Tjen v Bilic

Supreme Court of NSW|2017-03-09|Before: Hallen J

[2015] NSWSC 249 Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 Fulton v Fulton [2014] NSWSC 619 GEL Custodians Pty Ltd v Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Quintano v BW Rose Pty Ltd [2008] NSWSC 1012 McNamara v Nagel [2017] NSWSC 91 Neale v Bank of Western Australia [2014] NSWSC 315 New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226 Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; [2013] SASCFC 57 Plunkett v Bull (1915) 19 CLR 544 Ramage v Waclaw (1988) 12 NSWLR 84 Re Hodgson (1885) 31 Ch D 177 Richardson v Armistead [2000] VSC 551 Ryan v Ryan [2012] NSWSC 636 Scallan v Scallan [2001] NSWSC 1129 Shepherd v Doolan [2005] NSWSC 42 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Category: Principal judgment Parties: Thania Hambalie Tjen (Plaintiff) Mijo Victor Bilic (Defendant) Representation: Counsel: Mr M Maconachie (Plaintiff) Mr A Duc (Defendant)

Solicitors: Nicholas George Lawyers (Plaintiff) Edgeworth Legal Pty Ltd (Defendant) File Number(s): 2015/311163

The Proceedings

The Defendant is, and has been since 14 March 2000, the registered proprietor of land situated at Winstanley Place, Mount Pritchard ("the Mount Pritchard property"). The claim by the Plaintiff relates to whether the deceased had an equitable interest in the Mount Pritchard property by virtue of a monetary contribution to the purchase price.
The proceedings were commenced by Summons filed on 23 October 2015, in which the Plaintiff sought, inter alia, the extension of a caveat lodged in relation to the Mount Pritchard property. She sought, by way of final relief, a declaration, pursuant to s 75 of the Supreme Court Act 1970 (NSW), that the Defendant's interest in the Mount Pritchard property was held by him subject to a resulting trust in favour of the deceased.
On 28 October 2015, by agreement of the parties, the caveat was extended until further order. It remains lodged on the title to the Mount Pritchard property.
By leave of the Court granted on the same day, the Plaintiff's Summons was amended (the amended Summons being filed on 5 November 2015) to include a prayer that the Defendant be ordered to execute a Transfer transferring the Mount Pritchard property, or such interest as the deceased was found to have therein, to his estate.
On 29 March 2016, pursuant to an order made on 17 March 2016 by the Registrar in Equity for the matter to proceed by way of pleadings (described as "Points of Claim"), the Plaintiff filed Points of Claim (a few days later than the Registrar had directed but no complaint is made about this). The relief sought by the Plaintiff in the Points of Claim was amended to include an alternative claim for equitable compensation and interest pursuant to s 100 of Civil Procedure Act 2005 (NSW). (Ultimately, counsel for the Plaintiff did not deal, at all, with the claim for equitable compensation: T157.03 - T157.12. In the circumstances, I consider that the claim for equitable compensation was abandoned by the Plaintiff and I shall not consider it further.)
There was no relief sought in the Points of Claim for the imposition of a constructive trust, or for an equitable lien, and no order was sought for the appointment of trustees for sale in the event that the Plaintiff succeeded in her claim.
The Defendant filed Points of Defence, but no Cross-Claim, on 11 April 2016. In that document, he made a number of admissions of fact but denied that the deceased had any legal, or beneficial, interest in the Mount Pritchard property, other than a life interest therein. He asserted that the amount provided to him by the deceased was a gift, subject to a condition which had been fulfilled, that the deceased be permitted to live in the Mount Pritchard property for his life. I shall refer to the facts that he admitted as part of the background facts to which I shall refer.
Shortly after the commencement of the hearing, the Court raised the likelihood, whatever the result, of further litigation between the parties, by way of proceedings, by one, or the other seeking relief under s 66G of the Conveyancing Act 1919 (NSW) if the Plaintiff was successful; and by way of proceedings, brought by the Defendant, for possession of the Mount Pritchard property, if the Plaintiff was unsuccessful. It was suggested that the parties might wish to give consideration to whether such litigation could be avoided by reaching an agreement on what would occur in either event.
On the third day of the hearing, counsel informed the Court that the only agreement that had been reached by the parties related to what orders should be made in the event that the Plaintiff was unsuccessful, namely that: 1. The whole of the Plaintiff's proceedings be dismissed; 2. The Plaintiff to pay the Defendant's costs of the proceedings; 3. The Plaintiff is to vacate possession of the Mount Pritchard property (inserting proper title details which are omitted for reasons of privacy) on or before the day being 6 months from the date of the orders; 4. Leave be granted to the Defendant to issue a writ of possession for the Mount Pritchard property on the day being six months and one day from the date of the orders.
Since I have found that the Plaintiff has not established the claim that she has advanced, I shall make orders that accord with the parties' agreement at the conclusion of these reasons.
I should mention that there is evidence that the affidavit by a number of the witnesses had been interpreted by an accredited interpreter. Importantly, there was evidence that the affidavits of the Plaintiff and David were each interpreted from the Indonesian language (described as her and his "customary language") to the English language.
The Defendant, Jack, Anna, and Anna's son, Marko (who had, as stated in his affidavit, acted as the correspondent for Mijo, Anna and Jack, by writing down what each had dictated to him), each gave evidence in the English language.

Preliminary Matter

The deceased left a duly executed Will that he signed on 31 July 2012. In that Will, the deceased appointed the Plaintiff as the sole executrix and trustee of the Will and, after the payment of debts funeral and testamentary expenses, gave the whole of his estate to her absolutely.
The Plaintiff gave evidence, which I accept, that the deceased's estate was of little monetary value. She says that it consisted of personal effects (clothing, furniture and household goods) and "not much" money in a bank account into which the deceased's pension had been paid. (The Plaintiff could not remember how much money was in the deceased's bank account at the date of death.) She also identified the deceased's interest in the Mount Pritchard property as included in the deceased's estate.
At the commencement of the hearing, there being no evidence of Probate of the deceased's Will having been granted to the Plaintiff, the parties confirmed that Probate had not, in fact, been applied for by, or granted to, the Plaintiff.
In these circumstances, the Court raised the question whether the failure of the Plaintiff to have obtained a grant of Probate, or any interim grant of administration, prior to the commencement of the proceedings, rendered the proceedings a nullity.
The written submissions of neither party dealt with the question whether the Plaintiff had, or did not have, standing to bring, and/or maintain the proceedings, as there had been no grant of Probate of the deceased's Will to her. When it was raised by the Court, it seemed as if neither counsel had given any real consideration to this aspect, or if either had, did not consider it to be of importance: T1.40 - T2.30.
Discussion then took place regarding what steps, if any, could be taken, to deal with the matter, but it was left in abeyance so that the legal representatives could consider, whether, and if so, how, the issue should be dealt with.
The question arises because from, and after, the death of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee and Guardian (constituted under the NSW Trustee and Guardian Act 2009 (NSW), in the same manner, and to the same extent, as previously the personal estate and effects vested in the Ordinary in England: s 61 of the Probate and Administration Act 1898 (NSW). The New South Wales Trustee acts as a formal repository of title.
In Scallan v Scallan [2001] NSWSC 1129, Windeyer J considered an application by a beneficiary to set aside certain (inter vivos) transactions by the deceased on the grounds of either undue influence or unconscionable conduct, or, in the alternative, under the Contracts Review Act 1980 (NSW). The proceedings before his Honour had been instituted at a time when there were contested Probate proceedings that had not been determined and, therefore, there had been neither a grant of Probate nor a grant of administration (general or limited) in the estate of the deceased.
Windeyer J, at [9]-[12], wrote: "The chose in action being the cause of action for undue influence and setting aside the transactions relevant to the present proceedings was an asset vested in Gail Anne Scallan, now deceased. It would continue after death for the benefit of her estate. At the present time no legal personal representative of her estate has been appointed. The defendant's claim on the notice of motion is that the plaintiff has no standing to bring the action, that it is therefore a nullity and that it should be dismissed. The argument of the plaintiff is that she is a beneficiary under the 1997 will of which her brother is executor; that clearly enough he would not be willing to bring an action in undue influence against himself, even if that were possible; that therefore the position of the plaintiff is analogous to that of a beneficiary seeking to bring proceedings for enforcement of a right of action vested in a trustee which the trustee refuses to bring. Counsel for the plaintiff relied on a number of cases including Ramage v Waclaw (1988) 12 NSWLR 84; Hilliard v Eiffe [1874] LR 7 HL 39 and Hayim v Citibank NA [1987] AC 730. None of these cases really bear upon the situation. In all of them there was a legal personal representative of the estate or trustee of a trust, who either refused to take action or was unwilling to do so. It is not necessary to write a treatise on this interesting subject. In Marshall v D G Sundin & Co Limited (1989) 16 NSWLR 463, it was held that proceedings by a named executor before a grant were a nullity. That decision was followed in Darrington v Calderbeck (sic) (1990) 20 NSWLR 212. The power to appoint a person to represent an estate given by Pt 8 r 16 of the Rules cannot assist if the proceedings cannot be instituted without such order. The difficulty can be solved in appropriate cases by obtaining a grant of administration ad litem…."
A similar view was expressed, more recently, by Davies J in GEL Custodians Pty Ltd v Estate of the late Geoffrey Francis Wells [2013] NSWSC 973, at [52], when he wrote: "The result of these cases is that an executor cannot bring proceedings prior to obtaining a grant."
A different, tentative, view was expressed in Anderson v Anderson (No 2) [2013] QSC 73, in which Dalton J, at [3], wrote: "The plaintiff relies on Scallan v Scallan for the proposition that the plaintiff had no standing to commence the proceedings, at least so far as they relied upon undue influence, and that the proceedings ought to have been commenced by or on behalf of the estate. I am not entirely convinced that the plaintiff had no standing to seek declarations, he was after all a person affected by the disposition in his character as a beneficiary of his mother's will."
In the present case, it may be accepted that the Plaintiff, as sole beneficiary of the deceased's estate, is the only person materially interested in the due enforcement of the claim being made and would be most seriously prejudiced if it was not duly prosecuted: Ramage v Waclaw (1988) 12 NSWLR 84, at 92.
On the final day of the hearing, no question of prejudice having been suggested, and the case having been continued after the issue was raised, the Defendant indicated consent to an order being made that the Plaintiff should be appointed a representative of the deceased's estate for the purposes of the proceedings and that she should conduct the proceedings on behalf of the estate.
Counsel for the Plaintiff confirmed that the Plaintiff consented to such an order being made.
In the circumstances, as there are no persons, other than the parties to the proceedings, who are, or who may be, affected, by the making of such an order and by the determination of the proceedings, as the Plaintiff is the only person with an interest in the deceased's estate under the terms of his Will, and as the management of the proceedings would facilitate the overriding purpose of the Civil Procedure Act 2005 (NSW), to provide for the just, quick and cheap resolution of the real issues in the proceedings, and would permit the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, at a cost affordable by the respective parties (ss 56 and 57 Civil Procedure Act), the Court, in the circumstances of this case, was prepared to make that order. To do otherwise, would result in delay and cost to both parties.

Background Facts

I next set out the facts behind the issues that require some elaboration, which I am satisfied are not the subject of any real dispute between the parties. To the extent that any of the facts to which I shall refer are in issue, the facts stated should be regarded as the findings of fact in these proceedings.
The deceased was born in October 1926 in Omis, Croatia. He came to Australia in the early 1960's and lived here until his death. A copy of the deceased's passport, issued in August 1994, reveals that his nationality was Australian.
By 1999, the deceased spoke, and understood, the English language well. However, English was not his first spoken language and when he conversed with Jack, they spoke in Croatian. The deceased, the Plaintiff, David, the Defendant and Anna, conversed with each other in English. It was not suggested that the deceased could not read, or understand, words written in English.
The deceased was married twice. His first marriage ended in the late 1990's.
There may have been a property settlement between the deceased and his former wife, as a result of which the deceased received some real estate in Queensland.
For a period of time after the dissolution of his first marriage, the deceased lived, on occasion, with Jack and Jack's family, in Dickson Street, Newtown, in Sydney. Members of the household appear to have included Jack's wife (who died in about 2007), the Defendant, Anna, and some of her children.
In late 1993, the deceased ceased work due to ill health. It appears that he received $172,427.43, as a termination payout, on 30 November 1993. In addition, he received $11,587.35, in August 1994, as a payout from an insurer.
For the remainder of his life, the deceased suffered health problems and was sometimes hospitalised. It appears that he did not work after about 1993.
There is no evidence about any medical condition suffered by the deceased that was likely to affect his cognition in 1999 or 2000. (His Death Certificate reveals the causes of death, in 2014, to be "Cardiac failure - Days, Cardiomyopathy - Years; Chronic renal failure, atrial fibrillation, bladder cancer, mild cognitive impairment".)
On a date not entirely clear on the evidence, but sometime in 1999, a friend of the deceased, Stretko Alavanja, introduced the deceased to Alexander Pucar, who was, then, the registered proprietor of the Mount Pritchard property. As Mr Pucar was proposing to return to Belgrade, he wished to sell the Mount Pritchard property. Mr Alavanja, who stated that he and the deceased were "inseparable" after they met, was a witness called by the Plaintiff and he was cross-examined.
Subsequently, in about November 1999, there were discussions between the deceased, Jack, the Defendant, and Anna, relating to the purchase of the Mount Pritchard property. Shortly after the deceased inspected the Mount Pritchard property, the Defendant also inspected it. He discussed its purchase with members of the family.
I shall return to the evidence of the relevant discussions, in detail, as the content of these discussions are in dispute. It is not in dispute, however, that the subject matter of some of the discussions included that the Mount Pritchard property was to be purchased as a home in which the deceased could live for the remainder of his life.
On a date that is likely to have been about 23 November 1999, Mr Anthony Bell, who appears in some way not precisely established to have been connected with the Australia and New Zealand Bank, and who is described in one of the Bank's documents as "Manager", and by the Defendant as "loan manager from the ANZ Bank", attended at Jack's home in Newtown. The deceased was likely to have been present at the time Mr Bell attended on this date.
The purpose of the meeting with Mr Bell was to discuss the steps to be taken to enable the Defendant to successfully apply to the ANZ Bank for a home loan. Again, it will be necessary to return to the conversations that are said to have occurred at the time, and to identify the contemporaneous documents that relate to the events that then occurred. (Mr Bell was not called as a witness by either party.)
Shortly thereafter, on a date not disclosed in the evidence, but likely to have been in early 2000, the Defendant entered into a Contract to purchase the Mount Pritchard property (Ex. D2). The purchase price was $170,000. The stamp duty that was payable by the purchaser was $4,444. Legal costs and disbursements of the solicitors acting for the purchaser were $1,335.
On about 14 March 2000, the Defendant was registered as the sole proprietor of the Mount Pritchard property, completion of the Contract having occurred on 9 March 2000. Simultaneously, a mortgage to the ANZ Banking Group Limited was registered on the title to the Mount Pritchard property.
Following the purchase, the deceased moved into the Mount Pritchard property with Mr Alavanja. They lived there, together, for about 18 months.
There is evidence that the Defendant has paid all of the outgoings on the Mount Pritchard property that do not relate to utilities. For example, he has paid rates, taxes and insurances. The deceased only paid "for what he used, such as electricity, water and telephone".
There is no evidence that immediately after the purchase of the Mount Pritchard property, the deceased made any enquiries to ensure that his name was on the title. Several years later, perhaps in 2005, it appears that the deceased found out, it was not. (David gave oral evidence, to which reference will be made later, relating to the deceased's attendance, with him, at the Marrickville branch of the ANZ Bank, and with a lawyer in Fairfield. A reference to each of the visits, and what occurred, was not included in David's affidavit.)
The Plaintiff was born in Indonesia in June 1951. She came to Australia in late January 2002, having first arrived in Perth. She then travelled to Sydney, on holiday, where she and the deceased met in "around February 2002". They were married on 23 March 2002. She remained married to him until his death about 12 years and four months later.
The deceased and the Plaintiff lived in the Mount Pritchard property from the time of their marriage. The Plaintiff has continued to live there, with her son, David, who had moved there in about 2006, after the death of the deceased. Thus, the deceased had lived in the Mount Pritchard property from the time of its purchase until he died.
The Plaintiff did not see the Defendant and his family very often. The contact was largely limited to Christmas visits. She says that Jack visited the Mount Pritchard property rarely. The Defendant visited the deceased even more rarely.
On 30 August 2012, a caveat on behalf of the deceased was recorded on the title to the Mount Pritchard property. (A copy of the caveat, as registered, did not form part of the evidence in the case. However, it was lodged during the lifetime of the deceased, and although the deceased asserted to Anna "he didn't know what [the Plaintiff] and the others gave him to sign. He said they made him sign it just as he got out of hospital": T113.01-T113.02, I am satisfied that it was lodged with his acquiescence.
In about March 2015, following the death of the deceased, the Defendant demanded that the Plaintiff pay rent of $300 per week for her occupation of the Mount Pritchard property. The Plaintiff did not agree to do so and has not paid any rent, or occupation fee, to the Defendant despite her continued occupation.
On 30 September 2015, the Defendant caused a lapsing notice to be issued by the Registrar-General in respect of the caveat that had been lodged on behalf of the deceased. It was this event that prompted the commencement of the proceedings.

The Issues

The Plaintiff asserted that the deceased provided the amount of $120,000 to the Defendant and that it was this amount that was used, in part, by him, to purchase the Mount Pritchard property.
The Defendant admitted that the deceased had provided $83,000 to him, by way of a bank cheque in November 1999, which he used as part of the purchase price of the Mount Pritchard property. He said that the amount provided to him was a gift made to him to enable the purchase of the Mount Pritchard property and upon the condition that the deceased would be allowed to live in the Mount Pritchard property until his death.
It follows that the questions to be determined are: 1. Whether the amount provided by the deceased to the Defendant in November 1999, and used by him to purchase the Mount Pritchard property, was $120,000 or $83,000? 2. Was the amount provided to the Defendant, whether $120,000 or $83,000, intended by the deceased to be a gift? (The entitlement of the deceased to live in the Mount Pritchard property, and the fact that he did so, are not issues.) 3. Has the Defendant rebutted the presumption of a resulting trust?
The parties agreed that if a resulting trust were established, the deceased's interest in the Mount Pritchard property, if he had provided $83,000, would be 48.82 per cent; if he had provided $120,000, the deceased's interest would be 70.58 per cent. (The percentages would be slightly less, in each case, if one adds the costs and expenses of purchase, including stamp duty, to the purchase price of $170,000.)
These issues raise the awkward situation in which the Court has to adjudicate the question whether a transaction was one of gift, or was otherwise, where one of the principal participants is dead, where there is an inadequate recording of the transaction involving the deceased and the Defendant, and whether what is recorded, so far as the conversations that are said to have occurred, is accurate. Whilst the fact of payment is admitted even the amount paid is in dispute.

The Law

There was really no dispute about the law. I shall set out the relevant general principles.
The Court's findings about who holds the beneficial interest in land are made with the assistance of presumptions. The first relevant presumption is that the "prima facie position is that the beneficial ownership of real property is commensurate with the legal title": Currie v Hamilton (1984) 1 NSWLR 687, 690, per McLelland J. Sometimes, this presumption is displaced by a presumption of a resulting trust. Where the legal title does not reflect the contributions of the persons who made them, then (at least where there is no presumption of advancement) it will be presumed that the beneficial ownership of the property is held in the proportions in which they contributed the purchase money.
The beneficial interests under a resulting trust are ascertained by the process of identifying the person or persons who provided the purchase money to acquire the property and, if more than one person is identified as having done so, by ascertaining the respective amounts provided. As held in Dyer v Dyer (1788) 2 Cox 92, at 93, "the trust of a legal estate results to the man who advances the purchase-money…It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence."
(The presumption of advancement, which is another presumption that may, in some circumstances, be relevant, does not apply in the present case, and it may be ignored.)
In Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, at 3, Gibbs CJ wrote: "… if the purchase money is provided by two or more persons jointly and the property is put into the name of one only, there is, in the absence of any such relationship [that gives rise to a presumption of advancement], presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, for example, as a loan."
Mason and Brennan JJ (in a portion of the judgment with which Deane J agreed, at 271) applied a principle referred to in Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, at 365, to identify the evidence that can rebut the presumption of a resulting trust: "The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction. If that evidence is insufficient to rebut the presumption the beneficial gift, absolute or subject only to qualifications imposed upon it at the time, is complete and no subsequent changes of mind or dealings with the property inconsistent with the trust by the donor can as between himself and the donees alter the beneficial interest."
In Shepherd v Doolan [2005] NSWSC 42, White J (as his Honour then was), at [23]), noted: "Ordinarily, the presumption of a resulting trust arises at the time the property is acquired. If the presumption is not displaced, then, unless there is a later agreement to alter the equitable interests in the property acquired, or the beneficial interests arising under the resulting trust are displaced by an interest arising under a constructive trust, the interests are not changed by later contributions to the conservation or improvement of the property. (Currie v Hamilton [1984] 1 NSWLR 687 at 691; Calverley v Green at 262-3). If the evidence establishes that it was the intention of the parties that their respective interests should be in accordance with something other than their contributions to the purchase price, such as their contributions to the purchase of the land and discharge of a mortgage, effect will be given to that intention so that although the trust will arise at the time of purchase, the quantum of their interests will fluctuate in accordance with that intention. (Bloch v Bloch (1981) 55 ALJR 701 at 704; Currie v Hamilton at 692; Calverley v Green at 262-263)."
In Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; [2013] SASCFC 57, a useful description of what is required was described as follows at [28 - 30]: "There is no doubt that for a resulting trust to arise the moneys contributed must bear the character of purchase moneys. A resulting trust will not arise where money is provided by way of gift or by way of loan or on some other commercial basis such as, for example, pursuant to a contractual obligation which is independent of the use to which the money might be put by the recipient. Ultimately, the court must be satisfied that the money has been provided with the requisite character … It will be sufficient, if an applicant were to plead, as the appellants have done in this case, the fact of the provision of moneys and the fact that they were used by the recipient as part of the price for the purchase of the relevant property in the recipient's name. In those circumstances, a presumption of a resulting trust will arise. The presumption will apply or prevail unless the presumption is rebutted. It, ultimately, may be rebutted if the circumstances also give rise to a presumption of advancement or if the person in whose name the title has been registered demonstrates, on the facts, that the true character of the moneys provided was not by way of purchase but by way of, for example, loan or gift."
The burden of rebutting the presumption of a resulting trust falls upon the party against whom the presumption is raised (in this case, the Defendant): Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [57].
The presumption of resulting trust may be rebutted by evidence as to the objective intentions of the parties at the time of the acquisition of the property: Ryan v Ryan, at [75]. In Anderson v McPherson (No 2) [2012] WASC 19, Edelman J (as his Honour then was) noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention).

The Documentary Evidence

Although a significant number of documents were annexed to affidavits or tendered, ultimately, there were not very many contemporaneous documents that are important in the case. I shall deal next with the documents. I shall endeavour to identify the documents in date order.
By letter dated 9 July 1997, addressed to a firm of solicitors acting for the deceased, the solicitors for his former wife summarised (with supporting documents) various amounts of money, totalling $261,025.36, and requested "your client clarify…why he omitted to declare his financial resources…the following entitlements he received".
In relation to the receipt of the superannuation monies, the deceased's solicitors by letter dated 15 September 1997, responded to the solicitors for his former wife, setting out their instructions on how the monies received had been expended: "RE: D BILIC & K BILIC - PROPERTY SETTLEMENT We refer to the abovenamed matter and the orders made in the Family Court on the 25th July 1997. We apologise for the delay in responding. We are instructed that our client's superannuation monies were disbursed as follows:- 1. The client purchased a two bedroom unit for his brother, Mila Bilic in Croatia for $A130,000.00. The property is located at 11 Setpana Radica Dugi Ratu, Croatia. We herein enclose a Statutory Declaration which appears to have been executed on the 30th August 1996 by our client at Fairfield. 2. He used approximately $20,000.00 from his superannuation for travelling expenses and living expenses whilst in Croatia. 3. He gave his brother, Jack Bilic $25,000.00 for monies borrowed from him for the purchase of St. John's Park and the Maroochydore property. 4. There was a further $10,000.00 given to your client for their son Anthony to be placed in a trust account held by your client at the ANZ bank. 5. There was a further $5,000.00 approximately spent on Anthony by our client including paying for various items including, stereo recorder, bowling bag, racing cars, We are also instructed that our client paid $29,000.00 and purchased a Ford Laser from Ford Parramatta from his superannuation payout. The sum of $10,000.00 was paid to your client for her bankcard which was also paid out from his superannuation monies. We are instructed a further unconfirmed amount was donated by our client in Croatia for the victims of the war whilst his stay in Croatia. He approximates this to be in the vicinity of about $20,000.00. Further he used about $6,000.00 to purchase furniture etc upon his leaving the matrimonial home. We are also instructed that he has no other property overseas or in Australia in his name or any body elses [sic] name or otherwise other than disclosed herein and the properties the subject of these proceedings. We confirm as stated in your letter dated 9 July 1997 that your client also received the sum of $13,894.82 for your client's purchase of the commodore motor vehicle from our client payouts. We further enclose the following tax return years ending 1995. We are instructed our client did not require to lodge a 1994 nor a 1996 tax return as he was on a pension at that time and there was no assessable income. We note that you have not provided to us your client's tax returns for the last three years or superannuation details. Kindly do so before tomorrow the date of the pre-hearing conference. We look forward to hearing from you."
(There is a statement of the deceased, to which reference will be made later, that is inconsistent with what appears in the Paragraph numbered (1) in the letter quoted, namely "I take the money (sic) 120000 $ to Croatia my intention to give it to my brother (Milan Bilic) but up there it turns out my brother had passed away. So I bring back the money 120000 $ to Sydney.")
There is a bank statement relating to a passbook account in the name of the deceased, at the ANZ Bank, Fairfield Branch, which covers the period 23 February 1998 to 19 March 1998. This reveals that, as at 19 March 1998, the account balance was $919.68.
A Sales Advice, dated 30 November 1998, reveals that the deceased paid a holding deposit of $300 on a property at Canley Heights, the purchase price of which was $133,500. However, in a letter dated 11 December 1998, solicitors acting for him, informed the solicitors who were acting for the vendors of that property, that "our client no longer wishes to proceed with the purchase…". (There are no documents evidencing the reasons why the deceased did not wish to proceed with the purchase.)
There is no documentary evidence disclosing how the deceased held the amount of $83,000, or the amount of $120,000, in late 1999. The deceased stated that he gave $120,000 in cash, yet there were no documents, for example, relating to the repatriation of the proceeds of sale of any Croatian property, or the sale of any Queensland property, then owned by the deceased.
There is next, a copy of three undated pages of notes, said to have been handwritten by Mr Bell, which were given to the Defendant. The first page of the handwritten notes is in the following terms: "Agree on price - Holding deposit down $500-1000 Signed front of the contract. Pest + Building - ANZ Need. Copy of Group Certificate Front page of contract Letter from Uncle saying that the $83,000 was a non-refundable gift to assist with the purchase of the property." (The two other pages of this document appear to have words, amounts and figures written, but there was no exploration, in cross-examination of the Defendant, of the meaning of what was recorded. The third page, however, bears the following note (also not explored in cross-examination): "owner occ. $2500 savings $ no capital gains"
Counsel for the Plaintiff submitted that the reference to "Letter from Uncle" should lead the Court to infer that the deceased had not been present at the time of the meeting. I am not prepared to draw any such inference from the fact that the deceased was not named as being the person from whom the letter was to be obtained.
There is next a document, dated 23 November 1999, in the handwriting of the Defendant, and signed by the deceased, which is in the following terms: "I Kruno Bilic made a non-refundable gift of $83,000. To my nephew Mijo Victor Bilic. To assit (sic) him in the purchase of a property."
There is a dispute about whether this document was prepared, and signed, by the deceased during Mr Bell's attendance at the Newtown home, the Defendant asserting that the deceased was present (corroborated by Jack and by Anna) and that he signed the document on that date (not corroborated by either Jack or Anna).
Counsel for the Plaintiff suggested to each of the Defendant, Jack and Anna, that the deceased had not been present on the occasion of the meeting with Mr Bell. Each confirmed that the deceased had been present on that occasion. Indeed, the Defendant said that he had written the date under the deceased's signature on that document on the day it was signed by the deceased. I have no reason to reject the evidence of each of them on this topic. (No Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, submission was made by either party, concerning the failure of the other to call Mr Bell.)
Counsel for the Plaintiff also suggested to the Defendant that the document dated 23 November 1999, had not been signed by the deceased during the meeting with Mr Bell, but that it had been presented to the deceased some time later. The Defendant denied that was so, and stated that the deceased had signed the document on the date shown on it. Again, I have no reason to reject this evidence. However, even if the Defendant's evidence is inaccurate, what was not in dispute was that the document dated 23 November 1999 had been signed by the deceased, or that it had been provided to the ANZ Bank in order to meet one of the requirements of the Bank.
Nor was it suggested to any witness called in the Defendant's case, that the deceased would have been unable to read the document that he had signed.
The ANZ Bank issued a "Loan Certificate" dated 30 November 1999, confirming that the Defendant "would be eligible for an ANZ home loan (Consumer Loan) of an amount up to $100,000 upon formal application and subject to the following items being confirmed or provided". The only "items" marked as requiring confirmation or production on the Loan Certificate was "Contract of Sale details". I am satisfied that by the date of the Loan Certificate, the document dated 23 November 1999, signed by the deceased, had been provided to the Bank.
The next document is the second page of a Statement of Account in the name of the Defendant with ANZ Trustees, the date of issue being 30 November 1999. The Defendant said that he did not have page 1 of the Statement of Account, but could provide no reason for only having the second page in answers to questions from the Bench.
The page of the Statement of Account in evidence reveals that on 22 November 1999, there was a withdrawal of $16,006 and that a cheque was drawn to "ANZ B/C IFO GIRGIS COMBINED REAL ESTATE". Importantly, the Statement reveals that prior to the withdrawal, the amount held in the account was $83,820.14.
The page of the Statement of Account also reveals that on 30 November 1999, there was a deposit of $16,000 into the account, making the account balance $83,814.14 on that date. (No questions were asked by counsel for the Plaintiff concerning this aspect.)
I infer that the amount of $16,000 is likely to have been the balance of the deposit required to be paid for the purchase of the Mount Pritchard property. (The additional $6.00 is likely to have been the amount required to be paid for the bank cheque. It would be pure speculation to say why the amount of $16,000 was re-deposited.)
There is also a copy of a document dated 25 January 2000, addressed to the Defendant from the ANZ Bank, being a letter and attached loan offer, the latter of which set out the terms and conditions of the loan.
On the third day of the hearing, the Defendant tendered some documents, without objection, from a firm of solicitors which had acted for him on the purchase of the Mount Pritchard property (Ex. D2). These documents revealed that, as stated previously, the stamp duty paid on the Contract was $4,444 and that the legal costs and disbursements of sale were $1,335. The documents also revealed that the deposit that had been paid on exchange of contracts was $18,000, leaving the balance payable on settlement to be $152,000, plus rate adjustments (which were disclosed as $153.47).
Exhibit D2 also revealed that, on settlement, the ANZ Bank had provided the finance to complete the purchase in the amount of $99,084.10 and that the Defendant had paid the balance of $53,069.37, by bank cheque.
There is next a document, in the handwriting of the Defendant, dated 28 May 2004, and signed by him, which is in the following terms: "Re Kruno Bilic - I declare that I, Mijo Victor Bilic, am the owner of the property at No 1, Winstanley Place, Mt Pritchard, 2170. I allow my uncle, Kruno Bilic, to occupy the above property rent free for as long as he may live."
The Defendant gave evidence that he had written, and signed, the document at the request of the deceased. He said that he "believe[d] [the deceased] intended to submit [it] to Welfare department confirming that I owned the property and that he occupies the property rent free".
When a call was made for the document by counsel for the Plaintiff, the original was produced by the Defendant and it was then tendered (Ex. D1). Counsel suggested that having produced the original meant that the Defendant had not provided it to the deceased. It was not suggested, however, that Ex. D1 had not been written on the date that it bore.
On 30 August 2012, a caveat was recorded on the title to the Mount Pritchard property (Ex. P1/11). A copy of the caveat bearing the registration number is not in evidence. The deceased was identified as the caveator and the interest disclosed on the caveat was an "equitable estate". The facts relied upon in the caveat were as follows: "Caveator gave his brother YAKO BILIC $120,000.00 cash from the proceeds of sale of his property in Croatia as a contribution towards the purchase of the land. Land is registered in caveator's son's name. It was agreed that they would share ownership. It was also agreed that because of Kruno Bilic's contribution he would reside in the property rent free which he has done so since the date of purchase."
The reference to "the caveator's son" is clearly an error, as the Mount Pritchard property was registered in the caveator's nephew's name. (It is not known whether it was an error of the deceased, or an error made by the author of this version of the caveat.) However, this is the only signed copy in the proceedings: Ex. P1/10.
Interestingly, the deceased's signature does not appear on the copy of the caveat which is in evidence. However, Sesilia Latu, described in the caveat as a "Practising Solicitor" is identified as a witness to the "Signature of declarant" who is identified as the deceased.

Other Documents

Part of the contents of Ms Latu's file that had been created when she took instructions, over several meetings with, the deceased is in evidence. (I bear in mind that these documents were created in 2012, in discussions with the deceased held at that time.)
The file contains statements said to have been made by the deceased to her. Ms Latu stated in her affidavit that "Kruno's wife did not say much at the meeting. Her English wasn't very good. Her son explained a few things to me, although I do not have a specific recollection of any of those things now. Mostly Kruno did the talking and told me what he wanted."
No objection was taken to the documents containing the statements said to have been made by the deceased. Even though Ms Latu was not available for cross-examination, it was not suggested that the statements said to have been made by him recorded by her in the documents had not been made.
It is clear that some of the statements said to have been made by the deceased were inconsistent with the other evidence relied upon by the Plaintiff.
Particular matters in Ms Latu's file which relates to the caveat, which seem to be relevant to the Court's determination of the issues are: 1. There was no evidence to demonstrate what amount, if any, the deceased had received from the sale of a property in Croatia or Queensland (if indeed there was such a sale of any property); nor was there any documentary evidence that the deceased had $120,000 in cash available to him in late 1999 or early 2000. (I have earlier referred to the statement made by the deceased's solicitors in the letter dated 13 September 1997, in which it was asserted that the deceased had purchased a two bedroom unit for his brother, Mila Bilic, in Croatia for $A130,000.) 2. Another document (Ex. P1/12) is in the following terms: "FACTS for Caveat. - The caveator had a verbal agreement with his brother Yako (Jack) BILIC that he caveator would contribute $120,000.00 to the purchase of 1 Winstanley Place, Mount Pritchard Folio Identifier _________ - The caveator gave to his brother Yako (Jack) BILIC $120,000 in cash which was from the proceeds of his sale of his property in Croatia. - Yako (Jack) BILIC advised the caveator that he would put the house in his name (the caveator) and Yako (Jack) son's name who is currently the sole registered proprietor. - The caveator has just discovered that in fact his name is not on the house and has asked his nephew to add his name with no agreement. - The caveator has been the sole resident of the land since the purchase rent free as initially agreed with his brother." (The evidence reveals that the deceased discovered that he was not registered on the title to the Mount Pritchard property as early as about 2005.) 1. A statement appears in the following terms (at Ex. P1/93): "I gave my nephew $150K to put towards paying the house which I reside in and had agreed with him to put my name on the title, now I have just discovered that he didn't actually put my name on the title, what would be the best way for me to put my name on that title? Do I have a right to put a caveat on the title? What proof would I need to provide if any as I gave him the money in cash?"
Also forming part of the evidence relied upon by the Plaintiff are statements made by the deceased to the Plaintiff's son, and written down by him, as well as a statement written down by Ms Stewart, a neighbour and friend of the deceased. As no objection to these statements was taken, despite the fact that they appear to have been written when there must have been some contemplation of litigation, it is necessary to refer to the statements in detail.
There is also a series of documents, written out by David, and signed by the deceased, taken from Ex. P2. I set out the documents verbatim and in the order that they appear in the original handwritten notebook: "I CONFIRM - 21/9/12 As unable to supply receipts for work conducted I have written to justify. Firstly back gate placed to enclose back yard cost approx. - arranged cheaply $500.00 Wire screen door on front entry door - cost - $800.00 approx. Hand rail put on front stairs cost approx. - $100.00 Roof of house and garage cost approx. $1500.00 due to leaks. New guttering done on house approx. $1000.00 Replace hot water system as leaking approx. cost - $1500.00 Repaint inside of house to look better approx. $1000.00 Put car port in back yard approx. $1000.00 Barbeque area - approx. $600.00 Placed back colourbond fence & raised up to stop water coming into yard - cement & fence approx. $1200.00 Raised side fence & cement to again stop water approx. $300.00 Painted eve's under gutter around house approx. $600.00 and carport approx. - $500.00 Handles on doors approx. - $300.00 Shower in bathroom approx. $100.00 The above information to be true & factual." 11.05.2000 First of all this is The story of my life 11.05.2000 I previously lived in Fairfield with my friend Coca in unit. I pay rent on the unit began to fear and scared out of my money. One day I started to think there was an intention to buy a house for Live. Many thanks to the hard work morning to night everyday. Than I can say from my hardwork. I got money superannuation from company I worked a total 120000 $ I take the money (sic) 120000 $ to Croatia my intention to give it to my brother (Milan Bilic) but up there it turns out my brother had passed away. So I bring back the money 120000 $ to Sydney. After that me and my friend Coca Looking house in area Mount Pritchard. At that time I was still living in fairfield with my friend Coca in unit. So I just asked with my brother Jack Bilic to buy a house to live in so I give money to my brother jack, money in the form of checks and cash to buy a house. My brother (jack) gave my money 120000 $ to his son (Mio (sic) bilic) to buy house together. They go to the bank to put my money in Marrickville. At that time my condition very very sick. I didn't know but I remember they take me to some place and push me and threat me to sign letter. I didn't know what kind of letter. I not yet read the letter. they push me to sign the letter. Even they not explain to me at all about the letter they push me to sign. I am not clear. I just trust with them after that I realise they trick me. They not put my name on The house they already bought. They say to me As long I still Life I stay in this house (1 Winstanley Place). after I passed away this house belong to Mio (sic) (jack Bilic son). I shock start feel Pain in my chest (my heart). I nearly got my first heart attack. they trick me. they use my money to buy house but they not honest people. I trust them because they family but they trick me. 23.03.2002 I was married with Thania (23.03.2002) I feel good fit to be with hers can live together until now. less fuss in the household. though I am retired (pensioner). Thania understand she must working hard and equally bear the burden. during this Thania also helped me a lot like clean the house, looking after me + house where we lived together. at home is a lot damage, that must be fixed. like paint inside the house, climbed up the roof to clean leaves of the trees so that water does not get into the house when it rains. brother jack and the family does not care what ever the situation is. Was just me and my wife who care for the state housing conditions. though my wife (thania) was busy working 5 days. Myself and my wife still maintaining the house is kept clean, therefore I ask the court to investigate this problem. Why on this house letters no have my name (Kruno bilic)? Only name (Mio (sic) bilic)? Date 15. 09. 2012 My brother said he wanted to return my money. but until now nothing at all instead just said as long as I Lived in this house but if I had died this house belongs to my brother son (Mio bilic). After I heard I had a heart attack. Unexpected me duped until now I am still seeing a profesor (sic) at liverpool Hospital dominic Leung and fairfield hospital. My neighbour at the same time my wife who brought me to the hospital Liverpool. about 3 days my lif (sic) was gone (coma). I began to think because my situation worse. I was worried about my wife and son to date there is no intention of my younger brother to reverse my money. after I plug caveat date 3.9.2012 at home this time my younger brother call me by phone told me after I die. Him want my wife and my son evicted from the house. date 12.09.2012 time at 10 am approximately. My brothers daughter (Anna bilic) came to threaten me. I also want to get kicked out from this house. Date 14.09.2012. I was taken to the hospital by ambulance to the hospital Liverpool. I begged for help. desire I want to sue in the courts processed the issue with the younger brother. family younger brother just want to take my inheritance free of charge. Date 3 - 09. 2012 after making the caveat they are not happy. dated 3.9.2012 my younger brother call me via telephone tell me why put caveat to this home. I said I did not want my wife and kids on the street. my younger brother (Jack bilic) told me my wife and my son would expel me after I am dead angry said to me. date and time 12.09.2012 approximately 10:00 a.m. Anna bilic (jack bilic daughter) + Marco Bilic (anna bilic) came to threaten me. she want evicted me from the house include my wife (Thania) and my son (David) had to go out. I was not happy with the way my younger brother did this to me and my family (my wife thania + david). I working hard to get this money and buy this house together with mio bilic (jack bilic son) but them not put my name to this house only his son name (Mio bilic) and not my name. I ask the Court overcame this issue (sic)."

Some General Matters

Regrettably, Ms Sesilia Fehoko Latu, the solicitor who had sworn an affidavit that was read in the proceedings in the Plaintiff's case, relating to events surrounding the instructions for, and the preparation of, the caveat, was unable to attend for cross-examination, as she was said to be unwell on each of the second and third days of the hearing.
Objection was taken to the reading of her affidavit and the contents of a file, which documents had been incorporated in a bundle of documents marked Ex. P1: T 123.24 - T123.25.
I took the view that the affidavit of Ms Latu should be read (subject to any objection not made). I remained of the view, previously expressed by me in Fulton v Fulton [2014] NSWSC 619, at [111], that: "…affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886, per Hamilton J, at [5]."
It is necessary to discount Ms Latu's evidence because her affidavit is said to record what she says she was told by the deceased. Yet, the conversations that are said to have occurred were reported to her many years after the events, and they must, of course, involve her interpretation of what was said to her by the deceased.
Some of the documents that were said to reveal matters seriously in dispute, which were objected to by counsel for the Defendant, without opposition by counsel for the Plaintiff, were treated as having been removed from Ex. P1 (pages 22-47, 49-53, 55-59, 75 and 94-104).
The standard of proof in this case is on the balance of probabilities. Section 140 of the Evidence Act provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. I have borne s 140 in mind.
Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence in a case such as this, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
In Evans v Braddock [2015] NSWSC 249 at [72]-[77], I wrote: "I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. … The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval."
I should also refer to Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, at [34], in which Keane JA (as his Honour then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval in New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, at [56], by Leeming JA (with whom Barrett JA and Tobias AJA agreed).
In Neale v Bank of Western Australia [2014] NSWSC 315, Hammerschlag J at [198] made the following observations: "Where a party seeks to rely upon spoken words as a foundation for a cause of action the conversation must be proved to the reasonable satisfaction of the Court. This means that the Court must feel an actual persuasion of its occurrence or its existence. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319."
In this case, both parties to a lesser, or greater, extent, rely upon the conversations said to have taken place with the deceased.
It is clear from the uncontested evidence, that the Plaintiff was not present in Australia at the time of the events that give rise to the dispute. Naturally, she was unable to bring direct evidence to support the case being advanced. Her case depends, almost entirely, upon what she is, and others called in her case are, said to have been told by the deceased, in some instances, many years after the events that occurred.
Other than Mr Alavanja, to whose evidence I shall refer, there is no witness called in the Plaintiff's case who was present at the time of the purchase of the Mount Pritchard property.
In relation to the Plaintiff's evidence, I also remember that it was necessary for her to give her evidence through an interpreter. Yet the conversations she is said to have had with the deceased were in English: T30.33 - T30.38.
Ms Latu, in her affidavit, described the Plaintiff as being present at her first meeting with the deceased and wrote that the Plaintiff's "English wasn't very good". It is hard to accept that the Plaintiff would be able to give some of the evidence of conversations that she gave bearing in mind that she does not speak, or apparently understand, English well.
By way of example, the Plaintiff accepted that she did not know what the reference to "his interest in the house" meant: T20.35 - T20.47. She gave specific evidence of Ms Stewart, a witness called in the Plaintiff's case, recommending that the deceased "should speak with a lawyer about registering a caveat on the property", and that the deceased had told her Anna asked him if he knew about the caveat.
There are also the written statements that were made, and signed, by the deceased: Ex. P2. It is likely that these statements were made by the deceased at, or about, the time the dispute between the deceased and the Defendant had already arisen. Again, these statements were made many years after the relevant events.
The statements about what the deceased said are obviously hearsay within the meaning of s 59 of the Evidence Act 1995 and, therefore, prima facie, inadmissible. They were read, and tendered, under the provisions of s 63(2)(a) of the Evidence Act.
The deceased is unavailable to give evidence about the asserted fact because he is dead. The evidence is given by witnesses who are said to have participated in the conversation and who, therefore, heard the representations being made. Because of the deceased's unavailability to give evidence, s 67(1) of the Evidence Act requires that reasonable notice in writing should have been given to the Defendant of the Plaintiff's intention to adduce the evidence. Section 67(3) goes on to specify what the notice must state.
Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") rule 31.5 provides that, unless the Court otherwise orders, a notice under s 67 must be served 21 days before the date upon which the Court determines the date for the hearing of the proceedings.
Neither party gave notice in the form required by s 67 within the time required by the UCPR, or at all. However, s 67(4) provides that if notice has not been given, the court may, on the application of a party, direct that one, or more of those subsections, is to apply despite the party's failure to give notice.
In Quintano v BW Rose Pty Ltd [2008] NSWSC 1012, Brereton J, at [6], wrote: "The power of the court to direct that s 63(2) apply, notwithstanding the failure to give notice, has been considered in a number of cases. The essential consideration which those cases identify is the prejudice to the other party that would be occasioned by dispensing with the requirement to give notice [see, for example, Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273 at 282 (Hill J); Maddock v Maddock [2005] FamCA 868; Kayes & Kayes [1999] FamCA 357; (1999) 24 Fam LR 51 2; (1999) FLC 92-846]. Some of those cases gave weight to the circumstance that the evidence was uncontroversial or not seriously in dispute, and I agree that that cannot be said, at least fully, in question here."
In this case, the evidence relied upon by each party was served well before the hearing. Neither gave notice to the other of an intention to object to that evidence and at the hearing no objection was taken to the evidence.
The way in which the death of the relevant parties, or one of them, is taken into account is in the course of deciding whether, on the balance of probabilities, the claim has been made out. As well, while this is more a matter of practice than of law, the Court treats uncorroborated evidence of communications with deceased people with considerable caution, and regards as of particular significance any failure of a claimant to bring forward corroborative evidence which was, or ought to have been, available: Plunkett v Bull (1915) 19 CLR 544 at 549.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789. Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
In relation to the evidence of the Plaintiff and of the Defendant, I also remember that in Richardson v Armistead [2000] VSC 551, Hansen J, at [36], stated that: "In such circumstances the self-interest of a claimant to give evidence favourable to his or her case is obvious... in such a case much caution is exercised before the evidence of the claimant is accepted."
Finally, as has recently been noted by Robb J in McNamara v Nagel [2017] NSWSC 91, at [45] - [46]: "In cases such as the present, which are likely to turn on events and conversations between a witness and the deceased, the witness will be required to give evidence without the benefit of corroboration by the deceased, and the party who wishes to challenge that evidence will be limited in its ability to directly contradict the witness, because the party was not a witness to the events the subject of the evidence. There is no course available to the court other than to assess the credibility of the evidence given by the witness, in the light of the fact that the witness has sworn or affirmed as to the truth of that evidence, while taking particular care to weigh the self-interested nature of that evidence, and to strive to measure the reliability of the evidence against an analysis of the objective facts."
Each of the persons who could have been called by the Defendant, other than, perhaps, Mr Bell, was called, and each was cross-examined. I did not find the evidence given by him, or her, to be inherently improbable, and to some extent, the Defendant's evidence is corroborated by contemporaneous documents.

Credibility of the Witnesses

Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version is the more likely and plausible.
Subject to one particular matter, in relation to the Plaintiff and each of the other witnesses called by her, I am satisfied that, for the most part, each endeavoured to tell the truth, particularly in recounting what she, or he, was told by the deceased. That does not mean, however, that what the deceased said was, in fact, true. As will be demonstrated, there was much of what he is reported to have said that was inconsistent with the contemporaneous documentary evidence.
Furthermore, any statements that the deceased might have made after the purchase of the Mount Pritchard property concerning the circumstances surrounding that acquisition cannot be determinative of the existence of a trust (be it a resulting trust or a constructive trust) over that property in favour of the Plaintiff. A determination in that regard must depend upon the objective facts and circumstances surrounding the acquisition of the Mount Pritchard property at the time.
The matter to which I refer is David's evidence that he and the deceased went together to the Marrickville branch of the Australia & New Zealand Bank to speak with an officer of the Bank and that they had also gone to a lawyer, in Fairfield, to discuss the problem: T37-T38. He later stated that he had done so in 2006 or 2007: T53.43 - T54.05. These are stark omissions from David's affidavit.
David also added that after the meeting with the lawyer, the deceased did not discuss "the problem with me, [he] discussed the problem with Mum". Any conversation between the deceased and the Plaintiff about the deceased visiting the Bank, or speaking with a lawyer in Fairfield, in 2006 or 2007, does not appear anywhere in the Plaintiff's affidavit.
Next, I shall endeavour to deal with essential elements of what the deceased said or wrote.
I am satisfied that the deceased, in conversation, did refer to the Mount Pritchard property as "my house". Indeed, Anna, when she gave her evidence also referred to it as "Kruno's house", but was quick to point out that this was described in that way because he was entitled to live there until his death.
I accept also that the deceased is said to have told the Plaintiff "I have lived here since I bought it in 2000. I paid Jack $120,000 towards the house and he paid the rest by getting a loan."
Leaving aside the amount, it is clear that whilst he had lived in the Mount Pritchard property since the purchase, from the documents referred to earlier, it is equally clear that neither the deceased nor Jack was the purchaser. The Defendant was the purchaser and the recipient of correspondence relating to its purchase.
It is also clear that Jack did not pay the balance of the purchase price by getting a loan; the Defendant did. The amount he borrowed was $100,000.
I am also not satisfied that what the deceased said to the Plaintiff and to others about the amount that he had provided to Jack or to the Defendant, namely $120,000, was true. I reach this conclusion for the following reasons.
Firstly, the amount stated by the deceased is inconsistent with the document, dated 23 November 1999, signed by him, which document specifically referred to the amount of $83,000. Secondly, the amount of $120,000 was inconsistent with the Defendant's bank record which reveals the amount of $83,820.14 having been the account balance as at 22 November 1999. Thirdly, it was not put to the Defendant that there was any logical reason for not depositing all of the amount provided by the deceased, but only depositing the amount stated by him as having been provided by the deceased. It would be a remarkable coincidence that the amount in the account was so close to the amount said to have been provided by the deceased. Fourthly, Mr Alavanja gave evidence that at the time he drove the deceased to the Newtown home (which I infer was in November 1999), the deceased told him that he had already given "them" $100,000 in cash, and that the bank cheque (which Mr Alavanja saw and believed was for $60,000 or $65,000) "will be the last part of the payment". This conversation with the deceased would mean that the deceased provided $160,000, or $165,000, to the Defendant. There was no claim made in these proceedings suggesting that either of those amounts was provided by the deceased. Fifthly, there is simply no evidence at all that the deceased, in November 1999, had $120,000 available to provide to the Defendant. I have referred to the only bank statement in the deceased's name which reveals an amount held of less than $1,000. (Of course, there was also no evidence that the deceased had $83,000, which amount the Defendant accepted had been provided in November 1999 to him.)
I have not forgotten the evidence given that the deceased is said to have sold property in Queensland, or in Croatia, to amass the amount that he provided to the Defendant. However, there is simply no corroborative evidence. One might have thought that a vendor's property search, in relation to any Queensland property that had been sold, could have been carried out, which search would have revealed the title details of any property in the name of the deceased that had been sold by him. A copy of the Transfer relevant to the sale of that property that the deceased had sold in Queensland could also have been obtained. The Transfer would have revealed the date of sale and the consideration provided by the purchasers.
The statement that he sold a property in Croatia is, in any event, inconsistent with the deceased's statement that appears in the document written by David, that "I take the money (sic) 120000 $ to Croatia my intention to give it to my brother (Milan Bilic) but up there it turns out my brother had passed away. So I bring back the money 120000 $ to Sydney" (Ex. P2).
It is also inconsistent with a passage from the same entry, namely that "….from my hardwork I got money superannuation from company I worked a total 120000 $" (Ex. P2).
The Plaintiff also asserts that the deceased insisted that no contribution could have been made by the Defendant, or by Jack, to the purchase price of the Mount Pritchard property, as "Jack didn't work and [the Defendant's] income was not enough". He also said: "Where would [the Defendant] have gotten the money to pay for the house. He didn't have any money and neither did Jack."
In her oral evidence, the Plaintiff repeated that the deceased had told her that the Defendant "hadn't paid anything at all": T21.31.
The statements by the deceased are inconsistent with the statement made by him to the Plaintiff referred to above, namely that the deceased had paid Jack $120,000 towards the house and that Jack had paid the rest by getting a loan.
They are also inconsistent with a conversation that Ms Stewart is said to have had with the deceased not long after he had moved into the Mount Pritchard property, in which the deceased said: "My nephew had to borrow $40,000 to cover the difference. But the rest was my money. I paid $120,000 for this house."
The statements are also inconsistent with the deceased's statement made to Mr Alavanja, which was to the effect that the deceased owned three-quarters of the Mount Pritchard property and the Defendant owned one quarter and to the statement made to Ms Latu that "my brother purchased the house but I paid for most of it".
The statement that the deceased gave the money to Jack is inconsistent with Mr Alavanja's evidence that he saw the deceased hand a cheque for either $60,000 or $65,000 to Anna: T70.12 - T70.17. Also, of concern is Mr Alavanja's statement in his affidavit (para 11) that he "saw [the deceased] hand the cheque to the defendant" (although Anna was said to be present).
It is clear from the contemporaneous documents, that the Defendant borrowed $100,000 and that almost all of it was advanced on the settlement of the contract for the purchase of the Mount Pritchard property.
Despite the deceased's apparent knowledge of the Defendant's interest in the Mount Pritchard property, the Plaintiff stated that she could not recall "at any time" when the deceased spoke directly to the Defendant about the Mount Pritchard property: T33.03 - T33.05.
Furthermore, even though the original document is dated 28 May 2004, it is difficult to reject the Defendant's evidence, on this topic. In this regard, I note that there was no evidence that the Plaintiff had made any request to the Department of Social Security to have any documents relating to the deceased produced. In this regard, subject to obtaining Probate, the Plaintiff was the legal personal representative of the deceased. The Defendant's evidence in this regard does not seem inherently improbable.
If, as was put to the Defendant, the document had not been prepared on the date it bears, the request to the Department, and the production of any documents in any file that was produced, may have resolved the issue.
There were aspects of David's evidence that I do not accept. The first is that "The Defendant and his family, on numerous occasions, told Mum, Dad and I to leave the house." In cross-examination, David said that he could not remember any occasion when the Defendant had made such a threat and then said that "this conversation was between Dad when he spoke on the phone, Dad just told Mum and me that his nephew and family threatened to kick us out": T49.31 - T49.46. Later, he seemed to accept that he had never heard the Defendant threaten the deceased or his family with eviction: T51.41 - T51.48.
There is simply no other evidence to support that assertion and it would be inconsistent, at least so far as the deceased was concerned, with what the Defendant, Jack and Anna, each acknowledged, which was the deceased's right to remain in the Mount Pritchard property for the whole of his life.
Another aspect of David's evidence that I find disturbing relates to the documents he said that he prepared with the deceased. There is a reference in the document said to have been written on 12 September 2012 to "I ask the Court to overcome this issue". (It appears as well, in another place in this document.) Why those statements appear is not explicable in circumstances where David denied that Ms Latu had asked the deceased and David to have that document prepared: T46.15 - T46.39.
Whilst there is some evidence from Ms Stewart that she was present at a conversation in which Anna said that if the deceased kept pushing the issue of not being named on title, "I'll kick you out", there is no evidence that the Defendant was present. The deceased's response to Anna is said to have been that she could not kick him out "I own this house. I paid for it." (Each of these statements, on any view, is exaggerated.)
Interestingly, Ms Stewart, whilst somewhat hesitant about having been told by the deceased about any condition having been attached to the payment provided by the deceased, ultimately did seem to agree that her "understanding was that he was to reside there [the Mount Pritchard property] until the day he passed": T57.09 - T57.12.
Ms Latu deposed that the deceased had said words to the effect that "my brother and I agreed that my wife and her son can stay in the house after I die, but I'm worried that after I die they will try and kick her out". There is simply no evidence at all about any such agreement with Jack or, more importantly, with the Defendant. To the contrary, the evidence from the Plaintiff, and from David, referred to above is that there were numerous threats to have all of them removed from the Mount Pritchard property.
The Plaintiff gave evidence that it was Jack who had "pressured him to sign a document". However, no suggestion was made to Jack in cross-examination, that he had done so. Indeed, there was not one question asked of Jack about any document that the deceased had signed. (David gave evidence of his conversation with the deceased to the effect that "they made me sign some papers and I don't know what the papers said and I'm worried it is a big mistake" (my emphasis).
Much more consistent with contemporaneous documents and some other evidence called in the Plaintiff's case, is the evidence of the Defendant who stated that the deceased, whilst visiting, had said that "he wanted a place to live and that his friend Pucar was selling his house. He suggested that if I am interested in buying the house he would assist me with the purchase by making a non-refundable gift of $83,000, in return for him to live in the property as long as he was without paying rent".

Determination

My task in this case is to weigh the conflicting testimonial and documentary evidence. Overall, I prefer the evidence of the Defendant as to the events that occurred at or about the time of the purchase of the Mount Pritchard property. As stated earlier, the deceased, according to the evidence of the witnesses who stated what he had said to each, appeared to give a number of inconsistent accounts about matters that, one would think, would have been important to him.
As stated, also, there is no dispute that the deceased provided (to use a neutral word) some money to the Defendant, which money was used by him as part of the purchase price of the Mount Pritchard property. The amount contributed is in dispute, but on the Plaintiff's case, it was $120,000, whilst on the Defendant's case, it was $83,000.
On the Defendant's case, the amount of money, whatever it was, was provided to him as a gift, upon the basis that the deceased would be able to live in the Mount Pritchard property for as long as he wished to do so. There is no dispute that the deceased did live there continuously from shortly after its purchase to the date of his death.
On the Plaintiff's case, as framed, the amount of money, whatever it was, was provided by the deceased to the Defendant upon the basis that he would have a legal interest in the Mount Pritchard property - that is, that the deceased would be one of two registered proprietors and that the money would be used to acquire a joint interest in the Mount Pritchard property. Of course, that is not what was pleaded, which was simply that "the deceased understood that he would be a registered proprietor of the property as tenant in common with Jack Bilic" (Paragraph 12 of the Points of Claim) and that "the deceased understood that his registered interest in the Property would be approximately 70% and that Jack Bilic's interest registered interest in the Property would be approximately 30%" (Paragraph 13 of the Points of Claim).
The difficulty with these assertions is that based upon the documents that I have read, the deceased could not have reasonably understood that his brother, Jack, was to be a registered proprietor of the Mount Pritchard property. There was never any suggestion that anyone of the family, other than the Defendant, was the borrower of $100,000 which would be used in order to assist in the purchase of the Mount Pritchard property.
In answer to the first issue, namely, whether the amount provided by the deceased to the Defendant in November 1999, and used by him to purchase the Mount Pritchard property, was $120,000, or $83,000, the Plaintiff has not established to my satisfaction that it was $120,000. It seems to me more probable, bearing in mind the contemporaneous documents, that the deceased provided the amount of $83,000.
In relation to the second issue, namely was the amount provided to the Defendant, whether $120,000 or $83,000, intended by the deceased to be a gift (the entitlement to live in the Mount Pritchard property is not an issue), I am satisfied that it was so intended. Again, the contemporaneous document signed by the deceased in November 1999 is relevant.
Even without the document, I am of the view that it is more probable that a gift to the Defendant was intended, particularly, as there was a condition to be attached, namely, that the deceased would be permitted to reside in the Mount Pritchard property for his life. In this regard, it is to be remembered that prior to the events that occurred, the deceased had been looking for a home in which he could be accommodated. At that time, he had no wife, or other close family, who was, or were, dependent upon him. Indeed, his closest family was Jack and his family.
It follows that I am satisfied that the Defendant has rebutted the presumption of a resulting trust.
Accordingly, the Court: 1. Orders, pursuant to UCPR rule 7.10(2)(b) that the Plaintiff be appointed a representative of the deceased person's estate for the purposes of the proceedings. 2. Declares that the deceased has no right title or interest in the Mount Pritchard property, being the whole of the land in (inserting proper title details which are omitted for reasons of privacy). 3. Orders that the caveat (inserting the caveat number) on the title to the Mount Pritchard property be removed within 14 days. 4. Orders that the whole of the Plaintiff's proceedings otherwise be dismissed. 5. Orders the Plaintiff to pay the Defendant's costs of the proceedings. 6. Orders that the Plaintiff is to vacate possession of the Mount Pritchard property (inserting proper title details which are omitted for reasons of privacy) on or before the day being 6 months from the date of the orders; 7. Leave is granted to the Defendant to issue a writ of possession for the Mount Pritchard property on the day being six months and one day from the date of the orders. 8. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.
When the orders are entered, the title reference to the Mount Pritchard property and the caveat number will be inserted.

Amendments 06 April 2017 - Catchwords added to Cover Sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2017

Trustee and Guardian Act 2009(NSW)

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Judgment (14 paragraphs)

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