007 the deceased executed a new Will, prepared by Mr Dominello, on instructions provided by a letter dated 10 December 2007 (prepared by the first plaintiff, he says, at the request of the deceased) signed by the deceased. Mr Dominello was satisfied that the deceased possessed testamentary capacity at that time: Transcript page 121.
3. The Will appointed the first plaintiff (or, should he predecease the deceased, the second plaintiff) as executor. It did not, on its face, greatly alter the testamentary provision to be made for the first defendant - she was still to receive the defendant's residence, car and proceeds of a bank account - but it did provide for the plaintiffs to receive all proceeds of the deceased's portfolio account with Macquarie Bank and to be his residuary beneficiaries. All else being equal, his largest asset (his portfolio of shares and securities) would have passed to the plaintiffs to the exclusion of the first defendant.

A "Final" Solution Takes Shape

1. The first defendant appears to have been alerted to this Will when, in company with the deceased, she attended upon the office of Mr Low on 7 January 2008 to discuss financing the purchase of a new car. Mr Low noted that he had earlier sent the deceased's papers to Mr Dominello, as in writing directed by the deceased to do, and he invited the deceased to consider whether he (the deceased) wanted him (Mr Low) or Mr Dominello to act for him. After an argument between husband and wife the deceased, in the presence of the first defendant, bowed to her preference for Mr Low.
2. On 10 January 2008 the deceased executed two documents prepared by Mr Low. One was a new Will, reverting to the structure of the earlier Wills (respectively dated 3 June 2005 and 8 June 2007) prepared by Mr Low. The other was an enduring power of attorney granted in favour of the first defendant.
3. The power of attorney (which, by clause 4, expressly revoked all previous powers of attorney) differed from that granted in favour of the first defendant on 3 June 2005 in that it did not confer on the first defendant the specific powers granted by the 2005 instrument by reference to sections 11-12 of the Powers of Attorney Act.
4. The new power of attorney was registered on 17 January 2008 as Book 4535 No 885.
5. On 18 January 2008 the deceased executed three further documents prepared by Mr Low. One expressly revoked the power of attorney dated 18 January 2006 granted to the first plaintiff. Another revoked the first plaintiff's appointment of the same date as an enduring guardian and appointed the first defendant as the deceased's enduring Guardian. The third expressly revoked the Will dated 18 December 2007.
6. Curiously, the third document records an assertion by the deceased that the Will dated 18 December 2007 was made "without [his] consent and full understanding". That statement is accompanied by a statement that the deceased's "last will and testament is held with [Mr Low' firm] and dated 10th January 2008."
7. Under cover of a letter dated 18 January 2008 Mr Low sent to Mr Dominello copies of the revocation documents. The letter included the following paragraphs: "Please advise your client, Ronald Allen Smith [the first plaintiff], of the revocations and also advise him that our instructions are there is to be no communication between your client and our client without the consent or presence of his wife, Joyce Smith. Our client is most unhappy with the way documentation affecting him has been executed. Please acknowledge receipt of this letter and the annexures and confirm that you have forwarded copies of all revocations to your client, Ronald Allan Smith."
8. Not unnaturally, Mr Dominello took offence at these observations. By a letter dated 4 February 2008, he responded as follows (omitting formal parts): "It is not clear as to what you imply by the second last paragraph of your letter. However, rest assured that any document signed by Mr Smith [the deceased] was signed by him voluntarily and following instructions obtained directly from him. Any imputation to the contrary is rejected. Copies of your letter and the documents have been forwarded to Mr Ronald Allen Smith [the first plaintiff]. No doubt Mr Smith will make his own arrangements regarding contact with his father."
9. Mr Dominello swore an affidavit and was cross examined. Mr Low gave no evidence. Contemporaneous records of both men were in evidence.
10. I do not intend, by this judgment, to call into question the professional competence or integrity of either Mr Low or Mr Dominello.
11. I do notice, however, what is arguably an implicit assumption in the defendants' camp, in particular, that the deceased's incapacity for management of his own affairs (or, at least, his exposure to exploitation) commenced no later than 18 December 2007. For his part, Mr Dominello was satisfied of the deceased's mental capacity on 18 December 2007, but formed an impression that the deceased was fearful of the first defendant.

Events Play Out

1. Courtesy of evidence given by Dr Dixon, there is evidence of the results of "mini mental state examinations" conducted upon assessments of the deceased's mental capacity: Transcript page 129. On 7 January 2007 he scored 26/30. On 29 March 2007, he scored 24/30. On 23 October 2007, he scored 22/30. I take this evidence as confirmation, at least, of concerns about the deceased's mental capacity reaching back to the beginning of 2007. Throughout that year, and into the next, the deceased was frequently a hospital patient, with his frailty on open display to both sides of his family.
2. The first defendant complains that, in their father's final years, the plaintiffs were not as attentive to him as loving sons should have been. I do not accept that there was any deterioration in the relationships between members of the deceased's first family unrelated to the deceased's deteriorating health and the first defendant's increasing control of his person and property.
3. Accepting that she was generally an attentive wife, she nevertheless progressively took control of his affairs from mid-2005. Reminded in January 2008 of what she appears to have perceived as a competitive threat from the plaintiffs, she took decisive steps to secure her control of the deceased's affairs, an incident of which was warning the plaintiffs off personal contact with their father unsupervised by her. They, for their part, albeit with reluctance, deferred to the social reality in which the deceased lived domestically. They backed off.
4. Tensions flared within the family (principally between the first plaintiff and the first defendant) in early May 2008 at a time when the deceased was hospitalised and rapidly drifting into a mental fog. He was discharged from hospital on 12 May 2008. The following day the first defendant attended upon Dr Dixon who (based upon his last consultation with the deceased on 2 May 2008 and the first defendant's representations) provided the "reference" letter which the first defendant used to access the deceased's Macquarie Bank account on 13 May 2008.
5. Tensions between the first plaintiff and the first defendant flared again as the deceased was re-admitted to hospital on 25 May 2008 and, over ensuing days, as he transitioned into nursing home accommodation.
6. From early June 2008 until his demise the deceased lived in a nursing home, with periods of hospitalisation. It took a little while for suitable accommodation to be located, but his fate was sealed. He no longer lived with the first defendant, although she continued to visit him regularly. This was his final phase of life: the seventh of the seven ages of man (Shakespeare, As You Like It, Act II Scene vii).

THE FIRST DEFENDANT'S WRITTEN AUTHORITY TO DEAL WITH PROPERTY OF THE DECEASED: THE TERMS OF THE AUTHORITY, POWER OF ATTORNEY, AND WILL EXECUTED BY THE DECEASED IN FAVOUR OF THE FIRST DEFENDANT

1. The defendants rely in these proceedings on an enduring power of attorney executed by the deceased, in favour of the first defendant, on 10 January 2008.
2. The plaintiffs contend that the true nature and scope of that instrument require its terms to be contrasted with the terms of the enduring power of attorney granted by the deceased, to the first defendant, on 3 June 2005.
3. There are two striking features of this contrast. First, the 2008 instrument did not include the specific powers found in the 2005 instrument authorising the first defendant, as donee, to confer benefits on others than the deceased. Secondly, both instruments included as an addendum to their text formal notes (in a prescribed form found in the Powers of Attorney Act) that spoke to the nature of the obligations of an attorney. Read jointly or severally, the instruments clearly circumscribed the first defendant's rights and obligations as an attorney, and instructed her in the art of good management of the property of an incapable person.
4. The first defendant appears to have acted in disregard of limitations on her authority, preferring to see: (a) the Authority dated 1 November 2007 addressed to the deceased's stockbroker; and (b) her own prospective entitlements under the deceased's Will dated 10 January 2008, as more accurate reflections of her present entitlements and personal authority.
5. For that reason, the terms of both the Authority and the Will need to be brought into view upon an assessment of the first defendant's rights and obligations vis-a-vis the deceased and his estate.
6. The first defendant received a copy of the Will, from Mr Low, shortly after the deceased signed it: Transcript page 189.

The Power of Attorney dated 3 June 2005

1. The text of the 2005 power of attorney was in the following terms (with an address omitted): "GENERAL POWER OF ATTORNEY Part 1 General This power of attorney is made on the 3rd day of June 2005 by RONALD JAMES SMITH (the principal) of ………., Glenmore Park NSW 2745 1. I appoint my wife JOY SMITH (also known as JOY BUNT) to be my attorney(s). My attorney may exercise the authority conferred on my attorney by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do. My attorney's authority is subject to any additional details specified in Part 2 of this document. 2. I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution. 3. This power of attorney operates: immediately when my attorney accepts (or as each of my attorneys accept) the appointment on and from up to and including when my attorney considers that I need assistance managing my affairs other……………………… If no option is selected or the options chosen are unclear or inconsistent, I intend that the power of attorney will operate immediately or, if clause 2 is not crossed out, when my attorney accepts, or as each of my attorneys accept, the appointment. 4. If I appoint more than one attorney, then I appoint them jointly and severally. Part 2 Additional powers and restrictions 5. I authorise my attorney to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003. 6. I authorise my attorney to confer benefits on the attorney to meet the attorney's reasonable living and medical expenses as provided by section 12(2) of the Powers of Attorney Act 2003. 7. I authorise my attorney to confer benefits on [insert name(s) and address(es) of each third party] to meet their reasonable living and medical expenses as provided by section 13(2) of the Powers of Attorney Act 2003. 8. This power of attorney is subject to the following conditions and limitations:"
2. No "conditions" or "limitations" were specified in clause 8.
3. The instrument was "signed, sealed and delivered" by the deceased in the presence of Mr Low as a witness to his signature.
4. Incorporated in the instrument were a certificate given under section 19 of the Powers of Attorney Act by Mr Low (certifying, inter alia, that he had explained the power of attorney to the deceased before it was signed and that the deceased appeared to understand the effect of the instrument) and an endorsement by the first defendant of her acceptance of her appointment as an attorney under the instrument. Both the certificate and the endorsement were dated 3 June 2005.
5. As an addendum, the instrument also incorporated the following, standard form, prescribed notes (with emphasis added): "Important information for principals and attorneys (1) A power of attorney is an important and powerful legal document. You should get legal advice before you sign it. A power of attorney gives the attorney the authority to buy and sell real estate, shares and other assets for the principal, to operate the principal's bank accounts, to spend the principal's money on behalf of the principal and to exercise many other powers. It is not to be used after the principal dies. (2) A power of attorney cannot be used for health or lifestyle decisions. The principal should appoint an enduring guardian under the Guardianship Act 1987 if the principal wants a particular person to make these decisions. For further information, contact the Guardianship Tribunal (toll free 1800 463 928 or www.gt.nsw.gov.au) or the Public Guardian ((02) 9265 3184 or 1800 451 510 or www.lawlink.nsw.gov.au/opg). (3) Part 2 of the power of attorney will permit the attorney to use the principal's money and assets for the attorney or anyone else as provided by clauses 5, 6 and 7. If the principal does not want this to happen, then the principal should delete the powers from Part 2 that the principal does not want to give the attorney. (4) An attorney must always act in the best interests of the principal. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney. (5) This power of attorney is for use in New South Wales only. If you need a power of attorney for interstate or overseas, you may need to make a power of attorney under their laws. The laws of some other States and Territories in Australia may give effect to this power of attorney. However, you should not assume this will be the case. You should confirm whether the laws of the State or Territory concerned will in fact recognise this power of attorney. (6) An attorney should keep the attorney's own money and property separate from the principal's money and property, unless they are joint owners, or operate joint bank accounts. An attorney should keep reasonable accounts and records about the principal's money and property. (7) If the attorney is signing documents that affect real estate, the power of attorney must be registered at Land and Property Information NSW. For information on powers of attorney, the attorney's duties and registration, contact Land and Property Information NSW ((02) 9228 6666 for a fact sheet or www.Ipi.nsw.gov.au) or a solicitor, a trustee company or the Public Trustee (www.pt.nsw.gov.au)."
6. In the years since the 2005 instrument was executed, the Guardianship Tribunal has been replaced by the Guardianship Division of NCAT, and the Public Trustee has been replaced by the NSW Trustee. References to "Land and Property Information NSW" can be taken as a reference to the office of the Registrar General, responsible for maintenance of the General Register of Deeds kept under the Conveyancing Act 1919 NSW.
7. Section 52(1) of the Powers of Attorney Act 2003 provides that a conveyance or other deed affecting land under a power of attorney has no effect unless the instrument creating the power has been registered by the Registrar General in that Register.
8. The 2005 instrument had no operative effect after 10 January 2008. If it survived the deceased's execution of a competing power of attorney on 18 January 2006, it was expressly revoked by clause 4 of the 2008 instrument.

The Power of Attorney dated 10 January 2008

1. The enduring power of attorney dated 10 January 2008 was a "prescribed power of attorney" within the meaning of section 8 of the Powers of Attorney Act (as was the instrument dated 3 June 2005) in that it was in or to the effect of the form set out in Schedule 2 of the Act and duly executed.
2. In 2008 (as now) sections 9, 11, 12 and 13 of the Powers of Attorney Act (in Part 2 of the Act) were in the following terms (reproducing in italics marginal notes incorporated in the Act as published): "9 Powers conferred by prescribed power of attorney (1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. (2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power. 11 Prescribed power of attorney does not generally confer authority to give gifts (1) A prescribed power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person unless the instrument creating the power expressly authorises the giving of the gift. This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of the property of a principal is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to give the kinds of gifts that are specified by that Schedule for that expression. 12 Prescribed power of attorney does not generally confer authority to confer benefits on attorneys (1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit. This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on an attorney is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on the attorney the kinds of benefits that are specified by that Schedule for that expression. 13 Prescribed power of attorney does not generally confer authority to confer benefits on third parties (1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on a third party unless the instrument creating the power expressly authorises the conferral of the benefit. This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on a third party is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney. (2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on a third party the kinds of benefits that are specified by that Schedule for that expression."
3. An appreciation of the effect of sections 11, 12 and 13 requires reference to Schedule 3, which set out "prescribed expressions" for the purposes of sub-section (2) of each of those sections, and the authority conferred on an attorney given powers using those expressions.
4. Schedule 3 was entitled "Prescribed Expressions and Authorisations for Prescribed Powers of Attorney". It contained three parts: one relating to an authority to give gifts, the second relating to an authority to confer benefits on an attorney, and the third relating to authority to confer benefits on third parties.
5. In 2008 the Schedule was in the following terms (since amended, in an immaterial way, to accommodate enactment of the Relationships Register Act 2010 NSW): "1 Authority to give gifts (1) The prescribed expression for the purposes of section 11 (2) is as follows: I authorise my attorney to give reasonable gifts as provided by section 11 (2) of the Powers of Attorney Act 2003. (2) The prescribed expression authorises an attorney to give a gift only if: (a) the gift is: (i) to a relative or close friend of the principal, and (ii) of a seasonal nature or because of a special event (including, for example, a birth or marriage), or (b) the gift is a donation of the nature that the principal made when the principal had capacity or the principal might reasonably be expected to make, and the gift's value is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate. (3) In this clause: "close friend" of a principal means another individual who has a close personal relationship with the principal and a personal interest in the principal's welfare. "relative" of a principal means: (a) a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister, half-brother or grandchild of the principal, or (b) if the principal is a party to a domestic relationship within the meaning of the Property (Relationships) Act 1984 , any person who is a relative, of the kind mentioned in paragraph (a), of either party to the relationship. 2 Authority to confer benefits on attorney (1) The prescribed expression for the purposes of section 12 (2) is as follows: I authorise my attorney to confer benefits on the attorney to meet the attorney's reasonable living and medical expenses as provided by section 12 (2) of the Powers of Attorney Act 2003 . (2) The prescribed expression authorises an attorney to confer a benefit on the attorney only if: (a) the benefit meets (whether in whole or in part) any expenses incurred (or to be incurred) by the attorney in respect of any of the following: (i) housing, (ii) food, (iii) education, (iv) transportation, (v) medical care and medication, and (b) the benefit is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate. 3 Authority to confer benefits on third parties (1) The prescribed expression for the purposes of section 13 (2) is as follows: I authorise my attorney to confer benefits on [insert name(s) and address(es) of each third party] to meet their reasonable living and medical expenses as provided by section 13 (2) of the Powers of Attorney Act 2003 . (2) The prescribed expression authorises an attorney to confer a benefit on a named third party only if: (a) the benefit meets (whether in whole or in part) any expenses incurred (or to be incurred) by the third party in respect of any of the following: (i) housing, (ii) food, (iii) education, (iv) transportation, (v) medical care and medication, and (b) the benefit is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate."
6. These provisions are here set out, in part, for the purpose of noticing their absence from the enduring power of attorney dated 10 January 2008. As can be seen from the text of that instrument (read with sections 11, 12 and 13 of the Powers of Attorney Act), it did not confer upon the first defendant authority to give gifts or to confer benefits on the first defendant or others.
7. The general language found in section 9(1) was expressly qualified by its introductory words, "subject to this Act", sufficient to pick up sections 11(1), 12(1) and 13(1). The instrument was not simply a grant of authority "to do (on behalf of the deceased) anything that (the deceased) may lawfully authorise an attorney to do."
8. Even if (contrary to the fact) the "prescribed powers" for which sections 11(2), 12(2) , and 13(2) and Schedule 3 of the Powers of Attorney Act provided had been engaged in the 2008 instrument, they were much more modest in their reach than the first defendant's assumption that she could deal with the deceased's property as her own.
9. The text of the instrument was in the following terms: "GENERAL POWER OF ATTORNEY Part 1: General This power of attorney is made on the 10th day of January 2008 by RONALD JAMES SMITH ("the principal") of 3/9 Mackay Street, Emu Plains. 1. I appoint JOY SMITH (ALSO KNOWN AS JOY BUNT) of 3/9 Mackay Street, Emu Plains to be my attorney. My attorney may exercise the authority conferred on my attorney by Part 2 [materially, sections 8-13] of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do. My attorney's authority is subject to any additional details specified in Part 2 of this document. 2. I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution. 3. This power of attorney operates - immediately If no option is selected or the options chosen are unclear or inconsistent, I intend that the power of attorney will operate immediately or, if clause 2 is not crossed out, when my attorney accepts, or each of my attorneys accepts, the appointment. 4. I hereby revoke all powers of attorney, registered or unregistered, previously signed by me in favour of any person or persons prior to the date of this power of attorney. Part 2: Additional powers and restrictions"
10. This instrument was also "signed sealed and delivered" by the deceased in the presence of Mr Low as a witness to his signature.
11. The instrument was blank under the heading "Part 2: Additional powers and restrictions". That is, no details whatsoever were "specified in Part 2", to paraphrase clause 1 of the instrument.
12. The instrument incorporated, as did the 2005 instrument, a section 19 certificate signed by Mr Low and an endorsement of the first defendant's acceptance of her appointment as an attorney under the instrument. Both the certificate and the endorsement were dated 10 January 2008.
13. As an addendum, the instrument included prescribed notes of the type incorporated in the 2005 instrument. Following their legislative pattern, those notes were virtually identical with the 2005 notes. They differed only in minor, inconsequential clerical respects.
14. The notes in the 2008 instrument also referred to "clauses 5, 6 and 7" in connection with "Part 2" even though clauses bearing those numbers were wholly omitted from the document (under the "Part 2 heading") rather than simply deleted as per the notes.
15. Both sets of notes followed the prescribed form of an Enduring Power of Attorney found in Schedule 2 of the Powers of Attorney Act.
16. Each set of notes squarely put the first defendant on notice that, as an attorney for the deceased: 1. she was bound to act in his best interests, without any unauthorised benefit to herself; 2. she should keep her and the deceased's property separate; and 3. she should keep reasonable accounts and records about the deceased's money and property.
17. The essence of the plaintiffs' case against the first, third and fourth defendants is that the first defendant acted in disregard of these, her imperative (fiduciary) duties as the deceased's attorney.
18. In cross examination, she conceded that: (a) before she accepted her appointment as the deceased's attorney pursuant to the power of attorney dated 10 January 2008, Mr Low explained the document to her; and (b) at or about that time, she read and understood the printed notes forming part of the instrument: Transcript pages 187-188.
19. In formal terms, the 2008 power of attorney relied upon by the first defendant as a source of authority for property transactions affecting the deceased itself confirmed that, as his attorney, she occupied the office of a fiduciary vis-a-vis the deceased, with the ordinary obligations of a fiduciary inherent to that office.
20. By her express, formal acceptance of her appointment as the deceased's attorney (endorsed on the instrument of appointment itself) the first defendant must be taken to have accepted that, insofar as she might act on the authority of the office of attorney to which she was appointed by the instrument, she would be bound to act within the limits of her authority as defined by the instrument.

The Authority dated 1 November 2007

1. The authority dated 1 November 2007 executed by the deceased, in favour of the first defendant, addressed to the deceased's stockbroker was described as an "Authority to Operate [a] … Stockbroking Client Account". It was signed by the deceased as the "client/account holder" and by the first defendant as his "authorised agent".
2. The text of the instrument was in the following terms (with editorial adaptation): "Authorisation The Client notifies …. (the Broker) that the Client appoints [the first defendant] as an Authorised Agent of the Client pursuant to the published terms and conditions of the Broker (General Terms). This appointment is effective from the date the Broker receives this authority. (Terms defined in the General Terms have the same meaning in this authority.) The Client authorises the Authorised Agent to operate all existing and future Bank Accounts, Cash Accounts and Client Accounts in respect of which the Client is listed in the Broker's records as an account holder (whether solely or jointly) (together the Accounts) and to do and execute all acts, documents and things in connection with the Accounts, including, without limitation: 1. to make withdrawals; 2. to receive statements in respect of the Accounts; 3. to pay money, cheques, notes, drafts and other documents to credit the Accounts; 4. to operate and enter into agreements to operate the Accounts on behalf of the Client; 5. to open and close Accounts on behalf of the Client; 6. to acquire, buy deal with, dispose of or sell any financial products, including, without limitation, shares, interests in managed investment schemes, warrants, options and Low Exercise Price Options (LEPOs) (together the Financial Products); 7. to make and receive payment for any Financial Product transactions (including ASX Transactions) and attendant expenses by any means whatsoever and to give good receipts and discharges for the proceeds of sales of Financial Products; 8. to execute all contracts and other documents necessary or proper for the custody, dealing and transfer of Financial Products and related matters; 9. to receive, hold and arrange custody of and deliver share certificates, holding statements and other evidence of title to Financial Products; 10. to exercise all rights and privileges and perform all duties and obligations which may now or in future pertain to the Client as holder of the Financial Products; and 11. to accept and act upon any instructions issued by the Authorised Agent as contemplated by this authority. Acknowledgements and Undertaking The Client acknowledges that: 1. any operation of any of the Client's Accounts will be binding on the Client; 2. this authority in relation to the Client's Accounts will bind the Client until the Client expressly revokes it in writing and the revocation is received by the Broker; 3. the Broker may rely on any communication from the Authorised Agent without further enquiry. If it is given, or apparently given, by the Authorised Agent. 4. the Client remains solely liable and responsible for all acts and omissions of the Authorised Agent notwithstanding the act or omission of the Authorised Agent was- (a) outside the Client's actual or ostensible authority; or (b) in error, fraudulent, negligent, in breach of the Authorised Agent's fiduciary duties or criminal; 5. the Client agrees not to make, and releases the Broker from any right the Client may have to make, any Claim against the Broker for any Loss Incurred or suffered by the Client which may arise in connection with any act or omission by the Authorised Agent. The Client undertakes to ratify whatever the Authorised Agent will lawfully do or cause to be done in accordance with this authority."
3. I do not read the revocation clause of the 2008 enduring power of attorney as intended to revoke such, if any, authority the first defendant may have had under the authority dated 1 November 2007. The revocation clause revokes "all powers of attorney" in the context of a like document executed with the Powers of Attorney Act expressly in mind. As a matter of construction, I proceed on the basis that the deceased did not intend his execution of the 2008 power of attorney to revoke the Authority dated 1 November 2007.

The Will dated 10 January 2008

1. Leaving aside substitutional gifts, the scheme of the deceased's 2008 Will was to give the whole of his estate to his executors and trustees (on the face of the Will, the second defendant and Mr Low) upon trust to pay all just debts, funeral and testamentary expenses and all probate, estate, death or other duties, and thereafter to effect the following gifts: 1. Gifts to the first defendant in the form of: 1. the Emu Plains home unit of the deceased, in fact transferred to the deceased and the first defendant as joint tenants in 2008 and sold by the first defendant in 2010; 2. all the furnishings and kitchenware within the Emu Plains home unit; 3. any motor vehicle owned by the deceased; 4. all proceeds of the deceased's Commonwealth Bank Savings Account No. 26015005442 and the proceeds of the balance of the deceased's Portfolio Account with the Macquarie Bank, expressly not including any shares owned by the deceased at the time of his death; and 5. one half of the deceased's residuary estate. 1. a gift to the third defendant of all the deceased's porcelain dolls and ornaments and all his personal jewellery. 2. a gift of one half of the deceased's residuary estate to the plaintiffs as tenants in common in equal shares.
2. On the case for which the plaintiffs contend, the express exclusion from the first defendant's primary testamentary "entitlements" of any shares owned by the deceased at the date of his death provides, in part at least, an explanation for the first defendant's sales of shares beyond immediate needs of the deceased, and her failure to replace the deceased's share portfolio. Against this, one must note that, by this Will, the first defendant received one half of the deceased's residuary estate, into which shares held at the time of death would have fallen.
3. Four particular aspects of the first defendant's evidence bear upon how she viewed the Authority dated 1 November 2007 and the Will dated 10 January 2008 as informing how she approached her rights and obligations in dealing with the deceased's property during the last years of his life.
4. First, she insisted, more than once, that, in selling shares and securities held in the name of the deceased, she acted on the basis of the Authority, not a power of attorney: eg, first defendant's affidavit sworn 13 July 2015, paragraph 11. She appears to have viewed the Authority as more extensive than the 2008 power of attorney.
5. To this, the plaintiffs respond, correctly, that, even if the Authority authorised a sale of the deceased's shares and securities, it did not entitle the first defendant to appropriate the proceeds of a sale to herself, and neither did it relieve her of an obligation to account to the deceased.
6. Secondly, the first defendant appears to have proceeded on the basis that, because the Emu Plains home unit had been transferred into the names of herself and the deceased as joint tenants in 2008, and, had the property been retained in their joint ownership at the time of the deceased's death (2012), it would then have passed to her by right of survivorship, she was entitled to sell the property in 2010 without accounting to the deceased (as the plaintiffs contend she should) for a one half share of the sale proceeds or, indeed, at all.
7. Thirdly, in attempting in the course of these proceedings to explain what she did with large amounts of money she apparently appropriated to herself from the estate of the deceased, the most that she could evidently do was to provide global estimates of her expenditure, admittedly incomplete: first defendant's affidavit sworn 13 July 2015, paragraphs 3-10.
8. On her own analysis, even after making generous allowances in favour of personal expenditure, she was unable to account for the whole of the proceeds of her sales of the deceased's shares and securities in June 2008 and March -April 2010 and her sale of the Emu Plains home unit in June 2010 (a total sum of $1,219,000). Nor did her calculations take into account pension moneys received by the deceased and herself (including, the plaintiffs point out, the deceased's Air Force pension) or interest received on a multitude of term deposits.
9. Furthermore, if she did receive cash from the third and fourth defendants in reimbursement of moneys paid by her for her purchase of their Emu Plains residence, what became of that cash is not the subject of any clear explanation.
10. The first defendant's apparent inability to account for money of the deceased passing through her hands is consistent with an assumption on her part that she was entitled to deal with his property as and when she wished, and for her own personal benefit, unconstrained by any obligation to account to him or his deceased estate.
11. Her evidence is to the effect that when the proceeds of sale of property of the deceased came into her hands she routinely retained them (sometimes, but not always, passing them through an account in the joint names of the deceased and herself controlled and operated by her alone), keeping large amounts at home, in cash, for which, she says, she cannot now account: Transcript pages 230-231, 232-233 and 235-236. Having withdrawn money from the deceased's Macquarie Bank account for her own purposes, she did not ever reimburse the account: eg, transcript pages 218 and 221.
12. Fourthly, in her response to a forensic accountant's report dated 20 May 2015 soon to be specifically reviewed, the first defendant (in paragraph 36 of her affidavit sworn 13 July 2015) rationalised her "entitlements" vis-a-vis the plaintiffs' "entitlements" in the following terms: "… there is no acknowledgement in the report of Mr Dumbrell [the Forensic Accountant], as to what my legacy was, in any event, under [the deceased's] last Will of 10 January 2008. When viewed in light of the sales the subject of Mr Dumbrell's report, my entitlement [versus] the entitlement of the plaintiffs was: To [the first defendant]: (a) The entirety of [the Emu Plains Home Unit] (joint tenancy): $400,000.00 (b) One half of the rest and residue, including: (i) 50% of the June 2008 security sales ($442,183.15): 221,091.57 (ii) 50% of the March & April 2010 security sales ($377,610.13) 188,805.06 Less 50% of the Capital Gains Tax $ 57,272.00 TOTAL: $752,624.00 To [the first plaintiff]: (a) One quarter of the rest and residue, including: 25% of the June 2008 security sales ($442,183.15): $110,545.78 50% of the March & April 2010 security sales ($377,610.13) 94,402.53 Less 25% of the Capital Gains Tax: [$ 28,636] TOTAL $176,312.31 To [the second plaintiff]: (b) One quarter of the rest and residue, including: 25% of the June 2008 security sales ($442,183.15): $110,545.78 50% of the March & April 2010 security sales ($377,610.13) 94,402.53 Less 25% of the Capital Gains Tax: [$ 28,636] TOTAL $176,312.31"
13. This approach to the case is, again, consistent with a state of mind on the part of the first defendant that she was entitled to deal with the deceased's property as her own from 10 January 2008 or thereabouts.
14. The figures here used by the first defendant involve an element of rounding out; but, so understood, they are consistent with the observation that, between 10 January 2008 and 17 May 2012, the first defendant caused asset sales affecting the deceased that realised, in fact, $1,219,952.27. The sum of the parties' respective, notional "shares" of the deceased's property and the amounts allowed for Capital Gains Tax ($1,219,792.62) approximate that amount.

Findings as to the First Defendant's Written Authority as an Agent for the Deceased

1. During the period the subject of transactions under challenge by the plaintiffs in these proceedings (13 May 2008 - 17 May 2012) the only operative, written authority the first defendant had to deal with property of the deceased was the enduring power of attorney dated 10 January 2008.
2. The Authority dated 1 November 2007 was revoked by the deceased's loss of mental capacity (no later than 13 May 2008), a condition from which he never recovered. There is no basis, in fact, upon which it might be said to have been revived during periods of lucidity.
3. The enduring power of attorney dated 3 June 2005 was no longer operative by 13 May 2008, a fact confirmed by the express terms of the enduring power of attorney dated 10 January 2008.
4. The deceased's Will dated 10 January 2008 conferred on no person authority to deal with property of the deceased in his lifetime. It took effect only upon his death and, then, it might be said, subject to a condition precedent that it be proved as his last expression of testamentary intent evidenced by a grant of probate: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia 2013), paragraph [1.4]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration in NSW (LBC, Sydney, 1996), paragraphs [3.01]-[3.03] and [3.05]; Probate and Administration Act 1898 NSW, section 6.1.
5. The terms of the Will might be material to the Court's determination of the nature and scope of any relief to be granted in these proceedings, but the Will itself conferred no authority on the first defendant, or indeed on any other person, to manage the deceased's affairs, or to deal with his property, during his lifetime.

THE FIRST DEFENDANT'S EVIDENCE THAT SHE HAD THE DECEASED'S EXPRESS ORAL AUTHORITY TO DEAL WITH HIS PROPERTY

1. The first defendant contends that she remained consistently engaged in conversation with the deceased about her dealings with property in his name, both before and after that fateful day on 13 May 2008 when she sought, and obtained, Dr Dixon's certification that the deceased was "no longer able to conduct his financial affairs" and in need of "a registered power of attorney to oversee the safe management of his funds".
2. In her primary affidavit (sworn on 28 October 2013) she deposed to three sets of conversations between herself and the deceased in which, she says, he approved particular property dealings. On the face of the affidavit, each of those conversations was between the two of them alone. In cross-examination, she specifically confirmed that each of the second and third sets of conversations was between them alone, without any other person present: Transcript pages 224 and 236. She was not specifically asked about the first conversation. However, I infer from the terms of the affidavit that it was no different from the other alleged conversations relied upon by the defendants.

The First Defendant's Sale of Shares on 2 June 2008 and Application of Proceeds of Sale

1. The first conversation relates to her sale of shares on 2 June 2008, producing proceeds totalling $442,183.15.
2. In paragraph 23 of her affidavit, the first defendant says that this sale transaction was effected by her using the Authority dated 1 November 2007 addressed to the deceased's stockbroker. If (as Dr Dixon and the first defendant herself then believed) the deceased had irretrievably lost capacity for self-management by 13 May 2008, the Authority dated 1 November 2007 could not have authorised the sales effected on 2 June 2008 and, despite her anxiety to attribute her authority to the Authority rather than the Power of Attorney dated 10 January 2008, her authority depended, in substance, on the Power of Attorney.
3. Whatever the source of any authority residing in the first defendant on and about 2 June 2008, she acted as an agent for the deceased and, as such, occupied a fiduciary office vis-à-vis him.
4. In paragraph 24 of her affidavit she deposes to the following: "[The deceased] and I discussed the sale of these shares whilst [the deceased] was in hospital, before they were sold. The shares were sold because [the deceased's] health had deteriorated and he need[ed] to go into Minchinbury Manor Nursing Home as I was no longer able to care for him. The sale of the shares was to fund the nursing home bond. I said: 'We'll need to get some money together to pay for the nursing home bond, the bond is $350,000.00'. [The deceased] said words to the following effect: 'OK, speak with [the second defendant] about which shares to sell, I leave it in your hands. I gave you the authority, do what you have to do.'"
5. In subsequent paragraphs of her affidavit the first defendant says that she does not know why the shares sold at this time raised $450,000 or thereabouts, rather than merely the $350,000 bond required.
6. Neither does she explain, with any clarity, what happened to the sale proceeds when Minchinbury Manor Nursing Home declined to accept the deceased as a resident (because he required more intensive, dementia-specific care than that institution could provide) beyond saying that a $50,000 deposit paid to Minchinbury Manor was returned to her.

The First Defendant's Financial Assistance for the Third and Fourth Defendants in June-July 2008

1. A second conversation with the deceased deposed to by the first defendant is said by her to relate to assistance she gave to the third and fourth defendants at about the time that their Emu Plains residence was purchased in their names.
2. Her evidence is that the decision that such assistance would be given was made by her in a conversation with the fourth defendant which did not involve the deceased: Transcript page 213. When asked in cross-examination to comment on the absence of any reference to the deceased in that conversation, she responded (at Transcript page 215): "Well, no, I didn't refer to Ronnie. Why would I?"
3. This is but one illustration of the first defendant's confident assumption that she could deal with the deceased's property without reference to his interests.
4. The agreement allegedly made between the first, third and fourth defendants for the first defendant to provide financial assistance to the third and fourth defendants was wholly oral and undocumented: Transcript pages 154 and 216-217.
5. Contracts for that purchase were exchanged on 14 June 2008 and completed on or about 7 July 2008. A 10% deposit was paid by the first defendant in two instalments, one on the contract date and the second on 20 June 2008. Between 23 June 2008 and 1 July 2008 or thereabouts the first defendant funded the balance of purchase price required to be paid on completion.
6. The defendants say that, although the first defendant paid for the purchase of the property, she was, at or about the time of the purchase, given about $150,000 in cash by the third and fourth defendants who, on 23 March 2009, paid her a further $200,000 or thereabouts in cash as repayment of what the first, third and fourth defendants all characterised as a "bridging loan" designed to assist the third and fourth defendants pending sale of their former (Medlow Bath) residence. In fact, the first defendant bought the property in the names of the third and fourth defendants; but, the defendants say, the third and fourth defendants funded part of the purchase price at the time of the purchase and, substantially, repaid the first defendant the balance nine months later.
7. The first defendant says that the third and fourth defendants' move from Medlow Bath to Emu Plains was a response to her hospitalisation after a fall and their desire to be closer to her in order to provide her with care.
8. In that context, paragraph 39 of the first defendant's affidavit is to the following effect: "[The deceased] was aware that I had been in hospital because I hadn't visited him for two or three days and when I did I had my thumb in a cast. He was also aware of my previous falls at [the Emu Plains home unit] because on two occasions I broke my nose and this was obvious when I visited [him]. I recall having a conversation to the following it effect: [The deceased] said to me: 'I am pleased that [the third defendant] has come down [from Medlow Bath] to look after you.' I said to [the deceased]: 'They have to wait for the money from this army fellow for their house in Medlow Bath. So I have to help them Ronnie so they can get this house around the corner from me. They have got some money but they need some more so they can do the deal and they will give it me back [sic] when they get their money from the sale of the property.' [The deceased] said: 'That's okay no problem.'"

The First Defendant's 2010 Transactions

1. The third piece of evidence of conversations deposed to by the deceased relates to what is claimed to have been a series of conversations said to have taken place in 2010.
2. Those conversations are said to relate to: (a) sales of securities of the deceased on 8 March 2010 and 19 April 2010 yielding $377,610.13 in total proceeds; (b) the sale of the Emu Plains home unit, the last residence of the first defendant and the deceased, effected by a memorandum of transfer dated 16 June 2010, resulting in sale proceeds of about $400,000; and (c) construction of a granny flat at the rear of the third and fourth defendants' Emu Plains residence in the months following execution of a building contract for that purpose on 18 March 2010.
3. In paragraphs 41-44 of her affidavit, the first defendant deposes to the following, under the heading "April 2010": "[41] In April 2010, I caused further shares to be sold, utilising the authority that was granted to me [meaning the Authority dated 1 November 2007], in the amount of around $377,610. Before the sale of these shares, I had a conversation with [the deceased] (who was in a wheelchair at that stage) to the following effect: I said: 'Ronnie the ACAT [Aged Care Assessment Team] have come to see me. They asked me about living on my own after the falls. They said to me I shouldn't be living on my own because it is dangerous. It looks like I am going to come and get in your bed with you. I am not going to go to a nursing home on my own. We [that is, the first, third and fourth defendants] have come up with an idea that I build a granny flat behind [the third defendant]. I am going to sell [the Emu Plains home unit] and build a granny flat.' He said: 'OK. If that is what you want to do no problem.' I said: 'I need to sell some more of the shares as I want to go on a holiday, and I need money to get by.' He said: 'Sell some more shares, do whatever you think is necessary. It's up to you. Their yours now do what you like.'" [42] In around mid-[2010], I underwent an Aged Care Assessment via the Aged Care Assessment Team (ACAT). I was 81 years old at this time. On their assessment they determined that I was no longer able to reside by myself. I had a conversation with [the second and third defendants], [to] the following effect: I said: 'ACAT won't let me live by myself any more.' [The third defendant]: 'You can't go into a nursing home, how would you feel about building a granny flat on our property and you can live in there?' I agreed. [43] In mid-2010, I sold [the Emu Plains home unit], to fund the building of the granny flat, on [the second and third defendants'] property. I paid for the building of the granny flat, [the third and fourth defendants'] property. [44] I had conversations with [the deceased], every day, in relation to my need for accommodation, the sale of [the Emu Plains home unit], and building of the granny flat. [The deceased] was aware of what was occurring and was happy for me to do these things. We had conversations as the granny flat was being constructed and as to the alterations to it after it was completed. Those alterations consisted of a ramp on the patio, cutting a tree down in the backyard, erecting awnings on the back windows, tiling, erecting safety rails, installing air-conditioning and replacing the kitchen with a new kitchen."
4. These various conversations were, naturally enough, the subject of cross examination but, as set out here, they provide the structure of the defendants' contention that the first defendant acted at all times with the knowledge and authority of the deceased.

Findings as to the First Defendant's Oral Authority as an Agent for the Deceased

1. I do not accept that the conversations by which the first defendant says the deceased conferred upon her oral authority to deal with his property as she wished occurred in anything like the way she suggests.
2. I accept that she may, from time to time, have mentioned to him what she proposed to do, or what she had done, with his property; but not that she did so in a manner capable of obtaining a grant of authority from him, a person then very much enfeebled and, more likely than not, incapable of appreciating the nature or implications of any such business.
3. I do not accept the first defendant's uncorroborated evidence of private conversations between herself and the deceased, presented as if the deceased was in full command of his faculties when plainly he was not.
4. I do not accept that the deceased knowingly uttered words of approval - although the possibility that he appeared to acquiesce in whatever may have been suggested to him cannot be excluded in a dementia patient.
5. Still less do I accept that he gave, or was capable of giving, a fully informed consent to the first defendant's dealings with his property.
6. On 10 January 2008, as his faculties were fast fading, the deceased made a Will that accommodated the competing claims made on his bounty by his first and second families, and granted a fresh power of attorney which implicitly denied powers earlier (in 2005) allowed to the first defendant as his attorney. On or about 14 February 2008 he conferred upon the first defendant joint tenancy co-ownership of their matrimonial home, the Emu Plains home unit.
7. Each of these things was done in a formal way, by the execution of legal instruments, with the benefit of legal advice and assistance from Mr Low.
8. I do not accept that, without further assistance from a solicitor, the deceased, in a series of undocumented private conversations with the first defendant, after further deterioration in his mental capacity, set at nought the arrangements carefully made through Mr Low.
9. If the first defendant was authorised to deal with the deceased's property as she did, her or authority did not, on the facts of the case, derive from oral statements attributed to the deceased.

WHAT, IF ANY, AUTHORITY DERIVED FROM JOINT OWNERSHIP OF PROPERTY BY IMPLICATION OF FACT OR LAW?

1. In two contexts a question arises as to what, if any, "authority" the first defendant may have had to deal with property held in the joint names of the deceased and herself.
2. One of those relates to the Emu Plains home unit, the last matrimonial home of the first defendant and the deceased, registered in their co-ownership as joint tenants (in February 2008), and her sale of the unit utilising the power of attorney dated 10 January 2008 (in 2010).
3. The other relates to her channelling of funds of the deceased through the Commonwealth Bank "joint account" opened by her and the deceased in October 2007.

Proceeds of Sale of the Emu Plains Home Unit

1. At law, a sale of the Emu Plains home unit by both co-owners (each competent) would not, of itself, have severed the parties' co-ownership of property in the land as joint tenants, a form of co-ownership which, without more, would have subsisted in the proceeds of sale of the land: In re Allingham [1932] VLR 469; Abela v Public Trustee [1983] 1 NSWLR 308 at 314C; Scott v Scott [2009] NSWSC 567 at [59]-[61]; P Butt, Land Law (6th ed, Law Book Co., 2010), paragraph [1472]. Contrary to Professor Butt, I do not read Crescendo Management Pty Limited v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46-G as expressing any different view of the law. That was a case in which a sale of land by joint tenants was accompanied by a division between co-owners of the sale proceeds. The Court of Appeal expressly applied Re Allingham.
2. Although a sale of land by joint tenants, each of full capacity, does not, of itself, sever their joint tenancy, this case involves more than a mere sale by co-owners. It involves a sale by one of two joint tenants in two capacities: in her personal capacity and, purportedly, in her capacity as an attorney for the other joint tenant, an incapacitated person.
3. Although the first defendant and the deceased, at law, may have (as I assume) remained joint tenants of the proceeds of sale of the home unit, the first defendant was not entitled, in equity, to treat the proceeds as her own, unqualified by the deceased's interest in that money as a co-owner or by the fiduciary obligations she owed him as his attorney. She was not entitled, merely by exercise of her power as his attorney, to sell the land and to appropriate the proceeds of sale for her own benefit in purported enjoyment of the whole of the property, or in anticipation of a right of survivorship as a joint tenant, without coming under an obligation to account for his share of the property.
4. The first defendant sold the home unit, not for the benefit of the deceased, but for her benefit alone.
5. She did so without the authority of a court order (under section 66G of the Conveyancing Act 1919 NSW or by an invocation of the Court's protective jurisdiction), or any similar order within the jurisdiction of NCAT to grant, relying upon the power of attorney for a purpose beyond that for which it was granted. Had she applied to the Court for an order for sale it would probably have been granted, but on terms designed to protect the deceased's interests. Instead, she purported to sell the land on her own authority, such as it was.
6. At that point, or at least when she applied proceeds of sale for her own benefit, not for the benefit of the deceased, she was in breach of her obligations to the deceased as a fiduciary, and liable to equitable intervention (by way of a constructive trust) to prevent her from acting against good conscience: Keith Heney & Co Pty Limited v Stuart Walker & Co Pty Limited (1958) 100 CLR 342 at 350; Chan v Zachara (1984) 154 CLR 178 at 198-199; Hospital Products Limited v United States Surgical Corp. (1984) 156 CLR 41 at 107-108..
7. Co-ownership of property in joint tenancy is characterised by "the four unities" (of title, interest, possession and time), the absence of any one of which requires the parties' co-ownership to be characterised as that of tenants in common, without the right of survivorship that attends only a joint tenancy: Butt, Land Law (6th ed, 2010), paragraphs [14.05]-[14.09]; BA Helmore, The Law of Real Property in New South Wales (2nd ed, Law Book Co., Australia, 1966), pages 267-268.
8. A joint tenancy may be severed (so as to convert it into a form of co-ownership between tenants in common) by any event that destroys the four unities including, it is commonly said by reference to Williams v Hensman (1861) 1 J&H 546 at 557-558; 70 ER 862 at 867, severance by agreement between co-owners, severance by conduct such as to justify imputation to co-owners of an intention to sever, and severance by a unilateral alienation of a joint tenant's interest: Butt, Land Law (6th ed, 2010), paragraphs [14.75]-[14.92]; Corin v Patton (1990) 169 CLR 540 at 546-548, 565-566, 584 and 587; Sprott v Harper [2000] QCA 391 at [7]-[8].
9. A joint tenant's interest must be capable of accommodating a right of survivorship on the death of one or another of the joint tenants: one co-owner's interest evaporating with his or her demise, another's expanding to absorb that which has evaporated.
10. Where, as here, a joint tenant acts on his or her own responsibility (without the authority of a court order) both personally and as the enduring attorney of an incapable person in the sale of land held in co-ownership, the fiduciary obligations of an attorney (to account to the principal, not to receive or accept any unauthorised gain at the expense of the principal, and to act only for the benefit of the principal) preclude the operation of a right of survivorship in equity. Without the fully informed consent of the principal (not possible in the case of an incapable person), or the authority of a court order capable of operating in lieu of such consent, the attorney cannot obtain a personal benefit from the sale.
11. The effect, in equity, is that if and to the extent that a court of equity may impose on the attorney a constructive trust designed to enforce his or her liability to account to the principal, then, to that extent, the joint tenancy may be taken to have been "severed".
12. An illustration of this reasoning, by analogy, can be found in the operation of the forfeiture rule, under the general law, in a case in which one joint tenant feloniously kills another. By operation of law, the felon is not permitted to benefit from the crime and, accordingly, equity may require the interest taken by the felon to be held by him or her upon a constructive trust which will ensure that the interest is held in the same way as it would have been if there had been, on the death of the joint tenant, no enlargement of the interest of the felon: Rasmanis v Jurewitch (1969) 70 SR (NSW) 407 at 411-412. Where there are only two joint tenants, there may be no difference in result between severance and the imposition of a constructive trust.
13. The analogy is not entirely complete because, by its very nature, an application of the forfeiture rule in these circumstances is predicated upon an existing death of a joint tenant whereas, in the present case, the joint tenant whose interests need protection is incapacitated, not dead; and the right of survivorship of a joint tenant arises upon death, not upon the mere incapacity, of a joint tenant.
14. Nevertheless, where, as in the present case, a joint tenant alienates co-owned property in breach of a fiduciary obligation owed to a co-owner then, to the extent that equity is able and willing to intervene, a joint tenancy may be spoken of, in equity, as having been "severed".
15. This analysis may be rationalised by saying that, in the eyes of equity, one or another of the four unities no longer attends the co-ownership of the property concerned; that severance has been effected by conduct or alienation; or that it is simply a case of equity intervening to restrain, or counter, unconscionable conduct.
16. In the present case, whatever be the correct explanation, the first defendant cannot, against good conscience, retain an unauthorised benefit from her sale, and application of sale proceeds, of jointly owned property without accounting for that benefit. In this case, for practical purposes, the whole of the proceeds of sale of the parties' Emu Plains home unit were expended by the first defendant before the deceased's death.
17. A separate, but related question arises as to whether any part of the sale proceeds to which the deceased was entitled can be traced into the land on which the first, third and fourth defendants reside following construction of the first defendant's granny flat.
18. Subject to a resolution of that question, the parties' joint tenancy may be taken, in equity, to have been "severed" by: the first defendant's sale of the home unit utilising the power of attorney for her own benefit and her appropriation of sale proceeds otherwise than for the benefit of the deceased.
19. A question that requires closer attention upon consideration of any remedies to which the estate of the deceased may be entitled is whether the proceeds of sale must be taken to have been expended by the first defendant on the basis that each of the first defendant and the deceased was entitled (as a tenant in common) to a one half share. If so, that left the first defendant to deal with her share in her own interests, under a continuing obligation to deal with the deceased's share only for his benefit.
20. Quantification of the parties' respective shares at one half each reflects a customary attribution of equality of shares as between joint tenants whose interests have been severed: The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 298[56].

The Commonwealth Bank Joint Account

1. In determining the respective property rights of the first defendant and the deceased in the Commonwealth Bank joint account opened by them, in their joint names, in October 2007, the Court does not have evidence from the bank about the terms upon which the account was opened and operated. Nor does it have primary evidence about the intention of the deceased. Essentially, what is available is a statement by the first defendant (in paragraph 144 of her affidavit sworn 28 October 2013) that the account was a joint account, in the names of both the deceased and herself, and it "reverted into my name" on the deceased's death.
2. The parties have conducted the proceedings upon a common assumption that, at law, this is a correct summary of the terms upon which the account was operated.
3. Where a bank account is a joint account and one party dies, ordinarily, the survivor is entitled to the whole amount, either: (a) under the law of devolution between joint owners; (b) by the custom of bankers; or (c) by express or implied agreement: Paget's Law of Banking (LexisNexis, UK, 14th ed, 2014), paragraph [5.21]; A L Tyree Banking Law in Australia (LexisNexis Butterworths, Australia, 8th ed, 2014), paragraph [4.7.2]; Weerasooria's Banking Law and the Financial System in Australia (LexisNexis Butterworths, Australia, 6th ed, 2006), paragraphs [21.95]-[21.97]; Russell v Scott (1936) 55 CLR 440 at 450-451 and 453-455.
4. The factual matrix of the current proceedings bears some similarity to that encountered in Marshall v Crutwell (1875) LR 20 Eq 328 where Sir George Jessel MR held that a joint account established by a husband in failing health was established with the intention, not of making provision for his wife, but merely as a mode of conveniently allowing her to manage his affairs. In that case it was held that, on his death, money standing to the credit of the account belonged to the husband, not to the wife.
5. The plaintiffs have relied upon a similar line of reasoning in the present proceedings. However, they have focused, primarily, upon a contention that the first defendant, having breached her fiduciary obligations to the deceased in selling his shares and applying proceeds of sale otherwise than for his benefit, cannot escape a liability to account for the deceased's property by her conduct in passing the proceeds of sale through a joint account. With that contention, I agree. It is not necessary to pursue the Marshall v Crutwell analogy.
6. This is not a case in which there is a substantial contest about competing entitlements, at law and in equity, to a credit balance remaining in a joint account at the time of death of an account holder. It is a case, rather, about the liability of an attorney, in equity, to account to her principal for property dealt with in breach of fiduciary obligations.

Findings as to the First Defendant's "Authority" as a co-owner to deal with property of the Deceased during his lifetime

1. The first defendant's co-ownership of property with the deceased conferred upon her no relevant authority to deal with his interest in that property. She was entitled, at law, to exercise rights of property arising from her own ownership interest in jointly held property. But that entitlement did not include a right to rise above the terms of the enduring power of attorney dated 10 January 2008 or a right to deal with property unqualified by the obligation of a fiduciary to account that she assumed when she accepted, and acted upon, her appointment as the deceased's attorney.

THE NATURE AND SCOPE OF THE FIRST DEFENDANT'S AUTHORITY IN OVERVIEW

1. By a process of elimination, the only authority the first defendant had to deal with the deceased's property in the period under review (13 May 2008 - 17 May 2012) was the enduring power of attorney dated 10 January 2008 and, in the absence of any order of the Court or the Guardianship Tribunal, that authority was bound to be exercised, if at all, only for the benefit of the deceased.
2. On and after 13 May 2008, the deceased lacked the mental capacity to deal with, or to approve dealings with, his property. He experienced no lucid intervals after 13 May 2008 that might justify a contrary finding.
3. There is no general rule of agency as between married, or cohabiting, couples; whether there is a relationship of agency between such couples depends on the facts of the particular case: Pollard v Wilson [2010] NSWCA 68 at [113].
4. There is no basis for a finding that considerations of "necessity" grounded an authority in the first defendant to deal with property of the deceased. Section 7 of the Married Persons (Equality of Status) Act 1996 may not exclude the possibility of an agency of necessity arising from a combination of factors beyond the mere fact of marital status, but neither it nor the Act generally can be read as lending encouragement to an expansive view of a concept (agency of necessity) generally regarded as exceptional and to be confined within strict limits.
5. In any event, no concept of "necessity" could easily operate in favour of the first defendant over the extended period during which she liquidated, and dissipated, the deceased's property (without availing herself of any opportunity to seek relief that could have been obtained, on terms protective of the deceased, on an application to the Court or the Guardianship Tribunal) in circumstances in which the deceased, before his final descent into incompetency, left her secure in their matrimonial home, with an entitlement to a pension. Nor could the first defendant's application of the deceased's property for her own indulgent purposes, not for his benefit, be justified by any concept of an agency of necessity.

DIMINUTION OF THE DECEASED'S ESTATE

1. At the time of making his Will on 10 January 2008 the deceased held property worth, in total, nearly $1.5 million or thereabouts, comprising: 1. a share portfolio worth approximately $952,000 (second defendant's email dated 4 June 2012, annexure 49 to first plaintiff's affidavit sworn 10 September 2013; Transcript page 272, lines 32-34); 2. his Emu Plains home unit, worth approximately $400,000; 3. a Commonwealth Bank account, with a credit balance of approximately $14,500; and 4. a Macquarie Bank account, with a credit balance of approximately $90,000.
2. The parties do not appear to be in dispute about these figures or about the fact that, between 10 January 2008 and 17 May 2012, the first defendant caused asset sales that realised $1,219,952.27.
3. As explained with greater particularity elsewhere in this judgment, those asset sales comprised: (a) sales of securities from the deceased's Investment Portfolio in June 2008, in the sum of $442,183.15; (b) sales of further securities from that portfolio in March-April 2010, in the sum of $377,610.00; and (c) sale of the Emu Plains home unit, realising $400,159.12.
4. The inventory of property attached to the grant of probate issued to the second defendant disclosed property said to have a total value of approximately $60,400. In the course of these proceedings, the second defendant valued the deceased's gross distributable estate at about $75,000.
5. A core complaint of the plaintiffs in these proceedings is that, in the period between the deceased's making of his Will dated 10 January 2008 and his death on 17 May 2012, the bulk of his estate appears to have been applied by the first defendant on expenditure of no benefit to the deceased personally, but apparently for the personal benefit of the first defendant herself and the third and fourth defendants, members of her own family, not in any sense members of the deceased's household.
6. The plaintiffs' complaint is underwritten by the fact that, from mid-2008 until his death, the deceased was resident in a nursing home with his material needs substantially met, I infer, from the proceeds of a pension.
7. In short, the plaintiffs complain that the first defendant took control of the deceased's property in early 2008 and thereafter liquidated and dissipated it for her own purposes and (it might be inferred) to deprive them of any substantial inheritance from their father's estate.

A FORENSIC ACCOUNTANT'S REPORT : THE SOURCES AND APPLICATIONS OF FUNDS USED BY THE FIRST DEFENDANT

1. The evidence adduced by the plaintiffs in support of their claims for relief included a comprehensive, forensic accounting report dated 20 May 2015 prepared by Mr Carl Dumbrell as a report to the Court.
2. It was prepared pursuant to orders made by Sackar J on 13 May 2014, for reasons explained by his Honour in a judgment published as Ronald Allen Smith and Anor v Joyce Smith and Ors [2014] NSWSC 582.
3. By reference to rule 46.3 of the Uniform Civil Procedure Rules 2005 NSW (which provides that "[the] Court may make orders for the taking of any account or the making of any inquiry"), his Honour proposed that an independent accountant provide a report to the Court on particular transactions. The plaintiffs embraced that proposal, the defendants opposed it. The orders were made.
4. So far as presently material, the orders made by Sackar J were to the following effect (incorporating a clerical correction): "(1) Order that there be an accounting and report back to the Court as to where the following proceeds have gone (up to the date of these orders) from the following transactions made by the first defendant: (a) the proceeds of sales of securities made from the [deceased's] Investment Portfolio in June 2008 in the amount of [$458,852.55]; (b) the proceeds of sales of securities made from the Investment Portfolio in March and April 2010 in the amount of $377,610; [and] (c) the proceeds of the sale of [the Emu Plains home unit of the deceased] transferred on 24 June 2010 in the amount of $400,000…. (2) Order that, in the absence of the parties reaching an agreement as to the [identity of the] accountant within a particular time frame, then, for the purposes of order 1, the parties jointly apply to the President of the Society of Certified Practising Accountants (NSW Branch) to nominate an independent person to act as the accountant to undertake the accounting and prepare the report. (3) Order that all parties co-operate in the process of accounting, including promptly responding to any reasonable requests for information or documentation by the accountant in such manner as the parties may be advised .… (6) Order that the costs of the process of accounting and preparation of the report of the court be borne equally by the plaintiffs on the one hand and the defendants on the other hand. At the conclusion of the account and report, the parties are at liberty to apply to the Court on the question of costs of the account and report.…"
5. References in Order 1 to the deceased's "Investment Portfolio" are references to the "share portfolio" which, at the time the deceased made his Will dated 10 January 2008, was worth approximately $952,000.
6. Over the year or so following the orders made on 13 May 2014, Sackar J case managed the proceedings for the purpose of facilitating the preparation of the accountant's report. At the end of that process, the proceedings were listed for hearing before me.
7. At a directions hearing on 6 November 2015, I ordered, subject to further order, that the question of costs of the accountant's report be reserved for consideration at such time as the question of costs in the proceedings falls to be determined, and I reserved to the accountant liberty to apply for a variation of that order should he be so advised. No variation has been sought.
8. At the final hearing: (a) the parties agreed that one factual statement in the report should be corrected; (b) subject to that correction, the defendants indicated that they did not, in large measure, challenge the accountant's evidence about where moneys went; (c) by a series of orders made under section 136 of the Evidence Act 1995 NSW to overcome particular objections to the accountant's report by the defendants, the point was made that the object and purpose of the report was to make quantitative statements about money flows, not qualitative statements about motives particular parties may have had in giving effect to particular transactions; and (d) the parties agreed that the accountant was not required for cross examination by either side of the record.
9. The formal correction the subject of the parties' agreement was to the effect that a Commonwealth Bank account referred to in paragraph 4 on page 15 (and on the first page of appendix H) in the report was an account which was in the joint names of the deceased and the first defendant, notwithstanding that the report (erroneously) described it as being in the name of the first defendant only. Allowance needs to be made for this correction in references to the account in other passages of the report.
10. Neither the correction nor the necessity for it invalidates the factual analysis of money flows found in the report.
11. The parties' agreed correction having been made, the report's description of money flows can be, and is, adopted by the Court.
12. However, in the nature of the case sought to be made on behalf of the defendants, the report does not deal with all questions that need to be determined by the Court.
13. That is because: 1. acknowledging that the first defendant provided funds for the purchase of a residential property at Emu Plains in the names of the third and fourth defendants in June-July 2008, the defendants contend that those funds were provided as a loan by the first defendant to the third and fourth defendants which, in large measure, was repaid, or funded by the third and fourth defendants themselves, in cash; 2. the accountant expressed himself as unable to reconcile repayments that the third and fourth defendants claim to have made to the first defendant; 3. independently of any payments or "repayments" that might have been made to her by the third and fourth defendants, banking records inspected by the accountant evidence substantial withdrawals of cash by the first defendant; and 4. the first defendant contends that shortly after her marriage to the deceased she (in 1998) contributed "around $120,000" to his acquisition of a property at Quakers Hill and shares, the proceeds of sale of which (in 2000) helped to fund the purchase of a property at Faulconbridge, the proceeds of sale of which property (in 2003-2004) helped to fund purchase of the property at Glenmore Park, the proceeds of sale of which (in 2007) helped to fund purchase of the Emu Plains unit.
14. With this qualification, and subject to separate consideration of the defendants' evidence about pooling of funds and cash transactions, I am comfortable with findings to the following effect (about the source and application of funds) based upon the accountant's report, read in the light of the whole of the evidence adduced at the final hearing: 1. the whole of the proceeds of sales of securities made from the deceased's Investment Portfolio in June 2008 (in the sum of $442,183.15) and in March-April 2010 (in the sum of $377,610) were, directly or indirectly, paid to or at the direction of the first defendant; 2. the whole of the proceeds of the sale of the Emu Plains home unit of the deceased (then in the names of the deceased and the first defendant as joint tenants) in June 2010 ($400,159.12) was paid to or at the direction of the first defendant; and 3. the Emu Plains residential property purchased for a price of $347,500 in the names of the third and fourth defendants, in June-July 2008, was acquired using the proceeds of sale of securities from the deceased's Investment Portfolio.
15. Although Order 1(a) of the orders made on 13 May 2014 refers to sales effected in June 2008 as having a total value of $458,852.55, the accountant's report demonstrates that that amount refers to a sale of securities on 13 August 2007 in the sum of $16,669.40 and sales on 2 June 2008 totalling $442,183.15.
16. The sales effected in March-April 2010 in the total sum of $377,610.13 comprised: (a) sales effected on 8 March 2010 in the total sum of $118,644.81; and (b) sales effected on 19 April 2010 in the total sum of $258,965.32.
17. The fact, and quantification, of these transactions can be confirmed, in substance, by reference to the first defendant's evidence: eg, in her affidavit sworn 18 October 2013, paragraphs 23, 37 and 41.
18. In their statement of claim (filed 30 April 2013) the plaintiffs sought orders, under section 36(4)(b) of the Powers of Attorney Act, that the first defendant furnish accounts of her dealings with property of the deceased pursuant to the power of attorney dated 10 January 2008. That claim for relief was abandoned in the plaintiffs' written submissions dated 4 December 2015 in light of admission of the accountant's report into evidence.
19. It is not necessary, in these circumstances, to consider: (a) whether, as the defendants contend in their written submissions dated 14 December 2015, the death of the deceased terminated such, if any, operation section 36 of the Act might otherwise have had; or (b) whether, as residuary beneficiaries of the deceased's estate, the plaintiffs can be said to have a sufficient "interest", within the meaning of section 35 (1)(d) of the Act, to give them standing to apply for relief under section 36(4) if relief is otherwise available.
20. Although a fair inference from financial data set out in the accountant's report may be that all money paid to or at the direction of the first defendant from the proceeds of sales of securities from the deceased's Investment Portfolio was (with the exception of $10,000 drawn from the deceased's Macquarie Bank account on 6 June 2008) applied by the first defendant for her own personal benefit, and otherwise than for the benefit of the deceased, a finding to that effect cannot be made without separate consideration of the defendants' evidence.

REAL PROPERTY TRANSACTIONS OF THE FIRST DEFENDANT ON THE DECEASED'S ACCOUNT

1. Nevertheless, on a review of the whole of the evidence: in and from January 2008, the first defendant appears to have wasted no time in taking control of the deceased's property, applying most of it for the benefit of herself and her side of the family (specifically, the third and fourth defendants) and dissipating what she feared might otherwise be the plaintiffs' inheritance from their father's deceased estate.

The Deceased's Emu Plains Home Unit

1. On or about 14 February 2008 (by a memorandum of transfer AD780158 bearing that date) the deceased's Emu Plains home unit (the residence of the first defendant and himself) was transferred by the deceased, for a consideration of one dollar, to himself and the first defendant as joint tenants. The deceased and the first defendant each signed the Transfer. Mr Low witnessed their signatures.
2. On or about 16 June 2010 (by memorandum of transfer AF577800 bearing that date) the unit was sold to a third party for $400,000. The first defendant signed the Transfer both in her personal capacity and as the deceased's attorney (pursuant to the power of attorney registered as Book 4535 No. 885, the instrument dated 10 January 2008). The amount received as sale proceeds ($400,159.12) represents the sale proceeds, subject to customary adjustments.
3. The plaintiffs contend that the first defendant did not account to the deceased, and has not accounted to his estate, for any part of the proceeds of sale of the unit.
4. The first defendant says that she sold the unit to fund the building of the granny flat on the land at Emu Plains acquired in the names of the third and fourth defendants. She says that she paid for construction of the granny flat, its fit-out and ancillary expenses in the total sum of "around $200,000". Accepting that evidence as accurate, it accounts for only about one half of the sale proceeds.

Purchase of the Third and Fourth Defendants' Residence

1. By a contract dated 14 June 2008, the third and fourth defendants contracted to purchase a residence at Emu Plains for $347,500. The purchase was completed on or about 7 July 2008 or, at least, 11 July 2008, the date upon which memorandum of transfer of AE82486 in favour of the third and fourth defendants was registered. They became registered proprietors, as joint tenants, without any mortgage, registered or unregistered: Transcript page 167.
2. The first defendant paid the whole of the purchase price of this property with funds sourced from the deceased's account with the Macquarie Bank.
3. The 10% deposit of $34,750 was paid in two instalments: $868.75 on the date of contract and the balance of $33,881.25 on 20 June 2008. Both amounts were paid by the first defendant out of the deceased's Macquarie Bank account. The evidence includes a cheque for the larger amount drawn on the deceased's "Portfolio Account" with Macquarie Bank, a cheque signed by the first defendant as the deceased's attorney.
4. Subject to consideration of the third and fourth defendants' contention that they made (re)payments of cash to the first defendant, the balance of the purchase price ($312,750), subject to adjustments, was also funded by the deceased. On 23 June 2008 the first defendant transferred $365,000 from the deceased's Macquarie Bank account to the Commonwealth Bank joint account of the deceased and herself. On 1 July 2008 she withdrew $364,751.07 from that account, the same date upon which she drew a succession of cheques on the deceased's Macquarie Bank account to facilitate settlement of the purchase.
5. A letter dated 30 June 2008 addressed to the third and fourth defendants by the conveyancer acting for them on the purchase requested $325,469.06 for the purpose of payment of the balance of the purchase price (as adjusted), stamp duty and costs on the purchase, settlement of which was then anticipated to occur on 7 July 2008.
6. The conveyancer requested "personal cheques" in favour of Penrith City Council, Sydney Water and the conveyancer's firm, as well as bank cheques in favour of the National Australia Bank (the vendor's mortgagee) and the Office of State Revenue (in payment of stamp duty).
7. In response, the first defendant provided as the "personal cheques" several cheques, each dated 1 July 2008, drawn on the Macquarie Bank "Portfolio Account" of the deceased, signed by her as the deceased's attorney.
8. The cheques dated 1 July 2008 signed by the first defendant were written out and signed by her, in the presence of the third defendant and possibly the fourth defendant, in the office of the conveyancer: Transcript page 212. The third defendant concedes her presence: Transcript pages 260-263. The fourth defendant does not concede his: Transcript page 161. In the absence of evidence from the conveyancer, I proceed on the basis that the third defendant was present, but the fourth defendant was not.
9. The bank cheques were also provided by the first defendant, funded by cheques drawn by her on the deceased's Macquarie Bank "Portfolio Account" on 2 and 23 June 2008, deposited in the Commonwealth Bank joint account of the deceased and the first defendant.
10. The first defendant's contribution also extended to the payment of $299.75 for insurance incidental to the purchase. That amount, like the provision of other funds, was funded by a cheque drawn on the deceased's Macquarie Bank "Portfolio Account", signed by the first defendant as his attorney.
11. In cross-examination each of the third and fourth defendants conceded that the whole of the amount required to effect the purchase was provided by the first defendant: Transcript pages 160, 161, 164-165 and 264.
12. The first, third and fourth defendants' evidence, in substance, is that, pursuant to an oral agreement made between them at the time of purchase, by cash payments made to the first defendant personally, the third and fourth defendants contributed $145,000 - $150,000 (they contend, $150,000) to the purchase price at the time of the purchase, and a further $200,000 on 23 March 2009 following upon sale of their former (Medlow Bath) residence: first defendant's affidavit sworn 28 October 2013, paragraphs 36 and 40; third defendant's affidavit sworn 28 October 2013, paragraphs 12-13; fourth defendant's affidavit sworn 16 October 2013, paragraphs 19-20 and 24-26.
13. The fourth defendant's evidence is that the first of these payments (he says, $150,000) was made, in mid-2008, from the balance of the proceeds of a superannuation entitlement that he had withdrawn, in cash, in about July 2002 and had retained, in cash, for the ensuing six years: affidavit sworn 16 October 2013, paragraphs 9-12 and 19; Transcript pages 158-160 and 184.
14. His evidence is that the second payment ($195,000 plus a further $5,000, $200,000 in total) was, to the extent of $195,000, withdrawn, in cash, from a bank account of the third defendant and himself on 23 March 2009. He produced a bank statement consistent with that withdrawal: Affidavit sworn 16 October 2013, Annexure E.
15. A controversial receipt dated 23 March 2009 (receipt number 11) purports to record a receipt, by the first defendant, from the third and fourth defendants of the sum of "$195,000 plus $5,000" ($200,000) for an undisclosed purpose. The original receipt, signed by the first defendant, remains in a receipt book (Exhibit P3), said to belong to the fourth defendant. A carbon copy of the original is so faint as to be unreadable.
16. The receipt book appears not to have been regularly used, but retained over decades. The first receipt is dated 12 November 1989. It purportedly records the first defendant's receipt from the third and fourth defendants of $5,000 as a deposit on land at Nundle, near Tamworth, purchased by the third and fourth defendants from the first defendant (then known as "Joy Jones") and her then partner, Martin Charles Jones. Subsequent receipts (numbered 2-10 respectively) bear dates between 19 October 1990 and 29 August 1994. Receipt No. 2, dated 19 October 1990, appears to have been signed by "MC Jones". The receipts numbered 3-10 appear to have been signed by the first defendant as "J Jones". The fourth defendant says, and their appearance is consistent with his statement, that those receipts relate to the third and fourth defendants' payments to the first defendant of instalments on the purchase price of the Tamworth land. Those payments total $25,500. How that amount squares with the fourth defendant's evidence (in paragraph 7 of his affidavit sworn 16 October 2013) that the purchase price for the land was $20,000 is not explained in the evidence.
17. The receipt book appears not to have been used between 29 August 1994 and 23 March 2009.
18. Immediately following receipt number 11 are two further receipts dated 23 March 2009, each purporting to record a receipt of money by the first defendant from the third and fourth defendants. Receipt number 12 is for an amount of $149,735 "being balance of house and costs". Receipt number 13 is for the sum of $11,131.50 being for "Office of State Revenue 'stamp duty'".
19. The fourth defendant's affidavit offers no explanation for receipts 12 or 13. In cross-examination, he described receipt number 12 as relating to the $150,000 he deposed to having given the first defendant nine months or so earlier than the date it bears: Transcript pages 178-179.
20. The signature of the first defendant on the copy of receipt number 11 annexed to the fourth defendant's affidavit appears to be different from that which appears on the original receipt in Exhibit P3.
21. Apart from the signature(s) on the two versions of the receipt, the handwriting is that of the third defendant: Transcript pages 170-171.
22. The only other receipts in Exhibit P3 (a book of 100 receipt forms) are unrelated receipts respectively numbered 15 (dated 11 September 2014), 39 (dated 17 November 1994) and 75 (dated 18 June 1992). The book appears not ever to have been part of a regular accounting system, but rather a record of convenience for occasional use.
23. The authenticity, or otherwise, of the receipts dated 23 March 2009, and the probative value of the defendants' evidence that the third and fourth defendants paid the first defendant $350,000 or thereabouts by two or three instalments, ultimately depends in large measure on the credibility of the first, third and fourth defendants.

Construction of a Granny Flat for the First Defendant

1. On 18 March 2010 the third and fourth defendants entered a building contract for the construction of a "granny flat" addition to their Emu Plains residence for $124,000. The contract disclosed the source of funds for payment of the contract price to be "cash", available otherwise than from the third and fourth defendants or a lender.
2. By her Defence, the first defendant admits that she paid $124,800 to the builder for that work. By her evidence, she deposes to having paid a total of about $200,000 for the construction, fit out and ancillary expenses relating to construction of the granny flat, funded by sales of the deceased's shares and securities and by her sale of the Emu Plains home unit.
3. The third defendant's evidence is that she and her husband allowed the first defendant to build a granny flat at the rear of their residence on the agreed basis that the first defendant would pay for its construction, as she did: affidavit sworn 28 October 2013, paragraphs 16-17. The fourth defendant's affidavit evidence is to similar effect insofar as he records an agreement with the first defendant that she would pay the cost of construction: affidavit sworn 16 October 2013, paragraph 29. In cross-examination, he agreed that she paid for all the building costs associated with the granny flat: Transcript page 180.
4. On the whole of the evidence, the correct inference appears to be that, using funds of the deceased, but possibly also her share of the proceeds of sale of the Emu Plains home unit, the first defendant paid for the whole of the costs of construction of the granny flat, unqualified by any contention that the third and fourth defendants made a financial contribution to the construction costs.
5. Although the defendants have expressly elected to be represented by the same legal team in these proceedings, the interests of the first defendant (on the one hand) and (on the other hand) the interests of the third and fourth defendants are here ostensibly in conflict.
6. The third and fourth defendants are registered as proprietors of the Emu Plains property, including the granny flat occupied by the first defendant. The property has not been subdivided in any way. The third defendant's evidence is to the effect that she and her husband own the whole property, unencumbered by any interest of the first defendant. The first defendant's evidence is that she owns the granny flat in her own right, a proposition which (if correct) translates into a claim to an (indeterminate) equitable entitlement vis-a-vis the third and fourth defendants, holders of legal title to the property. In paragraph 47.3 of her affidavit sworn 28 October 2013 she asserts an entitlement to an "(informal) life interest (or residency agreement) in" the property.
7. The third and fourth defendants' claim to full ownership of the property is predicated on assertions by them that, in substance, they funded, or repaid, the first defendant sums applied by her towards their acquisition of the property.
8. On 11 March 2011 each of the third and fourth defendants made a Will providing for the first defendant to have "the use and occupation and enjoyment of the granny flat during her lifetime", paying a proportion of rates, taxes and outgoings and being responsible for its maintenance.

The Plaintiffs' caveat on the title to the Emu Plains residence of the first, third and fourth defendants

1. The title to the Emu Plains residence acquired in the names of the third and fourth defendants remains in their names (without any formal acknowledgement of such, if any, right, title or interest the first defendant may have referable to the property), subject to a caveat lodged (as Dealing No. AH815182) by the plaintiffs against the title on or about 24 June 2013.
2. The "estate or interest" claimed by the caveat is that of "an interest in the land as equitable mortgagee".
3. That estate or interest is said, in the caveat, to have been claimed "by virtue of" the following statement of facts: "The purchase moneys for the land being from the incapacitated estate of the Caveators' father, now deceased, which was not authorised to be applied towards the purchase of the land and which was to pass to the Caveators under the deceased's Will, the purchase moneys being currently the subject of [the present proceedings, identified by the Court's allocated case number] for equitable tracing and account."
4. The defendants have not filed a cross claim in the proceedings seeking an order, under section 74MA of the Real Property Act 1900 NSW, that the caveat be withdrawn.
5. Nevertheless, the question whether an order should be made for withdrawal of the caveat is a live one in the proceedings, having regard to: 1. the direction in section 63 of the Supreme Court Act 1970 NSW that "[the] Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, so far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided"; and 2. the provisions of section 90 of the Civil Procedure Act 2005 NSW and rule 36.1 of the Uniform Civil Procedure Rules 2005 NSW, which authorise the Court to give such judgment, or to make such order, "as the nature of the case requires".
6. The plaintiffs take no point about the absence of a cross claim. They accept that, if the deceased's estate is found to have no proprietary interest in the Emu Plains residence, an order for withdrawal of their caveat should be made.
7. The form of the caveat correlates closely with the form of the statement of claim filed by the plaintiffs on 30 April 2013. See paragraphs 7-10 of the prayers for relief and paragraphs 45-48 of the allegations of fact, read in the context particularly of paragraphs 19-20 (which recite the third and fourth defendants' purchase of their Emu Plains residence with funds of the deceased), paragraph 24 (which recites the first defendant's funding of construction of the granny flat on the property with funds of the deceased), paragraphs 40-41 (which allege that the first defendant used funds of the deceased in breach of her fiduciary duties), paragraph 46 (which recites the third and fourth defendants' receipt of the deceased's funds) and paragraph 47 (which alleges that the third and fourth defendants received those funds with actual or constructive knowledge that, in paying the funds, the first defendant was acting in breach of her fiduciary duties").
8. The caveat was admitted into evidence via an affidavit sworn by the fourth defendant (on 16 October 2013) in which, in effect, he denied that the plaintiffs have a caveatable interest in the property registered in the names of the third defendant and himself.

DID THE DISPUTED TRANSACTIONS FOR WHICH THE DEFENDANTS CONTEND OCCUR?

1. The case for which the first, third and fourth defendants contend depends, in varying degrees, upon an acceptance of evidence given by them about particular transactions.
2. That evidence is, on the whole, uncorroborated in any reliable way and, in any event, dependent upon acceptance of each of the first, third and fourth defendants as a reliable witness of truth.
3. After anxious consideration, I have concluded that I cannot accept their evidence as conforming to that standard.
4. I proceed on the basis that the plaintiffs bear the onus of proving the character of payments made to the third and fourth defendants funded by property of the deceased but, insofar as the third and fourth defendants contend that they repaid money the subject of those payments, they bear an onus of proving the fact of repayment: Coshott v Sakic (1998) 44 NSWLR 667 at 671D-672C. At the end of the day, however, my determination of these issues is not dependent upon location of the onus. I am comfortably satisfied with the factual findings made.

The First Defendant's Alleged, Initial Contribution of Around $120,000.00

1. In support of a general contention that she was entitled to treat herself as having a proprietary interest in property held in the name of the deceased, the first defendant deposes to having made a financial contribution of "around $120,000" to the purchase by the deceased of a property at Quakers Hill that was their first joint residency: first defendant's affidavit sworn 28 October 2013, paragraphs 9-16.
2. I do not accept that any such contribution was ever made by the first defendant.
3. Apart from general reservations, elsewhere noted, about the reliability of the first defendant's evidence, my reasons for this are as follows: 1. The first defendant's evidence rises no higher than general assertions, coupled with references to a chain of property dealings that falls far short of even a rudimentary tracing exercise. 2. There is no evidence that the deceased ever acknowledged having received a capital contribution to his wealth from the first defendant. 3. Consistently with that, the evidence of the first plaintiff is that his father never mentioned such a contribution to him, despite complaints by him to his father about his perception that the first defendant was out to exploit his wealth without herself making any substantial contribution to it. 4. The third defendant, who was at all times very close to her mother, gave evidence that, to her knowledge, the first defendant had no independent financial means (other than the pension) when she met the deceased, and the deceased had been looking after her financially: Transcript pages 256-257.

Funding the Purchase of the Third and Fourth Defendants' Emu Plains Residence

1. In their denials that the estate of the deceased has any interest in, or referable to, their residence at Emu Plains, the first, third and fourth defendants deposed to the third and fourth defendants having paid to the first defendant cash sums of: 1. $150,000.00 or thereabouts, in mid-2008, at the time of purchase of the property in the names of the third and fourth defendants; and 2. $200,000.00, on 23 March 2009, following the third and fourth defendants' sale of their former (Medlow Bath) residence.
2. I do not accept that either payment was made.
3. Apart from general reservations about the reliability of the evidence of the first, third and fourth defendants, I do not accept that a sum of $150,000.00, or thereabouts, was paid by the third and fourth defendants to the first defendant in mid-2008 because: 1. There is no contemporaneous, corroborative record of any payment by the third or fourth defendants to the first defendant of $150,000 in or about mid-2008: Transcript pages 216-217. 2. There is no independent witness to the alleged payment. 3. The alleged payment is said to have been made in cash in circumstances unverifiable upon an independent review. 4. The source of the payment is said to have been the balance of superannuation funds withdrawn by the fourth defendant six years earlier and held by him, in cash, over the intervening years, professedly without any desire to earn interest in the meantime: Transcript pages 159-160. 5. The fourth defendant's evidence about the payment was expressed in the language of reconstruction, not recollection: such and such "would have" or "could have" happened, not that it did happen: Transcript pages 154-155 and 158. 6. In his cross examination, the fourth defendant initially deposed to having received a receipt from the first defendant for his payment of the $150,000, but he retracted that evidence (Transcript page 157) and appeared to be at a loss to explain the receipt dated 23 March 2009 signed by the first defendant for a sum of $149,735.00 (Transcript pages 178 - 179; Exhibit P3). 7. Although the third and fourth defendants asserted that the fourth defendant paid to the first defendant $150,000.00, the first defendant's evidence was initially that the sum was $145,000 (Affidavit sworn 28 October 2013, paragraphs 36-37), which evidence she endeavoured in cross-examination to explain away by saying that she had been given an extra $5,000.00 in cash (Transcript page 214). 8. Records of the first defendant, so far as they exist, do not provide any evidence of her receipt of $150,000.00 from the third and fourth defendants or a tracing of any such money in her hands. 9. The first defendant (Transcript page 215) and the fourth defendant (Transcript page 155) were unable to recollect with any confidence where they were when the payment was allegedly made. 10. Although allegedly intended as a means of partially funding the first defendant's payment of the purchase price for the third and fourth defendants' Emu Plains residence, no part of the $150,000.00 allegedly paid by them was deposited by the first defendant in a bank account of the deceased to fund the payments she made to acquire the property: Transcript page 218.
4. Apart from general reservations about the reliability of the evidence of the first, third and fourth defendants, I do not accept that a sum of $200,000.00, or thereabouts, was paid by the third and fourth defendants to the first defendant on or about 23 March 2009 because: 1. Although there is a bank statement that purports to record a withdrawal of $195,000 from a joint account of the third and fourth defendants on 23 March 2009 (fourth defendant's Affidavit sworn 16 October 2013, Annexure E) and a receipt bearing that date signed by the first defendant (Exhibit P3, receipt number 11), there is no necessary connection between the two documents. 2. There is no contemporaneous, corroborative record that evidences a connection between the two documents: Transcript, page 219. 3. There is no independent witness to the alleged payment. 4. The alleged payment is said to have been made in cash in circumstances unverifiable upon an independent review. 5. The fourth defendant exhibited uncertainty as to where he and the first defendant were when the alleged payment was made: Transcript page 169. 6. The form of the receipt signed by the first defendant (Exhibit P3, Receipt number 11) invites suspicion, not only because of differences in the appearance of her signature on different copies of the receipt, but because the receipt itself records a receipt of "$195,000 plus 5,000" (an unusual form of entry) rather than simply $200,000.00, and there is no description of the character or purpose of the payment recorded on the face of the receipt. 7. In her affidavit account of the alleged payment of $200,000 to her (Affidavit sworn 28 October 2013, paragraph 40), the first defendant made no reference to her provision of a receipt: Cf, Transcript page 220. 8. In her affidavit evidence about the payment (Affidavit sworn 28 October 2013, paragraph 13), the third defendant deposed to a payment of "around $200,000" and said that the fourth defendant "looked after the finances and repayment". For his part, the fourth defendant identified the writing on Receipt number 11 (Exhibit P3), other than the signature, as writing of the third defendant: Transcript pages 170-171. 9. The first defendant expressed herself (at Transcript pages 221-222) as unable to explain precisely how she dealt with the $200,000 cash she is supposed to have received, some of which she said she kept at home just to use it as she needed it. 10. Although the $200,000 is said to have been a repayment of a loan (funded, in fact, from the deceased's property) no part of any such payment was returned to the deceased's Macquarie Bank account: Transcript page 221.
5. I do not accept that the purchase of the Emu Plains residence in the names of the third and fourth defendants in 2008 was attended by any agreement between the first, third and fourth defendants for the first defendant to provide to the third and fourth defendants nothing more than a "bridging loan" pending sale of their Medlow Bath residence.
6. Apart from general reservations about the reliability of their evidence, this is because: 1. There is no contemporaneous, corroborative record of any such agreement, the witnesses to which are said only to have been the first, third and fourth defendants (close relatives, one and all). 2. There is no independent witness to the alleged agreement or its implementation. 3. Although funding for acquisition of land in the names of the third and fourth defendants came entirely from property of the deceased, the defendants' evidence is that their agreement involved no reference to the deceased or the source of funds. 4. This is despite the defendants' characterisation of about $200,000.00 of that funding as a "bridging loan". 5. Despite the first, third and fourth defendants' engagement with a conveyancer on the purchase of the Emu Plains residence (and the third and fourth defendants' use of a solicitor on the sale of their Medlow Bath property, allegedly the source of funds to repay the first defendant), the defendants have produced no conveyancing record that evidences the existence of a "loan" or any protection for either the first defendant as "lender" or the third and fourth defendants as "borrowers". 6. The payments allegedly made by the third and fourth defendants to the first defendant have not been reconciled with available documentation and, one can reasonably conclude, cannot be so reconciled.
7. On my findings, the Emu Plains residence was acquired in the names of the third and fourth defendants in 2008 using only funds of the deceased to which the first defendant had no personal, beneficial entitlement.
8. The first defendant did not acquire any beneficial entitlement to funds of the deceased used in the acquisition of the Emu Plains residence merely by channelling them through a bank account held in the joint names of the deceased and herself. At all material times she remained liable to account to the deceased, or his estate, for her dealings as his attorney with his property.

THE FIRST DEFENDANT: ASSUMPTION OF FIDUCIARY OBLIGATIONS, BREACH, REMEDIES

The Status of a Fiduciary

1. By accepting, and acting upon, her appointment as the deceased's attorney on the terms set forth in the Enduring Power of Attorney executed by both the deceased and herself on 10 January 2008, the first defendant accepted, vis-à-vis the deceased, the obligations of a fiduciary governed by those terms.
2. A relationship of principal and agent is ordinarily recognised as an established category of fiduciary: Hospital Products Pty Limited v United States Surgical Corporation (1984) 156 CLR 41 at 68, 96 and 141.
3. Viewing the relationship between the deceased and the first defendant in substance, not merely form, its fiduciary character can readily be seen. It has all the indicia of a fiduciary relationship: At, and at all times after, the time the power of attorney dated 10 January 2008 was executed, the first defendant occupied a special relationship of trust and confidence vis-a-vis the deceased, a vulnerable man who, through encroaching mental infirmity, was progressively unable to manage his own affairs and increasingly, then (no later than 13 May 2008) totally, dependent upon her (as she undertook) to protect his interests, legal and practical. She bound herself, in conscience, to act in his best interests, not to subordinate those interests to her own. The power of attorney, fully engaged as an enduring power of attorney after the deceased's loss of mental capacity, imposed upon the first defendant all the attributes of a fiduciary when she acted, or was called upon to act, within the realm within which it operated; namely, management of the estate (property) of the deceased as a person incapable of managing his own affairs.
4. The first defendant acknowledged her obligations as a fiduciary when she actively deployed the power of attorney in dealing with the deceased's property after he lost the mental capacity required to transact business on his own behalf.
5. Her deployment of the power of attorney was overtly on display when, for example: 1. she provided a copy of the instrument to Macquarie Bank under cover of her handwritten note dated 13 May 2008. 2. in funding the purchase of the Emu Plains property in the names of the third and fourth defendants, in June-July 2008, she drew cheques on the deceased's Macquarie Bank "Portfolio Account" expressly signed "J Smith for RJ Smith". 3. in selling the Emu Plains home unit in 2010, she executed Memorandum of Transfer AF5778005 dated 16 June 2010 on behalf of the deceased.
6. Her deployment of the power of attorney was also implicitly on display when, having warned the plaintiffs off "interfering" with the deceased's affairs after 10 January 2008, she provided Dr Dixon's medical certificate dated 13 May 2008 to the first plaintiff that same day.
7. She was no less the deceased's agent, constrained by the terms of the power of attorney, if, as she suggests, she deployed the written Authority dated 1 November 2007 in the sale of shares and securities of the deceased after 13 May 2008. Her authority, if she had any at that time, was grounded in, and dependent on, the power of attorney.
8. She was no less the deceased's agent, constrained by the terms of the power of attorney, because she was the deceased's wife.
9. The defendants' reliance upon Edward v Cheyne (No 2) (1888) 13 App Cas 371 at 398 and O'Malley v Public Trustee [1956] VLR 194 at 197 (fact-specific decisions about fully functional, one dimensional relationships between a husband and wife in which a wife was found to have surrendered her income and property to her husband as the head of their household) offers little assistance in the current context beyond a reminder that law and practice, in each generation, need to consult considerations of convenience in the preservation of peace within families. An object of the power of attorney granted by the deceased to the first defendant on 10 January 2008 was to provide a mechanism, with an identifiable legal framework, for the orderly management of the estate of a person in need of protection.

The Nature and Scope of the First Defendant's Obligations as a Fiduciary

1. "The terms of the power of attorney" incorporated the limitations expressly acknowledged in sections 11(1), 12(1) and 13(1) of the Powers of Attorney Act, unqualified by the extensions of authority for which sections 11(2), 12(2) and 13(2) provide but which the deceased did not embrace.
2. The express warnings given to the first defendant in the prescribed notes forming part of her instrument of appointment can reasonably be taken as informing an assessment of the nature and scope of her obligations as a fiduciary. As the deceased's attorney: 1. she was bound to act in his best interests, without unauthorised benefit to herself. 2. she should keep her and the deceased's property separate. 3. she should keep reasonable accounts and records about the deceased's money and property.
3. The first defendant does not suggest that the reference to "joint" ownership or "joint" bank accounts in the sixth paragraph of the notes in any way influenced her conduct, or justifies or excuses her conduct, of the deceased's affairs.
4. As between principal and agent, the first defendant was a fiduciary and was required not to place herself in a position of conflict, nor to obtain a benefit from her position as the deceased's attorney, without first obtaining "fully informed consent": Taheri v Vitek (2014) 87 NSWLR 403 at 427[115].
5. In the context of the current case (in which the deceased made deliberate, formal arrangements defining the nature and scope of the first defendant's authority, conscious of tensions within his blended family, and in contemplation of his mental faculties rapidly failing), there is less scope for a departure from these standards than (as Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 102-104 instructs) might be appropriate in another setting.
6. Given the deceased's mental incapacity at all material times (that is, on and after 13 May 2008), the first defendant was unable to obtain "fully informed consent" from him. It would have sufficed had she obtained authorisation via an order of the Court, or the Guardianship Tribunal, exercising protective jurisdiction, in effect, on behalf of the deceased. This she did not do.
7. However, even now, in deciding whether (and, if so, to what extent) the first defendant should be held to account for a breach of her fiduciary obligations, the Court needs to consider the interplay between its protective and equity jurisdictions as illustrated by Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423, McLaughlin v The City Bank of Sydney (1912) 14 CLR 684 at 698-699 and 704 and Downie v Langham [2017] NSWSC 113.
8. In this case, this is best done in logical sequence, considering: (a) whether the first defendant was a fiduciary, as has been found; (b) the nature and scope of her obligations as a fiduciary in the particular factual setting, here done; (c) what, if any, findings of breach of fiduciary obligations are apt, the topic next to be addressed; and (d) an appropriate remedial response to any finding of breach, a topic that requires an holistic review of the case.

Breaches of Fiduciary Obligations

1. There was an element of "breach" in almost everything the first defendant did in management of the deceased's affairs, in reliance on the power of attorney dated 10 January 2008, after 13 May 2008. She routinely preferred her own interests over those of the deceased. She did not consistently act only for his benefit, save to the extent that she saw benefit to him through the prism of benefit to herself. She generally treated his property as her own. Without authority, she appropriated his property for her own benefit, and for that of her side of the family, with the intent of diminishing any prospective inheritance of the plaintiffs from the estate of the deceased.
2. She never kept any auditable records, preferring, as she did, to live within an opaque cash economy.
3. She was not unmindful of a need to ensure that the first defendant was comfortable in his nursing home accommodation but, financially, she proceeded upon an assumption that, provided his nursing home bills were paid, she was free to do as she wished with his property without exposure to any liability to account for it.
4. Illustration of this can be found in her realisation of capital assets in June 2008, March-April 2010 and June 2010; in her pattern of expenditure between mid-2008 and mid-2012; and in her approach to record-keeping.
5. In June 2008 the first defendant realised the sum of $442,183.15 from sales of securities made from the deceased's Investment Portfolio.
6. In March-April 2010 the first defendant realised the sum of $377,610.00 in sales of securities made from the deceased's Investment Portfolio.
7. In June 2010 the first defendant realised the sum of $400,159.12 from sale of the Emu Plains home unit of the deceased and herself.
8. In an affidavit sworn (on 13 July 2015) for the purpose of providing reconstructed estimates of income and expenditure the first defendant expressly recorded that she did not include estimates of pension money received by the deceased and herself, or interest received on term deposits. Even with broad, uncorroborated estimates of her expenditure, she professed herself unable to account for $58,655.00 of moneys received from asset sales.
9. Without independent corroboration her reconstructed accounts are not reliable. On her own admission, they are incomplete.
10. During the period she managed the deceased's affairs as his enduring attorney (13 May 2008-17 May 2012) the first defendant's pattern of expenditure (as summarised by her, without corroboration, in her affidavit sworn 13 July 2015) included substantial expenditure on jewellery, holidays, poker machines and other entertainment.
11. The payments made by the first defendant in June and July 2008, at the direction of the third and fourth defendants, for purchase of the Emu Plains residence in their names, using funds of the deceased, were made by way of a gift, not a loan by the first defendant to the third and fourth defendants as a means of diverting funds away from any prospective inheritance of the plaintiffs from the deceased's estate. They were not made for the benefit of the deceased or in his interests.
12. The payments made by the first defendant in 2010, at the direction of the third and fourth defendants, for construction of a granny flat on the Emu Plains property, were likewise made by way of a gift by the first defendant to the third and fourth defendants, as a means of cutting out the plaintiffs, but with an expectation common to the first, third and fourth defendants that the first defendant would reside in the granny flat. The payments were not made for the benefit of the deceased or in his interests.
13. I am not satisfied that the first defendant expended any of her own funds in acquisition of the Emu Plains residence or construction of the granny flat. The funds she used were funds of the deceased. She used his funds without any authority to do so.

The First Defendant's Failure to Account

1. During her period of ascendancy, in de facto management of the deceased's affairs, on and after 13 May 2008, the first defendant appears to have eschewed record-keeping of any kind that might facilitate a chapter and verse review of her activities.
2. Where an accounting party fails to keep proper accounts, and thereby renders problematic any exercise of accounting by the Court, the Court generally proceeds on a presumption against that party, resolving doubtful questions against the party whose actions have made an accurate determination problematic: Houghton v Immer (No. 155) Pty Limited (1997) 44 NSWLR 46 at 59D, applying Armory v Delamirie (1722) 1 Stra 505; 93 ER 664. This principle may require moderation in its application to the facts of the particular case in order to serve the interests of justice; but, in a case in which an accounting party has deliberately put it out of the power of an adversary to obtain an accounting to which there is an entitlement, the accounting party cannot complain if the Court presumes the worst against him, her or it.
3. Pointing in the same direction is the principle that, where a fiduciary has mixed trust funds with his, her or its own so as to render identification impossible, the whole fund will be treated as trust property except so far as the fiduciary may be able to distinguish what is his, her or its own: Brady v Stapleton (1952) 88 CLR 322 at 336-337; Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 109-110; Warman International Limited v Dwyer (1995) 182 CLR 544 at 561-562; Cf, In the marriage of Wagstaff (1990) 14 Fam LR 78 at 86. The accounting party bears the onus of proving what, if any, part of a mixed fund is his, her or its own.
4. It is for the errant fiduciary to establish that it would be inequitable for the Court to make against the fiduciary an order for an account of the entire profits, gain or benefits derived by the fiduciary from a breach of fiduciary obligations: Warman International Limited v Dwyer (1995) 182 CLR 544 at 556-562, especially 559 and 561-562.
5. An application of these principles requires that the first defendant bear the onus of proving (which she has not done) that, insofar as the proceeds of the sale of the Emu Plains home unit funded the construction of her granny flat, that funding was provided by her (so that she might hold a personal, beneficial interest in her current residence) rather than by the deceased (on whose behalf she might be found, if she spent his share of the home unit sale proceeds on construction work, to hold whatever interest she may have in the land at Emu Plains registered in the names of the third and fourth defendants).
6. A need for flexibility in the application of a strict accounting standard is recognised in Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 where, for example, a "guardian" and a person under the care of the guardian are members of the same household and care is provided on a day-to-day basis. Different considerations may apply to such a case than apply, for example, in a case such as the present where the guardian has placed the person under care in nursing home accommodation, guardian and patient occupy separate residences and the patient is not under the day-to-day care of the guardian.
7. What marks these examples out as potentially different is not necessarily membership of a single household or responsibility for the day-to-day care of an incapable person, but considerations of the purpose for which property is placed under the management of a fiduciary and whether the purpose has been fulfilled: Crossingham v Crossingham [2012] NSWSC 95 at [18] et seq, citing Countess of Bective, Jodrell v Jodrell (1851) 14 Beav 397; 51 ER 339, Brown v Smith (1878) 10 Ch D 377 and Clay v Clay (2001) 202 CLR 410 at 430.
8. The relaxed, purposive approach in Countess of Bective to the accounting obligations of a "guardian" can be applied to the first defendant as the deceased's attorney and guardian (Downie v Langham [2017] NSWSC 113), but it does not operate retrospectively as a licence for the first defendant to disregard the deceased's interests. Her appointment to fiduciary office was for the purpose of management of the deceased's estate for his benefit, not for her own benefit, during his incapacity for self-management. Her dissipation of his property for her own benefit deprives her of any entitlement she might otherwise have had, by reference to Countess of Bective, to escape an order for an accounting: Woodward v Woodward [2015] NSWSC 1793 at [56].
9. In the absence of proper accounting records, the parties appear to have approached accounting questions: first, by recording in the aggregate the first defendant's receipts from realisation of property of the deceased ($1,219,952.27, the sum of $442,183.15, $377,610.00 and $400,159.12); secondly, by allowing in favour of the first defendant one half of the proceeds of sale of the Emu Plains home unit ($200,079.56, one half of $400,159.12); and thirdly, by testing, so far as practicable, the veracity of the first defendant's estimates of how it was that she expended the balance ($1,019,872.71), recognising that this process will not have brought to account interest that was, or ought to have been, earned on the deceased's investments or his pension entitlements.
10. Accepting this methodology, rough though it is (Warman International Limited v Dwyer (1995) 182 CLR 544 at 556-557, 558 and 567), and for the time being leaving interest and pension entitlements unaccounted for, the first defendant has an obligation to account for not less than $1,019,872.71 of the deceased's funds insofar as not applied for his benefit.
11. The first defendant's expost facto rationalised, reconstructed estimates of expenditure provide no reliable basis for an assessment of the amount of money expended by her on the maintenance of, and care for, the deceased in the period between 13 May 2008 and 17 May 2012. On her own admission, she has not accounted for all of the property of the deceased under her management. She says she is unable to do better than she has done and, through current impecuniosity, she says she is unable from her own resources to make good any property of the deceased which she might be held liable to restore to his estate.
12. Unable to accept the veracity and reliability of her evidence, I conclude that any application by her of the property of the deceased towards his care and maintenance, or otherwise for his benefit, was de minimus, sufficiently covered by her failure to account for his pension entitlements and interest earned on bank deposits funded by his estate.
13. Having regard to the quantum of property involved in the first defendant's dealings with the deceased's property, and her failure to account for significant components of the deceased's income, I am not satisfied that it is appropriate, in these proceedings, to bring to account against the deceased's estate (or the plaintiffs) capital gains tax liabilities the first defendant says she paid, on the deceased's account, from her sales of his assets, assuming that those payments can properly be characterised as having been made for his benefit.
14. All in all, the first defendant has not discharged the onus she bears to prove that she applied the deceased's property for his benefit.
15. Furthermore, I am not satisfied that the first defendant used any of her own funds, as distinct from funds of the deceased, in acquisition of the Emu Plains residence or in construction of the granny flat on that property. I find that the property was acquired, and developed, using funds of the deceased which the first defendant was not authorised by the deceased to expend.
16. The financial circumstances of the first defendant are ostensibly such that, but for any interest she has in the Emu Plains residence, she has no resources to meet a judgment for the payment of compensation to the estate of the deceased.
17. Unless some allowance is to be made for the first defendant upon an exercise of the Court's Protective Jurisdiction or by analogy with it (by reference to McLaughlin v The City Bank of Sydney (1912) 14 CLR 684 at 698-699, Theobald, The Law Relating to Lunacy (1924), chapters 52 and 65 and Protective Commissioner v D (2004) 60 NSWLR 513 at 540-542; C v W (No. 2) [2016] NSWSC 945 at [45]-[47], Downie v Langham [2017] NSWSC 113 or the like), there presently appears to be no basis upon which, in defining the unauthorised benefit for which the first defendant must be held liable to account to the estate of the deceased, there should be a "just allowance" made in her favour. There is no allowance that should be made by the deceased's estate in favour of the first defendant simply on the footing that one who seeks equity should do equity: Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015), pages 185-186.

The first defendant's liability to account

1. Unattended by any application to the Court or NCAT to grant her enhanced authority to deal with the deceased's estate or to apply it for her own maintenance or benefit, the first defendant's wilful breaches of fiduciary obligations owed by her to the deceased as his attorney (in combination with her inability to account for her management of his property, and her dissipation of it, for the benefit of herself and her side of the family), after the deceased's full-time care was entrusted to a nursing home, stand in the way of any grant to her of relief dispensing, in whole or part, with her liability to account. She cannot reasonably be allowed such a dispensation, whether presented as an allowance for past care or maintenance or purely as relief against personal liability.
2. She cannot be found to have acted honestly or reasonably so as to warrant an order (upon an exercise of protective jurisdiction or under section 85 of the Trustee Act) that she ought fairly to be excused from personal liability for her misapplication of the deceased's property.
3. Crystallisation of the plaintiffs' entitlements under the Will of the deceased, on his death, provides a further obstacle to any dispensation in favour of the first defendant. She cannot be granted, or allowed, such a dispensation except at the expense of the plaintiffs. They cannot, in justice, be called upon to bear that burden in circumstances in which part of her object in dissipation of the deceased's property, in breach of her fiduciary obligations, was to diminish, if not extinguish, their rights of inheritance.

The rule in Cherry v Boultbee

1. Notwithstanding any failure to account on the part of the first defendant, the defendants contend that, should the Court order that the defendants' Emu Plains residence or any interest in it be restored to the estate of the deceased, the first defendant should enjoy a beneficial one half share in that property as a residuary beneficiary under the deceased's Will.
2. However the rule in Cherry v Boultbee might be formulated (In the matter of Anglican Development Fund Diocese of Bathurst (Receivers and Managers Appointed) [2015] NSWSC 440 at [22]-[30]; SR Derham, Setoff (Oxford, 1987), Chapter 9; PW Young, C Croft and ML Smith, On Equity (Law Book Co, Sydney 2009), paragraphs [15.560]-[15.600]), the first defendant cannot, in conscience, participate in the deceased's residuary estate unless and until she has fulfilled her duty to restore property to the estate or borne the financial consequences of her failure to do so.
3. Given her professed inability to restore to the estate property which she diverted from the estate for her own purposes, and the quantum of her liability to the estate, the practical effect of an application of the rule in Cherry v Boultbee appears (upon an assumption that no executorial duties attend administration of the deceased's estate after recovery of the Emu Plains residence on behalf of the estate) to be that, if and to the extent that the defendants' Emu Plains residence is held beneficially for the estate of the deceased, it will be held for the plaintiffs, as tenants in common in equal shares, to the exclusion of the first defendant. Any entitlement she has to participation in the deceased's estate as a residuary beneficiary will be taken, upon an application of the rule in Cherry v Boultbee, to have been satisfied from that part of the deceased's estate for which she has not, and says she cannot, account.

Remedies : Provisional Observations

1. Prima facie, the first defendant's obligation as a defaulting fiduciary is to restore the deceased's estate: Re Dawson (Deceased) [1966] 2 NSWR 211; 84 WN (Pt 1) (NSW) 399; Maguire v Makaronis (1997) 188 CLR 449 at 461; Youyang Pty Limited v Minter Ellison Morris Fletcher (2003) 212 CLR 484.
2. Before making a determination about what is required, by way of equitable relief, to do what is "practically just" between the parties (Vadasz v Pioneer Concrete (SA) Pty Limited (1995) 184 CLR 102 at 113-114; Bridgewater v Leahy (1998) 194 CLR 457 at 493-494), attention needs to be given to the position of the third and fourth defendants.

THE THIRD AND FOURTH DEFENDANTS: RECEIPT OF TRUST PROPERTY AS VOLUNTEERS, KNOWLEDGE, REMEDIES

1. In June-July 2008 the third and fourth defendants received from the first defendant, by way of gift, a combination of bank and private cheques, using funds of the deceased (which the first plaintiff was not authorised by the deceased to expend), to pay for the whole of the cost of acquisition of the Emu Plains residence in the names of the third and fourth defendants.
2. The third defendant knew that the first defendant had no financial means of her own (other than a pension) and that the deceased had maintained her financially. She knew that the first defendant had agreed to fund, and had funded, the whole of the purchase price, an amount beyond the first defendant's personal resources. She was present when, at the request of the conveyancer who acted on the purchase, the first defendant drew cheques on the Macquarie Bank "Portfolio Account" of the deceased in anticipation of settlement of the purchase. She knew that the deceased was transitioning from hospital to nursing home accommodation, no longer capable of independent living. She had a close relationship with the first defendant as her mother and imagined herself in the role of a carer for her mother. A fair inference from the facts is that the third defendant shared the first defendant's belief, that, the deceased having been consigned to a nursing home, the first defendant, as his wife, was morally entitled to treat his property as her own without consultation with him.
3. In this factual setting the third defendant must be taken, at least, to have had knowledge of circumstances which would indicate to an honest and reasonable person that the first defendant was using funds of the deceased without the deceased's authority in circumstances in which he was incapable of authorising any such usage. If and to the extent that the third defendant did not have actual knowledge that the first defendant was using the deceased's funds without authority, she wilfully and recklessly failed to make inquiries which an honest and reasonable person would have made.
4. The evidence stops short of support for a finding that the third defendant had actual knowledge of the first defendant's unauthorised use of the deceased's funds. However it supports a finding (which I make) that she had constructive knowledge.
5. The fourth defendant also had constructive knowledge of the first defendant's unauthorised use of the deceased's funds, for much the same reasons. However, his evidence (involving calculated denials) bears the character of wilful blindness, a deliberate shutting of his eyes to the obvious. If he did not have actual knowledge of the first defendant's unauthorised use of the deceased's funds, it may have been because he deliberately eschewed that knowledge.
6. He was not at the office of the conveyancer when the first defendant drew settlement cheques on the deceased's Macquarie Bank "Portfolio Account" in anticipation of settlement of the purchase of the Emu Plains residence. However, he knew that the first defendant had agreed to fund, and purportedly funded, the whole of the purchase price of the property. He knew, or had the means of knowledge readily to hand, that the first defendant had no financial means of own (other than a pension) and that she had been maintained by the deceased. He knew that the deceased was transitioning from hospital to nursing home accommodation, and was no longer capable of independent living. He was, as he remains, on close terms with the first defendant as his mother-in-law, as he is with the third defendant as his wife. His knowledge of the personal circumstances of the first defendant and the deceased was, in substance, no less than that of the third defendant.
7. An ordinary person in the position of the third and fourth defendants could not have failed to recognise impropriety in the first defendant's disposition of a substantial amount of the deceased's property, whether by way of gift or unsecured interest-free loans, without reference to the deceased as he, enfeebled by dementia, transitioned to full-time care in nursing home accommodation.
8. As volunteers, with constructive notice of the first defendant's unauthorised use of the deceased's funds and her breach of fiduciary obligations giving rise to a constructive trust over those funds (Keith Heney & Co Pty Limited v Stuart Walker & Co Pty Limited (1958) 100 CLR 342 at 350; Chan v Zachara (1984) 154 CLR 178 at 198-199; Hospital Products Limited v United States Surgical Corp (1984) 156 CLR 41 at 107-108), the third and fourth defendants are bound in conscience to recognise the deceased's estate's equitable entitlement to those funds (Black v S Freedman & Co (1910) 12 CLR 105 at 109 and 110; F Jordan, Chapters on Equity in NSW (6th ed, 1947), pages 65-67).
9. As they had constructive notice of the deceased's beneficial entitlement to the funds at the time of their receipt of the funds (before settlement of their purchase and their registration as proprietors of the Emu Plains property, section 42 of the Real Property Act (if pleaded) would not operate to confer an indefeasible title upon them upon registration, to the exclusion of their in personam equitable obligation to the estate of the deceased: Sze Tu v Lowe (2014) 89 NSWLR 317 at 345[141] - 346 [150] and 361[238]-[243]; Fistar v Riverwood Legion and Community Club Limited (2016) 91 NSWLR 732 at 746[64] and 749[82].
10. The third and fourth defendants' liability to the estate of the deceased in equity is essentially the same, in the present factual setting, whether the claim made by the plaintiffs on behalf of the estate is articulated by reference to Black v Freedman (1910) 12 CLR 105 or the first limb of Barnes v Addy (1874) LR 9 Ch App 244. As recipients of trust property (otherwise than as bona fide purchasers for value without notice), they were, and are, bound in conscience to account for that property, not to apply it to their own use: Fistar (2016) 91 NSWLR 732 at 742[44]-[45].

REMEDY

1. Having made findings as to liability, I propose to allow the parties an opportunity to make further submissions about a remedial response, with such assistance as may be available in the provisional observations which here follow.
2. The Court is required to do what is practically just in the grant of equitable relief to the plaintiffs: Vadasz v Pioneer Concrete (SA) Pty Limited (1995) 184 CLR 102 at 113-114. Once the Court has determined upon the existence of a necessary equity to attract relief, its moulding of relief may produce a final result not exactly representing what either side would have wished, balancing competing interests to justice: Bridgewater v Leahy (1998) 194 CLR 457 at 494.
3. The object of the Court's orders enforcing obligations to account is not to punish the defendants, but to prevent their unjust enrichment at the expense of the deceased's estate, approaching that task with due regard to substance over form: Dart Industries Inc. v The Décor Corporation Pty Limited (1993) 179 CLR 101 at 111 and 114.
4. All things considered, I am inclined to the view that the first defendant's liability to account should be quantified in the sum of $1,019,872.71, with interest to accrue from a date no later than the date of the deceased's death (17 May 2012) at the Court's usual rates for pre-judgment interest, calculated by reference to the Civil Procedure Act 2005 NSW, section 100. Prima facie, interest should accrue from the dates of particular asset sales in 2008 and 2010, compensating the deceased's estate for being kept out of funds consequent upon those sales. Section 100 does not authorise an award of compound interest. As presently advised, there appears to be no occasion to resort to independent, equitable jurisdiction to award compound interest; cf, Hungerfords v Walker (1990) 171 CLR 125 at 148; Commonwealth v SCI Operations Pty Limited (1998) 192 CLR 285 at 316.
5. This quantification may fall short of what the first defendant might be compelled to do if, by deployment of compulsory processes, additional factual inquiries were to be made. However, there appears to be little utility in insisting upon such inquiries in circumstances in which the evidence before the Court is that, absent a lottery win, the first defendant cannot, from her own resources, restore to the deceased's estate anything more than a nominal amount of the property she misapplied in the period between 2008-2012.
6. To the extent that quantification of the first defendant's liability to account at $1,019,872.71 (plus interest) falls short of what might be required of her, the difference may be justified as a margin for error in the Court's determination that she failed to establish that she had misapplied property of the deceased for his benefit.
7. The primary focus of the parties on a remedial response to the first defendant's misapplication of the deceased's property is upon beneficial entitlements to the defendants' Emu Plains residence. It provides the only known "fund" against which the plaintiffs can enforce a proprietary remedy.
8. To the extent that property of the deceased, misapplied by the first defendant in breach of her fiduciary obligations, can be traced into the Emu Plains residence, the first defendant's liability to account is enforceable by way of a constructive trust in favour of the deceased's estate over the residence.
9. The deceased's property is readily traceable into the residence, purchased as it was with funds paid to the third and fourth defendants by the first defendant in breach of her obligations. As they received those funds as volunteers, and with constructive notice of the first defendant's breach of duty, the third and fourth defendants have no defence to the estate's claim that they hold their interest in the residence on trust; they did not acquire their title to the residence as bona fide purchasers for value without notice.
10. They should, however, be allowed an opportunity to claim an allowance for any capital improvement they have effected to the property with their own funds: Cf, In the marriage of Wagstaff (1990) 14 Fam LR 78 at 86.
11. Counterbalancing allowances may need to be made relating to the defendants' use, occupation and maintenance of the residence, together with orders for delivery up of possession, and sale, of the property. All this lies in the realm of "consequential relief", predicated on a declaration, or declarations, of right.
12. Prima facie, the estate of the deceased (represented by the plaintiffs in their derivative suit, with the deceased's executor, the second defendant, bound as a party to the proceedings) is entitled to a declaration that the Emu Plains residence is held on trust for the estate, with consequential relief designed to vest title to the land in the estate or perhaps, in circumstances in which the estate has been administered, the beneficiaries of the deceased entitled to it.
13. It is open to the Court to mould the relief to be granted in these proceedings without requiring that there be a separate administration suit to accommodate the fact that property recovered from the defendants is recovered by the plaintiffs, in the first instance, on behalf of the estate of the deceased; and on behalf of themselves personally, as beneficiaries of the estate, only after due consideration is given to what is required to finalise administration of the estate.
14. The proceedings having been conducted on the basis that: (a) the deceased's estate is, in substance, devoid of property save for what might be recoverable against the defendants in the proceedings; and (b) the only beneficiaries of the deceased with an interest in the estate so far as it has not been distributed are the plaintiffs and the first defendant as residuary beneficiaries, the operation of the rule in Cherry v Boultbee may work out as follows: 1. as residuary beneficiaries in the estate of the deceased (each with a one quarter share), the plaintiffs should be found beneficially entitled, as tenants in common in equal shares, to the Emu Plains residence, with little or no further recourse against the estate of the deceased in equity; and 2. as a residuary beneficiary of the deceased (with an entitlement to a one half share in the residue), the first defendant's share in the residue should be taken to have been satisfied from the property of the deceased which she has misapplied and not accounted for.
15. The arithmetic underlying this conclusion is imprecise but it may be near enough to correct to meet the justice of the case. The Emu Plains residence was purchased, with the deceased's funds, in 2008 for $347,500.00. In 2010, the first defendant applied a further $124,000.00 of the deceased's funds in the construction of her granny flat. With fit-out costs on top of the $124,000.00 paid to a builder, she says that she spent about $200,000.00 in total. Not all of that larger sum represented the acquisition of a capital asset, the real property presently available for distribution to the plaintiffs. Leaving aside any change in the value of the land, in historical cost terms the amount of the deceased's funds "invested" in the land is somewhere between $471,500.00 ($347,500.00 plus $124,000.00) and $547,500.00 ($347,500.00 plus $200,000.00).
16. This is, or may be, near enough to one half of the amount for which the first defendant must be held liable to account ($1,019,872.71 plus interest).
17. I do not propose to act upon any such calculations without allowing the parties an opportunity to make submissions about the form of orders to be made in final disposition of the proceedings. However, they are indicative of my preliminary assessment of what orders might reasonably be made.
18. There is no utility in a close examination of the plaintiffs' claims for family provision relief, under chapter 3 of the Succession Act 2006 NSW, in circumstances in which there is, for all practical purposes, no estate or notional estate against which an order for provision can be made. The family provision claims should be formally dismissed.
19. Prima facie, with costs following the event, the first, third and fourth defendants should pay the plaintiffs' costs of the proceedings, with an allowance referable to the plaintiffs' failed claim against the second defendant.
20. Having published these reasons for judgment, I propose to direct that the plaintiffs bring in short minutes of orders designed to give effect to them and, via that process, to allow each party to be heard on orders to be made. If further inquiries must be made, directions can be given for that purpose.

ADDENDUM (23 May 2017)

1. Having allowed the parties an opportunity to make further submissions, on 23 May 2017 Lindsay J made the following orders in final disposition of the proceedings: 1. DECLARE that the first defendant is indebted to the Estate of Ronald James Smith ("the deceased") in the sum of $1,602,595.81, representing: 1. a principal sum of $1,019,872.71; plus 2. an award of interest under section 100 of the Civil Procedure Act 2005 NSW in the sum of $582,723.16. 1. ORDER that the first defendant pay the sum of $1,602,595.81 to the second defendant as the legal personal representative of the deceased. 2. ORDER, pursuant to section 101 of the Civil Procedure Act 2005, that interest accrue on that sum ($1,602,595.81), or any unpaid balance of that sum, from 1 August 2017 if not earlier paid. 3. DECLARE that each of the first defendant, the third defendant and the fourth defendant holds on trust for the estate of the deceased any right, title or interest he or she has in the property (contained in Folio Identifier 32/708555) known as 85 Brougham Street, Emu Plains in the State of New South Wales ("the land"). 4. ORDER that the land vest in the second defendant as legal personal representative of the deceased. 5. ORDER that the first defendant, the third defendant and the fourth defendant, no later than 1 August 2017, deliver up vacant possession of the land to the second defendant as the legal personal representative of the deceased. 6. ORDER, subject to further order, that the second defendant, as legal personal representative of the deceased, sell the land by public auction. 7. ORDER, subject to these orders and to any further order of the Court, that the proceeds of sale of the land be applied as follows: 1. first, in payment of the costs of sale of the land; 2. secondly, in reduction of the indebtedness of the first defendant to the estate of the deceased; and 3. thirdly, in distribution of the estate of the deceased to those beneficially entitled thereto under the Will of the deceased dated 8 January 2008. 1. ORDER that the solicitors for the defendants (Low Doherty & Stratford), no later than 30 May 2017, pay to the second defendant, as the legal personal representative of the defendant, all funds held by them being property of the estate of the deceased. 2. DECLARE that the first defendant is not entitled to participate as a beneficiary in any distribution of the estate of the deceased unless and until she pays or allows to the estate the full amount of her indebtedness to the estate. 3. RESERVE to all parties liberty to apply for directions concerning the implementation or working out of these orders. 4. ORDER that the first defendant, the third defendant and the fourth defendant jointly and severally, pay all costs associated with preparation of the Report of Mr Carl Dumbrell of DFK Laurence Varnay dated 20 May 2015. 5. RESERVE to Mr Carl Dumbrell liberty to apply for orders for the payment of his costs by the plaintiffs in the event that those costs are not paid by the first defendant, the third defendant and the fourth defendant. 6. ORDER that the first defendant, the third defendant and the fourth defendant, jointly and severally, pay the plaintiffs' costs of these proceedings, on the ordinary basis until 4 October 2013 and on the indemnity basis thereafter. 7. ORDER that the plaintiffs pay the second defendant's costs of these proceedings. 8. RESERVE to the second defendant liberty to apply for orders for the payment out of the estate of the deceased of his costs or commission. 9. ORDER that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 10. ORDER that these orders be entered forthwith.

Amendments 18 April 2017 - Coversheet, Solicitors for the Plaintiffs changed from Andreyev Doman to Andreyev Lawyers. Para. 61 Griffiths CJ changed to Griffith CJ; Isaccs J changed to Isaacs J. Para 64 Isaccs J changed to Isaacs J. Para 65 the SJ Stoljar changed to SJ Stoljar Para 91(b) nswsc 1187 changed to NSWSC 1187 Para 469 Baultbee changed to Boultbee. 23 May 2017 - Addendum (23 May 2017) Orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2017