van Camp v Bellahealth Pty Ltd

JUDGMENT

1. On 26 July 2020, Dr Harry Nespolon signed a "Binding Death Benefit Notice" (BDBN) in relation to the Nespolon Superannuation Fund (Fund) that directed the Fund trustee to pay Dr Nespolon's member benefits to his de facto partner, Lindy van Camp, in the event of his death.
2. Dr Nespolon signed the BDBN in hospital on the day he died from cancer at the age of 57, at which time he was the sole member of the Fund and the sole director and secretary of the Fund trustee, Bellahealth Pty Ltd (Bellahealth).
3. Following Dr Nespolon's death, Bellahealth did not pay Dr Nespolon's member benefits, which have an estimated value of $4,722,000, to Ms van Camp. Bellahealth claimed the BDBN was invalid as it had not been executed in accordance with the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and the regulations under the SIS Act and also raised concerns about Dr Nespolon's capacity.
4. In these proceedings, Ms van Camp, the plaintiff, seeks a declaration that the BDBN executed by Dr Nespolon is valid and binding and an order that the Fund benefits be paid to her forthwith.
5. The first defendant is Bellahealth. The second and third defendants are Walter Nespolon and James Dickson. Mr W Nespolon, Mr Dickson and Ms van Camp are the directors of Bellahealth and the executors of Dr Nespolon's last will made on 23 July 2020.
6. In their defence and cross claim, the defendants contend that Dr Nespolon lacked capacity to enter the transaction at the time he signed the BDBN, allege unconscionable conduct on the part of Ms van Camp in procuring the BDBN and seek an order that the BDBN executed by Dr Nespolon be set aside or a declaration that it is void or unenforceable.
7. Ms van Camp's statement of claim also sought, in the alternative, additional provision from Dr Nespolon's estate pursuant to Chapter 3 of the Succession Act 2006 (NSW), which claim was not pressed at the hearing. The defendants also no longer contend that the BDBN is invalid due to non-compliance with the SIS Act or its regulations.
8. Accordingly, the issues for determination are: 1. whether Dr Nespolon lacked capacity to make the BDBN when he signed it on 26 July 2020; and 2. whether the BDBN is liable to be set aside by reason of unconscionable conduct on the part of Ms van Camp.

The evidence and witnesses

1. The evidence comprised affidavit and oral evidence from the parties and non-party witnesses and a range of documents, including medical records relating to Dr Nespolon's hospital admissions, text messages, phone call records and documents from the file of the solicitor who prepared the BDBN. In assessing the evidence and making my findings, I have had regard to my notes taken during the hearing, the transcript and the submissions of the parties.
2. Ms van Camp read three affidavits that she had affirmed and an affidavit from Jarrod Bramble, an accountant at Cutcher & Neale, Accounting and Financial Services (Cutcher & Neale), a firm that provided financial and accounting advice to Dr Nespolon. Ms van Camp and Mr Bramble were both cross-examined.
3. The defendants read three affidavits from Mr Dickson, an affidavit from Caitlin Smith, a solicitor for the defendants, and affidavits from Dr Wade Stedman, Intensive Care Staff Specialist at North Shore Private Hospital (NSPH), and Dr David Chan, Medical Oncologist. Mr Dickson is a Partner at Piper Alderman lawyers, knew Dr Nespolon for over 30 years and assisted with his business interests from 1994. Dr Stedman and Dr Chan witnessed Dr Nespolon's signature to the BDBN. Mr Dickson, Ms Smith, Dr Stedman and Dr Chan were not cross-examined and I accept their evidence.
4. The defendants called Donna Benge, a solicitor and partner at Piper Alderman who provided estate planning advice to Dr Nespolon, prepared Dr Nespolon's last will made on 23 July 2020 and the BDBN he signed on 26 July 2020. Ms Benge who gave oral evidence and was cross-examined about her dealings with Dr Nespolon.
5. The parties jointly engaged Ian Raspin, a specialist in the taxation of deceased estates and managing director of BNR Partners, whose expert reports dated 29 July 2022 and 28 April 2023 opined on the tax consequences of payment of the Fund benefits to Dr Nespolon's estate, Ms van Camp or in accordance with Dr Nespolon's will. Mr Raspin was not cross-examined and I accept his evidence.
6. The defendants also relied on expert evidence from Professor Jason White, Pharmacologist, on the issue of capacity. Professor White's report opined on the effects or likely effects of the medications administered to Dr Nespolon during the period 24-26 July 2020 and his ability to understand, know and approve the BDBN. Professor White was cross-examined.

Background facts and summary of evidence

1. The following is drawn from the affidavit, oral and documentary evidence. Unless otherwise indicated, I am satisfied of the following matters.

Dr Nespolon and Ms van Camp

1. Dr Nespolon was born in February 1963. He was involved in general medical practice for many years and had degrees in medicine, economics and law and a masters in business administration.
2. Dr Nespolon was appointed president of the Royal Australian College of General Practitioners in October 2018 and was on the board of various medical companies and associations. Through his corporate and trust structures, Dr Nespolon owned and operated general practice clinics (one of which was a COVID-19 testing clinic from 2020) from properties in Dee Why, Pitt Street, Sydney and Neutral Bay.
3. Dr Nespolon was the sole shareholder of the following companies and a beneficiary of trusts (some of which also benefitted Ms van Camp), as follows: 1. Second Practice Pty Ltd, the trustee of the Second Practice Trust and the sole shareholder of Third Practice Pty Ltd. Third Practice Pty Ltd was the trustee of the Third Practice Unit Trust and the owner of the property on which the Pitt Street clinic operated; 2. Harley Level 1 Pty Ltd, the trustee of the Harley Level 1 Property Trust and the owner of the property on which the Neutral Bay clinic operated; 3. PMC 633 Pty Ltd, the trustee for the PMC 633 Trust and the owner of the property on which the Dee Why clinic operated; 4. Pterygium 5 Pty Ltd, which was set up in mid-2020 in relation to the Covid testing clinic. 5. NBMP 156 Pty Ltd, the trustee of the NBMP 156 Unit Trust; and 6. Medical Practice Australia Pty Ltd, the trustee of the Nespolon Trust and the CBDMP 70 Unit Trust.
4. Dr Nespolon met Ms van Camp (born in June 1977) in 2013. Their relationship became official in June 2014. They started living together in January 2015 and have two daughters, who were born in July 2015 and December 2017. They lived together in a property that was owned by Dr Nespolon in Cremorne (Cremorne Property).
5. Ms van Camp was born and raised in South Africa. She came to Australia in 2009 and became a permanent resident in 2012. Ms van Camp has degrees in marketing and business management, an honours degree in human resources and has worked as a business manager, a management consultant for a recruiting and personality profiling firm and a performance consultant. She ceased paid employment in 2015, after the birth of her and Dr Nespolon's first daughter.

The Fund

1. The Fund is a self-managed superannuation fund that was established by deed dated 5 February 2003 as amended by Deed of Amendment dated 3 October 2012 (Fund Deed).
2. The Fund Deed provides the following: 1. "Binding Death Benefit Nomination" means the process whereby a member gives a notice to the Trustee requiring the member's benefit to be paid on his or her death to dependants or the legal personal representative: cl 1.1; 2. "Dependants" means the spouse and children (including posthumous) of a member who are at the relevant time dependant in whole or in part upon the member for their financial maintenance and support: cl 1.1. 3. any death benefit shall be paid, as the Trustee in its absolute discretion decides, by way of purchased annuities, pensions or other periodical payments (in each such case upon such terms as the trustee may decide), or lump sum payments, or any combination of such methods of payment, either to one or more of the nominated beneficiaries (if any) or other dependants of the member and in such proportions as the trustee in its absolute discretion decides, or to the legal personal representative of a member: cl 13.5(a); 4. if the Trustee of the Fund holds, at the time of the member's death, a Notice of Binding Death Benefit Beneficiary Nomination, which is effective and valid, the Trustee must pay a member's superannuation death benefit to the nominated beneficiary referred to in the notice: cl 13.5(b); and 5. a member may nominate to the Trustee one or more Beneficiaries to receive the death benefit from the Fund provided the member completes the Binding Death Benefit Beneficiary Nomination Form and provides the Nomination to the Trustee, the nominated beneficiary must, at the time of the member's death, be either a Dependant or legal personal representative, and the Nomination must be current (made not more than 3 years before the date of death): cl 18.4.
3. As noted above, at the hearing, it was common ground that if the BDBN is found to be a valid document, Bellahealth would be compelled to pay the whole of Dr Nespolon's member benefits to Ms van Camp, by virtue of cl 13.5(b) of the Fund Deed. If it is found to be invalid or should be set aside, Bellahealth will have a discretion to pay the benefits in whole or in part to one or more of Dr Nespolon's dependants (being Ms van Camp and their two daughters) and/or to the executors of his estate, in accordance with cl 13.5(a) of the Fund Deed.

October 2019 - 4 December 2019: Dr Nespolon's diagnosis and dealings with Ms Benge

1. In late October 2019, Dr Nespolon was diagnosed with inoperable pancreatic cancer. Dr Nespolon underwent chemotherapy, was given a range of medications (such as morphine) and had various admissions to Royal North Shore Hospital (RNSH) and NSPH in connection with his illness.
2. After his diagnosis, Dr Nespolon requested assistance from Mr Dickson's law firm, Piper Alderman, in preparing his will.
3. On 4 November 2019, Dr Nespolon had a telephone call with Ms Benge during which they discussed his estate, his financial affairs and the preparation of a will.
4. Ms Benge's typed note and her handwritten estate planning instruction sheet prepared that day record that they discussed the following: 1. Dr Nespolon did not think Ms van Camp was a good saver, the structure of his will should ensure that Ms van Camp is protected and that the assets are protected for the long-term benefit of the children, and his concern that if something happened to him then Ms van Camp would re-partner and re-marry and therefore, he wanted to protect the assets (typed note at [2] and [7.4]); 2. Dr Nespolon had "Assets" comprising shares, the Cremorne Property, "parents had 2 rental properties", property at Neutral Bay and cash, and that he had "Interest in Companies or Trusts" comprising practices located in Sydney's central business district, Neutral Bay and Dee Why, superannuation and the Nespolon Family Trust "used to distribute income"; 3. in relation to superannuation, Dr Nespolon had a "SMSF - $1.5 mil - shares - trustee Bella Health PL - sole director/member + $3 million life insurance" and the "[s]uper" should be "paid to estate - authority to apply towards discharge of debts/loans"; and 4. Ms Benge explained that any cash payment made to Ms van Camp from the superannuation fund would be tax-free. When discussing the options, Dr Nespolon preferred that the super fund policy be paid to his estate and the executors be authorised to discharge any liabilities from that life insurance (typed note at [7.2]);
5. Ms Benge's oral evidence about the instructions that were taken during the call was generally consistent with her file notes (T110.23-112.3). She referred to Dr Nespolon wanting to protect Ms van Camp and their children and his assets for them, that Ms van Camp had not worked during their relationship nor brought any assets into the relationship, Dr Nespolon was concerned that Ms van Camp would not be able to manage assets on her own and would re-partner in the future and the assets he had accumulated would not be protected if there was an outright gift or sole control.

12 December 2019 - May 2020: Dr Nespolon's appointment of Cutcher & Neale and discussion of finances with Mr Dickson

1. On 12 December 2019, Dr Nespolon appointed Cutcher & Neale to provide him accounting and financial advisory services in relation to his personal and business structures, Ms van Camp's income tax returns and, as an "optional" further service, the Fund.
2. Dr Nespolon first met Mr Bramble at Cutcher & Neale offices on 9 October 2019 when he asked for a quote about such services. After their meeting, Dr Nespolon sent Mr Bramble a summary of his assets and liabilities, the financial statements for the Fund for the financial year ending 2018 and a summary of the share portfolio held in the Fund. The financial statements identified the value of the new assets and accrued member benefits at that time as $1,284,763.
3. The Cutcher & Neale proposal signed by Dr Nespolon records that: Dr Nespolon's property portfolio (including the Cremorne Property) was valued at $10,400,000; he had debt of approximately $4,600,000 on the properties; his other assets were valued at $3,000,000 with debt of $1,763,000; and he had approximately $1,500,000 in his superannuation fund.
4. On 24 December 2019, Ms van Camp sent an email to Dr Nespolon asking him to share details of his will and his business dealings and voicing concerns about the future, in the following terms: "Im so very worried about you darling, watching you being in so much pain and lacking energy without eating is torterous (sic). I wish there was something I could do to change this all for you and we could go back to the good old days. I know you haven't wanted to share or felt that the time wasn't right to share any details of your will or business dealings or any finances with me in case something should happen but I'm growing more and more concerned about things especially for the sake of the girls plus the sake of your legacy as to how you would like things to run and operate. Its also been mentioned that there are quite a few debts at the moment both personal and business and that you are highly concerned about Dee Why, although none of the specific details have been shared. I would really like to help and make sure we can sort out any concerns and issues. So far our discussions haven't resulted in any information and as a suggestion Im thinking it is probably much better if you share these details above plus any additional with James as he is your closest friend and has much knowledge about these areas and may make you feel more comfortable. I would also like to mention that I have a great concern about taking care of our girls as I have been the primary caretaker over the past five years and stayed at home how will I be able to take care of them as we have never had any access to any bank accounts and finances, would we have any access to finance immediately if something should happen? Things that concern me are about where we will live, how will I feed them and take care of day to day costs, education etc? Another question is am I liable as your partner for any of the personal and business debt and your preferences/advice regardless of whether I am for what I would do about them? Then your businesses, how you would like them run and what you'd like to do with Dee Why. Other things such as details of finances which banks are you with? How does it work with the financial obligations and whom is the debt owed to etc. All of these things please can you share them with James for us to have. someone whom has the information and can assist to sort it out. It really saddens me to talk about all of this, please for the sake of the girls talk to James soonest in the next few days so this can all be put to rest, then we can have this all sorted out so you can concentrate all your energies on getting well…"

16 June - 15 July 2020: Dr Nespolon's admission to the NSPH, Ms van Camp's directorship appointments and discussion with Mr Bramble regarding a BDBN

1. On 16 June 2020, Dr Nespolon was admitted to the RNSH with abdominal pain. He was diagnosed with a small bowel obstruction and discharged to the NSPH on 18 June 2020 where he remained for ongoing management until his discharge on 6 July 2020.
2. During this admission, Ms van Camp had a conversation with Dr Nespolon to the following effect: "van Camp: If you die, there is no money for me and the children. I will not be able to survive financially. Nespolon: There is plenty of money in the accounts. van Camp: But on your death, the accounts will be frozen and I won't be able to access any funds. Nespolon: Ok I'll transfer some money to your account."
3. Ms van Camp deposed that Dr Nespolon then transferred $10,000 into her bank account.
4. A day or so later, Ms van Camp had a conversation with Dr Nespolon to the following effect: "van Camp: Harry, how am I going to live from month to month if something happens to you? Nespolon: You will get money from Laverty Neutral Bay and CBD of about $10,000 per month. If it is not enough, ask Sacha [the practice manager at Neutral Bay] to give you money. You will get dividend payouts from the super fund shares and the Yeo St rent of about $5,000 per month."
5. In or about June 2020, Dr Nespolon also gave Ms van Camp access to the passwords for his iPad, computer and internet banking accounts, having told her that he thought it was time that he give her some information.
6. On 23 June 2020, Dr Nespolon sent a text message to Mr Bramble stating, "I am free most of the day so call when [you] have a moment."
7. At 12.36pm that day, Mr Bramble called Dr Nespolon and they spoke for about 16 minutes, primarily about control of the corporate structure of Dr Nespolon's medical practices. During the conversation, Mr Bramble said to Dr Nespolon the following: Dr Nespolon should consider putting in place a BDBN for the Fund; a BDBN creates a certainty of outcome as to where superannuation is directed rather than the uncertainty that can occur under a will; there can be a potential tax saving on the payment of a death benefit of up to 17% of the member's balance if the BDBN goes to a financial dependant; there could be a potential tax saving due to being able to keep the monies inside the Fund and avoiding or deferring capital gains tax on the sale of investments; and there is the potential to create a death benefit pension which would create tax-free investment earnings within the Fund, though care needs to be taken with pensions for recipients under the age of 60.

15 - 20 July 2020: Dr Nespolon's final admission to the NSPH and further dealings with Cutcher & Neale

1. On 15 July 2020, Dr Nespolon was admitted to the NSPH.
2. During this admission, Cutcher & Neale continued to liaise with Dr Nespolon and Ms van Camp about Dr Nespolon's affairs, including about the Fund.
3. On 17 July 2020, Ms Brown sent Dr Nespolon and Ms van Camp two emails, both copied to Mr Bramble.
4. The first email proposed a draft agenda for a meeting on 20 July 2020 of five headline items, which included "ASIC" and "SMSF - Matters to Consider". The "SMSF - Matters to consider" were recorded as "Advisor", the appointment of Ms van Camp as a member of the Fund and officeholder of the trustee of the SMSF, and "Rollover Industry Super to SMSF (consider insurance)".
5. The second email forwarded Mr Bramble's 25 June email (referred to at [64]), describing it as "for discussion on Monday" and being in relation to moving the SMSF to Cutcher & Neale, and also stating that Mr Bramble would talk more in relation to the proposed fee and what they could do. As events transpired, the meeting scheduled for 20 July did not take place (T47.38).
6. At 12.00am on 20 July 2020, Ms van Camp sent Dr Nespolon an email stating as follows: "… I'm still concerned as to how I can cover monthly living, school, childcare, sports etc costs for me and the kids with a monthly and yearly income. Please can you clarify as it is not stated in the will and James and Walter would not know how you see this to come about and from where. Please can you send me an email response where you clearly lay it out as you see it so that it can be clear and no confusion or misunderstanding…"
7. Dr Nespolon responded at 12.07am as follows: "I am still fucking concerned that you don't listen. We discussed this at least 5 times. You read the will today. What the fuck is wrong with you?"
8. Ms van Camp sent another email to Dr Nespolon at 12.22am, seeking to clarify what Dr Nespolon had said in relation to her future income as follows: "So this Is what you said. Lindy's income: 1. Laverty neutral bay and the city income $10K approx after Covid as reduced rates during Covid. 2. Lindy to ask Sascha for monthly income from neural (sic) bay 3. Lindy to use all dividend payouts from Shares as contributing to yearly income 4. Yeo street rent as monthly income 5K approx after Covid reduced rates during Covid That's what you have outlined. You also said Superfund dividend but tyere (sic) will be no superfund dividends as your superfund is being paid out to debt - correct? Let me know if all correct and if I missed anything?"

23 July: Dr Nespolon makes his last will

1. At about 1.00pm on 23 July 2020, Dr Nespolon executed his last will (Will). It was witnessed by two solicitors from Piper Alderman who Ms Benge had been arranged to attend on Dr Nespolon that day.
2. Ms van Camp was at NSPH when the Will was signed and she executed an acceptance of a Power of Attorney at that time. She had been given access to the Will and read it earlier it but could not remember exactly when (T60.34-6).
3. The Will was prepared by Ms Benge and its terms reflect the matters addressed in her advice and the instructions received from Dr Nespolon in November 2019.
4. The Will records that it had been made to complement the plan and structure of Dr Nespolon's estate and financial affairs (cl 3) and contains an acknowledgement that it was a complex document (cl 4). Under the Will, Dr Nespolon: 1. appoints Ms van Camp, Mr Dickson and Mr W Nespolon as the executors and provided that decisions shall be made jointly or by majority if there was a deadlock between them: cll 8 and 9; 2. directs that the executors appoint themselves as directors of any company in which he owned shares at the date of his death and that all shares of any company and units in unit trusts held at the date of his death form part of the residue of his estate: cl 15; 3. expresses his wish that the trusts and companies be administered in a manner consistent with the intentions set out in the Will: cl 16; 4. gives the executors the power to apply superannuation and life insurance proceeds towards the payment of any outstanding debts, mortgages or loans: cl 17; 5. gives Ms van Camp all of his household furniture, contents, personal effects (including any motor vehicle owned by Dr Nespolon), clothing, jewellery and other articles of personal use and adornment: cl 18; 6. gives Ms van Camp a right of residence at the Cremorne Property subject to her keeping the improvements in a reasonable state of repair, maintenance and condition; directs the trustee of the Harry Nespolon Testamentary Trust (established by cl 21 of the Will) to pay the outgoings, insurance premiums and costs of keeping the residence in a state of reasonable repair, maintenance and condition; and directs the executors, upon the written request of Ms van Camp, to sell the Cremorne Property and purchase a substitute residence: cl 19; 7. provides for the residue of the estate to be settled on a trust to be known as the Harry Nespolon Testamentary Trust, the primary purposes of which was to provide for or promote the maintenance, education, advancement or benefit of the beneficiary(s); appoints the executors as the initial appointors and trustees of the trust, Ms van Camp and their two daughters as the primary beneficiaries, and the issue of his daughters and Dr Nespolon's mother as other discretionary objects of the trust; and provides for the trustees to have a discretion as to the application of the income and capital of the trust: cll 21 and 30; 8. expresses his wish that, where the primary beneficiary has not attained the age of 25 years, the trustees preserve the capital of the fund as far as is reasonably possible and limit the application of capital to the primary beneficiary's medical and dental treatment, education (including vocational training), reasonable maintenance and welfare: cl 33; and 9. gives the executors the power to hold all or part of a primary beneficiary's share of a superannuation lump sum death benefit in a separate superannuation proceeds trust: cl 41.

23 and 24 July: Communications with Cutcher & Neale and text messages between Ms van Camp and Dr Nespolon

1. Following execution of the Will, Dr Nespolon told Ms van Camp that: "Now that I have signed my Will I still need to sort out my super fund. This is the last item on my list that I have to deal with".
2. In cross-examination, Ms van Camp said that she did not know at that point what Dr Nespolon was referring to, just that he was referring to the topic of his superfund and that it was not discussed further. She described the superfund as "one of the items that we'd made earlier on the list", said that she was relieved that Dr Nespolon was looking into that topic and later gave evidence that it was important that they got the list complete because she had been chasing Dr Nespolon to wrap up his affairs since December 2019 (T69.11- 15, T70.34-6).
3. At 4.43pm on 23 July, Ms van Camp called Cutcher & Neale and left a voice message. At 5.21pm, she spoke with someone at Cutcher & Neale for 67 seconds.
4. Shortly after the call at 5.21pm, Ms van Camp had a telephone call with a social worker at the NSPH. Ms van Camp could not recall what she discussed with the social worker. The social worker's progress note of the conversation records that Ms van Camp sounded "stressed" and that "she has been better" and that their call was interrupted by another call that Ms van Camp "had been waiting for".
5. At 5.23pm, Ms van Camp had a call with Cutcher & Neale that lasted approximately 17 minutes.
6. It is not clear whether it was Mr Bramble or Ms Brown that Ms van Camp spoke to during the call at 5.23pm. Ms van Camp and Mr Bramble both gave evidence that they spoke that day and the Cutcher & Neale records for Mr Bramble for 23 July 2020 suggest that he spoke to Ms van Camp at this time as the entry for him of 5.30pm to 6.00pm stated, "Nespolon SMSF issues". However, the number that called Ms van Camp at 5.23pm was not Mr Bramble's number and Mr Bramble gave evidence that it could have been Ms Brown's mobile (T50.38). The Cutcher & Neale records in respect of Dr Nespolon's matters also records an entry by Ms Brown for 60 minutes on 23 July that states, "Lindy + check ASIC + phone call and see JHB + email".
7. Ms Brown sent two emails to Dr Nespolon that were copied to Ms van Camp and Mr Bramble, after the 5.23pm call.

24 July 2020: Dr Nespolon gives instructions to Ms Benge to prepare the BDBN

1. Between about 2.30pm to 4.00pm on 24 July 2020, Ms van Camp visited Dr Nespolon in hospital.
2. During Ms van Camp's visit, at approximately 3.00pm, Dr Nespolon called Ms Benge (2.30pm in Adelaide where Ms Benge was located at the time of the call: T131.36) and they spoke for 2 minutes and 25 seconds. During the call, Dr Nespolon gave Ms Benge instructions to prepare a BDBN in favour of Ms van Camp.
3. Ms Benge prepared a handwritten file note of her call with Dr Nespolon, which states as follows: "(1) Wants to prepare a BDBN urgently - accountant said it has to go to Lindy o/wise will pay tax - doesn't want to pay any tax (2) Pointing out his will purposely allows super to be used to discharge debts --> doesn't matter as life insurance is separate?? I understand it is not [therefore] part of super benefit explaining $ [therefore] won't go to estate - how will debts be paid?? (3) Sounds confused. Medication?? - 3.34pm Accountant says I have to do it Advising need copy of SMSF trust deed which hasn't been sent to me to date. Needs to comply with deed o/wise not binding (4) H to email & we will discuss on Monday morning when I've reviewed it. Suggesting it would reverse his intention in will. (5) Concerned re capacity --> sounded drugged up."
4. Ms Benge gave oral evidence of her conversation with Dr Nespolon on 24 July 2020, as follows (T116.31-117.14): "I received a phone call from Dr Nespolon during which he indicated that he needed to urgently prepare a binding death benefit nomination. That the accountant had told him that all of the super needed to go to Lindy otherwise he would pay tax on it. That he didn't want to pay any tax on the superannuation. I then asked him or reminded him of the conversation that we had had, and his instructions back in November 19, in regards to the payment of a superannuation death benefit. I reminded him at that time that the decision was that this superannuation benefit should be used towards the discharge of debts under his estate, and to do so, those proceeds would need to be paid to his estate. That if he wished to prepare a binding death benefit in favour of Lindy, yes, while that would be tax free, it wouldn't be available to his estate as it would be paid outside of his estate. I then asked, "If that was the case, how would the mortgage and the liabilities over the property and the shares be paid?". He indicated to me that the accountant said he had to do it. I then asked for the accountant's name. Up until that point, advisor details hadn't been provided to me by Dr Nespolon. He didn't provide me with that name. I asked again, and offered to speak with the accountant about the structure we'd put in place, and what he wanted to achieve. He then told me that it didn't matter, because the life insurance was not part of the self managed super funds, so it didn't matter if the super fund on its own went to Lindy. I then again asked for the accountant's name. He did not provide me with that name. He continued to say that the accountant told him to do it. I then indicated that to do that, as I had requested before, I would need a copy of his self-managed super fund deed, which I hadn't received to date. That if he was able to provide that to me, that I would review that deed over the weekend, and that was because that phone call came at about 3.34pm or 3.30-ish on the afternoon of a Friday. I said I'd review it over the weekend, and I would call him on Monday morning to discuss whether he still wanted to continue with the binding nomination, or whether he could in fact prepare a binding nomination under the terms of the deed."

26 July 2020: Dr Nespolon signs the BDBN

1. Dr Nespolon's condition deteriorated on the morning of 26 July.
2. Dr Nespolon was nauseated and vomiting early in the morning, his stomach was decompressed with a nasal gastric tube and, following three "Rapid Responses" for respiratory distress, hypoxia and hypotension, he was later transferred to the Intensive Care Unit (ICU).
3. The hospital progress notes record that Dr Nespolon was reviewed at 10.34am and "looks terrible" but "probably the best he's felt in last 3 hours" and, at his review at 11.45am (by Dr Stedman and Dr Tan from the ICU), he was "very frail. Alert, orientated and uncomfortable". It was noted that he was going to be transferred to the ICU after a CT scan and that ongoing discussions about his goals for care had been had.
4. Dr Stedman's file note of his reviews with Dr Nespolon that day record that during his reviews at 9.05am and 11.45am, they discussed Dr Nespolon's medical career, his role as President of the College of General Practitioners and general practice, and that they had a "frank discussion" about Dr Nespolon's advanced pancreatic cancer, the likelihood that he would die in the coming days, Dr Nespolon's beliefs about end-of-life care and that comfort was the most important thing for him at that stage. Dr Stedman's file note records that he "found our discussion appropriate and informed" and that Dr Stedman wanted to bring Dr Nespolon to the ICU so he could get more intensive palliative nursing care than was available on the ward and because he felt that it was a courtesy to a colleague to provide Dr Nespolon "a good death which he deserved and had asked me for".
5. At around 12.00pm on 26 July 2020, Ms van Camp received a call from Dr Chan telling her that Dr Nespolon's condition had deteriorated and he was going to be transferred to the ICU. Dr Chan recommended that she come to the hospital soon, told her they were taking steps to make Dr Nespolon comfortable and asked for her "position on life support", from which Ms van Camp inferred that there was a possibility that he could pass away. Ms van Camp told Dr Chan that she would come to the hospital and mentioned that there was a last document that Dr Nespolon needed to sign.
6. At 12.04pm, Ms van Camp sent an email to Ms Benge, using Dr Nespolon's email address, in response to Ms Benge's email (at [119] above), that stated: "Urgently need this today is [sic] possible".

4 August - 21 January 2022: Events after Dr Nespolon's death

1. On 4 August 2020, Ms van Camp sent the signed BDBN to Mr Dickson, describing it as "the document outstanding signed by [Dr Nespolon] 26/7 for your files".
2. On 17 August 2020, Bellahealth received the sum of $2,954,911 into the member account of Dr Nespolon, which were the proceeds of the life insurance policy that Bellahealth held on Dr Nespolon's life.
3. That day, Ms van Camp sent an email to Mr Dickson in which she suggested that the transfer of the Fund to Cutcher & Neale be put on hold to allow time to investigate whether the extra cost was worth it.
4. On 9 November 2020, Ms van Camp sent an email to Ms Benge asking her to explain "in simple terms" what the BDBN was giving her "entitlement to / instruction for".
5. Ms van Camp deposed she had read the terms of the BDBN sometime after Dr Nespolon's death and saw that she was named as a beneficiary but she was not sure what that meant for her "practically". She gave evidence that, at a meeting with Ms Benge, Mr Dickson and Mr W Nespolon, she asked about the BDBN and Ms Benge said to her, "I wouldn't pay too much attention to that document if I were you, we are not sure you want to exercise it", and during a telephone call with Ms Benge after sending the 9 November email, Ms Benge told her that she would need to seek her own legal advice if she wanted to know the answer to her questions regarding the BDBN.
6. On 21 December 2020, Ms Benge sent an email to Ms van Camp, Mr Dickson and Mr W Nespolon that referred to a conference on 1 December 2020 and attached a draft "Resolution of [Bellahealth's] Directors without a Meeting" in relation to a determination of "Bellahealth PL atf Nespolon Superannuation Fund in regard to the payment of [Dr Nespolon's] superannuation death benefits". The draft resolution stated that the BDBN was not validly executed in accordance with SIS Act and Regulation, on the basis of a failure to comply with reg 6.17A(3) and resolved that Dr Nespolon's death benefits in the Fund would be paid as follows: the sum of $2,954,911 to Dr Nespolon's legal personal representative of the Dr Nespolon and the balance to Ms van Camp, in accordance with cl 13.5(a) of the Fund Deed.
7. Pausing here, it was common ground at the hearing, that reg 6.17A does not apply to the Fund, as a self-managed regulated fund: Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21, at [27]-[32].

Other financial matters

1. At the hearing, the total value of Dr Nespolon's member benefit was estimated to be $4,722,000, of which approximately $1,700,000 comprised the value of shares.
2. The gross value of Dr Nespolon's estate was valued at $9,229,067, which included the Cremorne Property valued at $4,425,000. Liabilities of the estate were estimated to be $2,147,753 comprising, in the main, a NAB home loan of $1,811,979.29.
3. Dr Nespolon was a guarantor of loans (including mortgages in relation to the Dee Why and Neutral Bay properties) to PMC 633 Pty Ltd, Harley Level 1 Pty Ltd and Pterygium 5 Pty Ltd (Medfin Loans), and his contingent/guaranteed debts are estimated to total $3,650,092.
4. The executors have agreed that the Dee Why and Neutral Bay properties, which have an estimated value/market sale price of $3.8 million, will be sold and the proceeds applied to discharge the Medfin Loans. On the assumption that occurs, Dr Nespolon's estate is not likely to be called on to pay the Medfin Loans.
5. On that basis, the estimated net value of Dr Nespolon's estate is $7,081,314 (the gross estate less liabilities but excluding non-estate assets after repayment of the Medfin Loans), from which some tax and accrued interest will need to be deducted.
6. The Pitt Street property, which is owned by Third Practice Pty Ltd, as trustee for the Third Practice Unit Trust, was valued at $3,000,000 in September 2020 and was subject to an option to purchase for $5,183,946.37 which appears not to have been exercised. Ms van Camp holds all the units in the Third Practice trust as trustee for the LVC Trust.

Other medical evidence

1. Prior to and during his final admission, Dr Nespolon was prescribed and administered opioid medications for pain, including morphine (administered subcutaneously) and targin and endone (administered in oral tablet form).
2. The hospital progress notes and records indicate that on his discharge from RNSH to NSPH on 18 June 2020, Dr Nespolon was taking targin tablets of 40 milligrams (mg) twice a day and suggest that he had been taking targin tablets of 60 mg twice a day on his admission to NSPH on 15 July 2020.
3. During his final admission, in the period 15-25 July, Dr Nespolon was administered morphine subcutaneously and endone and targin on 15 and 16 July, as follows: 1. on 15 July, 60 mgs of targin; 2. on 16 July, 5 mgs of endone, 60 mgs of targin and 10 mgs of morphine; 3. on 17, 18, 19, 20, 21 and 22 July, morphine in varying doses throughout the day, from a high of 55 mgs (in total) on 17 July to a low of 22.5 mgs (in total) on 22 July; 4. on 23 July, 42.5 mgs of morphine, which included doses of 7.5 mgs at each of 12.40pm, 3.10pm, 6.10pm and 10.20pm; 5. on 24 July, 37.5 mgs of morphine, which included doses of 7.5 mgs at each of 10.15am, 12.50pm and 6.25pm; and 6. on 25 July, 62.5 mgs of morphine, comprising doses of 10 mgs at 2.00am and 6.06am, 7.5 mgs at 8.30am, 5 mgs at 12.00pm and 7.5 mgs at each of 3.15pm, 6.15pm, 8.30pm and 10.15pm.
4. As to 26 July, the NSPH medication records and Dr Stedman's evidence record that Dr Nespolon was administered the following: 1. morphine given subcutaneously of 7.5 mgs at 1.00am, 10 mgs at 7.10am and 10 mgs at 12.10pm; 2. ondansetron, given intravenously of 4 mgs at 9.00am and 4 mgs at 11.55am; 3. 1 mg of ativan (lorazepam), given sublingually at 11.50am; and 4. an infusion of 1 mg of morphine and 1 mg of midazolam (Infusion) at around 2.30pm.
5. Dr Stedman believes that morphine and lorazepam, but not ondansetron, could have affected Dr Nespolon's capacity to know and approve of the contents of the BDBN. He could not say with any degree of certainty what specific effect any particular medication in fact had on Dr Nespolon's capacity to know and approve of the contents of the BDBN and he was unable to say to what extent those medications would have such an effect in the circumstances.
6. Dr Chan also gave evidence that some of the medications administered to Dr Nespolon could have had an effect on his capacity to know and approve of the contents of the BDBN but could not say what that particular effect might have been.

Did Dr Nespolon have capacity to make the BDBN on 26 July 2020

Legal principles

1. The parties accepted that Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 (Gibbons v Wright) is the leading authority on the question of the nature and degree of mental capacity to affect an inter vivos transaction.
2. In Gibbons v Wright, Dixon CJ and Kitto and Taylor JJ said (at 437-39): "The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.… [In Ball v Mannin (1829) 1 Dow & Cl 380; 6 ER 568, the House of Lords] approved a statement in the charge that as one test of the requisite capacity the jury was at liberty to consider whether the person concerned was capable of understanding what he did by executing the deed, when its general purport was explained to him. The principle which the case supports … appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. As Hodson LJ remarked in [Estate of Park [1953] 2 All ER 1411 at 1436], '… one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case.' … Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one‐third share which would pass to her estate if she still owned it at her death."
3. The principles in Gibbons v Wright establish that the standard of capacity required by law is specific to the particular transaction or instrument entered into. In that sense, the concept of 'mental capacity' is to be assessed relative to the nature, terms, purpose and context of the particular transaction and complexity of the instrument in question: Scott v Scott [2012] NSWSC 1541 at [197]-[200]; Szozda v Szozda [2010] NSWSC 804 (Szozda v Szozda) at [27]-[35].

Parties' submissions

1. The defendants contended that Dr Nespolon had lost capacity to understand and enter into the transaction at the time the BDBN was signed and, for that reason, the BDBN is void and unenforceable. They submitted that the evidence of Ms Benge as to what occurred on 24 July and the evidence given by Dr Stedman, Dr Chan and Professor White raised a medical and factual issue as to Dr Nespolon's capacity that was sufficient to displace their evidentiary burden of showing there is sufficient evidence to raise the issue of capacity. They said that the capacity issue is not met by any other evidence, such that the Court should be not satisfied that Dr Nespolon had the requisite capacity at the time he executed the BDBN.
2. The defendants' submissions referred to both the "general purport" and "wider transaction" components of the principles relevant to assessing capacity, as referred to in Gibbons v Wright, and the relevance of the provenance of the transaction, citing Hanna v Raoul.
3. While accepting that these proceedings do not concern Dr Nespolon's testamentary capacity, the defendants submitted that authorities relevant to testamentary capacity are relevant because of the nature of the transaction entered into by Dr Nespolon, which has the character of a power of appointment of Dr Nespolon's member interest in the Nespolon Superannuation Fund that takes effect after his death.
4. The defendants submitted that the capacity to enter into a BDBN requires, at a minimum, the capacity to understand the nature and extent of the superannuation member interest disposed of, to comprehend the range of dependent persons able to be the subject of a binding nomination and the available choices when they are explained (namely, binding the trustee to pay the member benefit to one or more dependents or to the executors named in the will, or making no nomination and allowing the trustee to exercise a discretion as to payment of the death benefit) and to be able to weigh up and discriminate between those options. They submitted that where the member's will provides the executors with optionality as to the way in which a member's benefit can be utilised, the wider transaction component of Gibbons v Wright requires the capacity to appreciate, when they are explained, the options available as to the use of the member benefit in accordance with the will, which in this case, was the ability of the executors to use part of the member benefit to retire debt, even if there is a tax consequence and to establish one or more separate superannuation proceeds trusts, and to weigh up and discriminate between those options.

Consideration and determination

1. Having considered the parties' submissions and the evidence in this case, I am not satisfied that the defendants have established that Dr Nespolon lacked the mental capacity to make the BDBN on 26 July 2020. For the following reasons, the totality of the evidence satisfies me, on the balance of probabilities, that Dr Nespolon was capable of understanding the nature of the act of making the BDBN and the broad effect it would have.
2. In considering the issue of capacity, it is necessary to focus on the BDBN, as the particular instrument signed by Dr Nespolon and the effect it would have. As was stated by the High Court in Gibbons v Wright at 438: "…the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained."
3. I accept that the BDBN had the character of a binding power of appointment or voluntary disposition of all of Dr Nespolon's member's interest in the Fund to a nominated Dependant that was to take effect on his death. However, I am not persuaded by the defendants' submissions that the minimum capacity requirements are all of those set out at [178] above or that suggest that entry into the BDBN involved a particularly complex transaction. The defendants' references to comprehending, weighing up and discriminating between options seem to me to take the analogy with testamentary capacity too far and overlook that the key focus of the inquiry is on Dr Nespolon's capacity to understand the general nature and effect of the BDBN, had such an explanation been given to him.
4. Unlike Dr Nespolon's Will, the BDBN itself was not complex. It is a short document and straightforward in its terms.
5. The essential general nature and broad operation of the BDBN is apparent from its terms, namely that Dr Nespolon, the sole member of the Fund, was specifying how his member benefits were to be paid on his death in a manner binding on the Fund Trustee, rather than leaving the decision as to how they were to be paid to the discretion of the Trustee. The express terms of the BDBN provide for the Trustee to pay 100% of Dr Nespolon's member benefits to Ms van Camp, as one of Dr Nespolon's dependants. The effect of that direction is that Dr Nespolon's member benefits would not be paid to his executors or estate and dealt with in accordance with the terms of Dr Nespolon's Will, which included the options for the executors to pay debt (cl 17), form part of the residue (cl 21) and to establish a separate superannuation trust to the benefit of Dr Nespolon's dependents (cl 41).

Should the BDBN be set aside by reason of unconscionable conduct on the part of Ms van Camp?

Legal principles

1. The principles relating to unconscionable conduct were set out in Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 459-460, 461 and 474; [1983] HCA 14 (Amadio). The Court held that unconscionability involves: a relationship that places one party at a special disadvantage vis-à-vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation of the stronger party of the weaker party's disadvantage. These "considerations" were approved by the plurality in Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271 (Stubbings) at [39] (Kiefel CJ, Keane and Gleeson JJ), subject to the caution that they "should not be understood as if they were to be addressed separately as if they were separate elements of a cause of action in tort".
2. In Amadio at 474-5, Deane J stated: "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. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued. In Blomley v Ryan [(1956) 99 CLR 362 at 405; [1956] HCA 81], Fullagar J listed some examples of such disability: 'poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary'. As Fullagar J remarked, the common characteristic of such adverse circumstances 'seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other'."
3. In Mentink v Olsen [2020] NSWCA 182 (Mentink v Olsen) at [2], Meagher and Payne JJA, explained the principles in the following terms: "Where a party seeks to set aside a transaction on the basis of unconscionable conduct, it must be established (1) that one party to the transaction is placed at a "special disadvantage" vis-à-vis the other in the sense that the disabling condition or circumstance is one which seriously affects the ability of that party to make a judgment as to his or her own best interests; and (2) that the other party understood the plaintiff to be at a special disadvantage and its effect with respect to his or her not being in a position to look after his or her interests. Where those circumstances make it prima facie unfair or "unconscientious" that the "stronger party" procure or accept the weaker party's assent to the impugned transaction, the onus is cast on the stronger party to show that it was fair, just and reasonable: Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 461-462 (Mason J), 474 (Deane J, Mason and Wilson JJ agreeing)."

Parties' contentions

1. The defendants submitted that the BDBN should be set aside by reason of the unconscionable conduct on the part of Ms van Camp on the basis of Austin J's formulation in Turner v Windeyer, as the evidence established the first three elements and improvidence (with the last two elements presumed) or all five elements (T223.28).
2. The defendants contended that, at the time he signed the BDBN, Dr Nespolon suffered from a special disadvantage vis-à-vis Ms van Camp, having regard to the following matters: Dr Nespolon was a patient in the ICU suffering from terminal cancer, the deterioration of his condition over the course of the morning of 26 July, and the impact of the medications he received that day to relieve his pain. They contended that Dr Nespolon's special disadvantage seriously affected his capacity to judge and protect his own interests and the interests of his estate and that Ms van Camp knew, or ought to have known, of Dr Nespolon's special disadvantage, referring to Ms van Camp's text messages with Ms Dickson about Dr Nespolon's condition, which would have worsened the following day, the day of his death.
3. The defendants submitted that Ms van Camp took advantage of the opportunity presented by Dr Nespolon's disadvantage by: 1. acting to persuade Dr Nespolon to make a BDBN in her favour during his July 2020 hospital admission when he did not intend or desire to do so by impressing her claims for income on Dr Nespolon. They submitted that Ms van Camp is the only possible source of the information provided to Dr Nespolon that he had to make a BDBN in her favour for tax reasons because nothing further arose from the 23 June advice from Mr Bramble and it was not mentioned again until Ms Brown raised it an hour after Mr Bramble or Ms Brown spoke to Ms van Camp on 23 July (T236.17-21); 2. facilitating the making of the BDBN by using Dr Nespolon's email account on 25 and 26 July 2020 to request Ms Benge to prepare the BDBN without disclosing to Ms Benge that the email came from her rather than Dr Nespolon; and 3. printing the BDBN and taking it to Dr Nespolon in the ICU to sign without giving a copy of Ms Benge's written advice to Dr Nespolon or explaining the advice to him. They submitted that Ms van Camp knew or ought to have known the tenor of the BDBN that Ms Benge had prepared when she printed it out and her evidence that she was not aware of the contents should not be accepted.

Consideration and determination

1. To establish unconscionability, the defendants must prove that: Dr Nespolon was at a special disadvantage vis-à-vis Ms van Camp in the sense that the disadvantage adversely affected his ability to make a judgment about the BDBN; that Ms van Camp had actual or constructive knowledge of the existence and effect of Dr Nespolon's special disadvantage; and that Ms van Camp unconscientiously took advantage of Dr Nespolon's special disadvantage, with the BDBN being the product of the unconscionable conduct.
2. My finding that Dr Nespolon did not lack mental capacity to make the BDBN does not mean that he could not be in a special disadvantage in the relevant sense. A disadvantage may be situational or relational, have been created or exacerbated by an absence of advice or explanation, and may coexist with a "full understanding" of the transaction: Mentink v Olsen at [3] (Payne and Meagher JJA), citing Bridgewater v Leahy at [115]. Louth v Diprose was such a case; the special disadvantage arose from a strong emotional dependence and attachment.
3. The disadvantage must be "special", in that Dr Nespolon must have been unable to make a judgment or worthwhile decisions as to or in his own best interests. The issue of special disadvantage is not to be considered separately from the other circumstances, particularly the relationship between he and Ms van Camp and the nature of the transaction, but rather as part of the broader question, which is whether the BDBN (the impugned transaction) was made in circumstances where Ms van Camp took advantage of an inability on the part of Dr Nespolon to make worthwhile decisions in his own interests, which inability was sufficiently evident to Ms van Camp to render her conduct unconscionable: Stubbings at [39], Kiefel CJ, Keane and Gleeson JJ; Kakavas at [124]; Thorne v Kennedy at [64].
4. Dr Nespolon had been diagnosed with a terminal illness in November 2019, at which time he started to put his affairs in order by making arrangements to instruct Ms Benge about his Will and then appointing Cutcher & Neale in relation to his financial affairs in December. He had various hospital admissions and was medicated with opioids from around 18 June 2020, with morphine administered on a regular basis from 16 July during his last admission.
5. During his June and July hospital admissions, Dr Nespolon was seriously ill, in pain at times and his medications may have impacted his cognitive functioning to a degree. As I have found, by 24 July, Dr Nespolon was in the advanced stages of his terminal illness and his physical condition deteriorated over the next two days. By 25 July, Dr Nespolon was very weak, uncomfortable and in pain, for which he received increased doses of morphine on 25 July that continued on 26 July when he was transferred to the ICU. However, having considered the totality of the evidence and the parties' submissions, I am not satisfied that the BDBN was procured and signed by Dr Nespolon by reason of any unconscionable conduct on the part of Ms van Camp. This is primarily because I am not persuaded that the BDBN came into existence as a result of Ms van Camp taking advantage of an inability of the part of Dr Nespolon to make worthwhile decisions in his own interests, which inability was sufficiently evident to Ms van Camp, or that Ms van Camp's failure to make Ms Benge's email advice available to Dr Nespolon on 26 July was unconscientious in the circumstances of this case.

Conclusion and orders

1. The defendants have failed to establish that the BDBN should be set aside or is void and unenforceable on the grounds of lack of capacity and unconscionable conduct.
2. It follows, in my view, that it is appropriate to grant the relief sought in Ms van Camp's Statement of Claim in relation to the validity of the BDBN claim by declaring that the BDBN dated 26 July 2020 executed by Dr Nespolon is valid and binding and making an order for Bellahealth to pay Dr Nespolon's member benefits to Ms van Camp. I consider that payment should be made within 21 days, noting that Dr Nespolon's member benefits comprise shares as well as cash and there may be some administrative issues involved with arranging payment to be made forthwith.
3. The defendants' Cross Claim should be dismissed, as should Ms van Camp's claim for additional provision, given it was not pressed at the hearing.
4. As Ms van Camp experienced success in obtaining the primary relief she claimed and the Cross Claim is to be dismissed, there appears to me to be no reason why costs as between the parties should not follow the event other than in respect of the costs relating to Ms van Camp's claim for additional provision. My tentative view is that as the claim for provision was a discrete claim that raised separable issues to the validity of the BDBN, Ms van Camp should bear the costs of that claim, or at least they should not be borne by the defendants. For that reason and as the parties did not address on costs, I have not made a cost order at this stage.
5. The parties should confer to see if they can agree on the terms of the cost order to be made. I will make directions for Ms van Camp and the defendants to serve and provide to my chambers their short written submission as to costs (not to exceed three pages) by 31 January and 2 February 2024 respectively in the event that they cannot agree the costs order to be made, with the issue of costs to be determined on the papers.
6. For these reasons, I make the following orders: 1. Declare that the Binding Death Benefit Nomination dated 26 July 2020 executed by the late Dr Harry Nespolon (the Deceased) is valid and binding. 2. Order that the First Defendant pay to the Plaintiff within 21 days, the Deceased's Member Benefits from the Nespolon Superannuation Fund. 3. Dismiss the Plaintiff's family provision claim, as set out in prayer 3 for relief in the Statement of Claim filed on 19 November 2021. 4. Dismiss the Amended Cross Claim filed on 16 September 2022. 5. Direct the parties to notify Henry J's Chambers by 29 January 2024 if costs are agreed. If there is no agreement, direct that: 1. the Plaintiff/Cross Defendant serve and provide to Henry J's Chambers a written submission as to costs (not to exceed three pages) by 31 January 2024; 2. the Defendants/Cross Defendant serve and provide to Henry J's Chambers a written submission as to costs (not to exceed three pages) by 2 February 2024; and 3. the issue of costs be determined on the papers.

Amendments 22 January 2024 - Insertion of new [143]. [140] and [141] combined into [140]. Updated cross-reference in [197]. 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: 22 January 2024