Sylvester v Larkin-Britt [2026] NSWSC 709 | Case summary

Sylvester v Larkin-Britt [2026] NSWSC 709 | Case summary | Zoe

This case is about the consequences of the incorrect distribution of the estate of the late Robert William James. For convenience, and without disrespect, I will refer to the parties and others in these reasons by their given names.
The defendant, Norma Larkin-Britt, was 87 years old at the time of the hearing. On 2 June 2014, she suffered the death of her adult son, Robert. He was found by friends unconscious in his Wentworthville unit and was pronounced dead after being taken to hospital. He died without a partner or a will. Norma’s case is that she believed that Robert had no children of his own. The fact and nature of her belief are matters in dispute.
Acting on her belief, Norma consulted a solicitor, Mr David Essey, who assisted Norma to obtain letters of administration of the estate as its sole beneficiary. Norma sold the unit, the principal asset, for $485,000. She distributed the net proceeds of the estate to herself and used the money to purchase a Bonny Hills property on 13 March 2015 (the Date). That property was subsequently sold and Norma used the proceeds to purchase a Lake Cathie property where she now lives with her husband, David.
While Norma had known of the plaintiff, Justin Sylvester, since his birth, she had lost contact with him and, on her case, believed him to be Robert’s stepson. However, after a response to inquiries she had caused to be made, in March 2016 Norma sent Justin a Facebook message saying “I may be your grandmother”. For the following three years she and Justin and his partner, Ms Rebecca Best, enjoyed a close relationship before they became estranged.
Justin commenced these proceedings by summons filed on 24 April 2024, eight years after the Date. The matter was conducted by reference to a further amended statement of claim filed on 16 April 2025 (FASOC). Justin’s case was that, as Robert’s biological son, he was the sole beneficiary of the estate and that he was entitled to trace its proceeds into the Lake Cathie property.
By the time of the hearing, the parties were agreed that:
A paternity test had established that Justin was Robert’s son.
Justin was therefore entitled to the estate on intestacy.
Norma had committed a breach of trust on the Date by applying the proceeds of the estate to her purchase of the Bonny Hills property.
Justin’s cause of action for the breach arose on the Date.
The proceeds of the estate could be traced into the Lake Cathie property.
If Justin’s claim was successful, he was entitled to 85.8% of the Lake Cathie property.
The real issues in dispute were defences which Norma raised under the Limitation Act 1969 (NSW) (LA) and laches and acquiescence, together with her cross-claim for an order that she should be excused for the breach under s 85 of the Trustee Act 1925 (NSW) (TA) if the proceedings were not statute barred.
For the reasons which follow, the Court has concluded that Justin has established an entitlement to 85.8% of the Lake Cathie property because, in summary:
The breach was a “fraudulent breach of trust” for the purposes of s 47(1)(a) of the LA such that the proceedings were commenced within the applicable 12 year limitation period;
The defences of laches and acquiescence fail; and
Norma should not be excused the breach under s 85 of the TA because she did not act reasonably insofar as she asserted to her solicitor that Justin was Robert’s stepson, rather than putting before her solicitor the facts known to her about the relationship between Robert and Justin and which the Court has found left her uncertain as to whether or not Justin was Robert’s biological son.
The Court heard this matter over five days, with the first three days of evidence being taken in Port Macquarie because Norma’s advanced age and poor health did not permit her to travel to Sydney. Justin was represented by Mr R Quickenden of Counsel. Norma was represented by Ms A Djukanovic of Counsel, who was led by Mr A Crossland of Counsel for the final day of argument (1 December 2025).

As will become apparent, the parties devoted much attention to the legal concepts of “fraud’ and “equitable fraud”. There was some confusion between the two which, without disrespect, arose from a conflation of those concepts in parts of Justin’s case.
As I have already recorded (see [6] above), it was common ground that Norma had committed the breach by applying the proceeds of the estate to her purchase of the Bonny Hills property. That must be so because, as administrator of the estate, she held the estate for its proper beneficiary, Justin, upon its administration and by thereafter applying the proceeds as she did, Norma breached the rule against self-dealing.
However, in Justin’s final written submissions, it was then said that Justin was entitled to relief because in swearing an affidavit as part of her application for letters of administration “categorically” stating that Robert had no children (see [52] below), Norma had made representations to the Court that were “falsely intentional or recklessly intentional or innocently intentional”. This characterisation tied back to a claim made by Justin in the FASOC for declarations that Norma had made those representations “knowingly and falsely” and that as a consequence “the defendant wrongly succeeded to the sole benefit of the deceased’s estate amounting to equitable fraud”. It was claims such as this that led Norma to complain in her submissions that a claim in fraud or equitable fraud had not been properly pleaded or particularised.
Two observations should be made.
First, while Justin’s FASOC is perhaps not as clear as it might be, the case was conducted by both parties on the basis that at least one critical allegation was that Norma had sworn the affidavit knowing it to be false when it stated Robert did not have any children. The falsity was said to arise because at all material times Norma knew or believed that Justin was Robert’s biological son.
This allegation was fully explored in the evidence and submissions, rendering any complaint about the pleading otiose. The Court rejects Norma’s complaints about the adequacy of the pleading in relation the allegations of fraud in their various guises.
Second, confusion arose because, properly understood, the breach did not depend upon the falsity or otherwise of the affidavit. The breach as agreed by the parties was unrelated to the affidavit, and the characterisation of her conduct as a breach of trust did not require Norma to have any particular state of mind.
The references to Norma having sworn the affidavit knowing it to be false were, in my view, the vestiges of a case that Justin ultimately did not press for the grant of administration to Norma to be revoked. In such an application, the fact of a knowingly false affidavit having been relied upon is obviously relevant. Nevertheless, I accept that for the case that was run on behalf of Justin, Norma’s state of mind at the Date was arguably relevant to the characterisation of the breach for the purposes of the LA, to the exercise of the Court’s discretion in relation to her defences of laches and acquiescence, and to the assessment of her conduct for the purposes of her cross-claim that the breach be excused.

Justin and Rebecca, Norma and David, and Mr Essey each gave affidavit evidence and was cross-examined. I formed the view that each of the witnesses was doing their best to tell what they believed to be the truth. There were very few contemporaneous documents in evidence. Putting Mr Essey’s evidence to one side (I consider his evidence in [66] below), to the extent there were disagreements between the other witnesses about what had occurred, I consider they were the product of recollections influenced by the passage of time, hurt feelings and self-interest.
I place no reliance on David’s evidence, which was not central in any event. David was 80 years old at the time of the hearing. His recollection was poor and I formed the view that his was labouring under some cognitive difficulties which left him inclined to agree with whatever was put to him without necessarily understanding the question.
An affidavit was also read in Norma’s case from a friend of Robert’s, Ms Michaella Martinelli. She had first met Robert in 2009 through her partner, Mr Robert Green. It was Ms Martinelli and Mr Green who found Robert unconscious in the unit on the day of his death and called an ambulance. Her evidence was that other than talking about Norma and his father, Robert never mentioned having any other family members or children. Ms Martinelli was not required for cross-examination and I accept her evidence. However, having accepted that evidence, I do not accept Norma’s evidence that Ms Martinelli told Norma that Robert did not have any children. I am not satisfied Ms Martinelli would have said more than what she deposes to, being that Robert never mentioned having any children.
In relation to each of the witnesses who was cross-examined, I am well satisfied that none of them gave evidence with a deliberate intention to deceive. Insofar as I cannot call in aid contemporaneous documents, I have resolved any essential evidentiary disputes by reference to my assessment of the witnesses in the witness box and what, as a matter of ordinary human experience, seems to me to be more likely or plausible.
It is necessary to give special attention to Norma’s evidence. As I next develop, assessing Norma as a witness was not as straightforward as saying she was or was not telling the truth.
As might be expected, Norma was cross-examined at length. Mr Quickenden’s cross-examination was both thorough and courteous, and undertaken with a proper regard for Norma’s well-being. Nevertheless, and certainly in no way attributable to counsel, at various points in her evidence Norma said she felt unwell. An early adjournment had also been required on the first day when Norma became unwell in Court listening to Justin being cross-examined.
While it was clear that she was stressed by the proceedings generally and by cross-examination in particular, my impression was that Norma was mentally acute. However, it was also clear that her evidence was coloured by her anger and disappointment at Justin for the circumstances that had led to their estrangement (which had ended the relationship with a grandchild she obviously craved), and her own strong opinion that she had done nothing wrong, having acted with the benefit of Mr Essey’s assistance.
Having watched Norma give her evidence and having reviewed the transcript, I have come to the firm conclusion that the key to understanding her evidence came in this exchange with Mr Quickenden which struck me as pellucidly truthful (Tcpt, 18 September 2025, p139(8)):

The parties were able to agree most of the essential facts, which are replicated in what follows. The Court will then deal separately with two critical matters: what passed between Norma and Mr Essey; and, Norma’s state of mind at the Date. Given the parties’ agreement as to Justin’s interest in the Lake Cathie property if his claim succeeds, it is not necessary to recount the details of Norma’s property transactions with the net proceeds of the estate.
Norma and Mr Mervyn James together had a son, Robert, on 6 August 1956. Norma and Mervyn divorced in 1974 and there was no formal property settlement. Norma did receive $3,000.
During 1976, Norma lived in Western Australia with her new partner, Mr Tom Larkin.
In 1977, Robert cohabited with Justin’s mother, Ms Deborah Sylvester, in Auburn, Sydney. In August of that same year, Norma and Mr Larkin travelled to Sydney to attend Robert’s 21st birthday party, which Deborah also attended.
Norma married Mr Larkin in September 1977.
Justin was born on 6 March 1979.
Justin’s birth certificate records the date of registration of his birth was 7 May 1979 and that his parents were Deborah and Robert. Deborah and Robert are recorded as the informants. There was some debate between the parties about representations allegedly made by Robert to Norma that Robert was not named on the Justin’s birth certificate. Norma said that this belief informed her understanding that Robert was not Justin’s father. However, ultimately the parties accepted that Robert was recorded on Justin’s birth certificate as Justin’s father. Justin’s name as originally registered was Justin Lloyd James.
Around 7 April 1979, Norma sent a card to Robert and Deborah. Its printed cover read “Best wishes to you and your baby boy”. After a printed poem on the inside of the card, Norma wrote: “To Dear Robert + Debbie, Congratulations on the birth of your baby son with lots of love to all three. Love from Norma + Tom xxx”. Around this time, Norma visited Robert, Deborah and Justin at Rooty Hill, Sydney. Rooty Hill is the address given for Robert and Deborah on Justin’s birth certificate.
The Court accepts as being both inherently likely and against her interest Norma’s evidence that at the time she sent the card she thought she was congratulating Justin’s biological parents (see Tcpt, 18 September 2025, p129(3)).
Robert and Deborah cohabited between December 1978 and September 1979. They then separated and Justin lived with Deborah, having no contact with Robert until about 1995.
Mr Larkin died in September 1979.
On 9 September 1983, when he was four years old, Justin’s name was legally changed from Justin Lloyd James to Justin Sylvester.
In 1985, Norma commenced a relationship with David. On 19 December 1987, Norma and David married, and they subsequently moved to Queensland. They moved back to NSW in 2001.
Norma gave evidence that at some time while she was living in Queensland (so between 1988 and 2001), she had a conversation with Robert where in answer to her question “How is the baby”, he replied “He’s her baby, you know I am not on the birth certificate”. In another affidavit this conversation is recalled by Norma as including Robert saying “I don’t think he is my son”. I accept as plausible that Robert said something to the effect of Norma’s recollections based on the undoubted change in Justin’s name and the probability that in the ordinary course of events Robert would have been made aware of the name change.
In 1996, Justin asked for details of his father. His aunt (M****s Cheryl Hardy) contacted Robert and arranged a meeting between Justin and Robert. They met at Ms Hardy’s home. Justin was 16 years old at the time of this meeting.
The following year, Robert bought Justin a jacket and shoes as a gift. Justin claimed that the deceased pushed him following an altercation regarding the size of the jacket. The parties agreed that Justin’s relationship with Robert broke down after that incident and after a meeting and one or two phone calls they never had contact again.
Norma gave evidence that in 2002 (originally she put it at 1997), Robert told her he had had an argument with Justin. I accept her evidence that at some point after 1997 Robert told her of his falling out with Justin. Given it is accepted that there was such a falling out, I consider it plausible that at some point Robert would have said something to that effect to Norma.
The evidence before the Court included two pages (it is unclear if it is the entire document) headed “Patient Information Questionnaire” (PIQ) in relation to a worker’s compensation claim and dated 30 September 2005. I accept Norma’s evidence that she found it while searching the unit after Robert’s death. Based on that, and despite the fact that it is not signed, I also find that it was completed by Robert or, at the very least, on his instructions. The name on the form was entered as “Robert William James” and date of birth was listed as 6 August 1956 with numerous other details such as his Medicare number and doctors’ details. In answer to the question “How many children do you have?” the form was answered “None”. It lists Robert as single and that he lived “with other relatives”. This accords with unchallenged evidence that from time to time Robert lived at the unit with his father, Mervyn, who owned the unit.
I accept Norma’s evidence that the PIQ was the “only reason” she made the statement about children set out in paragraph 12 of the affidavit (Tcpt, 18 September 2025, p 160(2)).
Mervyn died on 30 July 2012. Robert inherited Mervyn’s estate, including the unit.
Robert died on 2 June 2014. Ms Martinelli found Norma’s phone number in Robert’s wallet and informed Norma that evening. Norma attended the unit the next day.
Norma conferred with Mr Essey on 12 June 2014. Her dealings with Mr Essey are considered further in [62] to [67] below.
Norma gave evidence in general terms and without examples that she put “notices in the newspaper” and asked a friend to put notices on Facebook to locate any child or de facto spouse of Robert, and that she “contacted many of Robert’s friends” listed in his phone to ask if they knew if Robert had any children to which they answered “no”. This evidence was admitted over objection. In the form in which it was given the Court gives it no weight beyond finding that Norma made unspecified inquiries which yielded no result about whether Robert had biological children.
On 10 October 2014, Norma filed a summons seeking letters of administration in her capacity as Robert’s mother and the person solely entitled to the estate on intestacy.
In answer to a requisition from the Court, on 19 November 2014, Norma swore the affidavit that was subsequently filed and which included:

The following matters emerged from Mr Essey’s short but significant cross-examination (Tcpt, 22 September 2025, pp235-241):
He readily accepted his note taking was inadequate and that it would not be easy to recall his conversation with Norma more than ten years before.
Nevertheless, he adhered to the evidence in his affidavit because what Norma had said had “stuck with him” because she was so “adamant and strident”.
He had further recalled that he had asked her “what do you mean by stepson?” to which she replied “Robert’s ex-girlfriend has a son. But it’s not Robert’s son”.
He did not ask for the name of the stepson or his date of birth and Norma did not volunteer that information.
He accepted that if he had known the name of the stepson he could have searched on behalf of Norma for that person’s birth certificate or that, as the legal representative of the administrator of an estate, he could have undertaken what is commonly referred to as a “s 50 search” (see Births, Deaths and Marriages Registration Act 1995 (NSW), s 50) to ascertain whether Robert was recorded as the parent of any child.
He had drafted paragraph 12 of the affidavit (see [52] above) as his interpretation of what Norma had told him.
To my observation, Mr Essey was a careful and honest witness. He was also independent. I accept his evidence, notwithstanding that his evidence of his conversation with Norma does not appear in his file note, and make findings in accordance with his affidavit and oral evidence that I have set out in the preceding two paragraphs. Having seen the stridency with which Norma maintained her position in the witness box of her belief that Justin was Robert’s stepson (and repeating my observations in [26] above), I can readily accept Mr Essey’s recollection of her being “strident and adamant” and that this would have caused him to remember the conversation, even if he did not make a note of it and notwithstanding the passage of time. Furthermore, nothing was put to Mr Essey to suggest that he had some reason not to be telling the truth.
However, by reference to Mr Essey’s file note, I reject as embellishment Norma’s evidence that she gave Mr Essey Justin’s names (either his former or current names or a blend of the two). That is because what Mr Essey does record in his sparse file note are names: Norma’s, Robert’s and Mervyn’s. It is to be expected that at a first conference a solicitor would note the names of people relevant to his task. I am confident that whatever the other deficiencies of his note taking, if Mr Essey had been told Justin’s name, he would have recorded it.

As I have already noted (see [17] above) Norma’s state of mind is arguably relevant to three issues: the application of the LA, the Court’s assessment of her equitable defences, and Norma’s application to be excused the breach pursuant to s 85 of the TA.
The available evidence focussed on the period during which Norma was obtaining letters of administration. The parties, correctly in my respectful opinion, conducted the case on the basis that the Court could infer, as it does, that whatever her state of mind at that time also applied at the Date.
Based on the evidence and my observation of Norma, and taking into account what I have said in [26] above, I am actually persuaded on the balance of probabilities (including on the Briginshaw standard if it applicable) and find that during the period she was obtaining letters of administration and as at the Date:
Contrary to what she told Mr Essey and which he included in the affidavit (see [52] above), while she may have “only” said it because of the PIQ (see [46] above) Norma did not categorically know or believe that Robert had no biological children;
Equally, Norma did not know or categorically believe that Justin was Robert’s biological son;
While she had come to believe that Justin was not Robert’s biological son, that belief was uncertain rather than certain because she really could not be sure one way or the other.
As I will develop further below, an important dispositive conclusion in this case is that Norma did not share her state of uncertainty, or at least the facts that informed it, with Mr Essey.
The evidence upon which I make the findings in [70] above is:
Norma acknowledged that from when she sent the congratulatory card (see [36] above) when Justin was born until Robert told her otherwise around 1996 or 1997 she had believed Justin was Robert’s biological son (Tcpt, 18 September 2025, p129(8)).
Robert telling her that Justin was not his son (see [41] above)
Norma acknowledged that in the period between when Robert told her Justin was not his son and Robert’s death, she did not know one way or another whether Justin was Robert’s biological son.
Norma’s discovery of the PIQ (see [45] above) and her reliance on it.
In relation to the finding in [72(3)], I accept as truthful this evidence Norma gave (Tcpt, 18 September 2025, p 131 (19)):

For the reasons which follow, the Court accepts Justin’s submission that “equitable fraud is sufficient” and finds that the breach is an example of equitable fraud which falls within the expression “fraudulent breach of trust” in s 47(1)(a). It is therefore unnecessary to consider the other sections of the LA relied on by Justin.
In my respectful opinion, the expression “fraud or a fraudulent breach of trust” invites the identification of three categories of conduct.
The first is conduct that would be common law fraud, requiring dishonesty or recklessness. Such conduct could include conduct deliberately undertaken in the knowledge it was in breach of trust and constitute a “fraudulent breach of trust”. It was submitted as one alternative for Justin that the breach was such conduct. By reason of the Court’s finding in [70(2)] above, any submission that Norma’s conduct amounted to common law (and hence, equitable) fraud is rejected.
The second is conduct at the other end of the spectrum. The words “fraud” and “fraudulent” invite a contrast with “innocent”. It is well understood that there can be innocent breaches of trust. An example of an innocent or “non-fraudulent” breach of trust would be one “where it could be shown by the defendants that they did their utmost to ensure that the interests of the beneficiaries had been adequately preserved, protected and looked after”: Reader v Fried [2001] VSC 495 at [25] per Pagone J. Such conduct would not be a “fraud or a fraudulent breach of trust”. Nor, in any event, is the breach in this case “innocent” because Norma failed to disclose to Mr Essey all the facts in her possession about the possibility of Justin being Robert’s son, facts which informed the doubt which the Court has found she had.
This leaves the third category, which is conduct referred to as “equitable fraud”. As an appeal from my decision in HBSY Pty Ltd v Lewis (2022) 108 NSWLR 558; [2022] NSWSC 841, this Court is bound by its ratio. However, the reasoning of the Full Federal Court on the meaning of “fraudulent breach of trust” in HBSY is obiter (see HBSY at [62]). Nevertheless, I consider it persuasive and respectfully agree with it as also being applicable to those words in s 47(1)(a) of the LA. The presence of the definite article “a fraudulent breach of trust” (absent in the provision considered in HBSY) makes no difference. Furthermore, in reaching this conclusion, I have not overlooked that in HBSY the actual state of mind of the defaulting fiduciary was not in issue. However, nor is state of mind a necessary element in this case insofar as equitable fraud involving something less than deliberate dishonesty is sought to be proved in the alternative.
In addition to the passage quoted in [81] above, I respectfully adopt and apply this part of their Honours’ reasoning:

If the proceedings were not time barred, Norma relied on the defences of laches or acquiescence. She submitted that Justin had known of Robert’s death since 2016 and had not investigated his rights in a timely way. In particular, she argued that she and David had experienced significant prejudice because of the delay, including planning their housing and finances during their ‘twilight’ years in the way they had.
The relevant principles were not in dispute.
Mere delay is insufficient. In this case there is no suggestion that Norma’s ability to conduct her defence was in any way prejudiced by the alleged delay. The prejudice she alleges was in practical terms already suffered before Justin had even become aware of Robert’s death. Norma and David’s accommodation and other circumstances before Robert’s death were modest. They were able to improve them considerably by using the proceeds of the estate to buy the Bonny Hills property. Norma’s subsequent property dealings do not constitute a “prejudice” sufficient to make it unjust or inequitable to refuse relief. Norma will receive the equity which she and David brought to those dealings upon the sale of the Lake Cathie property.
Insofar as acquiescence is concerned, Norma has failed to demonstrate that Justin has relevantly stood by with full knowledge as to his rights both as to fact and law while she engaged in the conduct which she contends was to her prejudice.
Finally, in relation to both defences, as a matter of discretion the Court rejects them because Norma is the author of her own predicament. As I develop further in relation to her application to be excused the breach, the Court is well satisfied that had she given Mr Essey a full account of her knowledge in relation to Justin, Mr Essey would have conducted searches of the kind referred to in [65(5)] above. There is no dispute that Robert was always recorded as Justin’s father on Justin’s birth certificate. As a matter of its own experience in such matters, the Court is satisfied that such searches would have led to Justin’s status becoming known and Justin would have had an opportunity to assert his rights if they had been contested.

The Court approaches this aspect of the proceedings by reference to the findings of fact set out in these reasons and accepts Justin’s submission that Norma should not be excused. Insofar as the Court has not found the facts relied upon in the previous paragraph which are statements made to Norma by Robert, it is because they were self-serving and uncorroborated and therefore of little weight.
Nevertheless, the Court has found that Norma did not act fraudulently or dishonestly because she was not certain that Justin was Robert’s biological son. It is arguable that being in the state of uncertainty which the Court has found (see [70] above) Norma did not act honestly. However, it is not necessary for the Court to make that finding.
What the Court has no hesitation in finding is that Norma did not act reasonably. This is because she did not tell Mr Essey all of the facts of which she was aware concerning Justin and which the Court has found were why she could not be sure “one way or the other” (see [73] above). Her failure to do so meant Justin’s entitlement did not become known (see [101] above).
Furthermore, the Court is satisfied (see [74] above) that between 2016 and 2019 Norma accepted that Justin was Robert’s biological son. Even assuming that she was ignorant that this status entitled Justin to the estate, I find that Norma did not act reasonably because a reasonable person in her position would have then sought legal advice. She did not do that. Having had to swear the affidavit to satisfy the Court specifically that Robert had no children, the Court finds she would have at least been aware that whether or not Robert had children was an important issue and she had told the Court that he did not have any.
Finally, and for completeness, nor should she be excused for not having obtained the directions of the Court. Had she given proper instructions to Mr Essey one possibility is that directions could have been sought as to the distribution of the estate whether by judicial advice or otherwise. Had the Court been presented with the facts that it has heard in this case about what Norma knew at the time of obtaining letters of administration concerning Justin’s relationship with Robert, the Court would not have given advice that Norma was justified in distributing the estate to herself without evidence that at least searches of the kind referred to in [65(5)] above had been undertaken. The Court has already concluded (see [101] above) that such searches would have brought Justin’s interest to light.

Sylvester v Larkin-Britt

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Summary

A preliminary observation

The witnesses

Facts

After 2016

Norma and Mr Essey

Norma’s state of mind at the Date

Limitation - submissions

Limitation - resolution

Laches and acquiescence

Excusing the breach?

Conclusion

Amendments

22 July 2026

Parties

Legislation Cited (6)

Cases Cited (8)