Torok v Becker

Introduction

1. Broadly, by way of introduction, the dispute between the parties is yet another unfortunate example of disputes between siblings over a deceased parent's estate, involving complaint as to events that occurred prior to the deceased's death with allegations (amongst others) of undue influence and unconscionable conduct on the part of the defendant.
2. The family in question is the Becker family. Mrs Isolde Becker (the deceased) died of pneumonia on 13 July 2019 aged 82. The deceased had survived her husband, Dr Theodore Becker, who had died three years earlier, aged 93. The deceased and her husband had two children, Lara Caroline Torok (the first plaintiff) and David Theodore Becker (the defendant). I will refer to the family members, intending no disrespect, by their first names. I note that Lara is also the second plaintiff in these proceedings in her capacity as the legal representative of the estate of the deceased, Lara having been appointed by Robb J as the estate's representative for that purpose (see Torok v Becker [2019] NSWSC 1662 (Torok v Becker (2019)) (see also the relevant principles in relation to such appointments referred to in Bayside Council v Estate of Goodman [2019] NSWSC 530; and Hewitt v Gardner [2009] NSWSC 705).
3. By her last Will dated 31 August 2016, the deceased made provision for each of her two children in the form of pecuniary legacies ($1 million to Lara and $2 million to David), with the residue of the estate to be divided equally between them. At the time of making of the Will in August 2016, Lara says that the net value of the deceased's estate (which included a property at Glenhaven) was estimated to be not less than $3,037,800. David appears not to dispute this, since he says that, at the time of the 2016 Will, it was estimated that the deceased's then residence at Glenhaven would sell for between $6 million and $7 million (David's 17 March 2020 affidavit at [97]-[98]). Whatever may have been the market value of the Glenhaven property in August 2016, it is clear that, as at that time, the deceased had not insignificant assets from which she would no doubt have anticipated her testamentary intentions would be satisfied. As it was, however, by the time of her death in July 2019, the deceased held no real estate, only a small number of shares, cash totalling $2,917.57, and (on David's evidence) very little personal items or furniture.
4. The circumstances in which the deceased's estate was diminished to such an extent, including by way of the purchase of a house in Beaumont Hills in the names of David and his wife (Susan Mary Becker) (using some $1,522,272.03 of the proceeds of sale of the deceased's Glenhaven residence) (the Beaumont Hills Property) and by way of electronic transfers of substantial funds from the deceased's bank account to David's account or, it is alleged, for his benefit) are the subject of the undue influence and unconscionable conduct claims now brought against David. The electronic funds transfers (whether used for the purchase of the Beaumont Hills Property or otherwise for David's benefit) are also the subject of a claim that David is liable, as a fiduciary, to account therefor.
5. In summary, Lara contends that David received (or had the benefit of) funds totalling some $2,958,525.13 from the deceased following the making of her August 2016 Will and that, from the period after David and his family moved into the deceased's Glenhaven residence in 2014, David benefited by the receipt of amounts (including the abovementioned funds) totalling $3,298,326.13. There is also a claim in relation to the apparent disposal by David of various chattels of the deceased.
6. In the alternative, in the event that the amounts received or transferred to David or for his benefit are held to have been authorised by the deceased and/or were valid gifts to him, then Lara brings a claim for provision pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act).
7. For the reasons set out below, I am of the view that the primary claims brought by Lara are made good and that it is therefore unnecessary to deal with the Succession Act claim (but I will nevertheless set out, in due course, what would have been my findings in relation to that claim had it arise for determination).

Background

1. By way of background, as already noted, the deceased and her husband had two children (Lara and David). The deceased's husband (Dr Becker) was a general practitioner who continued to practise as a doctor until he retired in his mid-80's. The deceased had assisted Dr Becker in his medical practice as a secretary until the birth of their children. The deceased was Dr Becker's second wife and Dr Becker had three children from his earlier marriage. Those children do not feature in this dispute (although there was some evidence from Lara that Dr Becker had told her that he had made provision for each of his first three children - see T 62, which may serve to explain his undoubted generosity also to Lara during his lifetime).
2. In 1988, the deceased and Dr Becker, as joint tenants, purchased a property in Glenhaven, NSW (the Glenhaven Property). At some time thereafter, they demolished the existing house on the property and built a large six-bedroom house on the land, financed by a $500,000 loan from the Commonwealth Bank of Australia (CBA). They lived in the Glenhaven Property (which became the family home) for much of the rest of their respective lives.
3. On 21 December 1995, Dr Becker and the deceased made mirror Wills (and in March 2007 and April 2008 he and the deceased made mirror codicils). I will refer in due course to the content of the relevant testamentary documents (see [38] below).
4. Following her schooling, Lara remained living with her parents while she completed degrees at Sydney University in occupational therapy and physiotherapy. David did not pursue a tertiary education. He enrolled in an information technology course and subsequently established a business of carpet overlocking and binding, manufacturing mats, rugs and floor runners from carpet offcuts.
5. In 2004, David left the Glenhaven Property. He and Susan moved into a home they had built on land they had purchased in Kellyville (the Kellyville Property). Also in 2004, Lara married Adam Torok, who is now a practising solicitor but who was then still a student, studying law and working in various part-time jobs. Following their wedding, Adam moved into the Glenhaven Property with Lara and her parents.
6. Lara and Adam remained living at the Glenhaven Property until July 2005, when they moved into their own home at Baulkham Hills. Later, for a period of time in 2007, Adam and Lara moved back into the Glenhaven Property while they renovated a residence on land they had purchased at Wallacia (the Wallacia Property).

Financial accommodation provided to Lara (and Adam)

1. It is not disputed that, over the course of their lives, Dr Becker and the deceased provided financial accommodation to Lara (and Adam) by way of the provision of guarantees to secure a succession of loans. It is relevant to note that the financial accommodation consisted in the first instance of the provision of guarantees secured over the Glenhaven Property (not loans, as such, as was suggested in some of the evidence). However, in 2007 (when Dr Becker retired) the extant loans which were then secured by way of those guarantees were paid out by way of refinance obtained by Dr Becker and the deceased from a Homesafe "reverse mortgage" (about which I will say more in due course); and later, according to Lara, after Lara and Adam had paid a certain amount towards repayment of the amount referrable to the loans that had been guaranteed for their benefit, Dr Becker (and the deceased) in effect forgave the balance of the amount repayable by Lara in that regard.
2. Lara accepted in cross-examination that she had approached her parents for financial assistance over the years and that they had been generous (in her words, "amazing") in the provision of that assistance. Both Lara and Adam accepted that they could not have acquired the assets that they did (at those times) without the assistance of the deceased and Dr Becker (see, for example, Lara's evidence at T 62).
3. Pausing here, it seems that David may have a sense of grievance that similar accommodation was not made to him as it was to Lara (and Adam), at least insofar as the financial accommodation to his sister was a matter on which no little emphasis was placed in submissions in this matter and, according to Adam, David pressed him for information about this. In that regard, Adam's evidence is that (by 2015) David had questioned him a number of times as to the amount of financial accommodation his parents had given Lara and Adam with regular frequency: along the lines, "[s]o how much money have my parents given to you and Lara?" and "[y]ou must know what they gave you" (see Adam's 9 April 2020 affidavit at [20]).
4. Whether or not David did feel aggrieved at the disconformity in provision made as between he and Lara during their lifetimes, it is evident from the deceased's testamentary instruments and, in particular, the instructions given by her in relation to her ultimate Will (as recorded by her, and David's, solicitor) that the deceased wanted to "even things up" between her two children.

(a) The Homebush Guarantee

1. The first of the guarantees (the Homebush Guarantee) was in connection with the purchase by Lara and Adam in November 2004 of an apartment in Homebush. Lara says this was an investment property bought at the suggestion of her father. CBA (with whom the deceased and Dr Becker had their home loan) provided the funding for that purchase (apart from the deposit, which Lara says she and Adam provided out of their savings). The loan secured by the Homebush Guarantee was serviced by Adam and Lara directly with CBA. The Homebush loan was paid out in full when the Homebush Property was subsequently sold in 2006 at around the time of the purchase of the Wallacia Property (see below).

(b) The Baulkham Hills Guarantee

1. In July 2005, Adam and Lara purchased a home in Baulkham Hills. Again, the purchase was financed by CBA. In June 2005, the deceased and her husband gave a guarantee in respect of the Baulkham Hills home loan (limited to an amount of approximately $450,000) (the Baulkham Hills Guarantee). The loan secured by the Baulkham Hills Guarantee was again serviced by Adam and Lara directly with CBA. The Baulkham Hills loan was paid out in full when the property was sold in 2006 (at the time that Lara and Adam acquired the Wallacia Property).

(c) The Physiotherapy Guarantee

1. In early 2006, Lara, who by that time had worked as a physiotherapist for two years, purchased (through a company incorporated for that purpose - Lara Torok Pty Ltd) her own physiotherapy and hydrotherapy practice in Penrith, Nepean Manipulative Physiotherapy and Hydrotherapy Centre (with, she says, her father's encouragement).
2. The deceased and Dr Becker guaranteed a bank loan of $160,000 for the purchase (the Physiotherapy Guarantee), and also provided a bank guarantee in the amount of $13,479.98 in relation to the practice (it seems likely that this was by way of a bond for the lease by the company of the business premises from which the physiotherapy practice operated). The Physiotherapy Guarantee was secured over the Glenhaven Property. Lara's company was the principal debtor in respect of the loan secured by the Physiotherapy Guarantee, and serviced the Physiotherapy loan by direct debit payments to the CBA.

(d) The Wallacia Guarantee

1. In late 2006, Lara and Adam purchased a property at Wallacia, with the intention of making this their family home. Dr Becker and the deceased again provided a guarantee securing the finance obtained for the acquisition of the Wallacia Property. On settlement of the Wallacia Property purchase, CBA created two facilities - one, in the amount of $722,000, which related to that part of the loan secured over the Wallacia Property itself; the other, in the amount of $180,000, which was secured by way of guarantee given by Dr Becker and the deceased and secured over the Glenhaven Property (the Wallacia Guarantee). Following settlement of the Wallacia purchase, Adam and Lara serviced the loan secured by the Wallacia Guarantee by way of direct debit payments to CBA (see Ex 6).

2007 codicils

1. On 21 March 2007, the deceased made a codicil to her 21 December 1995 Will in which she directed her executors to take into account advances (with interest) made to each of Lara and David, when dividing her estate equally between them.
2. The 2007 codicil refers to an advance to Lara in the amount of $38,000 in May 2005 and an advance to David in the amount of $160,000 at the same date. It is accepted that there was an error in the drafting of the codicil, in that the relevant amounts were transposed (i.e., the amount of $160,000 was referable to the Physiotherapy Guarantee and was for the benefit of Lara, not David, and vice versa). Some time later, on 29 April 2014, Mrs Becker corrected the codicil to note that the advance of $160,000 was to Lara, and the advance of $38,000 was to David.
3. Pausing here, as already noted, there had not been an advance, as such, to Lara of $160,000 as at the date of the 2007 codicil; rather, Dr Becker and the deceased had provided security by way of guarantee secured by mortgage over the Glenhaven Property for the Physiotherapy loan in the amount of $160,000 (thus putting their assets at risk but without the outlay by them of any funds at that stage).

Retirement of Dr Becker and refinance of Glenhaven home loan

1. In 2007, at the age of 84, Dr Becker retired from his medical practice. At the time, Lara and Adam were back living at the Glenhaven Property (while the Wallacia Property was being renovated) and there were still on foot the loan the subject of the Wallacia Guarantee and the loan in respect of the Physiotherapy Guarantee ((see Lara's 26 October 2019 affidavit at [91]; [97]-[98]).
2. At around the time of Dr Becker's retirement (and, it is said, unbeknownst to Lara or Adam), Dr Becker and the deceased's existing loan with CBA was in the amount of approximately $545,000.
3. On 31 May 2007, Dr Becker and the deceased sent a facsimile transmission to their solicitor, Mr Ken Austin, in relation to the proposed refinancing of their CBA loan by way of entry into a "reverse mortgage" arrangement with "Homesafe". In that document, the payout figures for the refinance appeared as follows: $409,000.00 plus $160,000.00 Guarantee for business for Lara Torok Pty Limited, plus $179,000.00 Guarantee for home loan.
4. For Lara, it is said that the $409,000 figure noted in the above facsimile transmission was the approximate payout figure of the deceased and Dr Becker's then $545,000 loan, less the offsetting amount of funds in their mortgage interest saver account at the time.
5. Consistent with the above there is a note by the deceased in June 2007 as follows: Lara & Adam $160,000 Business guarantee $179,000 Home guarantee $339,000 Total guarantee Our Mortgage $408,707.
6. On 22 June 2007, Dr Becker and the deceased settled the refinance of their CBA loan with Homesafe. The total amount of the refinancing was $853,325 (see Lara's 16 October 2019 affidavit at [74]). The refinance encompassed the payout of the Physiotherapy Guarantee ($160,928.26), the Wallacia Guarantee ($177,967.56), and Dr Becker and the deceased's home loan in respect of the Glenhaven Property. After repayment of those amounts, the Homesafe loan made available to Dr Becker and the deceased an amount of approximately $93,000.
7. David points out that the effect of the above was that the 2007 refinancing (by way of reverse mortgage) of the Glenhaven Property was increased by the sum of $338,895.82 to reflect the payout of the borrowings attributable to Lara and Adam. (This is not disputed.) David's evidence is that this was a matter about which the deceased and Dr Becker were very concerned (see David's 8 November 2019 affidavit at [10]-[11] and [19], and his 17 March 2020 affidavit at [38], [41], [45]-[50], [52] and [96]). (I interpose to note that I treat that evidence with some caution in the absence of any independent corroboration of any such concern at the relevant time i.e., when the Homesafe mortgage was taken out. I also refer in due course to evidence as to the deceased's reported concern, at a later time, about the Homesafe mortgage, in the context of the Glenhaven Property sale; which concern appears to have been prompted to some extent by David at least insofar as it appears he took the deceased to a financial planner for advice about the mortgage - see below.)

Discharge of Physiotherapy and Wallacia Guarantees

1. As noted above, at the time of the Homesafe refinance of the CBA loans, Lara and Adam were living at the Glenhaven Property. Lara cannot recall how she came to learn of the refinance of the Glenhaven Property but presumes that it was because she had noticed at least one of the CBA loans "disappear" from her internet banking account. Adam similarly made reference to this.
2. Lara's evidence is that, after she learnt about the refinance, Dr Becker directed her to start making repayments of the loans which related to the Physiotherapy Guarantee ($160,928.26, including fees) and the Wallacia Guarantee ($177,967.56 at the time of refinance) into Dr Becker and the deceased's joint bank account in the amount of $1,100 per fortnight. That is corroborated by the evidence of such transfers commencing around then and by the codicils executed by the deceased and Dr Becker in April 2008 (see below).

2008 Codicils

1. On 1 April 2008, Dr Becker and the deceased executed mirror codicils to their Wills in which each directed their executor to take into account the sum of $338,895.82 (which Lara notes comprised the sum of $177,967.56 (Wallacia Guarantee) and the sum of $160,928.26 (Physiotherapy Guarantee)) refinanced by them, when making an equal distribution between Lara and David. The codicils recorded that the said amount was being repaid by Lara at $2,200 per calendar month, interest free. (The codicils did not, however, record those two separate components of the sum of $338,895.82 but nothing turns on this.)

Payment to Dr Becker and the deceased of $1,100 per fortnight from July 2007

1. Between July 2007 and 2009, Lara continued to pay Dr Becker and the deceased the amount of $1,100 per fortnight directly to their nominated bank accounts (as adverted to above, copies of bank transfers were in evidence).
2. Lara's evidence is that, in 2009, Lara was approached by Dr Becker to change the payment method from direct transfer to cash (to enable he and his wife to claim a part-pension) and that from then Lara started making repayments by cash instead of bank transfer. Lara's evidence is that she and Adam continued making cash repayments to Dr Becker and the deceased up until March 2010. There is no evidence of any complaint by Dr Becker (or the deceased at least at that stage) as to any failure to do so.

Sale of physiotherapy business and later forgiveness of balance of the loans

1. Lara's evidence is that, in about February 2010, when she was pregnant with her first child, Lara had discussions with her father in which Dr Becker advised Lara to sell the physiotherapy business to allow her to concentrate on raising a family. (Lara's evidence was that her father thought a mother should stay at home with her family - see T 76.32.)
2. Lara's evidence is that the decision to sell the physiotherapy practice, which was profitable according to Lara, was made in the context of the arrangement that Lara and Adam would not then need to continue making the monthly repayments to her parents. She said that she would not have sold the practice without knowing that they did not have to meet the $2,200 monthly repayments (T 71). (The practice was not sold for a profit - Lara's evidence is that the market for the sale of such practices at the time was that they were lucky even to be able to sell the physiotherapy practice when they did.)
3. Lara says that her father told her that he wanted no part of the sale proceeds (approximately $135,000) and directed Lara to stop making all loan repayments to him and the deceased in order to enable Lara and Adam to service their own home loan, and focus on raising a family. Adam similarly gives evidence of a discussion at which he was present in the kitchen at the Glenhaven Property with Lara, Dr Becker and the deceased, at which he says Dr Becker said "You don't have to worry about repaying us as we have made it equal in our wills". Again, this is consistent with the codicils made in 2008.
4. Lara thus contends for a finding that, while Dr Becker and the deceased provided Adam and her with financial accommodation in the form of forgiveness of the $338,895.82 paid by Dr Becker and the deceased as part of the 2007 Homesafe refinance, that sum had already been noted by Dr Becker and the deceased in their respective Wills to ensure an equal division between their children (as part of a regime in which Lara and Adam had repaid Dr Becker and the deceased upwards of $55,000 following the making of the Homesafe refinance). That accords with the evidence; and I so find.

Carpet interlocking business joint enterprise

1. By 2011, David had been operating his own carpet overlocking and binding business for a number of years. In 2011 Lara and Adam went into business with David, trading as "Sydney Overlocking" (Lara says against Dr Becker's advice but with the deceased's support). There was no signed written agreement in relation to the business arrangements between the siblings (and their spouses), though there was some suggestion in Lara's evidence that a draft partnership agreement had been prepared at some time. Lara referred to it in a later letter to her mother as a "partnership" and said in cross-examination there was a verbal partnership agreement (T 80).
2. Lara's evidence is that the carpet overlocking business in which the siblings and their spouses were jointly involved was an amalgamation of David's business and a business that she and Adam acquired and for which they paid cash out of the proceeds of sale of the physiotherapy business in order to invest in the carpet business (T 73). Lara's evidence is thus that she and Adam had invested their capital at that time in the carpet business.
3. Whether or not the business arrangement between the siblings was, as a matter of law, a partnership as such (see the definition of partnership in s 1(1) of the Partnership Act 1892 (NSW) (Partnership Act), as being the relation which exists between persons carrying on business in common with a view of profit, and s 2 of the Partnership Act which sets out various rules to which regard shall be had in determining whether a partnership does or does not exist; and see also the discussion of the test of partnership in Bova v Avati [2009] NSWSC 921), there was on any view of things a joint venture (see United Dominions Corporation Limited v Brian Proprietary Limited (1985) 157 CLR 1; [1985] HCA 49 (United Dominions) at 10, per Mason J (as his Honour then was), Brennan and Deane JJ) between the siblings and their spouses in relation to the carpet overlocking business from around 2011 through to February 2016. Lara confirmed in the witness box that all four (she and Adam, David and Susan) were shareholders and directors of the entity carrying on the business. On all accounts, the joint enterprise ended very acrimoniously (see below).

Deterioration of Dr Becker's health and his move to an aged care facility

1. In 2014, Dr Becker was admitted to hospital suffering chest pain. It does not appear to be disputed that his health had been slowly deteriorating, and it is said that he was by then exhibiting symptoms of dementia. Lara, however, is adamant that at that stage her father was exhibiting only mild dementia (which I note here not as amounting to any evidence of his actual medical condition at the time but simply because it informs Lara's apparent disagreement at that time as to the necessity for placement of her father into a nursing home - see T 94).
2. Lara gives evidence that she suggested to David at some stage in 2014 (see her affidavit affirmed 26 October 2019 at [133]) that their parents downsize to a smaller property; and that David rejected any such proposition, telling Lara: "Don't be stupid Lara. We need to make them keep Glenhaven for as long as possible. That is our inheritance. Just imagine, we'd be set for life". David does not refer to this conversation or whether it occurred, but he did say in cross-examination that he did not discuss downsizing with his mother (see at T 276), but in any event, it does not appear to be disputed that the deceased at that stage did not agree to any suggestion that the Glenhaven Property be sold (whether to allow the couple to "downsize", or otherwise).
3. In any event, in 2014, after his hospitalisation, Dr Becker moved to live in "The Poplars" aged care facility in Epping. He never returned to live in the Glenhaven Property. In connection with his admission to The Poplars, payment of an accommodation bond in the amount of $590,000 was required (the Accommodation Bond).
4. On David's evidence, he and his wife Susan sold their Kellyville Property at that time in order to be in a position to pay the Accommodation Bond for Dr Becker's admission to The Poplars. (This is of relevance given his evidence as to the deceased's later concern that they had done so "for no reason" in order to pay the Accommodation Bond - see David's 8 November 2019 affidavit at [16], and his 17 March 2020 affidavit at [59] and [88].)
5. Indeed, prior to the commencement of the proceedings, David's solicitors (Austin Guigni Martin), by letter dated 11 October 2019, made the assertion that part of the proceeds of the sale of the Kellyville Property had been used to pay part of the Accommodation Bond (an assertion that it is here accepted was incorrect). The letter stated that: In 2014, Theodore's health deteriorated and he moved into Poplars Nursing Home. The deceased and Theodore did not have sufficient funds for the accommodation bond. Our client sold his Kellyville property and used part of the proceeds to pay the shortfall of the bond. The deceased was on her own in the Glenhaven property and our client and his wife gave up full-time work to become the deceased's full-time live-in carers. [Emphasis added]

Corrective codicil

1. As adverted to above, on 29 April 2014, the deceased made a codicil correcting the 2009 codicil (Ex D).

David and Susan relocate their family to the Glenhaven Property

1. As also adverted to above, in about July 2014, David and Susan sold the Kellyville Property. David and Susan and their two children, then moved into the Glenhaven Property. The Kellyville Property was sold for $821,500.00 (Ex A). Upon the sale of the Kellyville Property, after repayment of the mortgage on that property, David and Susan received the sum of $298,657.73 together with the sum of $62,200, being the balance of the deposit (David's 8 November 2019 affidavit at [14], and 17 March 2020 affidavit at [58]).

NetBank Saver Account in deceased's name

1. On 15 January 2015, David was allocated NetBank Access to his CBA account.
2. On 5 February 2015, a new "NetBank Saver" account was opened with the CBA in the name of the deceased. Lara says that, prior to February 2015, Dr Becker and the deceased's accounts reveal a course of dealing with those accounts in which Dr Becker and the deceased made payments by cheque and withdrawals of cash from the ATM; and contends that the opening of a NetBank account marks a distinct change of banking practice in that regard. There seems little doubt that David assisted the deceased to open that NetBank account. (Indeed, David's evidence is that the deceased did not have a computer when he first moved into the Glenhaven Property and he admitted at T 196 that he taught his mother "NetBanking".)
3. On 8 February 2015, the first electronic external transfer on any of the deceased's accounts was effected. It was the transfer of the sum of $1,249.00 from the deceased's account into David's CBA account. The transfer contained the description "Pay IPhone" (David says, in his affidavit of 17 March 2020 at [81], that this was a reimbursement to him for the purchase of an iPhone for his mother).
4. Pausing here, I note that a substantial complaint in the proceedings is that, in the years from 2015, numerous electronic transfers were made from the deceased's accounts (using her NetBank facility) of sums of money into the accounts of: David, David's and Susan's company (S&D Becker Pty Ltd); or Tesla (to purchase a new vehicle for David), in amounts exceeding $1.77 million (see below).

Breakdown of the "partnership" or joint venture between the siblings

1. Lara's evidence is that, in 2015, the carpet overlocking business was losing money; and it appears there was concern as to the lack of time David was spending in the company.
2. In June 2015, David travelled to the United States of America (apparently to pursue a business of importing and selling Tesla after-sale parts) (see David's 17 March 2020 affidavit at [89]). (It seems that part of the discord between the siblings as to the carpet joint venture at around this time was as to David's commitment or lack of commitment to it; that being of some significance since Lara's evidence is that it was David who had the relevant client contacts.)
3. On 11 November 2015, (consistent with his then business plan being to be involved in the sale of Tesla after-sale parts), David bought a Tesla model S motor vehicle for the sum of $214,636.50.
4. Lara's evidence is that, by January 2016, the carpet overlocking business had no money to pay its staff and that she arranged a transfer from her home loan offset account to ensure that the business paid the wages (see Lara's 26 October 2019 affidavit at [159]-[161]). There is also evidence that at some stage Lara expressed to the deceased her concerns at David's role in the business but Lara understood that the deceased did not want to become involved in a dispute between the siblings.
5. On 5 February 2016, David wrote a letter of resignation in relation to the carpet overlocking business (Ex A), stating: 5 February 2016 Adam Torok, I am informing you as of today the 5 February 2016 I am formally resigning as a Director from Sydney Overlocking PTY LTD due to ongoing unresolvable problems. I will continue to be a 50% shareholder however you can do what you like with the company from this point on. Phone numbers [xxx] and [xxx] will be removed from Sydney Overlocking today 5 Feb 2015. In order to keep the company going I am willing to offer services as follows: If you require contract cutting service for Sydney Overlooking, I am offering three hours or less per day at $80.00 per hour. Cutting service will be invoiced directly to Sydney Overlocking, my payment terms are weekly. No payment no more cutting. Two of us cutting effectively 6 hours work time (I will inform you if I am unavailable at any point well in advance [sic] I will provide contract technical support for machinery, computer, or other items that can't be resolved by yourself charged at $120.00 per hour or per call out. If you require holidays I can provide Management service for Sydney Overlocking at a fee. There is a large debt which I have greatly reduced that needs to be paid to myself to the amount of $20.000. I have investigated bookwork and bank statements beyond 2013 and found various inconsistencies to the excess of way over $35.000. I am willing to give you one month to pay me the reduced amount of $20.000 or if you are unable to do so I will require evidence to support your inability to pay out your debt. Please note there is approximately $85.000 of outstanding debtors to Sydney Overlocking. I see no reason why you can't pay me promptly. If you don't want to pay back the debt I will have no option but to relinquish my offer to subcontract to Sydney Overlocking and we can part ways. What I have set out is NOT NEGOTIABLE it is up to you what you want to do from here. Please respond to me by midday on Monday 8th February or I will consider no deal and we can part ways. Regards David Becker. [Emphasis in the original]

Change to deceased's mobile telephone number

1. Lara's evidence is that on 6 February 2016 (the day after David tendered his "resignation" from the carpet overlocking business), Lara spoke to the deceased who told her that "David is extremely upset and I think it would be best if you and Adam no longer came to the house" (see Lara's 26 October 2019 affidavit at [159]-[165]).
2. It appears that on the same day the deceased's telephone number was changed. Lara says that in the months which followed she was unable to raise her mother on the telephone. It appears that the deceased's mobile phone number had been changed (see the Amaysim contract; and David's cross-examination at T 210-211), although David says that the landline was unaffected (see David's 17 March 2020 affidavit at [55]). David maintains (but Lara disputes) that Lara was at all times able to contact the deceased. There seems little doubt, however, that it was David who effected the changes to the deceased's telephone numbers although David says "we" changed the mobile phones (he says to obtain a different payment plan) (see T 277).
3. Relevantly, this is another instance of incomplete or inaccurate statements being made on David's behalf. Through his solicitors, David denied that he had an Amaysim telephone account whereas in fact it seems that there were at least four such accounts (see T 210-211) and David's explanation for this in the witness box was that he forgot about them and he thought the accounts were with Optus. This is another instance where his account is unreliable (and even if he simply forgot about the accounts, this suggests a lack of any real attention to the production of accurate or complete information as and when that was requested in the course of the proceedings). I say more about this in due course.
4. Lara's account of concern at being unable to contact the deceased in this period is corroborated by the fact that she made a police report at around this time (something one would think an extreme step to take had Lara in fact been able to make contact with the deceased at the time, as David asserted she was). Lara's evidence in the witness box (given in a resigned fashion) was that the deceased was angry that the police had been called; and Lara accepted (at least in hindsight) that the deceased would have found it mortifying for her neighbours to see the police attending at the premises. My impression was that Lara's concern for her mother's welfare was genuine (not least because once that concern was resolved (by the police having checked on her mother) Lara did not pursue it any further though she maintains she was still upset at the lack of contact with her mother).

Renovation of Glenhaven Property

1. David says that, in the period from mid-2016 to 24 June 2017, substantial landscaping and renovation works were undertaken to the Glenhaven Property (David's 8 November 2019 affidavit at [19]-[20], and 19 March 2020 at [3]-[19] and [99]). David says that he contributed to the cost of renovations of the Glenhaven Property by using his own money and the net proceeds of sale of the Kellyville Property referred to above (David's 8 November 2019 affidavit at [14] and [25], and 17 March 2020 affidavit at [56]-[58]). A DVD containing video footage (taken from a drone) was in evidence showing the extent of the landscaping works carried out to the Glenhaven Property prior to its sale (the probative force of which was limited by the difficulty in ascertaining precisely what was done to the property, although it was evident that extensive landscaping works had been carried out).
2. Criticism was made, through David's cross-examination, that there had been no independent advice as to how best to market the property and whether the renovations were necessary (or prudent) to undertake for that purpose. David's evidence was that he had some (seemingly informal) advice from a friend who was a real estate agent friend (but not from the real estate agent ultimately involved in relation to the sale of the Glenhaven Property). (I interpose to note that the prudence or otherwise of making extensive renovations to a property prior to its proposed sale, particularly in light of the prospect that this might amount to over-capitalisation, highlights the vulnerability of the deceased insofar as there is no suggestion that she had any independent advice on this issue - and extensive viewing of home renovation programmes, even assuming that to have been the deceased's interest, would hardly qualify as expert advice on the subject.)

Death of Dr Becker

1. Lara's evidence is that between January 2016 and April 2016 she continued to visit her father at The Poplars (see Lara's 26 October 2019 affidavit at [177]). Dr Becker died on 6 May 2016.
2. Lara's evidence is that she arranged for a private viewing on the day of the funeral to mourn her father's death and, later, at Bondi Beach scattered some her father's ashes (which Adam had collected from the deceased at a pre-arranged place) (see Lara's 26 October 2019 affidavit at [184]-[187]). David's evidence is that the deceased was upset that Lara did not attend her father's funeral. It is not apparent that David (or the deceased) was aware of the private viewing at that time.
3. There is a dispute as to whether or not David did not permit the deceased to get out of the car when Adam invited her for a coffee on the occasion that the ashes were collected (as Adam says) (see Adam's 9 April 2020 affidavit at [50]), or whether the deceased simply did not like Adam and did not wish to join him for coffee (as David says) (see T 278.16). However, there is no dispute that there was an occasion when some of the ashes were given to Adam for Lara's benefit.

Contact with the deceased after Dr Becker's funeral

1. According to Lara, by the time Adam collected Dr Becker's ashes from the deceased, Lara had obtained her mother's new telephone number from Lara and David's cousin, Melita (see Lara's 26 October 2019 affidavit at [188]). (Melita did not give evidence in the proceedings but I was not asked to draw any Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference about this; nor do I here do so.)

Instructions for a new Will for the deceased

1. On 10 May 2016, David and the deceased together attended the offices of Austin Giugni Martin to give instructions as to the estate of Dr Becker. At that time instructions were provided for a new Will for the deceased. There is nothing in the solicitor's file note to suggest that the deceased gave those instructions in the absence of David (and there was no evidence adduced from the solicitor to elucidate this one way or the other).
2. On 13 May 2016, David's solicitor in the present proceedings, Mr Giugni, sent David an email with a draft for the deceased's Will, a draft statement of the deceased's intention in relation to her Will, Power of Attorney, and Appointment of Enduring Guardian. The draft Will provided for an unspecified legacy to David with the balance of residue to be divided equally between the siblings. (It is of relevance to note that the communication in relation to the Will was directed to David not the deceased, suggesting that the instructions were being communicated by or at least through David.)
3. On 18 May 2016, the deceased attended the offices of Austin Giugni Martin and executed a Power of Attorney appointing David as her attorney. David accepted the appointment at the same time. On that occasion the deceased collected her draft Will. Mr Giugni's file note of the 18 May 2016 conference is as follows: Meeting with Mrs Becker. She took away her will to consider what she wanted to give David [to] even things up with Lara. Lara has paid some of her loan back and she and her Husband did not wish to charge interest. She wants to even things out with David and compensate him for living with her and not buying his own house. She will get back to me with a figure and then we can finalise her will. She did sign POA and EG forms and will look at the statements as to explaining why she is not leaving everything 50/50 between David and Lara. [Emphasis added]
4. Pausing here, the draft statement explaining the differential legacies as between siblings was never finalised and in the absence of any evidence as to the basis on which it was drafted I cannot be confident that it recorded the deceased's then instructions to the solicitor (as opposed, say, to the possibility that it represented David's thoughts or observations as may have been conveyed by him to the solicitor).
5. On 30 May 2016, Mr Giugni provided written advice as to the Homesafe reverse mortgage. Tellingly, that advice was again addressed to David. In summary, Mr Guigni advised as to the "three triggers that can cause money to be made payable to Homesafe", and that in each scenario, Homesafe would be entitled to 65% of the sale proceeds less any applicable rebates (Ex C). The final paragraph of the letter reads: Otherwise, we request your advice as to the status of the Wills [sic] and what figures should be inserted into that document so it may be completed and signed.

Lara's letter to her mother

1. Lara's evidence is that, shortly after receiving her mother's new telephone number, she spoke with her mother and arranged for her to have lunch at Lara's Wallacia Property, at which time Lara read her mother a letter with her view of the recent events (see Lara's 26 October 2019 affidavit at [190]). Lara's evidence was that this was because the deceased had not heard her "side" of the story. Lara said the letter had taken some time to write and that it took a while to read to her mother.
2. David contends that this letter contained a number of provable lies or falsehoods (T 371): first, that it referred to a partnership (whereas he says no partnership agreement was ever entered into); second, that it talked about a requirement for six months' notice (again pointing to the lack of a written agreement); third, that it suggested that David would thereafter receive (or expected to receive) 50% of the earnings without doing any work (whereas, it is said that historically only salaries were drawn from the company and no dividends had been paid); fourth, that it said David had demanded the sum of $36,000 (whereas, he had demanded the sum of $20,000); and, fifth, that David had demanded payment of a rate of $360 per hour for future work (whereas the hourly rate suggested in the letter was different).
3. Pausing here, it was accepted by Lara that some of the above assertions made by her in the letter were incorrect (such as the amount she attributed to the demands by David for payment and as to the stipulated hourly rate for future work); and Lara accepted that there was not a written partnership agreement (though she maintained that there was a verbal partnership agreement - see at T 80). Lara's explanation for the errors in the document she read out to the deceased at this meeting was that she was preparing the letter at a time when she did not have David's resignation letter with her. Further, insofar as Lara had described David's resignation letter as extremely threatening, that seems indeed to have been Lara's perspective of the position adopted by David in the letter and there is some substance to such a complaint even if it might be said to have been somewhat overstated.
4. I consider that the weight sought to be placed on these matters by David is misplaced. The tenor of the letter (insofar as it related to the end of the siblings' joint venture or joint enterprise into the carpet overlocking business) seems to me to reflect in substance what had happened. David had resigned without notice (leaving aside whether he had any obligation to give such notice, one might have expected some notice of his departure from the business to have been given, if only as a matter of courtesy to his business colleagues); David had indicated that he was leaving the business to Lara and Adam (though, of course, that meant little if, as Lara says, David had all the customer contacts); and David had set out the terms on which he (and his wife would be prepared to continue to work in the business (albeit that those terms were not accurately stated in the letter Lara read to her mother). More relevantly, perhaps, it is apparent from the letter that this was putting Lara's perspective as to the breakdown of the business relationship (and one would assume that the deceased would have understood it as such and that there was or may well have been another side to the story, namely David's side, about which the deceased was clearly capable of speaking to David had she wished).

"Secret" meetings

1. Lara's evidence is that over the next few weeks, Lara continued to visit her mother, including taking her to "Disney on Ice" at Olympic Park. Lara says that, at the deceased's request, the visits were kept secret from David, for fear that it may cause upset (see Lara's 26 October 2019 affidavit at [195]). David submits that it is not plausible that any such visits could have taken place secretly (since the deceased was living with him and by then he was home much of the time). I agree that it is difficult to place much weight on the "secret" meetings evidence without independent corroboration.

Execution of August 2016 Will

1. On 31 August 2016, the deceased executed her last Will. There is no file note of her attendance at the solicitors' office on that occasion (although I note that Mr Michael Giugni (a solicitor) and Ms Janelle Yong (a law clerk) witnessed the Will). As adverted to above, the 2016 Will provided David with a legacy of $1 million more than that left to Lara under the Will. Lara's position is that this $1 million was the sum that the deceased thought was appropriate recompense for David's time living with her, David not having his own house, and the financial assistance provided to Lara in the form of the forgiveness of the Physiotherapy and Wallacia loans, in order to provide an overall equal treatment of her children. That is certainly a plausibly explanation for the differential legacies (and consistent with the instructions recorded by the deceased's solicitor at the time). It is said by Lara (and I accept) that this equality of treatment had been a hallmark of Dr Becker and the deceased's successive wills and codicils over the years.

The deceased moves out of Glenhaven Property

1. In November 2016, while renovation works were undertaken to the Glenhaven Property, the deceased moved out of the Glenhaven Property and into the residence of Ms Natalia McCarthy, a friend of David and Susan (Susan being the godmother of Ms McCarthy's child), who described herself in her affidavit as a friend of the deceased (see [1] of her affidavit sworn 28 May 2020). There was no little uncertainty as to when the renovation work that was carried out actually commenced but there is no dispute that the deceased was living at Ms McCarthy's house for a number of months (from November 2016 until August 2017, apart from a period of hospitalisation in January 2017 during the deceased's knee surgery). Ms McCarthy gave evidence as to David's attendance at her house on an almost daily basis to visit his mother during this time ([8] of her affidavit sworn 28 May 2020).

The deceased's declining health

1. It is Lara's evidence that the deceased had had a number of falls around the house between 2012-2014 (see Lara's 26 October 2019 affidavit at [145]-[146]). This is consistent with medical notes that record that the deceased underwent surgery for an "extensive fracture and dislocation" in October 2012, and that the deceased had a number of health conditions which limited her movement, including three spinal fusions, hypertension, wrist and shoulder fractures and dislocations.
2. According to the medical records, the deceased's conditions required ongoing prescription medication in the form of sleeping tablets "Normison", pain medication "Panadeine Forte" (1-2 tablets four times a day), and anti-inflammatories. David in his defence did not admit that his mother suffered back pain but in cross-examination while he did admit that she had pain (T 280), and that the deceased was on a variety of medications, David would not accept she was in considerable pain (T 280). Indeed, David's evidence is that these medications made his mother forgetful, that she often stayed home the entire day in her dressing gown or comfortable clothes as she was finding it difficult to dress herself, and that, by the end of 2015, or early 2016, the deceased could not look after herself (see David's 17 March 2020 affidavit at [78]-[80]). David also gave evidence that the deceased often had difficulty sleeping and had irregular sleeping hours (see, for example, at T 189) (though fortuitously it appears that David was also awake at such irregular hours, when NetBank transactions and/or log-ins happened to occur almost simultaneously on both his account and that of the deceased - see below).
3. In January 2017, the deceased attended an orthopaedic surgeon (Dr Muderis) for consultation about her knee. The report records that the deceased had been suffering from a significant disability for some time: Isolde is an 80 year old lady who has been complaining from pain in both knees, worse on the right side. She has had the pain for many many years and she has left it for a long time and she is getting to the stage where she is almost completely disabled and over the last 12 months she has been hardly able to walk. Isolde's knee is extremely deformed with significant valgus deformity and looking at the knee there is significant deformity and significant instability. Radiologically she has complete destruction of the joint space in the lateral compartment and in the medial compartment with large bone loss. Unfortunately Isolde's condition is very severe and a standard knee replacement is going to fail and with her kind of condition, which is also complicated by the rheumatoid arthritis that she has, she would need a constrained knee.

Glenhaven Property sold and Beaumont Hills Property acquired

1. The Glenhaven Property was placed on the market in May 2017. By that time the deceased had less than $2,000 in her bank account (the account balance at one point being as low as $2.30 in March 2017). Also by that time it appears that David had already replaced or moved the deceased's furniture into storage. Lara noted that $47,435 worth of furniture was purchased, using the deceased's account, between October and December 2017. As noted above, the deceased had been living with Ms McCarthy both before and after her knee replacement (see Ms McCarthy's 28 May 2020 affidavit at [6]).
2. On 24 June 2017, the deceased exchanged contracts for the sale of the Glenhaven Property for $4.625 million.
3. David has put forward a number of reasons for the sale of the Glenhaven Property. In his 17 March 2020 affidavit (at [96]), David deposes as follows in relation to the sale of the Glenhaven Property: "[a]round that time, my mother and I became concerned as to the amount that was needed to repay Homesafe upon the sale of the Glenhaven property". (I note that I did not read the words "my mother and", to which objection was taken (T 143.44), but it is perhaps telling that David had a propensity in his affidavit evidence to attribute intentions and wishes to the deceased in common with his own.)
4. It is difficult to see why the impact of the reverse sale mortgage would have caused such concern on the part of the deceased as was attributed to her by David. The time at which the property was sold would certainly affect the percentage of proceeds to which the mortgagee was entitled to out of the sale, but for practical purposes while that would obviously affect the size of the deceased's estate, it would not have affected the deceased's position during her lifetime (unless for some reason she had to sell the property). For someone who might be looking at maximising the value of his or her potential inheritance that would, of course, be a different story.
5. A second reason proffered for the sale, as appears from David's 28 August 2020 affidavit (at [21]), was in the conversation to which David deposes with the deceased in which he says his mother said to him: The property is too big and there is too much to do if we continue to live here…. We should renovate the property now with our money to get the best price so we can buy a new house.

Further vehicle purchase

1. Meanwhile, on 3 July 2017, as adverted to above, David purchased a Tesla model X motor vehicle for $187,425.35. David's evidence is that the deceased was interested in cars and liked the design of the Tesla vehicle. Pausing here, that does not explain why such a purchase was considered necessary or desirable in the deceased's interests at the time; nor why a deposit released ostensibly for the purpose of acquisition of other accommodation might have been used for the acquisition of a motor vehicle.

Purchase of Beaumont Hills Property

1. On 20 July 2017, David and Susan exchanged contracts for the purchase of a property at Beaumont Hills (the Beaumont Hills Property) for the sum of $1.525 million (the sale completing on 3 October 2017). The proceeds of sale from the Glenhaven Property were used to purchase the Beaumont Hills Property in David and Susan's name.
2. David asserts that, at the time of the purchase of the Beaumont Hills Property, the deceased said to him words to the effect: "You looked after me so I will look after you", and "I want you and Susan to be okay, you have done so much for me. I understand how much you have sacrificed so that I can live with you", and "any money left over from the sale we can share so we both have something but I want you and Susan to have a home of your own" (see David's 8 November 2019 affidavit at [32]).
3. David says that the deceased was "actively involved" in choosing the Beaumont Hills Property and had the "final say" in the purchase (see David's 8 November 2019 affidavit at [32]). It is noted that the property included a "granny flat" which was subsequently used by the deceased (see Susan's 17 March 2020 affidavit at [27]-[29] and affidavit of the real estate agent, Mr Wayne Danckert sworn 18 March 2020 affidavit at [6]). As to Mr William Hampson's evidence (another real estate agent), in it appears that the deceased's so-called "active involvement" amounted to little more than that the deceased inspected the property and gave instructions (no doubt when asked) about the reserve price (which Mr Hampson thought she appeared to understand) (see Mr Hampson's affidavit sworn 21 July 2020 at [6]).
4. Completion of the sale of the Glenhaven Property occurred on 3 October 2017 (Ex 2). On completion, the sum of $1,522,272.03 from the proceeds of sale from the Glenhaven Property was applied to the purchase of the Beaumont Hills Property and the payment of stamp duty (Lara's 26 October 2019 affidavit at [222], and David's 8 November 2019 affidavit at [32]). The net proceeds of sale were shortly thereafter transferred to David's bank account - see below.
5. Pausing here, it is noted by Lara that the effect of this transaction (which can hardly be disputed) was that the deceased was then in the position where she had no real estate in her own name, no or very little money in the bank, and was totally dependent on the support of others.

Christmas Day 2017

1. Lara was not aware of the sale of the Glenhaven Property until she spoke with her mother on Christmas Day 2017, that being the last time that Lara spoke with her mother (see Lara's 26 October 2019 affidavit at [225]). Lara's evidence is that, during that conversation, the deceased either did not know or would not disclose to Lara the location of her new address and said, in answer to an enquiry as to whether the deceased had purchased David a house, "I need to live somewhere Lara" (see Lara's 26 October 2019 affidavit at [223]). Lara's evidence is that she continued to write to her mother but never received a response (and that the deceased had previously sent Lara and her family cards up until the end of 2017). David and Susan deny that they received any such cards or letters for the deceased.
2. Lara's evidence is that, in November 2018, Lara received a text message from her mother for her birthday and that she responded to the message (despite being of the opinion that her mother was incapable of sending a text message) (see Lara's 26 October 2019 affidavit at [228]); (her mother's inability to do so being confirmed, it is said, in Susan's evidence (see Susan's 17 March 2020 affidavit at [32])).

Surplus from Glenhaven Property sale

1. There was a surplus of $591,212.22 received by the deceased on 3 October 2017 from the sale of the Glenhaven Property after purchasing the Beaumont Hills Property. By the end of the month, however, that amount had been electronically transferred to David (see David's 28 August 2020 affidavit at [138]). (The net sale proceeds plus the deposit of around $55,000 form part of the claimed 1.776 million in NetBank transfers.)
2. In his affidavit evidence, David deposes that he had initially resisted a transfer of funds to his account, saying "[n]o, it's your money so it should be in your account" (see David's 28 August 2020 affidavit at [141]). However, Lara points out that by January 2018 (after David had received $590,000.00 of the $591,212.22 received by the deceased, and a further amount of $20,000 from the deceased's account in January 2018) the deceased was again left with only a few thousand dollars in her account. Lara says (and I accept) that the deceased was then totally dependent on David; noting that David described the deceased as being able to manage to walk only a few metres at the time, even with her walking frame (see David's 8 November 2019 affidavit at [33]).
3. Much emphasis was placed by Lara on David's reference to a conversation with the deceased in 2015 in which he says she referred to him being able to "manage the finances". Cross-examined about the concept of managing the deceased's finances, David insisted that he would discuss any "major" expenses (which he put as in the order of $2,000) with the deceased. Lara relies on the assumption by David of a role in "managing the finances" as giving rise to a fiduciary duty of the kind owed by the defendant in Barkley v Barkley Brown [2009] NSWSC 76 (Barkley v Barkley Brown).

Sale of Beaumont Hills Property

1. In his affidavit evidence, David deposes that, by the middle of 2019, he "was concerned that my mother would need care that Susan and I could not provide", and "did not believe we had sufficient funds to pay for professional assistance to keep her at home" (see David's 8 November 2019 affidavit at [34], see also Susan's 17 March 2020 affidavit at [33]).
2. On 24 May 2019, the Beaumont Hills Property was listed for sale. Contracts for sale were exchanged on 13 June 2019 for a purchase price of $1.3 million (see David's 8 September 2019 affidavit at [35]). David's evidence is that he planned to move the deceased into a rented duplex, with David and Susan to live next door (see David's 8 September 2019 affidavit at [36], 14 November 2019 affidavit at [11]). (Pausing here, as adverted to already, this renders somewhat hollow the criticism made by David of Lara's proposal that her mother move to a separate dwelling on the Wallacia Property, although I accept that Lara's proposal itself suffered from practical issues - in particular, the likelihood that an elderly woman in her mid-80's with the deceased's medical issues would readily be contemplating engaging in building renovations that might take some indefinite time.)
3. The deposit paid for the purchase of the Beaumont Hills Property was released prior to completion, and on 21 June 2019 the sum of $39,680 from the deposit proceeds was used to prepay the bond and rent for six months' rent for the duplex units (David's 8 November 2019 affidavit at [36]; [43], and David's 14 November 2009 affidavit at [11]).
4. On 19 August 2019, the sale of the Beaumont Hills Property completed and David and Susan received the sum of $1,168,032.80 from the sale proceeds and the sum of $57,263 by way of release of the deposit (David's 8 November 2019 affidavit at [43]).
5. Pausing here, the deceased was recorded in various assessment reports as being concerned to stay in her own home "with independence". Lara accepts that the deceased may well have regarded the Beaumont Hills Property as living in her own home in a practical sense but points out that the legal situation was very different and says that, by this time, the deceased was financially and economically dependent on David. I agree.

The deceased's death

1. The deceased died on 13 July 2019. Lara's evidence is that she did not learn of her mother's death for more than a week later (see Lara's 26 October 2019 affidavit at [230]).

Correspondence as to gifts/NetBank transfers

1. On 10 September 2019, Lara's solicitor wrote to David's solicitor, asking: Please advise whether your client has received any gift or loan from the deceased, in an amount exceeding $1,000, following the making of the 31 August 2016 will? If so please provide us with the particulars of same.
2. On 25 September 2019, David's solicitor replied: The only gift received by our client from the Deceased was $1,522,272.03 referred to above. Our client did receive approximately $150,000 as a loan repayment for the renovations carried out to the Glenhaven property by our client.
3. The $1,522,272.03 clearly related to the purchase of the Beaumont Hills Property; the $150,000 "repayment" figure was subsequently enlarged to a figure of around $250,000 (as per the schedules prepared by David for the hearing).
4. On 26 September 2019, Lara's solicitor wrote to David's solicitor: 7. Please indicate the date in which your client received the $150,000 loan repayment, and provide us with particulars as to the dates and amounts said to have been advanced/paid by your client to the deceased. … 10. Please confirm that your client will agree to place the sum of $1,522,272.03……… into an interest bearing account….
5. On 11 October 2019 David's solicitor replied to the 26 September 2019 correspondence, relevantly: 7. The $150,000.00 was repaid to my client over several years from the renovations and for the ongoing care provided by my client. [it is noted by Lara that part of the reason for the differential legacies in the 2016 Will was said to be this same care] … 10. This is not agreed as this was a gift from the deceased for the sacrifices that he and his family had made for the ongoing care and future care of the deceased.
6. For Lara, it is said that this statement (said to be on instructions) is an admission by David that none of the other payments he received from his mother was a gift. It is noted that David has now admitted to receiving $1,637,197.42 in electronic transfers into his accounts or accounts of his company, S&D Becker (see David's 28 August 2020 affidavit). It is said that, in addition to the $1,637,197.42 in admitted receipts, further electronic transfers were made from the deceased's account for the benefit of David (see as itemised in Lara's submissions at [158]).

Commencement of proceedings

1. On 28 October 2019, Lara commenced these proceedings seeking urgent interlocutory relief to protect what (on Lara's case) are assets of the estate. An initial interlocutory regime was put in place by Rein J on 31 October 2019, which was then amended following a number of hearings before Robb J (see Torok v Becker (2019)) resulting in orders made on 16 December 2019. There was an application to vary those orders (to which I refer below), and at the conclusion of the hearing (as noted above) an amended regime was put in place by consent between the parties.
2. Pursuant to the orders of Rein J and Robb J, David was required to deposit certain moneys into a controlled moneys account of his solicitor, and was enjoined from dealing with his assets, including his Tesla motor vehicle.
3. As part of the interlocutory orders, David was permitted to draw on the funds in the controlled moneys account for the purposes of his legal costs and day-to-day living expenses, and a separate allocation of funds was made (in the amount of $80,000) to permit David to conduct his company's Tesla after-sale parts business (trading as Unplugged Performance Australia).
4. As at 6 January 2020, the balance of the moneys held in the controlled moneys account was $766,634.91. As at 24 September 2020, the balance held in that account was $496,039.04. Thus, Lara, in her submissions, has noted that, since the date of the orders David has drawn a total of $361,771.70 against the controlled moneys account for his current and future legal costs, day-to day living expenses, and business fund (with an additional $4,897.89 from separate funds prior to the establishment of the controlled moneys account).
5. Lara points out that the same Tesla after-sale parts business (i.e., the one being financed from the controlled moneys account) had earlier received cash from the deceased's accounts since 2015 and that stock was purchased for that business from mid-2015. Using the information recorded in the company's bank accounts, accounting ledgers and sales notes, Lara's solicitor has compiled a table (which I treat as an aide memoire) identifying that the business has made only 45 sales since 2015, receiving $175,938.21 (excluding GST), and in the corresponding period the business purchased $754,053.31 of stock.
6. As at the time of the hearing before me it was noted that, since Robb J permitted the use of $80,000 of controlled moneys in November 2019, the Tesla business has made only 8 sales, generating $52,841.31 of revenue; and, in the corresponding period, the business incurred $74,860.69 of expenses, making an overall cash loss of more than $22,000 (despite the Tesla business paying no wages). Thus, Lara's complaint is that it is a business that continues to lose money is being funded from property of the deceased's estate.

Relief sought

1. The matter ultimately proceeded by way of pleadings. On 11 February 2020, Lara filed an amended statement of claim seeking the following by way of final relief: 7A. An Order that the administration of the estate of the late Isolde Becker be carried out and executed by and under the direction of this honourable Court and that all necessary declarations be made, and enquiries held, and accounts taken to carry the same into effect. [i.e., a general administration order] 7B. Further, if it be found necessary that an administrator of the said estate be appointed, or in the alternative, an Order that letters of administration of the estate of the late Isolde Becker, annexing the last will and testament of the deceased dated 31 August, 2016 be granted to the plaintiff. [i.e., an order that Lara be appointed as administrator of the estate] 7C. An Order that the first defendant do within 4 business days pay and deliver up to the Court, or alternatively, to the plaintiff all of the funds, assets, books and records of the estate of the deceased. 8. A declaration that the payment in the sum of $1,522,272.03 to the first defendant by or on behalf of the deceased from the sale proceeds of [the Glenhaven Property] was obtained by undue influence. 8A. A declaration that the funds transferred from the NetBank facility of the deceased Isolde Becker that are listed in the Schedule to this Statement of Claim were not authorised by the deceased and/or were transferred by or for the benefit of the first defendant in breach of his fiduciary and equitable duties. 8B. In the alternative to the relief sought in paragraph 8A, a declaration that the funds transferred from the NetBank facility of the deceased Isolde Becker that are listed in the Schedule to this Statement of Claim were obtained by undue influence. 9. In the alternative to the relief sought in paragraph 8, a declaration that payment in the sum of $1,522,272.03 to the first defendant by or on behalf of the deceased from the sale proceeds of [the Glenhaven Property] was obtained by unconscionable conduct of the first defendant. 9A. In the further alternative to the relief sought in paragraphs 8A-B, a declaration that the funds transferred from the NetBank facility of the deceased Isolde Becker that are listed in the Schedule to this Statement of Claim were obtained by unconscionable conduct of the first defendant. 10. A declaration that the first defendant holds or held the net sale proceeds of the sale of the [Beaumont Hills Property] and such assets as he subsequently acquired using same on trust for the estate. 10A. An order that an enquiry be held to ascertain the amount of the said proceeds that are still held by the first defendant, and in respect of any amount no longer held by him, how the said proceeds have been applied, and what assets have been acquired by the first defendant using the same and their value. 11. An order that the first defendant pay and deliver up to the Registrar to be held at the direction of the Court, or alternatively to the plaintiff as administrator of the estate of the deceased, all funds and other assets, documents of title and things which it may be found upon the said enquiry he has acquired using the said sale proceeds or any part thereof. 12. An Order that the first defendant pay into Court, or, alternatively, to the plaintiff as legal representative of the estate of the deceased, equitable compensation in the amount of the difference between sum certified upon the enquiry held pursuant to the Order in paragraph 10A and the sum of $1,522,272.03, together with compound interest thereon at the defaulting trustee rate. 12A. An Order that an enquiry be held into and account taken of the dealings and transactions of the first defendant with the deceased's Personal property as defined by paragraph 78 of the pleadings herein, and the funds transferred from the NetBank facility of the deceased Isolde Becker that are listed in the Schedule to this Statement of Claim, on the basis of wilful default, and that the first defendant pay into Court or alternatively to the plaintiff as administrator of the estate of the late Isolde Becker the amount found due upon the taking of the said account, together with compound interest thereon at the defaulting trustee rate. 12B. An Order that upon the taking of the said enquiry it be determined what are the assets acquired by the first defendant as a result of the said dealings and transactions and a Declaration be made that the same are held by the first defendant on trust for the estate of the deceased or alternatively that they shall stand charged with payment of the amount found due upon the taking of the said account, and an Order that the first defendant do deliver up to the Court or to the plaintiff as administrator of the estate of the deceased the said assets so found upon the taking of the said enquiry with all documents of title appurtenant thereto. 12C. An Order that the interest of the first defendant as legatee and otherwise as beneficiary of the estate of the deceased be impounded and held as security for his liabilities as determined under these orders. 12D. Further, or in the alternative, to the extent that it may be found that any of: (a) The payment in the sum of $1,522,272.03 to the first defendant by or on behalf of the deceased from the sale proceeds of [the Glenhaven Property]; and (b) Those of the payments listed in the schedule to this Statement of Claim that were made after the date of the said will; were otherwise valid actions of the deceased free of any claim on the conscience of the first defendant, then a Declaration that by reason of and to the extent of those payments the legacy and portion of residue given to the first defendant by the said will of the deceased are deemed or satisfied. 12E. An Order that the funds held in controlled money account pursuant to Interlocutory orders made in these proceedings be paid out to the plaintiffs by way of satisfaction of: (a) First, the costs of these proceedings; and (b) Next, the legacy provided by the said will for the first plaintiff; and (c) Next, the first plaintiff's share of residue. 13. In the further alternative to the relief sought in paragraphs 8-12, an Order, pursuant to section 80 of the Succession Act 2006, that the net sale proceeds of [the Beaumont Hills Property] and any assets acquired by the first defendant using those proceeds of sale be designated as notional estate. 13A. In the further alternative to the relief sought in paragraphs 12A and 12B, an Order pursuant to section 80 of the Succession Act 2006, that the amounts listed in the Schedule to this Statement of Claim and any assets acquired by the first defendant using those moneys be designated notional estate. 14. An Order pursuant to section 59 of the Succession Act 2006, that the plaintiff receive further provision from the estate and/or notional estate of the deceased.

Witnesses

1. Before turning to the parties' submissions on the issues for determination, it is convenient at this point to set out my observations of the principal witnesses and their evidence.

David

1. Unfortunately, there were a number of difficulties with David's evidence, such that I cannot find him a credible witness. The impression I formed was that he was focussed on his own perception of events (i.e., his evidence was highly subjective), and that he had a tendency to make a series of excuses when taken to statements made on his behalf (and purportedly on his instructions) that were proven to be incorrect or otherwise were misleading due to the fact that they did not paint a complete picture of events.
2. I have adverted above to the statements made by David's solicitor in relation to the proceeds of sale of the Kellyville Property (namely that part of the proceeds of sale of the Kellyville Property had been paid for Dr Backer's Accommodation Bond and that Dr Becker and the deceased did not have sufficient funds to pay the Accommodation Bond). Those statements were simply false. Even if David had sold the Kellyville Property with the intention of using the proceeds to assist with the payment of the Accommodation Bond it was simply untrue to assert that that was what had happened. At the very least, this points to an unreliability on the part of David when giving instructions.
3. There were a number of other examples of David's unreliability as a witness or in the giving of instructions in the conduct of the proceedings. In no particular order, those include the following.
4. First, David's conduct (and response through his solicitors) in relation to the sale of the Suzuki Jimny motor vehicle that Robb J directed be sold and the moneys deposited to the defendant's solicitor's controlled moneys account. David's solicitor's correspondence in relation to this sale clearly conveys to Lara's solicitor that the sale price was $25,000 (as does the transfer of registration form signed by the purchaser, Ms Cotrone).
5. In fact, however, as David admits, the vehicle was sold for $30,000 ($25,000 paid by bank cheque, the balance in cash - some minor part of the cash balance being attributed to reimbursement for registration expenses). David's explanation for this (see the cross-examination at T 241ff) was unconvincing in the extreme. His evidence was unclear as to who (he or the purchaser) requested that there be a part payment in cash.
6. David suggested in the witness box that he had queried with his solicitor whether he could use the cash to pay some personal accounts (and said that if that had been permissible it would have been easier to effect if the money had not been provided as a bank cheque).

Susan

1. Susan engaged in confrontation with the cross-examiner almost from the start of the cross-examination; and was assertive in the witness box and defensive of her own position (such as in relation to the receipt of income). I accept that Susan was (understandably) protective of her husband and family (emphasising the need to put food on the table for her family) but overall it was clear that she was giving evidence as an advocate in her husband's case rather than in an impartial manner. Susan and her husband obviously have a close relationship (as was evident when they were sitting together in court) and clearly there is much underlying emotion as to how events within the family have transpired, as between Susan and her sister-in-law.
2. I make no adverse findings as to Susan's credibility evidence. I simply note that she was not a particularly co-operative witness and that she clearly has an interest in the outcome of the proceedings. Therefore I would not accept assertions made by her on critical issues in the proceedings without independent and objective evidence to corroborate those assertions.

Lara

1. I found Lara to be a genuine and believable witness and her account of events struck me as plausible. Lara did not shy away from issues such as her animosity towards David or as to the fact that she (and Adam) had received considerable financial assistance from the deceased and Dr Becker over a number of years.
2. It is clear (and Lara to her credit did not attempt to hide this) that there is no love lost between Lara and David (indeed that seems to me to be apparent on both sides). Lara readily accepted that she had attempted to "smear" David's character with the deceased (behaviour that from her mother's perspective would no doubt have been upsetting); and that she wanted to put in place a situation where the deceased was removed from David's influence. I considered her evidence to be believable when she explained that this was because she wanted to put her side of the story to her mother and that she wanted her mother back in her life.
3. I accept that the dismissive reference to David as potentially being "collateral damage" does not reflect highly on Lara's opinion of, or feelings for, David but, having regard to the evidence that has emerged in relation to the deceased's estate, it is in my opinion understandable that Lara would feel that David has done the wrong thing in relation to the deceased's estate. Certainly, insofar as the deceased's testamentary intentions as discerned from the Will are concerned, what occurred was inconsistent with those intentions.
4. As adverted to above, Lara's explanation of matters to which she was taken to in the letter written to her mother was credible and her reason for doing so explicable.
5. Therefore, while I treat with caution such of Lara's account of events as is uncorroborated (such as her account of conversations with the deceased and especially the so-called "secret meetings"), just as I treat with caution such evidence from David, on the whole I accept Lara's account of events as credible.

Adam

1. Adam's evidence was not really shaken in cross-examination. He was a co-operative and considered witness. While he clearly has a personal interest in the outcome of the litigation, I accept he gave a truthful account of events according to his recollection of events.

Other witnesses

1. It is not really necessary to say much about the other witnesses. Ms McCarthy was clearly a partial witness, being a friend of David and Susan, but her evidence does not take matters much further than to confirm that the deceased stayed at her house for a number of months and that David visited her regularly during that time. (There was also, for no explanation that Ms McCarthy could provide, evidence of a joint account that had been opened in her and David's name - but she denied any knowledge of this.) I do note that one feature of the affidavit evidence of Ms McCarthy and that of the deceased's podiatrist (Ms Ignacz) was the common wording of the paragraphs of their affidavits deposing to their shared cultural heritage with the deceased (which suggests that the affidavits were not wholly in their own words), but nothing here turns on this (cf cases such as those considered in Rosebanner Pty Limited v Energy Australia (2009) 223 FLR 406; [2009] NSWSC 43 from [323]; and Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110).
2. It is, however, relevant here to note that the evidence of the real estate agents (Mr Hampson and Mr Dackert) and of the website developer, Mr Kossow, as tested in cross-examination, revealed a tendency to make generalised observations without clear focus on the basis for the observations there made. So, for example, the evidence of the real estate agents as to the deceased's "active" involvement in the sale of the Glenhaven Property and acquisition of the Beaumont Hills Property seemed to boil down to little more than that the deceased had signed various documents and attended various meetings. The evidence that she understood the letter setting the reserve price for the sale, for example, was underwhelming.
3. As to the website developer, with no disrespect to him, that evidence boiled down to him seeing the deceased watching a video on YouTube and the deceased "chuckling" when he commented on that. Any suggestion based on that evidence that the deceased was computer literate (and therefore likely to have been effecting her own NetBank transactions) is extraordinary. I will come back to that in due course.

Submissions

1. I turn now to the parties' submissions on the issues in the proceedings.

Accounting for the NetBank transfers

1. Lara notes, that, unlike the application of the deceased's funds for the purchase of the Beaumont Hills Property, David does not give evidence that the $1.77 million of NetBank transfers were gifts made by the deceased to David, his family, and company. Rather, David explains the receipts totalling $1.77 million as: loans advanced by the deceased to his business; reimbursement for expenses paid by David for the deceased's benefit; or advance payment for likely future expenses of the deceased.
2. By these proceedings, Lara has sought an account be ordered as to what was done with the money David so received from the deceased's NetBank account (prayer 12A). Lara contends that, having received $1.77 million of the deceased's funds (leaving to one side for the moment the Beaumont Hills Property purchase), David has a duty to account to Lara (as the representative of the estate for the purpose of these proceedings) for a number of reasons.
3. First, that the transfers were not gifts and that the deceased is a person who placed considerable trust and confidence in David. David accepted that he understood his mother trusted him with her finances (T 265.80). Lara points to David's affidavit evidence as revealing that this trust and confidence extended to management of the deceased's finances in that David has deposed to a conversation in early 2015 that: "It will be easier to manage or finances if our money is in one account so I will transfer you money. You pay the bills and pay off your credit card" (see David's 28 August 2020 affidavit at [21]). Lara points out that a manager is accountable to the principal, and that this is a position of trust and confidence which gives rise to a fiduciary relationship, and as a result a duty to keep proper accounts (citing Hospital Products Limited v United Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 (Hospital Products)).
4. Second, Lara contends that if it is established that David gained operational access to the deceased's NetBank facility, and did himself transact on that facility, then David's dealings with the deceased's money, if made with authority constitute a dealing of an agent for the principal (citing Barkley v Barkley Brown); and if made without authority his position is so much the worse.
5. Third, that, by May 2016, David had been expressly authorised to act as the deceased's attorney. It is said that, so far as he transacted the transfers, he was not authorised by the Power of Attorney to confer benefits upon himself (see Perochinsky v Kirschner [2013] NSWSC 400; and consider also Dimitrovski v Australian Executor Trustees Limited [2014] NSWCA 68 at [68], per Emmett JA, with whom Bergin CJ in Eq agreed). (It is said that the Power of Attorney has also a secondary significance in the alternative case of undue influence, as a circumstance supporting the relation of trust and confidence.)

Personal property

1. Lara points out that the deceased's contents were insured for $247,900, and that on David's own evidence the Glenhaven Property was furnished with new furniture following the deceased's move to Ms McCarthy's property; and prior to its sale, and that transfers were made from the deceased's account to pay for the purchase of furniture of some $47,000. However, on her death, the deceased's personal items, furniture, and chattels on death were said by David to have consisted only of: jewellery, three to four figurines and one Persian rug. It is said that this limited admission cannot be accepted as a complete statement.
2. Lara seeks an order that David deliver up furniture and personal items in his possession or control that are property of the estate, or were otherwise acquired with use of funds of the deceased.

Undue Influence & Unconscionable Conduct

1. To the extent that any of the NetBank transactions is found to have been a gift, Lara asserts that such a transfer, together with the $1.522 million of the deceased's funds applied for the purchase of the Beaumont Hills Property, are vitiated by presumed or actual undue influence, and/or unconscionable conduct.

Undue Influence

1. As to the allegation of undue influence, this is both on the basis of alleged presumed undue influence (arising from the relationship of trust and confidence between the deceased and her son); alternatively, Lara alleges actual undue influence.
2. As to the claim based on presumed undue influence, it is noted that in Johnson v Buttress (1936) 56 CLR 113 (Johnson v Buttress) at 119; [1936] HCA 41, Latham CJ said: The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised. [Emphasis added; citations omitted]
3. Lara points to the deceased's medical conditions and notes that David's own evidence describes him as her primary carer; and that he took appointment as her attorney under the Power of Attorney.
4. It is said that by 2015, or early 2016, the deceased could not look after herself, (her surgeon describing her as almost completely disabled); and that, on David's own evidence, the deceased entrusted David with significant sums of money (her life savings) leaving her without sufficient funds for her future in the event that her relationship with David "turned sour", or she were otherwise in need of funds (for, say, accommodation or medical care).
5. It is noted that there need not be a finding that David did exercise dominion over the deceased, only that he was in a position to exercise dominion. In this regard, Lara contends that the deceased was an 80 year old lady, beset with significant ailments, and dependent on David to provide her with meals, clothing, and, importantly for the deceased, accommodation outside of an aged care facility. It is said that, not only was the deceased dependent on David from the outset of his move to the Glenhaven Property, but that the more money he received from her the more dependent on him she became, as she lost the financial independence to exercise any control of her place or residence or finance for her future needs. Further, it is said that the deceased's isolation from Lara in the final years of her life left her extremely dependent on, and vulnerable to, David. It is said that the deceased's tentative and secretive arrangements to make contact with Lara demonstrate how reluctant and even fearful she was of been seen by David to take a course of which, in her perception, she might be disappointing his wishes. (Pausing here, I do not rely on these alleged secret meetings or arrangements for a finding of dependence, bearing in mind the lack of independent corroboration of such meetings and the caution to be exercised when considering accounts of conversations with persons who are now deceased.)

Unconscionable conduct

1. Lara accepts that, whereas undue influence looks at the circumstances and free will of the donor, a claim for unconscionable conduct focuses on the action, or inaction, of the donee. For Lara, reliance was placed on the well-known passage from Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 477; [1983] HCA 14 (Amadio). It is said that in the present case, the deceased was under a special disability by reason of a combination of her age, health, and dependence on David for her day-to-day living and financial needs.
2. It is contended that, if there is a finding that the NetBank transfers were authorised by the deceased, and were intended as gifts, and can be taken as being transactions of the true free will of the deceased, then the transactions should nevertheless be set aside on the basis that it is not consistent with equity or good conscience to allow David to have received the benefit of those transactions because he took advantage of the deceased when she was labouring under special disabilities (her age, infirmity, failing health, dependence, isolation from effective access to her daughter, and lack of independent recourse to advice and assistance at the end of her life).
3. It is said that the NetBank transfers resulted in the deceased losing her financial independence at a point in time where she was most vulnerable. Lara maintains that the transactions were improvident, not in the deceased's interests, and would not have reflected her wishes had she not suffered under her special disabilities. It is said that this can be seen from the testamentary provision that the deceased actually made in a succession of wills and codicils up to and including the 2016 Will. It is said that it is not likely that, if free of the disabilities, the deceased would have set out to defeat her own long-standing testamentary policy.
4. Lara says that David acknowledged it was not right that he should receive hundreds of thousands of dollars of the deceased's savings when he said to the deceased "[n]o, it's your money so it should be in your account", but notes that David then went on to receive additional funds without further objection, (i.e., it is said, understanding that it was not right that he receive them). It is said that the same is true for the funds used to purchase the Beaumont Hills Property. Lara argues that the purchase of the Beaumont Hills Property in David's and Susan's names not only removed a significant financial resource available to the deceased, but meant that she had no legal right to occupy the property, (absent declaratory relief obtained in proceedings of this kind).

Presumed Ademption

1. To the extent that there is a finding that any of the NetBank transactions was authorised by the deceased, for her benefit, or a valid gift free of presumed or actual undue influence and made in good conscience, Lara submits that any such transfer made after 31 August 2016 should be taken as an ademption or satisfaction of the gifts to David under the Will (in full or in part). The same is also said of the $1.522 million in funds used to purchase the Beaumont Hills Property, that transaction happening after the date of the Will.
2. The basis of the presumption of ademption is the maxim that equity leans against double portions - see Reynolds v Bonnici [2017] NSWSC 828 at [45], where Lindsay J quoted Murray CJ in In re Everett; Executor Trustee and Agency Company of South Australia Limited v Everett [1917] SALR 52 at 65-66 to explain the presumption of ademption as follows. Ademption depends on the intention of the donor. In some cases the intention is presumed. … An intention to adeem is presumed in only two classes of cases: (1) where a father or person in loco parentis gives a legacy to a child of his own or to a person towards whom he stands in loco parentis, and subsequently makes a gift or advance of substantially the same quality as the legacy to the same child or person during his lifetime; and (2) where a person gives a legacy for a particular purpose and subsequently makes a gift or advance to the legatee for the same purpose. In these cases it is presumed that the donor did not intend that both benefits should be taken, but meant the gift to be in satisfaction of the legacy either wholly or pro tanto according to the amount of the gift is equal to or less than the amount of the legacy. The presumption, however, may be rebutted by evidence shewing that the donor intended both gift and legacy to have effect, and this in its turn may be met by evidence in confirmation of the presumption.
3. In the present case it is said that the presumption applies, noting that: the deceased is David's mother, and the amounts received by David are of the same quality of the $2 million legacy in the Will. It is said that the history of testamentary dispositions made by Dr Becker and the deceased shows the one constant - an equal division between their children after adjustment for inter vivos advancements. It is noted that this equal division is expressly provided for in the form of codicils to ensure that inter vivos gifts made to their children after the date of their Wills had been taken into account by the executor when dividing up the estate.

Family Provision

1. Finally, if the net effect of the findings is that Lara receives less than $1 million, then it is submitted that an order should be made pursuant to s 80 of the Succession Act designating sufficient funds traced to the NetBank transactions within the last three years of death, or the Beaumont Hills Property proceeds of sale, as notional estate for the purpose of meeting a family provision order under s 59 of the Succession Act to meet a legacy of $1 million plus costs. It is said that there should be a further enquiry for the purpose of tracing the funds.
2. Lara notes that determination of her family provision claim will only become necessary if there are findings that the impugned transactions were valid dispositions. Lara's position is that if that is so, it should be found that the disposition were entered wholly or partly by the deceased for the purpose denying or limiting provision being made out of the deceased's estate to Lara.
3. If it becomes necessary to make a family provision order, it is said that an order should be made in Lara's favour in the amount of $1 million plus costs out of the notional estate having regard to: the benefits conferred on David in the last few years of the deceased's life; the financial and other material circumstances of Lara and her young family; the significant legal costs Lara has been forced to incur in prosecuting these proceedings; and the conduct of David after the date of death of his mother in the context of these proceedings. It is said that the history of testamentary instruments up to and including the 2016 Will demonstrates what the testator would have done had her scheme not miscarried by reason of the transactions that have occurred.

Letters of Administration c.t.a.

1. Finally, Lara says that David is not a fit person to administer the estate of the deceased and that an administrator should be appointed to complete the tasks necessary.
2. The evidence relied upon in support of this submission includes: the funds received by David during his mother's lifetime for purposes other than his mother's benefit; David's failure to keep and provide proper accounts during and after the death of the deceased; and David's lack of candour and untruthfulness in dealing with the estate, and the evidence put before the Court.
3. It is said that there is no need to burden the estate with the appointment of a third-party administrator; that Lara is the person next most interested in the estate and therefore the proper applicant for letters of administration; and that Lara is already familiar with the details of the estate, David's accounts, and the matters required to administer the estate. Further, Lara says that (the estate having already been considerably wasted), the estate ought not be subjected to further unnecessary burdens.

David's submissions

1. David relies on a number of affidavits sworn by him in the proceedings as well as affidavit evidence from his wife (Susan), his mother-in-law (Ms Margaret Ann Hart (see her affidavit of 17 March 2020, two real estate agents (Mr Wayne Danckert - see his affidavit of 18 March 2020; and Mr William Angus Hampson - see his affidavit of 19 March 2020); a website developer, Mr Daniel Kossow (see his affidavit of 18 March 2020), Ms Natalia McCarthy (see her affidavit of 28 May 2020); and Ms Phillipa Joan Ignacz (the deceased's podiatrist, to whom David gave the deceased's grand piano after her death - see her affidavit of 14 May 2020).
2. David says that, when he and his family moved into the Glenhaven Property, he undertook repairs including: fixing leaking bathrooms, works to the lounge room, renovating the downstairs area, installing hand rails on the stairs, maintaining the backyard and pool, renovating the pool, removing the horse stables and dangerous trees, and undertaking plumbing and electrical work (David's 8 November 2019 affidavit at [18], and 17 March 2020 affidavit at [60] and [69], and Susan's 17 March 2020 affidavit at [13]). David says that he paid for these works from his own funds from the sale of the Kellyville Property (David's affidavit 17 February 2020 affidavit at [60]).
3. David says that, after he moved into the Glenhaven Property, he purchased a Ford Focus Titanium for the deceased (see David's 17 February 2020 affidavit at [70] and 28 August 2020 affidavit at [41]).
4. David's evidence is that in the period after July 2014 when he and his family moved into the Glenhaven Property, he usually paid for the household shopping, and also commenced paying the utility bills (David's 17 March 2020 affidavit at [62]).
5. As to the list of payments in schedule A to the amended statement of claim (Schedule A), David gives evidence that, in the period from 8 February 2015 to 19 June 2019, the deceased paid to him directly the sum of $1,637,197.42, being certain of the payments referred to in Schedule A (David's 28 August 2020 affidavit at [190]). In relation to the balance of the payments referred to in Schedule A, being payments in the sum of $191,847.83 ($1,829,045.25 less $1,637,197.42), David says that payments in the sum of $183,741.76 were made to bank accounts to which David does not have access, and alleged payments in the sum of $8,106.07 were made to unknown recipients for unknown purposes (David's 28 August 2020 affidavit at [18]-[19] and [191]). I discuss below how David groups these sums into categories of payments that he says were: for the sole benefit of the deceased; made at the deceased's request for the benefit of David and his family as well as for the deceased; or made for general living expenses of the household (inclusive of the deceased and David's family).

Schedule A payments said to be made for the sole benefit of the deceased

1. David says that payments in the sum of $508,465.49 (being payments in the sum $464,020.41 from the payments received by David referred to at David's 28 August 2020 affidavit at [190] and the payments in the sum of $44,445.08 from the payments made to bank accounts to which David does not have access being the five payments referred to at David's 28 August 2020 affidavit at [90], [94], [96], [98] and [126]) were either for, or were in reimbursement of, expenditure on items solely for the deceased's benefit (although I interpose to note that those payments are at least in part referable to home interior design expenses). It is submitted that there can no basis for equity setting aside the payments made to David in reimbursement of those payments.

Schedule A payments in respect of which the deceased accepts he received a benefit

1. David says the following in respect of payments in the sum of $1,320,579.76 comprised within the Schedule A payments.
2. First, that payments in the sum of $232,823.17 from the payments received by David were either for, or were in reimbursement of, expenditure on items purchase at the deceased's request for the benefit of the deceased as well as for the benefit of David, his wife and/or their children (David's 28 August 2020 affidavit at [190]).
3. Second, that payments in the sum of $18,132.00 from the payments made to the bank accounts to which David does not have access were for the benefit of the deceased as well as for the benefit of David and his wife (being the six payments referred to at David's 28 August 2020 affidavit at [86], [95] and [125]).
4. Third, that payments in the sum of $361,836.93 from the payments received by David were either for, or were in reimbursement of, expenditure in respect of general living expenses for the household which comprised the deceased, David, his wife and their children (David's 28 August 2020 affidavit at [190]).
5. Fourth, that payments in the sum of $578,516.91 from the payments received by David which were payments which were not for the direct benefit of the deceased (David's 28 August 2020 affidavit at [190]), although were substantially payments made in respect of David's businesses.
6. Fifth, that payments in the sum of $121,164.68 from the payments made to bank accounts to which David does not have access were not for the direct benefit of the deceased (being the three payments referred to at David's 18 February 2020 affidavit at [108], [128] and [142]).
7. Sixth, that payments in the sum of $8,106.07 alleged to be made to bank account to which David does not have access which were made to unknown recipients for unknown purposes (being the payments referred to at David's 28 August 2020 affidavit at [19]. It is said that these are payments which cannot properly be the subject of a claim against David on any basis.
8. David contends that, to the extent to which he and his family received a benefit from the Schedule A payments, it should be concluded that the deceased voluntarily intended to make a gift to David in exercise of her free will and independent judgment and were in all the circumstances fair, just, and reasonable. It is said that this is especially so in circumstances where David and his wife were caring for the deceased and had a close relationship with her. In contrast, it is noted that Lara had had a falling out with the deceased on 6 February 2016 and had limited contact with the deceased in the period after that date.

Beaumont Hills Property purchase moneys

1. In respect of the Beaumont Hills Property purchase moneys, David contends that it should be concluded that the deceased intended to make the purchase moneys a gift to David in exercise of her free will and independent judgment. It is said that this is especially so where: the deceased benefited from the purchase of the Beaumont Hills Property in that it had a granny flat "which provided her with somewhere to live"; the deceased was closely involved in the purchase of the Beaumont Hills Property and approved its purchase; and where the deceased also benefited from the sale of the Beaumont Hills Property in that part of the sale proceeds were used to pay 6 months' rent for a duplex unit in which in which it was intended she would live (this amount also being referred to as a payment made solely for the benefit of the deceased by David in his 28 August 2020 affidavit at [187]).
2. Further, emphasis is again placed on the fact that David and Susan had previously sold the Kellyville Property with the (stated) intention of funding Dr Becker's nursing home bond, and the deceased had expressed concern that David and his wife had sold their house for no reason (David's 8 November 2019 affidavit at [16], and 17 March 2020 affidavit at [59] and [88]).

Appropriate intervention if relief granted

1. David says that if, contrary to his contentions, it is concluded that he should not receive the benefit of all the payments made to him by the deceased, then any relief granted to Lara should be such as to achieve practical justice and to ensure that Lara does not receive an unwarranted benefit at David's expense (referring by way of example to Bridgewater v Leahy at [125]-[127], per Gaudron, Gummow and Kirby JJ).
2. In this regard, David submits that any relief granted to Lara should take into account the benefit received by the deceased from the payments, the assistance given by David to the deceased, and the desire of the deceased to benefit David. It is said that any relief granted should also take into account the loss made on the sale of the Beaumont Hills Property in the sum of $225,000.00; and also the payment of the sum of $19,840.00 for rental paid in advance for the unit in which the deceased was to live.
3. Further, if, contrary to David's contentions, it is concluded that any of the payments made to David are liable to be set aside at equity, then it is submitted that such payments should be considered to adeem or satisfy in whole or in part David's legacy and portion of residue given to him by the Will of the deceased, and be set-off against the said legacy and portion of residue. It is said that the valuation of the benefit received by David for the purpose of any ademption claim should take into account the matters referred to above.

Costs

1. David has sought the opportunity to make submissions as to costs after the substantive judgment.

Determination

1. I turn now to the issues for determination. I propose to deal first with the NetBank transactions because there is an additional claim in relation to those (i.e., additional to the claims of undue influence and the like that relate both to the NetBank transactions and to the proceeds of sale that were applied to the Beaumont Hills Property).

NetBank transfers

1. The first issue in this context is who it was that effected the NetBank transfers out of the deceased's account over the period from 2015.
2. David has sworn a number of affidavits in these proceedings in which he deposes that it was the deceased who effected the $1.77 million worth of NetBank transfers from her account over the relevant period. So, for example, David has deposed that: Since I commenced living with my mother at the Glenhaven property, my mother kept her own bank accounts and was the only person who had access to them. I did not have her passwords until after she passed away. While looking for documents relating to this matter, after her death, I discovered where she had written down the passwords [see David's 14 November 2019 affidavit at [6]] … All monies provided to me, my wife or our business were transferred to us by way of internet transfers authorised and made by my mother. At no stage prior to her death did she not make her own financial decisions. [see David's 14 November 2019 affidavit at [7]] … The money was transferred by her to my accounts. [see David's 14 November 2019 affidavit at [21]] … Since I commenced living with my mother at the Glenhaven property, my mother kept her own bank accounts and was the only person who had access to them. In order to login into [sic] her Netbank online banking, there was a two-factor authentication process where the code would be sent to her Commonwealth Bank app on her phone which she then inserted online. I did not have any of her passwords until she passed away. When my mother passed away, her belongings were stored in a box and whilst looking for documents relating to this matter, I discovered a notebook where she had written down the passwords which included the Netbank password. [see David's 17 March 2020 affidavit at [64]] … All monies provided to me, Susan or our business were transferred to us by way of internet transfers authorised and made by my mother from my mother. [see David's 17 March 2020 affidavit at [66]] … My mother would transfer the monies to my bank account and I would arrange for the cash to be withdrawn from the bank [see David's 17 March 2020 affidavit at [99]].
3. On 28 August 2020, David swore a further affidavit in which (at [2]) he confirmed the above statements and gave further evidence to the effect that it was the deceased who effected the transfers (see at [20]-[21], [23]-[26]). In the witness box, David adhered to this evidence.

Undue influence

1. I turn now to the claims of undue influence (presumed undue influence and, in the alternative, actual undue influence), which cover both the NetBank transfers (including the deposit and that portion of the proceeds of sale from the Glenhaven Property that were deposited to the deceased's account), and the proceeds of sale from the Glenhaven Property to the extent that they were used to acquire the Beaumont Hills Property, as well as the sum expended for the new furniture acquired at the time of the marketing of the Glenhaven Property.
2. I have extracted above the well-known passage from Johnson v Buttress in this regard. It is also relevant to extract again what was said by Sir Anthony Mason (writing extra-curially about the doctrines of undue influence and unconscionable dealing in "The Impact of Equitable Doctrine on the Law of Contract" (1998) 27 Anglo-American Law Review 1) of what he referred to as a class 2B relationship (at 6-7) (using the terminology adopted by the English Court of Appeal in Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923; [1992] 4 All ER 955): My understanding of undue influence, not altogether fashionable in the light of modern English decisions, is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party (Commercial Bank of Australia Ltd v. Amadio (1983) 151 CLR 447 at 461,474). In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence (See Peter Birks and Chin Nyuk Yin, On the Nature of Undue Influence, Ed. J. Beatson and D. Friedmann, "Good Faith and Fault in Contract Law" 57 et seq.). The list of the old relationships of influence from which undue influence was presumed supports this view: solicitor and client, doctor and patient, spiritual adviser and novice or parishioner, parent and child, guardian and ward and possibly express trustee and beneficiary (See Meagher, Gummow and Lehane, Equity, Doctrines and Remedies, 3rd edn (1992) s 1519). In these relationships, called class 2A relationships in Barclays Bank plc v. O'Brien ([1994] 1 AC 180 at 189), the weaker party, dependent on the stronger party, is not likely to bring to bear a free, voluntary and independent judgment to a transaction involving the parties to the relationship, whether it is a contract or a gift. Class 2A relationships are to be distinguished from class 2B cases where a de facto relationship of trust and confidence will raise a presumption of undue influence. [Emphasis added]

Catching Bargain/Unconscionable conduct

1. In the alternative, Lara claims that the relevant transactions amounted to a catching and unconscientious bargain, i.e., that they were procured by unconscionable conduct. It is strictly not necessary to determine this given my findings in relation to the previous issues. However, for completeness I note as follows in relation to the alternative claims based on a catching bargain or unconscionable conduct by David.
2. In Amadio, Deane J noted (at 474) that: The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd. v. Whitelaw, at p. 720; Watkins v. Combes, at pp. 193-194; Morrison v. Coast Finance Ltd., at p. 713). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.
3. In Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 at 713, to which Deane J referred in the above passage, the elements of an unconscionable bargain were set out as follows by Davey JA. On such a claim the material ingredients [of an unconscionable bargain] are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of these circumstances, it creates a presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable…
4. See also Turner v Windever [2003] NSWSC 1147 (Turner v Windever) at [105], where Austin J adopted the following summary of the elements of unconscionable dealing (based on cases such as Blomley v Ryan (1956) 99 CLR 362 at 415 per Kitto J; [1956] HCA 81; Amadio; Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61; and Bridgewater v Leahy): first, that the weaker party must, at the time of entering into the transaction, suffer from a special disadvantage vis-a-vis the stronger party; second, that the special disadvantage must seriously affect the weaker party's capacity to judge or protect his or her own interests; third, that the stronger party must know of the special disadvantage (or know of facts which would raise that possibility in the mind of any reasonable person); fourth, that the stronger party must take advantage of the opportunity presented by the disadvantage; and, fifth, that the taking of advantage must have been unconscientious. His Honour observed that once the first three of those elements were established and the improvidence of the transaction was shown, the plaintiff's task was "made easier by an equitable presumption to the effect that the improvident transaction was a consequence of the special disadvantage, and that the defendant has unconscientiously taken advantage of the opportunity presented by the disadvantage" (see at [106]).

Claim for further provision

1. The claim for further provision out of the estate or notional estate of the deceased does not arise in light of the findings I have made on Lara's principal claims. However, in the event that the conclusions I have reached above be incorrect, I will briefly deal with the alternative claim for a family provision order. This must be approached on the assumption (contrary to the above findings) that the NetBank transfers were authorised by the deceased (or were valid gifts), and that the gift of the proceeds of sale of the Glenhaven Property survived the other challenges made by Lara on her primary claims. In those circumstances, there is (in practical terms) almost no actual estate, and the only way in which an order for provision (if otherwise warranted) could be made would be from the designation of some property as notional estate (see below).

Relevant Principles

1. Section 59 of the Succession Act empowers the making of a family provision order in relation to the estate of a deceased person if the Court is satisfied of the matters set out in s 59(1) of the Succession Act (see the principles articulated by Hallen J in Page v Hull-Moody [2020] NSWSC 411 from [120]). A determination as to whether a claimant has been left without adequate provision for his or her proper maintenance and advancement in life involves an evaluative judgment.
2. The question, relevantly, is whether the Court is satisfied that "adequate provision for the proper maintenance, education or advancement in life" has not been made for the claimant (i.e., here, Lara). The time at which the adequacy of provision is to be tested is the time the application is considered (s 59(1)(c) of the Succession Act). If, at that time, it is found that the deceased did not make adequate provision for the plaintiff's proper maintenance, education, and advancement in life, then there must be a determination as to whether, and what, provision the Court ought to make for the claimant.
3. In Sgro v Thompson [2017] NSWCA 326, White JA (McColl and Payne JJA agreeing) said (at [86]): 86. … The most important word in s 59(1)(c) is "proper". Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
4. Pursuant to s 60(1) of the Succession Act, regard may be had (on a non-exhaustive basis) to the matters set out in s 60(2) of the Succession Act for the purpose of determining whether to make a family provision order, and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, to the question whether, and if so what, order for provision should be made.

Section 60(2)(a) - any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

1. As noted above, Lara and David are the only children of the deceased and Dr Becker. They both appear to have had a close relationship with the deceased during their childhood and early adulthood. Lara's relationship with her mother became more distant (and for a time non-existent) in the last few years of the deceased's life. David, on the other hand, was the primary carer for the deceased with whom she lived for the last years of her life. The evidence supports the conclusion that the deceased loved both her children and sought to provide for each of them (and that she was distressed at the breakdown of the relationship between her children; and upset at her lack of contact with Lara at the end of her life).
2. There are competing versions as to why the deceased's relationship with Lara did not continue up until the deceased's death. Lara obviously considers that David poisoned their mother's mind towards her - and says David made it impossible for her to visit her mother during the last years of her life. David denies this. Suffice it to say that there was obvious antipathy between the siblings and it is likely that the deceased was placed in an invidious position in that regard.
3. I accept that Lara was genuine in her expression of upset at being excluded (as she perceived it) from her mother's life; and that she genuinely felt that David was responsible for the breakdown in her relationship with her mother. I also accept that David was genuinely caring of his mother and that she was happy living with David and his family.

Section 60(2)(b) - nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. The deceased's obligations, as such, to Lara and David did not go beyond the kind of moral obligation to consider the application of her testamentary bounty to her adult children (and I bear in mind in this regard the caution that has been expressed as to expressions of this kind).

Section 60(2)(c) - nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. When the deceased died, she had no real property in her own name and very little in the way of assets. On the assumption (which as noted above is the assumption on which this alternative claim is predicated) that the transactions challenged by Lara's primary claims are not set aside, then as noted above there is virtually no estate for distribution, and any order for provision could only be made if there is a designation of notional estate. What Lara seeks to have designated as "notional estate" (see prayers 13 and 14) are the proceeds of sale used to acquire the Beaumont Hills Property (and any assets acquired from the proceeds of sale of that property), and such of the NetBank transfers as were made during the period of three years before the deceased's death.
2. I have set out above what must be established in order for there to be a notional estate order in the present case. Relevantly, it must be established that the deceased entered into the relevant property transactions with the intention, wholly or in part, of denying or limiting the estate that otherwise would have been available to meet a claim for provision by Lara.
3. It is obvious that, when the proceeds of sale of the Glenhaven Property were used to acquire the Beaumont Hills Property, and again when the balance of the proceeds were transferred electronically out of the deceased's account and into David's account, or were used otherwise for his benefit, this had the inevitable effect of depleting the deceased's estate that otherwise would have been available for distribution to the beneficiaries under her Will. However, I cannot conclude that the deceased understood that in so doing (particularly in relation to the proceeds of sale used to acquire the Beaumont Hills Property), this would have the effect of depleting her estate to the extent that it would exclude Lara from benefiting under the Will (so as to enable me to conclude on the balance of probabilities that the deceased intended to deny or limit a claim by Lara for provision out of the estate).
4. I consider that it is more likely that the gift of proceeds for use in the acquisition of the Beaumont Hills Property was the product of the deceased's concern that David and his wife had sold their own home ("for no reason"), and were living with and caring for her. The intention to benefit David (and his wife) does not of itself amount to an intention to deny or limit a claim by Lara. As to the balance of the proceeds of sale, then even on the assumption that the impugned NetBank transfers were in fact dispositions by the deceased of her property, although these are more problematic, I am still not persuaded on the balance of probabilities that they were with the intent of denying a claim by Lara (although they certainly had that effect). In that regard, the fact that the NetBank transfers were in incremental amounts, and (on the hypothesis that they were intentional transfers) that some at least were for investment in David's business which would be consistent with a desire by the deceased to support that business, supports the conclusion that the payments were to benefit David but not intentionally to deprive Lara of an entitlement to share in the estate.

Section 60(2)(d) - financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. The evidence of the financial resources and needs (or claimed needs) of Lara (and the circumstances of David) may be summarised as follows.
2. Lara has disclosed her financial resources and needs in her affidavit affirmed 8 November 2019. She and Adam live with their children in rental accommodation and plan to rent until they can afford to build a residence on land they have purchased at Werombi (after the sale of the Wallacia Property). They carry on a conveyancing practice. They have assets totalling $1,214,844.85 and liabilities of $844,358.01. The business had a trading account balance of $56,445.62 and profits in the years ending 2017 and 2018 of $150,217 and $96,254 respectively. The family's sole source of income is the amount received from the business. Lara's needs are said to be the provision of a fund to enable the construction of a dwelling on the Werombi land, to pay off the business loan, and provide a capital sum to provide for exigencies of life, and/or an investment in superannuation for her retirement.
3. David has sworn an affidavit on 14 November 2019 in which he sets out his assets and liabilities. It is said that from the proceeds of sale of the Beaumont Hills Property, he invested $700,000 in digital assets for the purposes of trading. (It appears only $385,068.87 was left by the time they were converted and returned to Australia.) David deposes that neither he nor Susan is employed, and that they receive fortnightly Centrelink benefits. He lists his assets at $1,467,586.89, and his liabilities as $148,756.64.
4. David and his family live in rental accommodation. He estimates the family's living expenses on a monthly basis as $7,634.84. He has given evidence of the Tesla business investment (paid for out of the proceeds of sale of the Beaumont Hills Property), and the estimated costs of the business.
5. I should note that complaint is made by David as to the level of disclosure by Lara about her financial circumstances; in particular as to the position of the conveyancing business now operated by Adam (Conveyancing Solutions and Legal) which commenced in about 2016. Lara's evidence was that this was, in effect, a sole solicitor practice with the assistance of a conveyancing or other clerk. For Lara, it is said that the value of the business is comprised in the personal exertions of Adam, and therefore the complaint as to non-disclosure is not sustainable.

Section 60(2)(e) - financial circumstances of any person with whom the applicant is cohabiting

1. Adam's financial circumstances were not disclosed in any detail, save that he is a solicitor operating his own conveyancing practice. It must be assumed that Adam is in a position to help support his wife and children; and that he intends to do so consistent with his responsibilities as a husband and father.

Section 60(2)(f) - any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. Not applicable.

Section 60(2)(g) - age of the applicant when the application is being considered

1. Lara is nearly 45 years of age. David is currently 43 years of age.

Section 60(2)(h) - any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. Lara's contribution to the deceased's welfare was mainly in the period prior to her father's death. I accept that Lara had a strong relationship with her father during his lifetime. After the breakdown in her relationship with David, there is no suggestion that Lara made any contribution to the deceased's welfare. She does not appear to have made any contribution to the deceased's estate as such.

Section 60(2)(i) - any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. There is no doubt that substantial provision was made for Lara during the deceased's lifetime (as outlined above) including the payment of Lara's university fees (see Lara's 26 October 2019 affidavit at [182(a)] and [25]) and, more significantly in financial terms the forgiving of the debts that were discharged at the time of the reverse mortgage. (This was, however, recognised in effect by the differential pecuniary legacies given to Lara and David under the Will.)

Section 60(2)(j) - any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. Evidence of the deceased's testamentary intentions can be gleaned to an extent from her prior testamentary documents, but more relevantly from the instructions recorded by the solicitor who drafted her last Will - namely, that she was seeking to "even things up" between Lara and David.

Section 60(2)(k) - whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

1. Not applicable.

Section 60(2)(l) - whether any other person is liable to support the applicant

1. As noted above, Adam would have the usual obligation of a spouse in relation to the maintenance and support of his spouse, Lara.

Section 60(2)(m) - character and conduct of the applicant before and after the date of the death of the deceased person

1. There was no doubt a period (albeit relatively small) of estrangement or distance in the relationship between Lara and the deceased in the last years of the deceased's life. At best, it appears that Lara had a limited number of phone calls to her mother during the last two years of her life (although she says that she continued to send cards or letters). I have already noted the competing versions as to the cause of the limited contact. Suffice it to note that it does not appear to have led the deceased to change her testamentary intentions. (As to estrangement in the context of family provision cases generally, see what was said by Basten JA in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [40], [49]; and see also the discussion by Hallen J in Nielsen v Kongspark [2019] NSWSC 1821 at [233]-[237], and Page v Page [2016] NSWSC 1218 at [59]-[60]).
2. I do not consider that this is a disentitling factor in the present case, in circumstances where the deceased clearly was on notice of the tension between Lara and David (and it may be assumed that she was therefore aware of the difficulty that Lara might experience in visiting the home when David was living there).

Section 60(2)(n) - conduct of any other person before and after the date of the death of the deceased person

1. David's evidence is (and I accept) that, during his life, including in the period from 2014 to the date of the deceased's death, he and Susan had a very close and loving relationship with the deceased (see for example David's 8 November 2019 affidavit at [16], and 17 March 2020 at [24] and [26], and Susan's 17 March 2020 affidavit at [15] and [75]). They say that in the period from 2014 until the deceased's death, they provided extensive assistance to the deceased, and did the deceased's laundry, cooked and provided her meals, drove her to appointments and cleaned the house (Susan's 17 March 2020 affidavit at [16], and David's 8 November 2019 affidavit at [33). I accept that they provided day to day care and assistance over this period.

Section 60(2)(o) - any relevant Aboriginal or Torres Strait Islander customary law

1. None is here applicable.

Section 60(2)(p) - any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

1. No particular matters were relied upon in relation to this factor.

Determination as to alternative family provision claim

1. Taking into account all the circumstances set out above, I consider that the fact that Lara (on the assumptions on which the alternative claim has been predicated) has been left with no provision at all out of the deceased's estate means that she has been left without adequate or proper provision. I accept that at the end of the deceased's life the relationship between the two was distant, and I accept that there was substantial provision made for Lara during the deceased's life, but it is clear that the deceased still felt that Lara had a claim on her testamentary bounty.
2. While Lara has assets in terms of her home and an interest in what appears to be a profitable business, and has the support of her husband, she has two young children and her home is encumbered, such that to make no provision for her under the Will is not in my opinion proper or adequate.
3. That said, when comparing Lara's needs with those of David (even accepting that David's needs are no doubt contributed to by his seemingly poor track record in business investments and his foray into digital currency trading), David is in a position of greater need (and he also has a young family to support); and David provided the day to day care and support for the deceased during the last years of her life. I also consider that Lara's prospects of advancement in life through her own efforts (and those of her husband) are greater than those of David.
4. In those circumstances, were I to have made an order for provision for Lara out of the estate I would have limited it to a lump sum of $100,000 as a buffer for the vicissitudes and contingencies of life. As it is, I am not persuaded that there are relevant property transactions out of which a notional estate order can be made, and therefore had the matter fallen to be determined on the alternative claim, I would have concluded that it should be dismissed even though I accept that there had not been adequate or proper provision made for Lara by the deceased under the Will, having regard to the extent of the deceased's assets at the time that the application was determined.

Conclusion

1. For the reasons above, I have concluded that David is liable to account to the estate for the amount of the NetBank transfers (less the sum of $9,531.41 for transactions that, on balance, I accept were most probably solely for the deceased's benefit - being pharmaceutical disbursements of $8,975.41; Fournez Hair for $61; and OPSM from $495), I have reached that conclusion on the basis that these were effected by David (and not authorised by the deceased) as the deceased's agent and/or as her fiduciary (he having been entrusted by her, on his own case, to manage his finances). Having not satisfactorily accounted to the estate for those amounts, I have concluded that David should reimburse the estate for the sum of $1,819,513.84.
2. Further, I find that there was a sufficient relationship of dominion and ascendancy of David in respect of the deceased so as to give rise to a presumption of undue influence in relation to: the NetBank transfers; the proceeds of sale of the Glenhaven Property that were applied to the Beaumont Hills Property; and the acquisition of the new furniture for the Glenhaven Property at the time that it was marketed for sale. I have concluded that the presumption of undue influence has not been rebutted and (had it been necessary to determine) I would have concluded that this was a case where actual undue influence and unconscionable conduct were made out. Accordingly, David should account to the estate and is liable for equitable compensation in favour of the estate for those amounts. Taken together, the proceeds of the sale of Glenhaven Property that were applied for the purchase of the Beaumont Hills Property ($1,522,272.03), and the amount of NetBank transfers that I have concluded should be reimbursed to the estate ($1,819,513.84), comes to a total of $3,341,785.87.
3. As to the personal property that appears to have been disposed of by David, it is difficult to put a value on that and I am not persuaded that it is in the interests of the estate for further costs to be expended in proceeding to order an account in respect of that issue.
4. To the extent that David is unable to reimburse the estate for the full amount so ordered, then the shortfall should be treated as an ademption of the legacy provided for him under the Will, since he has in effect had the benefit of that legacy already. I note that as at the final day of the hearing (9 October 2020), there remained only $474,794 in the controlled moneys account, and a further $57,000 in a business account (resulting in the funds available to satisfy any judgment on David's evidence being a cumulative total of $531,794). Since there seems no basis (having regard to David's evidence as to his financial circumstances) to believe that he will be in a position to reimburse the estate sufficiently to permit the payment out of both his legacy and that for which provision was made for Lara, there should be an order that the amounts presently held in the controlled moneys account be paid out to Lara in partial satisfaction of her legacy under the Will. Therefore (unless the parties persuade me otherwise in relation to the form of the orders to be made - see below), the sum $531,794 held in the controlled moneys account and the business account should be transferred to Lara, as well as any proceeds from the sale of Tesla parts as may later be made to liquidate stock, up to the amount of $1 million in satisfaction of her legacy under the Will. I consider that David has already had the benefit of the legacy provided for him under the Will, and, accordingly, that any amounts owing to the estate that cannot be repaid should be considered the satisfaction of his share of the estate, in accordance with the principles of ademption.

Orders

1. I therefore propose to make the following orders, but before finalising those orders I will invite the parties to make any (brief) submissions as to the terms of the orders if the parties consider that the orders do not adequately reflect the above reasons, or if there are further orders required in order to implement the above reasons. I will also (as requested by David) give the parties an opportunity to make submissions as to costs with a view to finalising all orders on the papers.
2. The orders I propose to make (leaving aside the question of costs) are as follows: 1. Order that the administration of the estate of the late Isolde Becker be carried out and executed by and under the direction of this Court and that all necessary declarations be made, and enquiries held, and accounts taken to carry the same into effect. 2. Further to Order 1, order that letters of administration of the estate of the late Isolde Becker (the deceased), annexing the last Will and testament of the deceased dated 31 August 2016 be granted to the plaintiff (Lara Caroline Torok). 3. Order that the first defendant do, within 4 business days, pay and deliver up to the plaintiff, as administrator of the estate of the deceased all of the funds, assets, books and records of the estate of the deceased. 4. Declare that the payment in the sum of $1,522,272.03 to the first defendant by or on behalf of the deceased from the sale proceeds of the property referred to in these reasons as the Glenhaven Property was obtained by undue influence. 5. Declare that funds totalling ($1,829,045.25) transferred from the NetBank facility of the deceased Isolde Becker were not authorised by the deceased and were transferred by or for the benefit of the first defendant in breach of his fiduciary and equitable duties as the deceased's agent (and were obtained by the first defendant by undue influence). 6. Declare that the first defendant holds or held the net sale proceeds of the sale of the property referred to in these reasons as the Beaumont Hills Property, and such assets as he subsequently acquired using the same, on trust for the estate. 7. Order that the first defendant pay and deliver up to the plaintiff as administrator of the estate of the deceased, all funds and other assets, documents of title and things which he has acquired using the said sale proceeds or any part thereof. 8. Order that the first defendant pay to the plaintiff as legal representative of the estate of the deceased, equitable compensation in the sums of $1,522,272.03 and $1,819,513.84 (totalling $3,341,785.87), together with compound interest thereon at the defaulting trustee rate. 9. Order that the interest of the first defendant, as legatee and otherwise as beneficiary of the estate of the deceased, be impounded and held as security for his liabilities as determined under these orders. 10. Order that the funds held in the controlled moneys account pursuant to Interlocutory orders made in these proceedings be paid out to the plaintiffs by way of satisfaction of the legacy provided by the deceased's Will for the first plaintiff.

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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: 09 November 2020