The defendant, Mrs Jean Bullen, was born on 22 February 1931. She is now eighty nine years of age.
She was one of eleven children. She was educated at Homebush Girls High and left school at 17, having completed high school.
She joined the Bullens circus in 1948 and stayed with the circus until it closed in 1969. She was employed as the circus school teacher and was responsible for teaching the children of the circus families who received their lessons by correspondence.
She married Ken Bullen in 1955. He was one of two sons of the founder of the circus who ran the circus with their mother Lil Bullen.
Her role with the circus over time expanded and she took up various administrative roles.
Throughout their marriage she and her husband made many investments in property, both residential and rural, and in shares. They took advice from a broker for shares and a Mr Tony Pasquale on real estate matters.
Her husband when he was able took a more active role in the rural investments but after he went into care in 2010 she made all of the decisions with the assistance of a farm manager.
She kept all of the records of her and her husband's investments. She attended to various payments when required.
Prior to their marriage she and her husband had separate real estate investments. She had owned a commercial property at Sefton and a block of land in Noosa. She had acquired these with the assistance of her mother.
During their life together she attended to the payment of school fees and household expenses.
They had four children, Geoffrey, Kerry, Jeni and Jane.
When her husband went into care she visited him every day unless for some reason she was unable to do so. But she became very lonely and would spend many evenings alone.
Her daughters Kerry and Jeni worked on a roster system whereby each of them would spend time with her. Her grandson Jake also spent some months of the year staying with her.
She says she found her son Geoffrey's behaviour rude and abusive as he drank heavily and frequently. She also asserted her daughter Jane would arrive unannounced and often leave abruptly. She would lose control of her temper, shouting and throwing tantrums.
She did not see much of her grandson Oscar when he was growing up. She asserted she had been in daily contact with Kerry and regular contact with Jeni, but Geoffrey and Jane did not ring frequently.
She granted a power of attorney to Kerry and Jeni in 2011 so that they could keep running things until she had sorted her affairs. However in 2003 she and her husband had made mirror wills leaving everything to each other, otherwise to each of their children equally.
Her husband passed away on 20 October 2014. Probate was granted to the defendant on 21 October 2015.
A family meeting took place at Forbes on 25 May 2015.
The defendant purchased a house at 81A Church Street, Forbes for $440,000 on 30 March 2016.
The defendant was admitted to Forbes Hospital and the Orange Base Hospital in January 2017. From 13 to 21 February 2017 she was admitted to Concord Repatriation Hospital and was again admitted on 8 May and 23 June 2017.
On 10 July 2017 she had surgery at Concord Repatriation Hospital and was in turn transferred to Forbes and Dudley Private Hospitals between 13 July and 9 August 2017.
On 18 September 2017 she told her solicitor Mr Solomon she wished to give a rural property, "Moobong Farm", to her grandson Jake, Kerry's son, who at the time was sixteen years of age.
On 11 October 2017 she told her solicitor Mr Tudehope she wished to give properties to her daughters Kerry and Jeni.
On 24 October and 9 November 2017 she was admitted to Concord Repatriation Hospital. While in hospital on 17 November 2017 she signed transfers of properties to Kerry and Jeni.
She was discharged from Concord Repatriation Hospital on 27 November 2017 but was re-admitted on 7 December 2017.
On 8 December 2017 she transferred her property at 81A Church Street, Forbes to Kerry for no consideration.
On 3 and 5 January 2018 she had blood transfusions at Forbes Hospital.
On 12 January 2018 she transferred a block of apartments at 7 Nagle Street, Liverpool to Julian Bullen, Kerry's son, who was aged 21.
On 18 January 2018 she had a further blood transfusion at Forbes Hospital.
On 15 May 2018 the transfer to Kerry of "Weelong Farm" was registered. There was also a transfer of "Mandagery Creek" to Kerry (50%) and Jeni's two sons, Harrison Bullen who was aged 21 and Lachlan Bullen who was aged 19 (25% each). The defendant also signed the transfer of "Glencoe Farm" to Harrison and Lachlan, the transfer of "Moobong Farm" to Jake Bullen and the transfer of "Wandary Lane Farm" to Jake Bullen.
She underwent further surgery at Concord Repatriation Hospital on 4 June 2018.
On 17 December 2019 she entered a lease to Butpace Pty Ltd, a company owned by Kerry and Jeni, of a house that Geoffrey had lived in for over 35 years.
On 14 January 2020 Jean's agent served on Geoffrey a notice of termination of his "lease" requiring him to vacate his farm.
[2]
The Plaintiff's Submissions
The plaintiff submits that the defendant is of an advanced age but is in any event otherwise disabled by virtue of the way she has, on the one hand, become isolated from her children Jane and Geoffrey to the point where they have very significant difficulty making contact with her and, on the other hand, become controlled by and reliant on her other children Kerry and Jeni. Her affairs are said to be complicated, involving the operation of farming businesses and the administration of several tenanted properties and corporations which own valuable properties which are also leased. The plaintiff says that against this background, and during a period when she was in poor health and frequently hospitalised, the defendant gave away several valuable properties to Kerry and Kerry's and Jeni's sons in a manner contrary to her long standing understanding with Ken that no child would receive any particular property until they passed away, at which time the four children would receive an equal part of their estate.
During opening submissions senior counsel for the plaintiff said that "it's not the plaintiff's case that [the defendant] suffers from a difficulty with her mental acuity, or her mental capacity, or that she suffers from any particular mental illness" (T.4/21-23). Rather, the plaintiff submits the Court ought to infer that the defendant is unable to manage her affairs because of her total dependency on and the corresponding influence of Kerry and Jeni (citing Bellamy v Bellamy [2018] NSWSC 534 at [18], where Parker J stated that "[a] person who, through being under the influence of some other person or perhaps simply as a result of being misinformed, may be 'not capable'"; and CJ v AKJ [2015] NSWSC 498 at [27]).
With respect to the evidence the plaintiff submits that the defendant's evidence was problematic in that for example she was very unsure and hesitant, many of her answers were assumptions because she did not remember or know, and some parts were clearly wrong. The plaintiff submits the failure of Kerry and Jeni to give evidence is a significant and intentional omission that entitles the Court to be bold in the inferences it draws with respect to their influence over the defendant (SS Pharmaceuticals v Qantas (1991) 1 Lloyds LR 288 at 293). The plaintiff submits the defendant's explanation of the reasons for the gifts she made were incoherent and inconsistent. The plaintiff further submits that the circumstances surrounding the service of the notice of termination on Geoffrey for example indicate that if a financial manager is not appointed other actions might be taken in the defendant's name of which she has no knowledge or which she does not see the need to or is unable to investigate.
[3]
The Defendant's Submissions
As noted above, the defendant submits the plaintiff is required to serve expert reports from at least two appropriately qualified medical practitioners, and that the plaintiff has advanced none.
The defendant further submits that a person who has no difficulty with her mental acuity, or her mental capacity, and suffers from no mental illness, is by definition able to protect her own financial position according to her own wishes and resist undue influence. However, given that the plaintiff has eschewed reliance upon "difficulty with ... mental acuity", the defendant submits the plaintiff's case must be one of undue influence. She submits that allegations of undue influence for personal benefit are very serious and attract Briginshaw principles, particularly when the plaintiff has not joined her sisters. She submits that to establish a "special relationship of influence" from which the existence of which undue influence will be presumed unless rebutted it must be shown that the relationship goes "beyond one of mere confidence and influence, to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other" (Tulloch (deceased) v Braybon & ors (No 2) [2010] NSWSC 650 at [51]; Thorne v Kennedy (2017) 263 CLR 85). She submits that a gift from parent to child is one to which the law applies a presumption of advancement. However, she submits there is no evidence of undue influence in this case.
The defendant also submits that there is no basis to infer that she is incapable of managing her affairs. There is she submits a presumption "that a person of full age is capable of managing his or her affairs" (Antov v Bokan [2018] NSWSC 1474 [515] (Ward CJ in Eq) citing Szozda v Szozda [2010] NSWSC 804 [20] - [26] esp [21] (Barrett J) citing Murphy v Doman (2003) 58 NSWLR 51 at 58 [36] (Handley JA)). The defendant further submits that her affairs relating to grazing and property have changed little over the last 27 years. She and Ken held residential real estate yielding rental income from the 1960's and owned voting shares in companies formed in the 1960's and 1970's. The defendant submits she and Ken made decisions together, taking the advice of accountants, an employed farm manager, and real estate and stock and station agents. Since Ken was taken into care in 2010, she has made decisions herself with advice and assistance from the same advisors. She has sought and obtained administrative assistance from Kerry and Jeni because she regards them as reliable and did not seek assistance from her other children because she regards them as unreliable.
The defendant says that in 2017 she alone decided to transfer some of the properties she owned after seeking legal advice and in order to honour Ken's wishes that these properties remain in family hands. The defendant submits that while she no longer enjoys the rent from the residential real estate transferred in 2017 this has not diminished her ability to meet her wants and needs. The defendant submits that to the extent Bellamy v Bellamy [2018] NSWSC 534 suggests that being misinformed is sufficient to establish that a person is not capable of managing their affairs, it is wrongly decided.
The defendant also made detailed submissions concerning what she asserts to be the unsatisfactory nature of the plaintiff's and Fiona Bullen's evidence and the "sense of entitlement" pervading the plaintiff's case. The manner in which the defendant was cross-examined was also criticised.
[4]
The Legal Principles
Section 25E(1) of the Guardianship Act 1987 (NSW) provides that "the Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009". Further, s 25G sets out the grounds for making a financial management order:
25G Grounds for making financial management order
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and
(b) there is a need for another person to manage those affairs on the person's behalf, and
(c) it is in the person's best interests that the order be made.
Orders made under the Act are also informed by the general principles set out in s 4, and noting s 3(2) (which provides a definition of "a person who has a disability"), albeit are not confined by those sections (P v NSW Trustee & Guardian [2015] NSWSC 579 at [304]).
Under s 41(1) of the NSW Trustee and Guardian Act 2009 (NSW) the Supreme Court may make an order for the financial management of a person's affairs if "satisfied that [the] person is incapable of managing his or her affairs". General principles that must be observed by persons exercising functions under chapter 4 (where s 41 is located) are set out in s 39.
In CJ v AKJ [2015] NSWSC 498, Lindsay J noted (at [25]-[26]):
Insight into the meaning of the expression "a person … incapable of managing his or her affairs", as used in chapter 4 of the NSW Trustee and Guardian Act, can be had by study of broadly comparable provisions in Part 3A of the Guardianship Act.
However, although the expression is undefined in both statutes, the character of NCAT as a statutory tribunal carries with it a greater legislative prescription of the Tribunal's procedures leading to the making of a Financial Management Order (under sections 25E-25H of the Guardianship Act) than can be found in conferral on the Supreme Court of jurisdiction (under section 41 of the NSW Trustee and Guardian Act) to make an equivalent form of management order. This is entirely consistent with the character of the Court as a superior court and preservation of its inherent, parens patriae jurisdiction.
With respect to the Court's parens patriae jurisdiction, Mason CJ, Dawson, Toohey and Gaudron JJ said in Secretary, Department of Health & Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218 at 258:
As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve. His Lordship pointed out that "[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined." In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said:
"[lIt belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them."
When that case was taken on appeal to the House of Lords, Lord Redesdale noted:
"Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way."
Lord Redesdale went on to say that the jurisdiction extended "as far as is necessary for protection and education".
To the same effect were the comments of Lord Manners who stated that "[i]t is ... impossible to say what are the limits of that jurisdiction". The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle...
More recently, Lindsay J has said that "the Court's parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be invoked for the protection of those who fall within its ambit" (P v NSW Trustee and Guardian [2015] NSWSC 579 at [112], citing Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17).
In PY v RJS [1982] 2 NSWLR 700 (a case concerning an exercise of jurisdiction under s 18 of the Mental Health Act 1958 (NSW) to discharge a person detained in hospital), Powell J said (at 702C-E):
7. It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and
(b) that, by reason of that lack of competence there is shown to be a real risk that either:
(i) he or she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J
However, Lindsay J summarised the authorities relating to the question of the capacity for self-management within s 41 of the NSW Trustee and Guardianship Act in CJ v AKJ [2015] NSWSC 498 (at [17]-[34]) as follows:
[17] The proper construction, and operation, of chapter 4 of the NSW Trustee and Guardian Act (in which both section 41 and section 86 are located) is informed by:
(a) the nature and purpose of the Court's inherent, parens patriae (protective) jurisdiction (explained in Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218 at 258-259), upon which chapter 4 is modelled; and
(b) the "general principles" enunciated in section 39 of the NSW Trustee and Guardian Act."
[22] The practice of the Court, over many years, has been to view the expression "a person … incapable of managing his or her affairs" through the prism of observations made by Powell J in PY v RJS [1982] 2 NSWLR 700 at 702B-E.
[23] However, as explained by White J in Re D [2012] NSWSC 1006 at [46]-[67] and Re R [2014] NSWSC 1810 at [84]-[94], Powell J's formulation of his test (sometimes described as an "objective" test) of capacity for self-management by reference to "the ordinary affairs of man" has been the subject of criticism as: (a) a gloss on the legislation; and (b) not in unison with a perceived need, according to the terms of the legislation, to take subjective considerations into account on a determination of a particular person's capacity for self-management.
[24] In light of White J's analysis (with which, in general, I agree), the Court should be mindful of a need to give effect to the text of the legislation without any elaborative gloss.
…
[27] In the absence of an express legislative definition, the expression "(in)capable of managing his or her affairs" should be accorded its ordinary meaning, able to be understood by the broad community (lay and professional) it serves, remembering that:
(a) the concept of incapacity for self-management is an integral part of the protective jurisdiction which, historically, arose from an obligation of the Crown (now more readily described as the State) to protect each person unable to take care of him or her self: Marion's Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.
(b) of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (i) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (ii) particular reasons for an incapacity for self-management: PB v BB [2013] NSWSC 1223 at [5]-[9] and [50].
(c) the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection of a particular person, not the benefit, detriment or convenience of the State or others: Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST [2014] NSWSC 1735 at [49]; Re RB, a protected estate family settlement [2015] NSWSC 70 at [54].
(d) the "affairs" the subject of an enquiry about "management" are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct: Re R [2014] NSWSC 1810 at [94]; PB v BB [2013] NSWSC 1223 at [6].
(e) an inquiry into whether a person is or is not capable of managing his or her affairs focuses not merely upon the day of decision, but also the reasonably foreseeable future: McD v McD [1983] 3 NSWLR 81 at 86C-D; EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [136].
(f) the operative effect given to the concept of capacity for self-management, upon an exercise of protective jurisdiction by the Court (whether inherent or statutory), is informed, inter alia, by a hierarchy of principles, proceeding from a high to a lower level of abstraction; namely:
(i) an exercise of protective jurisdiction is governed by the purpose served by the jurisdiction (protection of those not able to take care of themselves): Marion's Case (1992) 175 CLR 218 at 258.
(ii) upon an exercise of protective jurisdiction, the welfare and interests of the person in need of protection are the (or, at least, a) paramount consideration (the "welfare principle"): Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [146]-[147].
(iii) the jurisdiction is parental and protective. It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what that benefit is, and will do on behalf of a protected person not only what may directly benefit him or her, but what, if he or she were able to manage his or her own affairs, he or she would, as a right minded and honourable person, desire to do: H.S. Theobald, The Law Relating to Lunacy (London, 1924), pages 362-363, 380 and 462: Protective Commissioner v D (2004) 60 NSWLR 513 at 522 [55] and 540 [150].
(iv) whatever is to be done, or not done, upon an exercise of protective jurisdiction is generally measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].
…
[30] Although the concept of "a person… incapable of managing his or her affairs" is foundational to the Court's protective jurisdiction in all its manifestations (inherent and statutory), the purposive character of the jurisdiction is liable, ultimately, to confront, and prevail over, any attempt at an exhaustive elaboration of the concept in practice decisions.
[31] From time to time one reads in judgments different formulations of the, or a, "test" of what it is to be "a person (in)capable of managing his or her affairs". Convenience and utility may attach to such "tests", but only if everybody remembers that they provide no substitute for a direct engagement with the question whether the particular person under scrutiny is, or is not, "(in)capable of managing his or her affairs", informed by "the protective purpose of the jurisdiction" being exercised, and the "welfare principle" derived from that purpose.
[32] The general law does not prescribe a fixed standard of "capacity" required for the transaction of business. The level of capacity required of a person is relative to the particular business to be transacted by him or her, and the purpose of the law served by an inquiry into the person's capacity: Gibbons v Wright (1954) 91 CLR 423 at 434-438.
[33] The same is true of "capacity" for self-management, upon an exercise of protective jurisdiction, governed by the protective purpose of the jurisdiction, viewed in the context of particular facts relating to a particular person in, or perceived to be in, need of protection.
[34] Once this is accepted, there is scope for appreciation of different insights available into the meaning, and proper application, of the concept that a person is "(in)capable of managing his or her affairs".
See further Lindsay J's extensive consideration of "incapacity for management of one's own affairs" within the meaning of s 25G of the Guardianship Act (and other contexts) in P v NSW Trustee & Guardian [2015] NSWSC 579 (an appeal from NCAT) at [227]-[314].
[5]
The Plaintiff
The plaintiff relied upon her own affidavits of 27 August and 25 September 2020 and that of her son Oscar Sobalirov, also of 27 August 2020. She relied upon an extract from an affidavit sworn by her brother Geoffrey Bullen of 24 April 2020, an extract from an affidavit of her niece Katherine Bullen of 12 June 2020, and extracts from affidavits of her sister-in-law Fiona Bullen dated 12 June and 2 September 2020. Finally, she relied upon the affidavits of Mark Berry and Andrew Kady dated 25 September 2020 in which they consented to act as financial managers.
The plaintiff in her first affidavit of 27 August stated she was the applicant in NCAT for the appointment of a financial manager, and for the appointment of a Guardian, for the defendant ([2]). Her concerns were based on her belief that her sisters Kerry and Jeni exercise great influence over their mother and that they have prevented her from having contact with her mother ([5]).
She further stated that at the time of his death her father was quite wealthy. The defendant was his sole beneficiary and executrix. The probate documents indicated that he held approximately $14m in assets in his name and $4m in assets held jointly by him and the defendant as tenants in common ([8]).
She set out in great detail her parents' extensive real estate holdings and the various corporations they had and controlled. She also set out companies in which she is a shareholder ([11]-[21]).
She asserted that when her parents bought the farm "Glencoe" she and her son would visit on a regular basis, at least once a month between 2008 and 2010 ([25]).
She asserted that after her father moved into the nursing home she and her mother spent a good deal of time together either at Glencoe or at her home in Bathurst, which is about a two hour drive to her mother's house in Forbes ([22]-[27]).
After the death of her father the relationship with her mother changed and it became increasingly difficult to contact her mother. Her phone would be off the hook or no-one would answer or ring back ([26]).
She set out details of expenditure she incurred when in Forbes during 2014 ([36]).
A family meeting took place in May 2015 to discuss what various members of the family would do to help with estate matters. All siblings, plus the defendant were present ([38]).
The plaintiff said that it was around this time her mother stopped ringing her as much ([39]). She visited her mother at Church Street, Forbes in May 2016 for Mother's Day. She did not see her for three years after that ([41]).
In late 2016 or early 2017 she learnt that the defendant was going to stay with her sister Jeni. She made numerous efforts to make contact with her mother but without success ([42]).
From 2016 onwards she has only seen her mother on two occasions. She has found it difficult to make contact with her mother over the last four years ([43]-[44]).
She set out the details of attempts to send birthday cards and presents to her mother which were either returned or not responded to ([45]-[50], [60]-[61]).
Her mother did come to her son Oscar's graduation, but she left soon after with Kerry and Jake ([55]-[59]).
On 11 February 2020 she went to Forbes to visit her mother. She knocked on the front door and there was no answer. She could see her sister Kerry inside. Eventually Kerry opened the door. She spoke to her mother and asked her whether she knew that her brother Geoffrey was being "kicked out of his home". Her mother said that she knew he had received a request to pay rent but that she did not know he had been served with an eviction notice ([61]).
She received a call from the Forbes police station saying that the defendant had attended at the station and the police were passing on a message not to visit or speak to her unless it was through a solicitor ([62]).
She sent letters on 7 May and 1 June 2020. Finally on 10 June the defendant rang her and they had a conversation. They discussed meeting but ultimately did not agree on a location or to do so ([65]). During the phone call the defendant said she was going to write to the plaintiff. She did in fact write to the plaintiff on 11 June 2020.
Her affidavit of 25 September is responsive to the defendant's affidavit of 21 September, especially in relation to her alleged failed businesses. She also agreed that her father had assisted her financially in several investments ([6]-[7]).
In cross examination the plaintiff stated she thought her mother was going to leave the estate to the four children but she discovered earlier this year that her mother had given away the farms and some investment properties (T.8/40-50).
She agreed that she lodged the two applications to NCAT after she spoke to her brother about his litigation (T.9/5-10).
She denied seeking to make this application to help her brother in his case (T.9/45).
She was concerned when she learnt her mother knew nothing of her brother getting a notice of termination (T.10/10-30).
She agreed she had a conversation in 2015 with her sister-in-law in which she said she did not trust Kerry and Jeni and that they are very much out for their own interests and those of their children (T.11/5-10).
She did not think they would tell "Jean" what to do but they have always been persuasive and "she" was easily persuaded to do things they wanted by what they suggested. They were always persuasive, even as teenagers (T.11/25-35). She was not however jealous about the close relationship they have with their mother.
She agreed her mother has plenty of assets to live on but she denied bringing the application to maximise her inheritance (T.12/1-15). She said she believes her mother has made decisions without knowing the full details, especially in relation to her brother being evicted, and that Kerry and Jeni have improperly influenced the defendant and what has been done is not what her mother and father wanted (T.12/5-20).
Up until her father's death she was the one who spent most time with her mother on a weekly basis and for the last few years she has not been able to have much contact with her mother (T.12/20-40).
She denied that she did not have a close relationship with her mother since childhood or her marriage (T.13./20-35). She denied that she was "worried" that property she thought would come to her was being dealt with otherwise by its owner (T.14/35-40).
She agreed that the last call shown on her phone records to her mother was on 5 June 2016 but she insisted she had since left messages (T.16/10-15). She agreed that the last visit to her mother was on 11 February 2020 and that it was unannounced (T.16/40-45).
She agreed that during the visit to her mother in February 2020 she was "very angry". She also agreed that she yelled at her sister and was "upset", "furious" and "wound up" (T.17/5-30). But she denied that was typical of her visits to her mother (T.17/29).
She does not believe her mother does not want to see her (T.18/1-10). She denied that as a result of her not getting a meeting with her mother she commenced the NCAT proceedings (T.20/15-25).
She did not know Kerry was helping her mother but she knew that Jeni was helping with estate agents and with the maintenance of a block of units (T.22/30-50).
She did not know until recently that the defendant had spent time in hospitals in the last couple of years and she did not know which hospital or what was wrong with her. She was at one time the "doer" and she put a lot of things on hold. She said that it was not fair to keep her mother's condition as a secret (T.24/1-30). She had made a huge effort to keep up contact but then became disheartened and it became a "big game" (T.25/1-5).
She agreed she was suspicious about mail being intercepted and that her sisters have huge control and influence over the defendant (T.25/45-50). And she thought the real estate transfers that have taken place secretively were very suspicious (T.26/1-10).
She agreed that she has only seen the defendant two or three times since 2016. She denied that she was prepared to let it ride until she thought she would not get the share of her mother's property she thought she was entitled to (T.27/1-15). She also denied that the real reason in bringing the proceedings was to get her inheritance (T.27/10-15).
The plaintiff insisted that the defendant has given away all of her father's property and that was not what he wanted and it needs to be investigated (T.27/20-25).
[6]
Oscar Sobalirov
The next witness was the plaintiff's son Oscar Sobalirov. He swore one affidavit.
He stated that his grandmother was always very generous towards him and gave him many gifts, including his first car ([6]).
He said he tried in late 2018 to arrange a meeting with the defendant via his aunt Jeni and sent some text messages ([10]-[14]). He then set out a conversation he asserts he had with his grandmother on 1 September 2018 ([15]). After further attempts to see her he finally met her on 3 December 2018. When they met his grandmother was in company with Kerry at the Strathfield Plaza ([16]-[17]).
He sent a birthday card to his grandmother at her Forbes address which was returned ([19]-[21]).
He again in early 2019 tried to make contact with the defendant. On 30 March 2019 the defendant called him from a private number. They discussed her attending his graduation at Macquarie University. He relayed a conversation with his grandmother about telephone numbers and which phone she was calling from and a conversation about Jeni's phone number and he asserts his grandmother told him that Jeni did not know her telephone number ([23]-[27]). The defendant came to his graduation but he did not see her until after the ceremony and she left soon after ([31]).
He said he had a conversation with his grandmother on 12 May 2019 in which she told him she was back in Forbes "to sort out the End of Financial Year accounts". She also said she had enjoyed his graduation ([32]).
On 17 June 2019 he received a missed call from the defendant saying that Kerry had told her he had rung ([34]). However about 25 minutes later the defendant called back and they had a conversation ([34]).
Again on 27 June 2019 he received a missed call from the defendant. She left a detailed message about going to Queensland ([39]-[40]). Again on 30 July and 2 August he received missed calls and voice messages from the defendant ([41]-[42]). He said he called Jeni and spoke to the defendant on 2 August and that she seemed impatient and angry during the conversation ([43]).
He next spoke to the defendant on 22 January 2020. She spoke of the bush fires and about a funeral she had attended in Melbourne ([44]). She told him that Kerry and Jeni were looking after her. She also spoke about a cruise to Noumea ([45]).
On 6 February he received a call from Jeni telling him that the defendant would call him when she got back to Sydney but shortly after on the same day he received a call from the defendant. In a voice message she said she was alright and that she would call him when she got back to Sydney. However later again on 6 February he spoke to the defendant. The conversation was quite lengthy ([48]-[49]).
On 22 February (the defendant's birthday) he received a call from Jeni who put the defendant on the phone and they had a conversation ([50]). This was the last time he had contact with the defendant ([51]).
In cross examination he agreed that the defendant could choose not to see him (T.31/20-25).
He accepted that he had not been involved in drumming since 2018. He also agreed that he had not tried to make contact with the defendant since February 2020 (T.32/30-45).
[7]
Geoffrey Bullen
The next witness was Geoffrey Bullen. An extract from his affidavit of 24 April commencing at [331] was read.
He stated that he had no reason to believe that the transfer to him of titles to various properties would not occur during the defendant's lifetime and "on her death that [he] would receive the Silverdale property and Mandagery Creek. Jane, Moobong; Jeni, Weelong, and Kerry, Glencoe" (sic) ([331]).
He said that he had observed his sisters Kerry and Jeni becoming "more involved" in his mother's life following his father's admission to the nursing home ([332]).
He asserted he always had a close relationship with the defendant and at no time did he ever have an unpleasant exchange of words or a falling out ([333]). He maintained he kept up visits. But from about 2017 he became aware of a health issue his mother had. It then became difficult to make contact with the defendant ([334]-[339]).
The last time he saw his mother was in mid-August 2017 ([342]). He asserts that since then he has only been able to speak to his mother on the telephone by going through his sisters ([345]).
He discovered in 2019 that the NBN had come to Forbes and the landline at his mother's house was disconnected ([348]).
His mother in about October 2019 said she would catch up with him but "it will have to fit in with the girls" ([351]).
He said he is worried about his mother and the fact he has not been able to make contact with his mother since early 2017 ([353]).
In cross examination he was asked about the inconsistency in [331] of his affidavit. He said it was his belief that he would get Silverdale and Mandagery Creek during his mother's lifetime (T.34/44-46). He would not regard it as inappropriate that his mother transfer the farms during her lifetime.
He explained that his father's wishes were that he would run all the farms with his mother and "take on" his father's share and then each property was to go to each of the children on his mother's passing (T.35/30-50).
Again when pressed he seemed to say that he would only help his mother run the properties and they would be handed to him to make decisions (T.36/35-40). He then asserted an agreement with his parents that he would take on the running of the properties until his mother died and then they would be distributed among the four children (T.37/1-7).
Again when he said title he meant "not the full title". It was only his father's interest and it was not actually going to be signed over (T.37/20-25).
He denied not having a close relationship with his mother or not having made regular contact with her (T.38/30-40). He also denied always getting drunk when he visited or intimidating her (T.38/36-T.39/2). He also denied only contacting her when he wanted something (T.39/4-7).
He agreed that it is up to his mother who she may choose to speak to or spend time with (T.39/25-29).
[8]
Fiona Bullen
The next witness was Fiona Bullen. The extracts from her September affidavit are responsive to the affidavits of Kerry and Jeni Bullen.
She asserted that she went to considerable trouble to make contact with the defendant and that the many text messages she received from Kerry for example did not disclose the defendant's hospitalisations ([26]-[27]).
The second extract again deals with difficulties in contacting the defendant. She said she was told by Kerry that the defendant did not want to speak to or see anyone ([182]-[183]).
She discovered in June 2015 that Kerry and Jeni had been appointed directors of Gurban Pty Ltd, Kenjean Pty Ltd and Hatari Park Pty Ltd ([185]).
As a result of a change in company ownership she and Geoffrey made contact with the defendant and they had a conversation with her in which they informed her of the changes. The defendant said that she was still in control of the "cheque books" ([187]).
At one stage she and Geoffrey discovered that the defendant was in hospital. They went to visit. This was about 11, 12 or 13 August 2017. There were a number of people present. Geoffrey's birthday was on 16 August and when she and Geoffrey walked into the hospital room the defendant told Geoffrey there was a birthday present and a card on a shelf in the hospital room. She also asked him about the farms ([197]-[200]).
That was the last time she had face to face contact with the defendant ([207]).
In cross examination she said that she had been concerned for some time that the titles for the Silverdale properties were not in Geoffrey's name (T.42/30-45).
She insisted that Kerry had a duty as an attorney to keep her husband Geoffrey informed of events (T.43./40-45).
She denied that she had been very concerned about the property and financial affairs of Ken and Jean Bullen (T.44/20-25).
She denied that Geoffrey got drunk and was abusive to his mother, but she did accept that there were occasions when she did not visit with Geoffrey (T.44/35-40).
About a year after Ken's death she discovered that he had left his whole estate to the defendant (T.46/10-25).
She asserted that her husband helped build the parent's wealth and "the girls had nothing to do with the companies" (T.47/20-25).
She agreed that in June 2015 she had a conversation with Jane in which Jane said that she did not trust Kerry and Jeni (T.47/25-30).
She stated that Geoffrey and Jane should have been told about their mother's health even if the defendant had explicitly said not to tell them (T.48/28-35).
She asserted that the defendant would not have instructed anyone not to tell Geoffrey she was unwell (T.49/15-20).
She denied that she made some records with the view to using them in legal proceedings (T.50/1-3). She did agree that she made the record so she could refute any suggestion that there had been contact (T.50/25-27).
She asserts it was wrong that a trip was organised for some of the family without "bothering to tell anybody else" (T.52/35-45).
She accepted that she had known "Jean" to be a strong independent woman throughout the time she had known her (T.52/45-50).
[9]
Katherine Bullen
Extracts from an affidavit of Katherine Bullen were relied upon. She was not required for cross examination.
She asserted that prior to her grandfather's death she would call her grandmother and speak to her but that that changed after his death ([92]-[93]).
Since 2016 she has had difficulty when she has been in Australia in making contact with her grandmother ([99]).
She had kept records of text messages between herself and Kerry regarding her attempts to make contact with her grandmother ([103]).
She asserted she made an arrangement with her grandmother whereby she would call from England on the first Sunday of the month. She said she had conversations as arranged on 3 February 2019 and 3 March 2019 but she was unable to speak to her again until November 2019 when she had a long conversation with her in which she says arrangements were made to catch up at Christmas 2019 ([110]-113]).
She spoke to her grandmother again on 20 December 2019, again to attempt to catch up with her ([115]). She then spoke to her on Christmas Day 2019 ([116]).
She gave evidence that she was unaware of her grandmother going on a cruise in 2018 and generally about her difficulties in making contact with her ([121]-[134]).
[10]
The defendant
The defendant made one affidavit dated 21 September 2020.
In that affidavit she set out a good deal of material which is not controversial about her early life and marriage to Ken.
Relevantly she said she did not recall Geoffrey helping in the running of the family business nor could she remember Jane doing so ([24]). On the other hand Kerr and Jeni often helped with administrative work and with bookkeeping ([24]).
She still attends to the filing of the quarterly BAS statements for each of "our" companies ([25]). She still liaises with the accountants in Forbes to discuss matters concerning the activities of the various companies ([25]-[27]).
After Ken died she was lonely and the children discussed a roster to keep her company but she could not recall Geoffrey participating and Jane's visits were unannounced and "hit and miss" ([31]).
She recalled Geoffrey visiting her at "Glencoe" because he drank frequently and heavily every time he visited and he would be rude and aggressive ([32]).
Jane blew in and out, arriving unannounced and often leaving abruptly. She asserted that Jane would lose her temper, shouting and throwing tantrums if things were not going her way ([33]). Nor did she see much of Oscar as he was growing up. She was in contact with Kerry by telephone daily, and Jeni regularly, but Geoffrey and Jane did not telephone frequently ([36]).
She tried to keep in contact with Jane but often her calls went through to voice mail ([36]).
She said Kerry and Jeni assist her with the payment of bills. They pay after she authorises the payment ([41]).
Geoffrey was not interested in detail or record keeping and Ken had bailed Jane out of two failed businesses ([42]).
While she was ill Kerry and Jeni looked after the farms and the rental properties ([43]-[44]). She is not a recluse and still gets "out and about" [47]. She controls her bank accounts and makes regular trips to the shops and bank in Forbes ([46]).
During her recent illnesses she gave a lot of thought to the farms at Forbes ([49]). She and Ken wanted the farms to stay in family hands ([50]).
She spoke to her solicitors in September 2017 about changing her will and giving Moobong to her grandson Jake ([51]). They were concerned about stamp duty and the valuation of the farm.
She changed her mind several times about what she wanted to do, but in the end decided to give away all of the Forbes farms and some other real estate ([52]).
She asserted she made the decision without consultation or encouragement from any of her children. As far as she was concerned they were her properties to do with what she wished ([54]).
She also said that she discussed her plans at length with Kerry and Jeni. She said she arrived at her decision to transfer the properties to Kerry and Jeni's family after considering who out of the members of the family would run the farms the way she and her husband had hoped they would be run ([56]).
She thought Geoffrey would be unreliable and lose money. She thought Jane would also be unreliable and had seen her failed businesses ([57]). She was conscious of the "sacrifices" that Kerry and Jeni and their families had made for her after her husband passed away which was a reason why she chose to gift properties to them ([58]). She also wanted to gift property to her four grandsons, Julian, Harrison, Lachlan and Jake, because they had spent time on the farms and had visited her during school holidays. Oscar on the other hand had not shown any interest in farming ([59]-[61]).
She stated her solicitors along with implementing her instructions asked her long standing GP Dr Pereira to provide a letter as to her capacity ([62]).
She then described a surprise visit in Forbes from Jane in February 2020. She described how Jane when let in was very worked up and angry ([65]).
She stated she still owns (after gifts) 290 Avoca Road and 310 Avoca Road, Silverdale, which are valued a $12m; a block of units at 81 Castlereagh Street, Liverpool, which produce an annual income of $180,000 per year; two residential units at 19A and 19B Oxford Street in Forbes which produce $25,000 per year; 315 head of cattle and feed which are run on various farms; an annuity from Hong Kong Shanghai Bank of HKD252,000 per year over 20 years and which started in 2013; 99,925 shares in Hong Kong Shanghai Bank; cash at bank; and shares in a number of family companies ([68]).
She also estimated that Kenwell Pty Ltd, one of the family companies which she owns a one-third share of, has about $2.9m in term deposits ([69]). She also states she owns directly 50% of Kenjean shares and about another 15% indirectly. She said it has real estate investments which have produced between $365,000 and $425,000 annual net rentals ([70]).
She then responded to the various affidavits of Jane, Oscar and Geoffrey.
Relevantly she said that money is not as important to her as other things. She stated that she does not have any difficulty understanding or managing her financial affairs, with professional assistance. She does not consider herself under the control or influence of Kerry or Jeni. Neither of them suggested or instigated the property transfers she has made. The properties she asserted were hers and she could choose to do what she wanted with them, having taken advice from her lawyers ([102]).
Further she said she does not consider she is being held prisoner or having her access to people controlled by Kerry and Jeni. She often simply did not want to speak to or see Geoffrey or Jane. She said she has not altered the substance of her will after her husband died. What she leaves in her will, will be split equally between her children. She expressed the view that leaving aside the property transfers of 2017, Geoffrey and Jane have benefited more than Kerry and Jeni and she and her husband contributed less to Kerry and Jeni ([104]-[105]).
She was critical of the way Geoffrey and Jane have provided for their families and she stated she very much regrets having to give evidence in relation to some things she dealt with in her affidavit ([106]).
In cross examination she was asked how old she was and she answered that it was 22 February and on her driver's licence "it's '31" (T.58/24-26).
She was asked how she felt and how her memory was and she said she felt well and she thought her memory was as good as it was five years ago (T.58/35-45).
She was asked about her properties and bank accounts in Australia and elsewhere. She said she and her husband owned no properties in either New Zealand or Hong Kong but they had an account in New Zealand and shares in Hong Kong (T.60/35-50).
She was asked about her health in 2017 and she said she could not remember but there were several things wrong with her. Further she had no recollection of what type of surgery she had (T.61/20-40).
She was asked about her memory of a family meeting in 2015. She recalled the meeting but not the role to be played by her daughter Jane (T.63/10-49).
She recalled going to Hong Kong on two occasions to sort out some of her husband's affairs (T.65/5-20).
It was put to her that she was not telling the truth when she said she left her grandson's graduation because she was feeling unwell and rather that it was because either Kerry needed to get away or she wanted to visit the property, Silverdale (T.66/30-T.69/15). She denied she was telling an untruth.
She agreed that she and her husband had discussed that they would leave their estates to each other and then when they both passed away it would be split equally between the four children (T.70/10-35).
She did recall making her last will in July 2014 but not why she made it (T.70/40-50). She did however remember lending Geoffrey $350,000 in 2011. She recalled he did not pay it back. She did not remember him saying it was a gift. She agreed that she gave monies to the daughters in an amount to make up for the money she gave Geoffrey (T.71/25-45).
She was taken to her affidavit of 28 September 2020 and to paragraph 9 which stated that there was no rule or even a goal that the children would be provided for equally as they were growing up or later. It was suggested that was "just wrong". She agreed that "it would go four ways" (T.73/7-45). She explained that she mostly spoke to her solicitor for the purposes of preparing her affidavit (T.74/5-15).
She stated she was by herself and not with Kerry or Jeni when she provided her solicitor with the information for her affidavit. She said she read the affidavit before she swore it and "it all looked pretty right to me" (T.74/15-41).
She agreed that she bought a house in Forbes in April 2016 for $440,000 and she decided to give it to Kerry 18 months later. It was her idea and she had been sick and she wanted to sort things out as best she could (T.76/1-5). It was also so she could continue to live there but Kerry did not suggest she transfer it to her (T.76/15-30).
She was shown a transfer she signed on 8 December 2017 and she agreed that her signature was a bit wobbly. Mr Tudehope, her solicitor, came to visit her in hospital to have her sign it (T.77/10-20).
She stated that she decided to transfer all of the properties at the same time including the farms (T.77/30-35).
She wanted to do it while in hospital because she was not sure she would recover (T.77/45-50). She said she did not discuss with anyone giving the Moobong farm to her grandson Jake who was 16 years of age at the time. He was she said the only one she could have given it to (T.78/15-50).
Again she explained she was sick and she wanted to sort things out. She said that although it might have been a significant change to what she and Ken had discussed it was hers and she could do with it what she wanted (T.79/10-25). She wanted to keep the farms in the family.
She stated there was no point in making decisions after she had died (T.81/40-45). She expressed doubts about wills and as far as she was concerned the estate was hers. She did not think much about who would get what (T.82/40-45). She did not discuss what she did; she just sorted it out in her mind (T.83/30-35). She has not thought recently about any further gifts she might make (T.83/40-43).
She had also given away a block of flats in Adelaide which she owned herself. She got the flats on the settlement of a dispute between her husband and his brother (T.84/30-45).
She denied being aware of Jeni being involved in a matrimonial dispute and denied that was the reason she had not given anything to her (T.85/15-27). She agreed that she signed a number of transfers while in hospital and her signatures were shaky (T.86/25-45).
She was shown a resolution dated 15 November 2017 and was invited to agree that her signature on the document was the "shakiest" of the signatures so far. She was also shown another resolution dated 1 May 2018 with a "much more positive" signature. She has no recollection signing company documents while in hospital but she thought she would have (T.91/35-45).
She believed that Jane was not interested in farms (T.94/30-32).
She asserted that Bullens Farms still runs the farms (T.95/45-50). She asserted that she runs the farms, not Kerry or Jeni, and she still has "the say" (T.96/6-14). She also stated that at the cattle sales "yesterday" some fifty head of cattle were sold and the proceeds will go into the Bullens Farms account (T.96/23-27). She is the only person who owns Bullens Farms (T.96/30-45). There are no monies coming out at the moment because of the drought (T.97/17-22).
She was asked about a company called Butpace Pty Ltd. She said she had heard of it and it is something that Kerry and Jeni are connected with (T.97/25-45). She was shown a residential lease over a property at 290 Avoca Road, Silverdale, but she denied it was the property her son Geoffrey had been occupying (T.101/10-20).
She was then shown a Notice of Termination relating to 310 Avoca Road, Silverdale. She accepted that Geoffrey had been working that property and that it had provided him with a significant amount of his income (T.103/15-25). She accepted that she had not seen the document when in the witness box and that she did not know that a notice had been given to Geoffrey telling him to vacate his house (T.104/5-10).
She recalled instructing an agent to prepare a lease of the property to Kerry and Jeni (T.105/5-20). She gave the lease to get an income from it and she was trying to get Geoffrey to pay some rent (T.106/15-25).
She agreed that from time to time (in the past) she and Jane would get together and make arrangements to do so (T.107/10-20).
She was asked about the events of 11 February and the fact that Jane came unannounced. She said that when she was told by Jane about Geoffrey being evicted from his home of 35 years she was not concerned because she did not know that anybody had issued an eviction notice on her behalf. She "didn't know they had" and did not know where Jane got it from (T.108/15-45).
She did not do anything about it or speak to Kerry or Geoffrey. She could not imagine who would have done it and she had no knowledge of any eviction notice (T.109/10-35). After Jane left she and Kerry went to the police station and Kerry rang "the solicitor" (T.110/31-50).
She was shown a document from Australia Post and asked if it bore her signature and she said although it was not her full signature it could have been signed by her (T.113/25-35).
She was then asked to explain the delay between her signing various transfers and their registration. She had no explanation and she could not recall giving instructions to her solicitor (T.114/1-20).
She was asked about a letter from Jane dated 7 May 2020 and whether she remembered receiving it. She said she thought she would have but she had no actual recollection of receiving it, but then she said she did get it from Mr Tudehope (T.115/25-50).
She agreed that the letter again referred to the eviction notice given to Geoffrey, but she did not investigate it. She did not do anything about it nor did she reply to the letter (T.117/15-40).
She agreed she got another letter from Jane dated 1 June 2020 indicating her concern in not being able to contact her. Again she did nothing about it. And she was aware that Jane, Oscar, Geoffrey, Fiona and Kate have all complained about their difficulty in making contact with her (T.118/15-45).
She stated that she asked for the landline at Forbes to be disconnected and she has never used a mobile phone (T.120/5-20). As far as she was concerned if someone left messages for her on whichever phone, she would get them. She might have left the phone off the hook in the past if she wanted to have a sleep (T.123/10-20). She agreed that since the landline has been disconnected she has been completely reliant on Kerry and Jeni for the use of any telephone and if she wanted to go anywhere (T.123/22-40).
She did not remember any cards or gifts coming and being returned (T.124/10-20).
She stated that when she was in hospital either Jane or Geoffrey could have found out about her wellbeing. She did not ask Kerry or Jeni to tell anybody but she agreed that she complained that Geoffrey only came once to visit her (T.125/35-50).
She clarified her evidence on the preparation of the BAS to mean that she is "there" when Kerry and Jeni prepare the information which is to be sent to the accountant (T.128/35-45).
She was asked about the sale of some land at Warragamba Park, owned by the company Kenwell Pty Ltd, and what the company would do with the sale proceeds of the land. She said the money had been put into the bank and nothing had been done yet (T.130/15-25).
[11]
Consideration
Application was made for a live hearing (at least so far as the defendant was concerned) so that the Court could first hand make an assessment of her evidence.
Neither side deployed any medical witness as such. However the defendant relied upon a statement from her general practitioner as to her cognition together with diary notes from her solicitors as to her understanding of certain of the gifts she made. The plaintiff also relied upon certain medical records.
So far as the defendant is concerned she was cross examined at some length. She answered to my observation on all occasions responsively, relevantly and in a timely fashion, although from time to time she was uncertain as to some of the detail.
She was firm in her stance that no decision she had taken about the various properties she gifted was as a result of any suggestion or by implication any pressure from anyone else, especially either of her daughters Kerry or Jeni.
She was challenged as to why instead of giving property away she could not have achieved the same result by a will. In response, she insisted that she wanted to make those decisions while she was alive.
Understandably the plaintiff focused on a number of important matters as follows. In particular, that what the defendant had done by giving property to her daughter Kerry and to Kerry's and Jeni's children was said to be entirely inconsistent with her evidence for example in her affidavit of 21 July 2020 that she and her husband had always discussed leaving everything to each other and then to their children equally.
I note she had some difficulty responding to certain questions on particular topics as follows.
I note in particular that she did not it seems know about a notice of termination being served upon her son Geoffrey to vacate Silverdale, a property albeit owned by her but upon which he had farmed for 35 years.
It seems to me that she was not entirely aware of the detail of her property portfolio and that she thought she was the only director of Bullens Farms whereas she was a co-director with Kerry and Jeni.
There is no doubt that at the time she gifted the various properties in late 2017 or mid 2018 she was unwell and had been visited by Mr Tudehope, solicitor in hospital for the purpose of signing the transfer documents which were not immediately registered. She agreed that she was unwell when she signed a number of documents.
She had some inability to explain the "difficulties" associated with the sale proceeds of the land at Warragamba.
She did not really explain why she had made a will in July 2014 just prior to her husband dying.
Her explanation as to her involvement with the preparation of BAS statements was somewhat exaggerated. Indeed, a general submission was made that her various affidavits were not really in her words at all but by clear implication those of her solicitor.
It was contended that a number of her statements made about her son Geoffrey, and for that matter her daughter Jane, not visiting her were in effect the product of her being manipulated by at least her daughter Kerry who was also intercepting mail, personally forging her mother's signature on post office documents and generally controlling her every move. She denied that and on balance I am satisfied I should accept her denials.
Doubts were raised as to her knowledge or capacity to understand the detail of what had in fact transpired at board meetings.
It was also said that the failure to call Kerry and/or Jeni fortifies the conclusion that they had played a relevant part in the disposition of the properties and/or had influenced the defendant in that outcome.
It was not put to the defendant that her evidence about her son Geoffrey turning up drunk and abusive was untrue. It is also clear from Jane's own letter to the defendant that she (Jane) had not had much contact with the defendant in the last "few" years.
It is clear that the defendant relies, and has done so for some time, heavily upon Kerry and Jeni to run the farms and even for a bed to sleep in, whether she is in Sydney or Forbes. There can be no particular difficulty or even adverse finding with that as such however.
There is no clear picture as to whether the defendant still receives the benefit of any dividends or profits that come from the farming operations. That she is apparently being looked after for the moment cannot be gainsaid (see evidence in chief about her assets at [170] and [171] above).
She has obviously allowed Kerry and Jeni (with the ongoing assistance of others including accountants and lawyers) to take over much if not all of the day to day activities of Bullens Farms. She trusts them and as such cannot be criticised. The question however is whether the defendant is incapable of managing her affairs, if needs be with relevant assistance.
In the absence of medical evidence of an expert nature to the contrary, whilst I can fully appreciate the plaintiff's position, I am unable presently to come to the view that the defendant's mental acuity is such that a financial manager should be appointed. Her GP considers her cognitive functions intact. She was resistant to the proposition that she did anything against her will. She clearly has a difficult relationship with her son Geoffrey and daughter Jane, but that does not mean she lacks mental acuity.
More relevant however is her transfer of a number of properties in late 2017 and mid 2018 as gifts. In one case she transferred a 2000 acre working farm with a three bedroom house to one of her grandchildren who was at the time only 16 years old. She did the same for two other grandchildren aged 21 and 19. When asked the reason why she did she could not really explain. She readily acknowledged that she was extremely ill at the time and that her very shaky handwriting was an indication of that. Her handwriting the following year was much improved. Just why these transfers had to be done then remains unexplained to some extent in her evidence before the Court, although the clear implication is that she wanted to reward Kerry and Jeni and their children prior to her death and at the time she felt in peril. Her solicitor who attended her in hospital to obtain her signature did not give evidence except by way of diary note. However no further documents were sought from him. Their diary notes on their face would support the contention that she knew what she was doing and intended to gift the properties. Those notes however deserve careful attention.
There are two diary notes from two different solicitors who are partners in their law firm. The first diary note indicates that two solicitors, Mr Meyer Solomon and his partner Mr Patrick Tudehope, attended upon the defendant on 19 September 2017. It would appear that they saw her alone. The location of the meeting would appear to be the offices of the solicitors by reason of a comment in the second diary note. It would also seem on the basis of the notes, and be reasonable to infer, that the defendant sought the consultations and clearly gave instructions.
However neither note indicates clearly who initiated the conference or why two solicitors were in attendance. The first item discussed was whether her 2014 will would be revised. The first note records that the defendant after discussion instructed her lawyers that she did not wish to revise her will and that she still wished for her estate to be divided equally between her four children. Importantly however she stated that she wished the farm "Moobong" be retained in the Bullen family and that she also wished for no consideration to transfer the farm to her grandson Jake, notwithstanding that he was a minor aged 16. She believed that Jake was her only descendant who would continue the farming enterprise. She repeated that evidence before the Court (T.78/15-50). However although she stated during cross-examination that she made the decision "at the one time" (T.77/32-33) to transfer all of the relevant properties it seems clear from this note and other parts of her evidence (see [163] and [164] above) that she decided to transfer Moobong to Jake first, and then decided to transfer the other properties at a later point in time.
Mr Solomon who prepared the note said that although she had been unwell recently and was "ninety one" she was fully aware of her instructions in leaving her will in place and the proposed transfer of the farm to her grandson. Further he stated that he was in no doubt that she was fully aware of her estate and aware of the stamp duty and CGT issues. One assumes that Mr Tudehope was aware and agreed with the terms of Mr Solomon's diary note, although the observations are strictly it would seem only those of Mr Solomon.
On 11 October 2017 the defendant saw Mr Tudehope alone it seems about transfers of some of her holdings to her daughters "Jennifer and Kerry". The note however explains that the reason she chose not to change her will was so as to avoid any "irruptions" (sic) later on down the track following her demise. It is explained in the note that the defendant subsequently contacted Mr Tudehope to say she wanted to deal with her assets prior to her death "to reward her daughters Kerry and Jennifer for their dedication to her in the later years of her life". It is clear that both Kerry and Jeni were with the defendant at the time and Mr Tudehope asked them to wait outside so that he could confer with the defendant alone. Mr Tudhope as is clear from the diary note gave a detailed advice to the defendant with particular attention to the possibility of a Family Provision Claim. It was explained to her that as a result of her instructions Kerry and Jennifer and their children were taking the bulk of the properties and "Jeff and Jane" would be the real losers, to which the defendant replied the properties were hers to do with as she liked.
Mr Tudehope asked for written instructions and the defendant delivered such written instructions within 24 hours of the conference. No doubt those written instructions exist but they have not been put before the Court by either side.
In the meantime and no doubt at the initiation of Mr Tudehope, Dr Glenn Periera, a general practitioner who had looked after the defendant for 10 years, prepared a report dated 23 October 2017 in which he expressed the view that although the defendant had had a number of medical problems she had normal cognitive function.
Mr Tudehope then recorded that on 17 November 2017 he "attended upon Jean" in order to have her execute the transfer documents. She was then it seems in hospital. He recorded that he in effect went through the detail of the transfers again and asked her to explain what she was doing. She was able to list the farmland properties she was distributing and indicated to him that she realised that her estate would be "severely diminished". She stated that she had not seen her "other two children" for some time.
Some criticism can be made of the diary notes. First in neither case is it clear how long the consultations lasted. Only their starting times are noted. As to the second diary note it covers two consultations on 11 October and 17 November. No explanation is given for the 17 November 2017 attendance whilst the defendant was in hospital and the note for the October and November attendances was not prepared until 19 November. There is no explanation as to how Dr Periera came to prepare his report of October and as far as he is concerned there is no indication if Dr Periera even saw the defendant for the purposes of the report. However although none of those people gave any evidence and hence none could be cross examined no attempt as far as I am aware was made to procure any of their contemporaneous materials, including the defendant's letter of instructions. Nevertheless in my view the diary notes provide a powerful backdrop against which to consider the defendant's then and current management capacity.
I should also mention in passing that when she was in hospital in August 2017 when Geoffrey went to visit her she had remembered his birthday and had arranged for a card and gift for him.
On other hand the plaintiff provided no expert medical or psychological evidence concerning the defendant. The genesis of the application was so it seems a combination of the plaintiff not getting what she regarded as a meaningful response from the defendant when she tried to engage with her and the recent discovery of the defendant's health issues taken together with the revelations about the 2017/2018 property transactions.
Notwithstanding her inability in the witness box comprehensively to explain her reasons for the gifts the conferences she had with her solicitors in October and November 2017 do provide a material explanation for her conduct. Further, to the extent that the numerous property transfers for no consideration and the "special relationship" between the defendant and Kerry and Jeni, in particular the defendant's heavy reliance upon them, might give rise to a presumption of undue influence, that presumption would in my view be rebutted by the instructions she provided her solicitors during those conferences, as recorded in the diary notes (Thorne v Kennedy (2017) 263 CLR 85 at 101-102).
Further she did go into some detail about why she did not favour her son Geoffrey or her daughter Jane with her largesse. Inattention and a lack of contact were placed at the forefront. Indeed the close relationship between the defendant and Kerry and Jeni is obviously something of long standing. In her evidence Jane stated that "mum would always listen to Kerry and Jen[i]" (T.11/26).
Geoffrey was also said to be drunk on occasions when he visited and abusive and the defendant "wanted him to pay rent". There is no doubt that Jane's visit in February was upsetting and Jane readily admits she was" furious" and in effect in a rage during her brief visit. I am satisfied I should accept the defendants account of these matters.
The alleged non-delivery of mail raises another issue. There is a suggestion that mail and attempted calls to the defendant were being intercepted so as to make her think she was being neglected by Jane and Jane's son Oscar. But the phone calls are different. The defendant explained that her landline was interrupted at some point which sounded very much like the introduction of the NBN. As a result she lost her landline and did not want it reinstated. I should add and not just in passing that she did on 11 June 2020 finally respond to two of Jane's letters of 7 May and 1 June 2020. The letter is in her handwriting. It is legible, rational and it provided a coherent reasoning process as to her attitude to Jane's attempts to make contact. The defendant wrote:
In your letter you seemed to imply that I don't have my freedom so don't be concerned as I do whatever I like when I like… I asked the home phone in Forbes to be disconnected as it was a nuisance. I use any one's mobile phone whenever I want to talk to anyone. I have your number and I will call you whenever I want to talk to you.
Importantly the defendant was not cross examined to suggest that she did not compose the letter. It was not suggested that the words were not hers or that someone either wrote it for her or dictated it to her.
Another important matter however which emerges most clearly from her grandson Oscar's evidence is that when she wanted to she made contact with him. On no less than eight occasions between March 2019 and February 2020 she rang him and spoke to him and/or left a message (see Oscar Sobalirov's affidavit of 27 August 2020 at [23], [34], [39], [41], [42], [47], [48] and [50]). Why this is important is because it could not seriously be suggested that these were staged events. They appear to have been spontaneous. Further she made contact with Jane in June 2020 and had a perfectly rational conversation with her, followed up by her letter of 11 June (see Jane Sobalirov's affidavit of 27 August 2020 at [65]-[66]). I regard that as one of the most important pieces of evidence in the case and I have already commented upon it.
There is no doubt a person of sound mind can do what they will with the property they own and indeed decide to treat their children differently. Yes, she was very ill at the time she signed the transfers, but the defendant obviously wanted to take the decision as to who got what out of anyone else's hands. She said she had been thinking about doing it for some time and the solicitors' diary notes in particular show a determined and rational mind at work it seems to me.
Notwithstanding the comments that can be made about the giving of some of her evidence, having carefully observed her doing so, and on the totality of the evidence, it seems to me now and for the foreseeable future that she is capable of managing her affairs. That she may or will be assisted in doing so by her daughters or grandchildren and/or professional advisors does not in my mind, on the totality of the evidence, detract from that conclusion.
For these reasons I would refuse to make the orders sought by the plaintiff. I invite the parties to bring in short minutes of order reflecting my reasons and would hear the parties further with respect to costs and next steps if required.
[12]
Amendments
05 November 2020 - Add: I Stanley appearing with Mr Muddle SC for the defendant
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Decision last updated: 05 November 2020
Parties
Applicant/Plaintiff:
Sobalirov
Respondent/Defendant:
Bullen
Legislation Cited (6)
Trustee and Guardian Act 2009(NSW)s 41, ss 38, 39, 40
It is important at the outset to discuss what I need to decide. There are no pleadings but both sides have filed affidavits and have provided skeleton outlines and written and oral closing submissions.
At the heart of the case is the current capacity of the defendant to continue to manage her financial affairs.
The plaintiff seeks orders pursuant to ss 25E, 25G and 25M(1)(a) or (b) of the Guardianship Act 1987 (NSW), or alternatively ss 38, 40 and 41 of the NSW Trustee and Guardian Act 2009 (NSW), or the Court's inherent power under its parens patriae jurisdiction. During oral submissions, senior counsel for the defendant raised the question whether the Supreme Court can exercise the powers under the Guardianship Act when a "proceeding relating to a person's capability to manage his or her own affairs" is referred to it from NCAT (s 25L) (T.160/14-27). However, given the alternative bases on which the plaintiff puts her case I am of the view that it is not necessary to decide that issue.
In any event the rules of evidence do not strictly apply. Section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice". Further s 41(3)(a) of the NSW Trustee and Guardian Act 2009 (NSW) provides that "evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit".
The Court of Appeal recently considered a somewhat analogous provision in s 126 of Adoption Act 2000 (NSW) which provides:
Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.
In Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 the Court of Appeal was concerned with the scope and operation of s 4 of the Adoption Act which provides the meaning of "Aboriginal" and "Torres Strait Islander" for the purposes of the Act, and the material the Court may take into account in identifying Aboriginal descent. Basten JA discussed the degree of flexibility required in such a case, and the weight that ought to have been afforded to various pieces of evidence (see [161]-[167]), and noted (at [174]):
In making a determination for the purposes of s 4(2), and more generally, the Court is expressly empowered to consider a broad range of material, including matter which would not be admissible under the Evidence Act 1995 (NSW): Adoption Act, s 126. The making of a declaration does not involve one party having a burden of proof, nor is the standard for the court's state of satisfaction identified. The degree of satisfaction should take into account the purposes of the proposed determination.
However while the Court is not bound by the rules of evidence it remains subject to an overriding obligation to accord procedural fairness and must base its decision upon material which carries probative value. The Court should also remain mindful of the potentially serious consequences that follow the making of a determination under the Guardianship Act or the NSW Trustee and Guardian Act, or the Adoption Act for that matter (Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at 492-493; see also Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 249-250, 256 (as cited by Meagher JA in Sudath)).
Further the defendant submits that UCPR 57.5 requires the plaintiff to include reasoned expert reports from at least two appropriately qualified medical practitioners opining as to the defendant's condition as evidence in support of an application under s 41 of the NSW Trustee and Guardian Act 2009 (NSW). She submits that although the rule does not operate as a jurisdictional bar whichever source of jurisdiction the defendant relies upon in this case UCPR 57.5 reflects the seriousness of the claim and the extent and weight of the evidence the Court would expect to be advanced in support of such claims.