Wardle v Wardle

Supreme Court of NSW|2021-06-02|Before: Slattery J

Whereat v Duff (1972) 2 NSWLR 147 Texts Cited: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Category: Principal judgment Parties: Plaintiff: Roderick William Wardle Defendant: Sharon Patricia Wardle Representation: Counsel: Plaintiff: N. Bilinsky Defendant: A. Blank

Solicitors: Plaintiff: G. Smith, GHS Legal Defendant: G. Pickering, Pickering Law File Number(s): 2020/111791 Publication restriction: No

Judgment

Patricia Frances Wardle ("the deceased") died on 18 April 2019, aged 86. She was survived by her two children the plaintiff, Roderick William Wardle, and the defendant, Sharon Patricia Wardle. As the plaintiff and the defendant are from the same family, for convenience and without intending any disrespect to them, the Court will refer to each of them by their first names.

Credibility of Witnesses

The Wardle siblings were long estranged from one another. During the hearing they exhibited heightened mutual hostility, which was confirmed by the quality of their recriminatory and acrimonious text message exchanges. They often disagreed about dates and facts. At times it was necessary to choose very carefully between their competing testimony about events, discounting the evidence of each sibling for potential bias against the other.
Roderick Wardle. Roderick was a mostly reliable witness. His credibility was damaged in several respects in cross-examination, which are detailed later in these reasons. He made frank concessions and gave short, direct and precise answers after listening closely to his questioner. Much of his evidence is accepted. But his concessions sometimes involved admissions of unflattering past conduct that did him no credit. But importantly he was not a reliable historian, exaggerating the degree of contact he had with the deceased, especially over the last 10 years of her life. He admitted on several occasions "I'm not very good with dates" and his testimony made mistakes in dating events: for example, he was out by a number of years in the ages of two of his own children. The Court often preferred his sister's account of family history to his.
Sharon Wardle. Sharon was an honest and mostly reliable witness. She was a better historian than her brother about family history. But the weakness in her evidence was her account of her dealings with her mother about the January 2019 transactions. She tended to reframe questions directed to her in cross-examination about what her mother had said to her (or what she had said to her mother) about these transactions, answering that her mother "knew" what she was doing. Her answers glossed over the details of what had passed between her and her mother about the sale of the Marsfield property and the application of the proceeds of sale to acquire the Macquarie Park property.
Sharon had a strong sense of the righteousness of these property transactions in her favour. But her sense of righteousness was primarily directed at achieving a fair distribution of her mother's estate between her and her brother. It was less directed to or concerned with the propriety of the transaction as between her and her mother.
Sharon had no appreciation that at the time of the relevant transactions she was in a position in which her self-interest was in conflict with the interests of her mother. She had certainly thought about her mother's welfare, which was prominent among the considerations in her mind at the time of these transactions and she planned to ensure that her mother's outgoings were covered by her income. But she showed no sign of considering the need to keep some funds in reserve, if her mother needed emergency medical care.
Dr Greg Spark. Dr Spark, the deceased's doctor in the last years of her life, was an excellent witness. He was a capable and careful general practitioner, who had a good memory of his patient, the deceased. He gave a precise account of her consultations with him. None of his medical judgments of her were challenged. All his evidence is accepted. He remembers the deceased as happy and contented in her current situation. He did not observe any serious anxiety in her.
James William Ofosu-Asamoah. Sharon's son, James, was called in her case. He was an honest and reliable witness. All his evidence is accepted.
The following is a narrative of the relevant history. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.
This judgment gathers the Court's narrative of findings into two sections. The section, 'the Equity Claims' comprises the narrative of matters relevant to the various claims arising from the sale of the Marsfield property, the purchase of the Macquarie Park property and the sale of the Crowdy Head property. And the section, 'the Family Provision Claims', comprises the narrative of matters relevant to each of the Wardle siblings' competing claims for further provision out of the deceased's estate.

The Deceased and the Pagewood Property - Up to 2009/2010

The deceased and her late husband, William, first purchased a property in Page Street, Pagewood ("the Pagewood property") in 1961. He and the deceased had paid off the mortgage over the property by the early 1990s. The deceased and William lived at the Pagewood property until his death in August 2003. The deceased continued to reside there by herself until August 2008.
William was farsighted in seeking to cement family financial security. Throughout the 1960s and 1970s, during his active working life, William had constructed a second family home, the Crowdy Head property, near Port Macquarie on the New South Wales mid-north coast. It was ready for him and the deceased to enjoy when he retired in 1987 at the age of 55.
The Will was made in 2004, shortly after William's death and before the sale of the Pagewood property. Under clause 4 of the Will, the deceased expressly gifted to each of Sharon and Roderick her share in the Pagewood property in equal shares. The deceased did not alter the Will after the Pagewood property was sold. Under clause 5 of the Will, Sharon and Roderick shared the residue of her estate.
Roderick claimed he would see the deceased "frequently and no less than twice a week" during the time she lived at the Pagewood property. Sharon disputed this and the Court accepts her evidence that Roderick's contact with his mother was far less than this. Whatever Roderick's level of contact was at Pagewood, it reduced further in August 2008 when the deceased moved away for medical reasons.
Sharon's account of the deceased's medical condition is far more detailed and accurate than Roderick's. Apart from the Court's general preference for her evidence about conflicting family history, the quality of her recollection of the deceased's medical treatment progress is superior to that of her brother's, adding to the reasons to prefer her version of these events. The deceased underwent an operation to replace her right knee in June 2008. But in August 2008, her knee replacement became infected, ultimately requiring its removal and replacement with an antibiotic-impregnated cement spacer.
This surgery meant the deceased could no longer bear weight on her right leg and she spent three months in St Vincent's Hospital recovering from her infection and surgery and undergoing rehabilitation. Another knee joint was not medically viable, so in November 2008 the deceased underwent arthrodesis surgery, inserting fixing rods across her right knee joint between her tibial and femoral shafts.
Following this surgery, the deceased could not realistically return to the Pagewood property. Her arthrodesis and resultant straight leg meant that she could no longer manage the stairs at the Pagewood property without great difficulty and at risk to her personal safety. She underwent an eight-week period of rehabilitation at the Wolper Jewish Rehabilitation Hospital in Woollahra to build up her strength.
The deceased's surgery coincided with severe challenges to Sharon's health. In December 2008, Sharon underwent surgery for the treatment of breast cancer. In January 2009, she commenced chemotherapy. Sharon's own medical issues meant that she was unable to give much direct assistance to her mother for a period. So, in December 2008 she arranged for the deceased to have respite stay at the Dorothy Henderson Lodge ("DHL") nursing home, which was close to Sharon's home in Marsfield. Sharon chose DHL so she would be able to visit her mother there frequently as, she explained, it was "only a few minutes away" from her home. Sharon says, and the Court accepts, that after the deceased's surgery, when the deceased was at DHL, Roderick offered "no assistance" to the deceased. Apart from the Court's general preference for the reliability of Sharon's evidence, the deceased's proximity at DHL to Sharon's residence made it more likely that she would visit her mother more frequently than her brother.
Roderick says that prior to the sale of the Pagewood property in 2010 he saw his mother frequently and no less than twice a week and that he spoke to her daily by telephone. But although the settlement of the sale of the Pagewood property occurred in March 2010, the deceased was not living there after the end of 2008. Roderick's dates are wrong, and he could not have visited his mother there any later than the end of 2008. Moreover, the Court does not accept that his relationship with his mother was this attentive. Had it been this close, his accurate knowledge of her medical care is likely to have been greater than it was demonstrated to be at trial.

The Marsfield Property and the Power of Attorney - 2009 to 2012

By late 2009 the deceased had decided that when she left DHL, she wanted to move into a property in Marsfield to be closer to Sharon, and her grandson, Sharon's son, James, who was then about 10 years old. The deceased felt during her time at DHL that she was letting Sharon down as she was unable to care for James during Sharon's cancer treatment. On 25 November 2009, the deceased purchased the Marsfield property for $650,000. The purchase was partly funded by a first mortgage to the Australia New Zealand ("ANZ") Bank over the property. The deceased moved into the Marsfield property in about March 2010, when the proceeds of sale from the Pagewood property of $1,090,000 were used to pay out the bridging finance to the ANZ, leaving a surplus for the deceased.
The deceased's move to the Marsfield property in March 2010 made it easy for Sharon, who lived nearby, to visit her mother, who also saw much more of James because of the proximity. The Court accepts Sharon's evidence that their contact was very close and frequent in the years following the deceased moving into the Marsfield property. That closeness meant that Sharon could give a reliable account of the frequency of Roderick's visits to their mother at Marsfield.
But the arthrodesis to the deceased's right leg was not successful in the longer term. As a result of further medical advice, her right leg was amputated in February 2012. Months of rehabilitation followed, and she did not return to the Marsfield property until June 2012. At the same time, Sharon and James moved out of Sharon's Marsfield property and into her mother's place, as Sharon judged that it would not be safe for her mother to live alone and the deceased needed more help with day-to-day tasks. At the time of this move, James was 12 years old.
On the morning of her leg amputation operation in February 2012, the deceased appointed Sharon as her attorney under a general power of attorney made under the Powers of Attorney Act 2003. The power of attorney, was operative notwithstanding any loss of capacity on the principal (clause 2); authorised the attorney to confer benefits on herself to meet the attorney's reasonable living and medical expenses as provided by Powers of Attorney Act, s 12(2); and, authorised the conferring of benefits on Rodrick to meet his reasonable living and medical expenses as provided by Powers of Attorney Act, s 13(2).
After the deceased moved into the Marsfield property, Roderick claims to have spoken to his mother by telephone every day and to have visited her every few weeks. Sharon strongly disputes this. The Court accepts Sharon's version of Roderick's level of contact with the deceased, rather than his. Apart from the Court's general preference for the quality of Sharon's evidence, her version is more consistent with the degree of mutual hostility between brother and sister, which is likely to have deterred him from visiting, and contains detail that is absent from his version. She says that Roderick seldom saw his mother and infrequently contacted her. Indeed, she says that from 2008, until her mother's death in 2019, her mother saw very little of Roderick and that she would try to ring him for weeks at a time leaving numerous phone messages before he would make contact. On more than one occasion the deceased asked Sharon to send a text message to Roderick, which she did, and only rarely did he respond. So distant and difficult to contact was he that on two occasions Sharon had to ring the local police to check on him and she recalls her mother saying to her that she would "never know if anything had happened to Rod" because his then wife would not tell her. Sharon says, and the Court accepts, that Roderick visited his mother on her 80th birthday on 11 June 2012 but that he had not seen her before that for 18 months.
After the operation to amputate her leg, Roderick says that in 2013 the deceased was confined to a wheelchair. But to the extent this might give an impression she was very disabled, it is incorrect. Sharon had day-to-day contact with their mother and explained that the deceased was still able to manage many daily tasks for herself during this period, and that she resourcefully "could do most things" for herself from her wheelchair.
The detail of Sharon's version of the family history was confirmed in other matters. Roderick's affidavit evidence was that Sharon had lived at the Marsfield property with the deceased rent-free: "I remember asking Mum: 'Does Sharon pay rent or any other bills?' Mum told me several times that: 'Sharon looks after me but I pay for everything. It all comes out of my account.'"
Sharon strongly disputed this. She deposed that she had deposited a total of $326,800.24 into the deceased's account during the period from July 2012 to May 2019. The deceased's bank statements confirm that Sharon was making regular periodic payments into her mother's bank account over many years at a rate of approximately $900 per week. This represents a substantial financial subsidy from daughter to mother over the last seven years of her life. Although these payments were made on account of Sharon's and James' occupation of part of the Marsfield property, in many families such large regular sums would not have been so faithfully paid by way of regular subvention to a parent's household. Roderick did not make any equivalent regular financial subvention to his mother.
This objective financial evidence says much about the wider relationship between Sharon and her mother. It was not one characterised by financial mismanagement, or the application of her mother's funds for her purposes, or misuse of the power of attorney from her mother. It also evidences a faithful relationship of constant care for her mother's interests in circumstances where no one was or could be expected to be closely scrutinising what she was doing. It adds credibility to Sharon's general account of caring for her mother's medical and personal needs, an inference that is in any event not difficult to draw from their cohabitation from 2012 until 2017.
When presented with these records, Roderick conceded the following during cross-examination: Mr Blank: "Where you say your mum told you she pays for everything and it all comes out of her account, that wasn't in fact the case?" Roderick: "Looking at these records, no."
This admission indicated that Roderick was prepared to advance selective and unverified recollections of conversations with his mother in order to discredit his sister or propound his case against her. The advancing of this evidence was quite damaging to his credibility. The Court doubts that the deceased said to Roderick what he claims she said to him.

The Deceased in Decline - 2017

By late 2017, the deceased's day-to-day care was becoming too much for Sharon to manage herself, even with assistance at home. In December 2017, the deceased was moved into the DHL to receive full-time personal support and nursing assistance there.
Not only had the deceased deteriorated physically but her memory was declining as well. The Court accepts some of Roderick's evidence about the further decline in the deceased's memory from the time that she entered DHL. He observed that he needed to remind her constantly of his wife's name and the names of his children and of the family dog, "Kimmi", which had been in the family for 17 or 18 years, for which the deceased had a special affection.
Roderick's observations about his mother's memory are generally consistent with nursing progress notes recorded at DHL when the deceased was admitted for two weeks' respite care in February 2017, before she was admitted full-time later that year. The notes show internal evidence of being very carefully taken care of with a medical, social and care history showing close attention to detail. The Court can infer from the document itself that its author has attempted to record facts precisely. Three paragraphs extracted from these progress notes are set out below: "Patricia has a hx of a RT lower leg amputation and she has a stump, HT, OA, upper back pain and self reported pain to her Lt lower leg and occasional rib pain and pain to her neck and RT side of her shoulder. Patricia has a history of cataracts and wears reading glasses secured with glasses chain that staff will need to store and clean daily. Patricia also has a history of cellulitis to her Lt leg and although the skin is slightly discoloured to this are there is no wound or skin break although Patricia says that it can be sore to the touch. Staff to have extra care when removing her foot plate and assist with TF. … Patricia also has a previous left sided RCI and has limited reach with this arm. Patricia says that she wakes at about 0600 hours and likes to stay in bed for a while and likes to have a daily am shower at about 0800. Patricia will need full staff physical assistance with all aspects of showering including dressing and undressing and washing and drying and hair washing and pad application and grooming. Patricia says she likes to have assistance to wash her hair every few days and staff to check with her daily. Patricia only wears a sock on her left foot. Staff to encourage participation in showering to Patricias ability and encourage her to wash her face and hands and upper torso of possible to increase her feelings of independence. Sharon says that Patricia has a diagnosis of dementia and this will need to be documented by GP Sharon is happy to be called at anytime of the day or night regarding her mothers care and says that she lives locally."
These progress notes are useful for several purposes. Apart from Sharon's admission of the dementia diagnosis, they also show how much day-to-day care Sharon was giving to the deceased, as it must have been roughly equivalent to the care that the deceased needed during this two-week respite period at DHL.

The Deceased's Cognitive Capacity - 2015 to 2019

The parties were at issue about the deceased's cognitive capacity in late 2018/early 2019. Roderick contended that the deceased was strongly affected by dementia and had been exhibiting signs of this for several years.
Sharon's case was to the contrary. Although she agreed that the deceased had a diagnosis of dementia by no later than 2017, she contended the deceased was generally lucid and sufficiently so to comprehend the nature of the January 2019 transactions. Both the evidence of Mr Pickering and Dr Spark supported Sharon's case.
The Court prefers Sharon's case on this issue. Her evidence, and that of Dr Spark and Mr Pickering, supports the inference that she is likely to have well understood the January 2019 transactions. Prominent parts of that evidentiary contest are examined in this section.
Roderick's evidence was that, around 2015, the deceased's memory started to deteriorate. He recalled to her that in about 2015 he visited his mother at the Marsfield property and had a conversation with her about his ex-wife, Miriam, and their two sons, to the following effect: Roderick: "Mum I haven't seen them for ages. We've been divorced for years and she hates my guts". The deceased: "I'd forgotten that." Roderick: "Mum, I've been married to Lena for years and we have a son, Andre." The deceased: "I forgot about that. I get so confused and upset."
Roderick says that memory lapses of this type occurred more than once for the deceased in the period 2015 to 2017. Sharon dismissed this, contending that the deceased's memory was "good" and that Roderick was "fabricating this narrative" that the deceased had poor memory. Sharon gave the example that the deceased often recalled all three of the family's dogs, the name of the last of which was "Kimmy" not "Kimmi", as Roderick stated.
In December 2017, the deceased was readmitted to DHL. After her readmission, Roderick says he observed her memory to deteriorate even further, with her constantly asking Roderick what his wife's name was, what his children's names were, and what their family dog of 18 years had been named. He also stated that he visited the deceased at DHL "every few weeks" and spoke to her on the telephone "every day".
But Sharon disagreed with this, saying that Roderick "did not visit [the deceased] throughout 2016-17 and that he had no idea what the deceased was doing or where she was". Whilst this is something of an exaggeration and Roderick did visit the deceased from time to time, his visits did not have the regularity he claimed. This reduced his capacity to obtain an accurate understanding of the effects of the deceased's dementia upon her. His telephone contact with her was also not regular enough for him to draw reliable judgments about her dementia.
Roderick's evidence was that he was concerned about the deceased's diminishing cognitive capacity when she was at DHL. He said: "Based on my dealings with, and observations of, my mother over the last years of her life, I was increasingly concerned about her diminished cognitive abilities and her frailty and infirmity more generally, including at the time of the sale of the Marsfield Property and the distribution of the proceeds."
He also made the point that in the course of his visits to his mother at DHL up to the time she signed the Marsfield property sale contract on 27 October 2018 that he was "saddened to see that my mother's mental processes were deteriorating". This evidence is difficult to accept. If Roderick was concerned about his mother in the way he claims he was, it was not a concern he raised at any stage with Sharon or with anyone else to prompt them to seek any additional medical care for, or analysis of, her condition.
And Sharon disagreed with this depiction of the deceased. She argued that the deceased "did not suffer from memory loss as alleged by my brother…She was bright and aware". The Court does not accept that she was "bright and aware" all the time. But she was mostly lucid with some memory lapses, as might be expected in an elderly person in the early stages of dementia. This assessment is consistent with the medical evidence.
Dr Gregory Spark, a doctor at East Ryde Family Medical Practice, gave expert evidence about the deceased's cognition. Dr Spark had been Sharon's general practitioner for approximately thirty years. He took over the deceased's medical care at Sharon's request. Notwithstanding that he had come to treat the deceased through Sharon, he showed no signs of bias in her favour. He did not have medical oversight of the deceased for long, but he had seen her on approximately six occasions at DHL from late 2018 until her death. Dr Spark was able to develop a sound picture of her general cognition and his evidence is accepted.
The change in the deceased's medical care to Dr Spark had resulted from a change of doctors at the medical practice the deceased had previously attended. Sharon referred her to Dr Spark so that the deceased went to a doctor with whom Sharon was already familiar.
Dr Spark's account was that the deceased was in generally poor health, both physically and mentally, during 2018 and 2019. In addition to a degree of cognitive impairment, Dr Spark agreed that she suffered from a number of other medical ailments. Although Dr Spark did not speak to the deceased's previous general practitioner about her health and general mental condition, he was aware that she had an existing diagnosis of dementia and was on a course of Aricept medication for the treatment of dementia, prescribed by her geriatrician, Dr Nargas Shaheen.
Dr Spark explained that Aricept is an acetylcholinesterase medication, which in most cases is prescribed for what he called "fairly mild dementia". It is designed to reduce the progression of dementia and its severity in a marginal way. But as Dr Spark explained, "sometimes it works very well".
Dr Spark said that when he engaged with the deceased she could name the medication she was taking and the dosages, and could describe any medical ailments that she had. Moreover, she was able to recount past and current medical problems and the treatment that she had received. She was also able to give accurate information relating to Sharon and James. From his engagement with her, he observed that she recognised him, was oriented as to space and time, could make lucid and fluent conversation, and could give information about Sharon, which Dr Spark could verify as accurate because Sharon was his patient.
Dr Spark said that, as a result of his interaction with the deceased and his knowledge of her cognitive decline: "…I formed the impression and am of the opinion that at the time [the deceased] made the decision to sell her home and give the proceeds of sale to her daughter (which was a year prior to when I began seeing her as a patient): a. she would have been capable of giving instructions to Sharon or her solicitor to sell the property; and b. was able to understand the implications of such transactions; and c. would have been able to understand the financial consequences such transactions would have on her."
In September 2020, in preparation for these proceedings, Dr Spark also wrote in a letter to Mr Pickering, which well summarises the effect of his evidence in the proceedings. He said that he was of the opinion that the deceased's: "Dementia level was mild, and that she was able to give me information about her current and past medical problems and treatment, as well as accurate information relating to her daughter, Sharon, and Grandson James, both of whom she spoke of endearingly."
This evidence is wholly consistent with Mr Pickering's evidence.

The Marsfield Property Sale Instructions - September to November 2018

By mid-2018, Sharon realised that her mother was not going to return to the Marsfield property. In about September 2018, she assisted the deceased in putting the Marsfield property on the market. Sharon says, and the Court accepts, that the sale was necessitated partly due to the high cost of the deceased's nursing home fees and the need to reduce them by making a capital contribution for her place at the DHL nursing home.
Contracts for the sale of the Marsfield property were exchanged on 27 October 2018 for $920,000 with completion due on 21 January 2019. Initially, the vendor's conveyancing for the sale of the Marsfield property was undertaken on behalf of the deceased by Kirkby & Associates Lawyers.
Sharon remained living with her son James in the Marsfield property until it was sold. The Court accepts Roderick's evidence that he did not become aware of the sale of the Marsfield property until after the deceased's funeral. Text messages exchanged between Sharon and Roderick shortly after the deceased's death confirm this. In these messages, which again demonstrate the poor relationship between the siblings, Roderick assumes that the deceased still owns the Marsfield property and he communicates to Sharon that he proposes moving into the Marsfield property because the rent he was paying at his property in Sans Souci was too high.
But in November 2018, Ms Susan Kirkby, a principal of Kirkby & Associates, advised Sharon that she could not act on the sale of the Marsfield property, whilst simultaneously acting for Sharon on the purchase of a property using the deceased's funds, because of a potential conflict of interest between mother and daughter.
Sharon did not welcome this advice. She and the deceased and Kirkby & Associates parted company as solicitor and clients directly after an email exchange on 4 November 2018 between Sharon and Ms Kirkby. The exchange is set out in full below and highlights that Ms Kirkby warned Sharon that she was in a position of conflict of interest in seeking to use the proceeds of the sale of her mother's Marsfield property to purchase the Macquarie Park property in Sharon's name, given the possible financial disadvantages to her mother from the sale. The first email was from Ms Kirkby at 1.04pm on 4 November 2018: "Hi Sharon As we have repeatedly advised, you cannot use your Mother's sale/funds to acquire a property in your own name - the deposit cannot be released to you have no connection with or rights against the purchaser and vice versa. Release of deposits are always problematic and in the current financial climate are usually resisted by a property advised purchaser. You will recall that I advised you that the best course of action is for your Mother to settle the sale, you find temporary accommodation or do a short term lease of the property from the new purchaser (if that is possible) and then for your Mum to transfer funds to you and you cannot do this using the Power of Attorney. The only potential way around all of this is for your Mother to enter into the purchase Contract and then apply S18(3) of the Duties Act to provide for you as the ultimate purchaser of the property. Another way is for you and your Mother to purchase a property as joint tenants. As Robert initially advised you earlier this year there is a huge potential conflict of interest in us acting for your Mother on the sale and then using her funds for you to acquire another property and we are most uncomfortable with this course of action, I assume your Mother is on a Centrelink benefit which will be affected if she deprives herself of funds from the sale of the property. There is also the question of your Mother's health and given her age the possibility that she might pass away before the sale is settled. There are many potential legal issues. I therefore suggest that as we cannot act for you on a purchase using your Mother's funds, that you engage another firm to act for you in relation to any subsequent transaction. We do not wish to place ourselves in a situation where your Mother would have an action against us. We have written to your Mother in relation to the sale and as discussed you will need to contact ANZ Bank to arrange the discharge of mortgage - and note your instructions that there is nothing outstanding on file mortgage to the Bank - the bank will be able to discharge the mortgage electronically. We are happy to talk with you in relation to any aspect of the sale however we cannot discuss your potential purchase any further. Regards, Susan Kirkby"
Sharon replied to Ms Kirkby at 8.19pm the same day: "Hi Susan, PLEASE NOTE THAT MUM'S POSTAL ADDRESS IS [PO Box redacted]. Please do not send anything to Nile Close as the letterboxes are not secure. What you have stated here was not what you stated when we last spoke. I have been waiting for instructions re ANZ for a week. Also, you did say that you planned to get my mother's permission re purchase in my name and that you would prepare the relevant documentation. You also had me forward the Fontenoy contract to you. Do you not recall this? Loss of the partial pension my mother receives (after sale of properly or two years in a nursing home) is inevitable and has nothing to do with putting property in my name. By the way, the whole point of putting it in my name was a way of returning the several hundred thousand I invested in Nile Close and also made possible by the fact that I managed to secure a Commonwealth supported place for my mother, thus saving $450,000 in nursing home entry fees. We did not feel it was necessary to justify any of our decisions. We simply wanted you to manage a sale and a purchase. I do agree that it will be better for another firm to handle the purchase. I think it will probably be better to get someone else to take over the Nile Close settlement as well since you don't get back from holidays until January 18th and our purchaser has informed me that he may receive his funding earlier than the 20th (original proposed date of settlement). The solicitor will be in contact with you. Kind regards, Sharon Wardle"
The Court infers from Ms Kirkby's email that another principal at Kirkby & Associates, Mr Robert Kirkby, had given similar advice to Sharon earlier in 2018 and that she must therefore have been well aware of the fact that Kirkby & Associates considered her mother was not in receipt of independent legal advice in relation to the sale of the Marsfield property and the application of its proceeds of sale to acquire the Macquarie Park property. As will be seen, these transactions later proceeded in circumstances which demonstrate the wisdom of Ms Kirkby's advice and where Sharon must have continued to be conscious of the effect of such clearly and forcefully expressed advice.

Instructions to Mr Pickering - November 2018 to February 2019

Sharon decided soon afterwards to engage a new lawyer to handle both the purchase of the Macquarie Park property and the completion of the sale of the Marsfield property. By 8 November 2018, Sharon had retained Mr Garry Pickering, solicitor, who wrote to Kirkby & Associates that day with an authority to release the Marsfield property conveyancing file to him, which after further correspondence, was achieved by mid-November. Mr Pickering then undertook the legal work to complete the conveyancing for the sale of the Marsfield property. He also took instructions from Sharon to act upon the purchase of the Macquarie Park property. He later continued to act as her solicitor in these proceedings.
Mr Pickering swore an affidavit in these proceedings on 14 April 2021. He was not cross-examined. The Court accepts Mr Pickering's evidence in that affidavit. He says that in early November 2018 the deceased instructed him by telephone to act for her on the settlement of the sale of the Marsfield property. The deceased explained to Mr Pickering that she had originally instructed another solicitor to act for her on the sale of the property, but she was wanting to engage him because of "difficulties she was having with her solicitor".
As the correspondence above shows, the difficulties the deceased was having with her solicitor were principally difficulties that Sharon had encountered with Ms Kirkby. The deceased explained to Mr Pickering that Sharon held her power of attorney and that he should speak to her so that arrangements could be made to engage him.
Mr Pickering asked the deceased to arrange for Sharon to contact him, which she did a day or so later by attending his office without an appointment. This meeting must have taken place prior to 8 November 2018 because it resulted in the instructions for the file to be transferred from Kirkby & Associates to Mr Pickering by that date. Mr Pickering's recollection is that Sharon stated to him that the current solicitor acting for her mother was going on holidays and was not due to return until a few days before the settlement for the sale of the property. Mr Pickering affidavit does not disclose whether Sharon told him about Ms Kirkby's recent advice to her about a conflict of interest. Mr Pickering inspected Sharon's driver's license and the power of attorney from the deceased, which he noted was in order, and enabled him to take instructions from the deceased through Sharon.
Mr Pickering asked Sharon about her mother's state of health. Sharon gave her general background and told him that her mother had some dementia but that it was only mild and did not restrict her. This led to a discussion about whether the deceased had an enduring power of attorney. Mr Pickering then advised Sharon as follows: "I will prepare an Enduring Guardianship for your mother to sign. Given you are the Attorney it is appropriate that you also be the appointed Guardian. I will have to go and see your mother and explain the document to her and given that she has been diagnosed with dementia I will need to assess whether she has the capacity to make an Enduring Guardianship. If there are any doubts in my mind that she lacks capacity I may require that she obtain a medical opinion to support that she has the requisite understanding. But firstly, I will speak to her and make my own assessment."
At this point, Sharon advised Mr Pickering for the first time that she was also looking to buy a property. Sharon explained to him that because her mother was selling her property, she and her son James needed to buy a property to have somewhere to live. Sharon said to Mr Pickering that she had seen a property she wanted to purchase. He asked for a copy of the contract and explained that he would ring her and advise her. A few days later, he received a copy of the contract for the Macquarie Park property that Sharon wished to acquire.
After Sharon's appointment as enduring guardian had been prepared by Mr Pickering's office, he contacted Sharon to arrange to meet the deceased for the execution of the document. She was not then at DHL but temporarily an impatient at Ryde Hospital, where he met her on 14 November 2018. Mr Pickering arranged for Sharon and James to be absent from the room when he was speaking to the deceased about the instrument of enduring guardianship. Mr Pickering says that at this consultation he had the following exchange with the deceased: The deceased: "Mr Pickering thank you for agreeing to handle the sale of my property. I was given your name by Tian Hong Real Estate Agent. Tian is the Agent selling my property at Nile Close. I told Tian that my solicitor was taking holidays and was not due to return until a few days before the settlement and I was stressing that I may not be able to settle on time and that I had lost confidence in her. Tian said that I should contact you and she gave me your telephone number." Mr Pickering: "I wondered how you got my name. I have obtained the sale contract for the Nile Close property from your former Solicitor, and I have allocated the matter to Cassandra in my office. She will liaise with Sharon and I will contact you directly if I need anything otherwise, we can just rely upon Sharon. The reason I am here today is to discuss with you your need for an Enduring Guardianship and to obtain your instructions for an Enduring Guardianship. I have prepared such a document which I have here."
Mr Pickering explained to the deceased the difference between a power of attorney and an enduring guardianship and raised with her the diagnosis of dementia of which she was aware. He made an informal assessment of her cognitive capacity, as he discussed with her how she felt she was progressing and whether she felt that the dementia impacted upon her memory and understanding. He administered some basic tests of her cognition, not uncommonly used by legal practitioners in these circumstances, asking her who was the Prime Minister, and a little about significant events in the world at the time. His evidence is that "she answered my questions clearly and coherently". As a result of talking to her he was satisfied that she had capacity to give him instructions and that she had a clear appreciation and understanding of what she was going to sign, and moreover, that she had insight into her health conditions and into the decisions she was making.
Mr Pickering says, and it can be accepted, that he carefully assessed the question of whether the deceased had any incapacity which would disable her from executing the enduring power of attorney. He dismissed any concern about such incapacity. He says, and the Court accepts, "I had no concerns with respect to her capacity and her understanding to be able to make an Enduring Guardianship".
The deceased then executed the documents and appointed Sharon as her enduring guardian under the Guardianship Act 1987. James was also appointed as the deceased's substitute enduring guardian.
At the conclusion of the consultations about the enduring guardianship, when Sharon and James had signed their part of the document and as Mr Pickering was about to leave, the deceased called him back saying that she wanted to speak to Mr Pickering alone. Sharon and James left the room again and Mr Pickering had a further conversation with the deceased. He invited her to speak and she commenced by telling him what she wanted done with the proceeds of sale from the Marsfield property: The deceased: "With the proceeds of sale from the [Marsfield property] it is my wish that Sharon has access to those funds in order that she [sic] can buy a property for herself. Sharon had her own property some years ago, but she decided to sell the property when I lost my leg and moved in with me to look after me. Sharon and her son moved in with me and gave up their house to do so and I just want to ensure that she will have a house of her own when I am gone."
It was at this point that Mr Pickering first became aware that the property that Sharon was proposing to buy was going to be funded by the deceased. So, he opened up the subject of potential competing claims upon her bounty: Mr Pickering: "Do you have any other children?" The deceased: "I have a son, but he was looked after by my husband years ago. It is my intention to look after Sharon. She has been so good to me without her I just wonder where I would now be".
Mr Pickering recalled that the deceased told him that her son had been given a house by her late husband and that Sharon had given up her share of that property, so the son could get the property in his sole name. Mr Pickering explained to the deceased that he would prepare a document for her to sign in connection with the settlement of the sale of the Marsfield property, recording her wishes with respect to the application of the settlement proceeds, and that he would come back to her to have the document signed.
Mr Pickering was conscious of the relationship between the deceased and her daughter, Sharon, and that he wanted to ensure that the deceased's decision to fund the purchase of the Macquarie Park property for Sharon was her decision and did not result from undue influence. So he returned to his office and instructed his staff to prepare a document setting out what he understood to be the deceased's wishes, for her to sign. Sharon admits some involvement in the preparation of this document. But Mr Pickering was not cross-examined so the extent of her involvement is unclear.
On 21 November 2018, Sharon instructed Mr Pickering that she had agreed to purchase the Macquarie Park property. And she gave him instructions about a proposed arrangement for her to continue in occupation of the Marsfield property for a week after proposed simultaneous settlements of the sale of the Marsfield property and the purchase of the Macquarie Park property. On the following day she exchanged contracts to acquire the Macquarie property for $770,000. The contract for sale provided for a 10% deposit of $77,000.
Mr Pickering next saw the deceased on 19 December 2018. He reported to her about the progress of the proposed simultaneous settlement of the sale of the Marsfield property and the purchase of the Macquarie Park property. He explained his assessment of her capacity on this occasion: "[28] Again, I assessed her capacity and understanding of what she was doing, and I formed the view that she did have capacity and did have insight into and an understanding of what she was doing. I was also satisfied that what she was proposing in funding the purchase of the property for Sharon was motivated by her love and affection for her daughter and her determination that her daughter would have a property to live in when she was gone. There was, in my assessment, nothing to suggest that her decision had been made because of undue influence being applied by her daughter or anyone else."
On 19 December 2018, the deceased signed a one-page document titled 'Instructions to my Solicitor', addressed to Mr Pickering, which provided as follows: "1. On 27 October 2018, a Contract for sale for my property at [Marsfield] exchanged. The contract was signed on my behalf by my daughter Sharon Patricia Wardle (hereinafter referred to as Sharon). 2. Settlement of the sale is due to take place on 21 January 2019. 3. I am aware that the proceeds of the sale have and will be put towards the purchase of a property at [Macquarie Park]. 4. I am also aware that the contract to purchase that property in [Macquarie Park] is in the name of my daughter Sharon as the purchasing entity. 5. I have authorised my daughter to exchange the contract in her name and to utilize the funds coming from the sale of [the Marsfield property] to the purchase of the [Macquarie Park property]. 6. I instruct you to transfer the funds from the sale of the property in [Marsfield] to the purchase of the property in [Macquarie Park]. 7. I have a son. My son has already had a property transferred to him by my late husband. My daughter Sharon in effect gave up her entitlement over that property at the time it was transferred to my son."
Mr Pickering was sufficiently absorbed in his discussion with the deceased that although he had a transfer document with him for her to sign, in addition to the acknowledgement of her instructions, he omitted to have the deceased sign it. This was forwarded later for her signature.
On the basis of these instructions, Mr Pickering continued to act for the deceased on the sale of the Marsfield property and Sharon on the purchase of the Macquarie Park property through until the simultaneous settlement of the two transactions on 21 January 2019.

Settlement of the Transactions - January 2019

On 21 January 2019, both the sale of the Marsfield property and the purchase of the Macquarie Park property settled. The total net proceeds of $803,232.70 from the sale of the Marsfield property were immediately applied, namely $764,732.70 was paid towards the PEXA electronic settlement platform to fund Sharon's purchase of the Macquarie Park property, and $38,500 was paid into the trust account of the agent handling the Macquarie Park property as to constitute a 5% deposit on the Macquarie Park property purchase. This appears to have been an unpaid balance of the $77,000 deposit required under the Macquarie Park contract.
Sharon and James then moved into the Macquarie Park property, where they lived at the time of the trial. Roderick contends in the proceedings that the Macquarie Park property has increased in value since its purchase in 2019, and that its market value at the time of the trial was approximately $875,000. The property valuations in evidence confirmed this figure, which was not in contest.

The Death of the Deceased - April 2019

The deceased died on 18 April 2019. Strangely, in Roderick's original Statement of Claim, Roderick pleaded her date of death as 25 April 2019 rather than 18 April 2019. Whilst this single error would not be significant on its own, it is part of a pattern of errors about the details of the lives of family members that tends to indicate Roderick's general lack of interest in such matters. That Roderick was mistaken about the correct date of his mother's death and the correct ages of his three children shows more than just that he is "not good with dates". Roderick did not focus upon the detail of things that could be, or were likely to be, important to other family members. This is at least consistent with Sharon's case, and the Court accepts, that he was not attentive to, or a frequent visitor to, the deceased in the last years of her life.
This lack of concern about the detail of other family members' lives is exemplified in Roderick's account of the deceased's cause of death. Roderick deposed that the deceased's cause of death was "lung problems, which she had apparently suffered from for years". Sharon strongly disagreed with this, giving an account of her mother's final illness, which the Court accepts: "270. Mum did not suffer lung problems for years. She rarely caught colds. Her death was due to infection of a left shoulder hemarthrosis which lead to heart failure. My brother has no idea when or how often Mum was admitted to hospital or to which hospitals. 271. My brother had no regard for Mum's care or health whatsoever."

The Crowdy Head Property

In about 1966 or 1967, William Wardle purchased a block of land in Crowdy Head, New South Wales and built on the land a holiday house for the Wardle family, which has been referred to in these reasons as the Crowdy Head property. The family's dealings in relation to the Crowdy Head property provide important background to the January 2019 transactions, to the parties' claims for further provision out of the estate, and to Sharon's Cross-Claim for recovery of certain monies that the deceased paid in relation to the Crowdy Head property.
On any view of the Wardle family history, the Crowdy Head property was a matrimonial asset to which the deceased had a claim, though it was in William's name. The deceased had a real interest in its disposition.
In around 1991 or 1992, William entered into an understanding with Sharon and Roderick whereby each of them would own a one-third share of the Crowdy Head property. Sharon said that the reason for this was that their father sought to divest himself of assets to enhance his eligibility for a pension.
William effected a transfer of the Crowdy Head property into the three names of himself, Sharon and Roderick as joint tenants in March 1992. The certificate of title shows that there was no mortgage on the property.
The Wardle family's dealings with the Crowdy Head property were related to another transaction at about the same time. In October 1991, Sharon purchased a town house in Busaco Road, Marsfield ("the Busaco Road property"). William loaned Sharon $165,000 to purchase the Busaco Road property. No mortgage was executed between father and daughter. But Sharon made weekly repayments to her father of $350 from October 1991 until his death in August 2003. These payments were made in cash at her father's request, except for a period of two months around the time of James' birth.
Roderick seeks to make a case that Sharon took benefits from her parents by failing to repay this loan. But the Court does not accept Roderick's evidence about this. In addition to his general unreliability, some of his evidence is objectively improbable.
Roderick refers to a family conference at which he claims to have been present, at which William offered to lend Sharon the money for the Busaco property at an interest rate of 9%, because market interest rates were so high. Roderick stated that he "had no objection to the loan, as I was doing well at the time". But he claims that William said to him "I've decided to lend her the money at 9% interest flat. She'll be paying it off every fortnight" and that in the following years he complained to Roderick, "Sharon is not making regular payments on that loan. I wish I had lent the money to you, at least I could rely upon you paying it back".
Sharon rejects this depiction of events. She states, and the Court accepts, that Roderick "was not included in any of the discussions between Dad, Mum, and me" in respect of the loan. There is no compelling reason why he would be present at these discussions between father and daughter about this subject. And there is even less reason why he would be consulted as to whether or not he had any "objection" to the loan. He does not indicate that he was in competition with his sister for the loan. Indeed he said, "I was doing well at the time" and seems to disclaim a need for a loan at the time. And William gave Sharon a gift of $1,000 when her son was born to assist her. It would perhaps be odd that such a gift would have been made while William was displeased with Sharon's loan repayment efforts.
Sharon's evidence is that she had repaid over $200,000 to her father in respect of the loan by the time William died. It may possibly have been more, as $350 per week from 1991 until the deceased's death is closer to $400,000. William recorded her loan repayments in a small dark red hardcover notebook. She was unable to produce the notebook in Court as she was unable to locate it.
Sharon was criticised under cross-examination for not being able to produce any record of these payments, such as any bank statements or ledgers. But this is not surprising. William died 18 years ago, when the last of the payments were made. Sharon would not be expected to keep documents that long. The Court accepts that she made genuine attempts to find the booklet her father maintained. The effect of this evidence is that Sharon was not indebted to either of her parents as a result of assistance that she received in the acquisition of the Busaco Road property.
Once William died in August 2003, the Crowdy Head property passed to Sharon and Roderick by operation of law and they became joint tenants in equal shares.
But shortly after William died, the deceased had a conversation with Sharon, explaining that before William had died, he expressed a wish that Sharon give her share of the Crowdy Head property to Roderick. Sharon did not understand why he would want to do that but the deceased explained to her: "He was worried about Roderick. He has no house to live in now since the divorce from Miriam. He knew that you had your property but he was concerned about Roderick."
Sharon protested, pointing out that she had paid off the Busaco Road property but Roderick was getting a half share in the Crowdy Head property without paying anything. Sharon was told by the deceased that "it's what your dad wanted". It is clear that the deceased herself had discussed this with William and concurred with her husband's views. Sharon agreed to abide by her parents' wishes.
After William's death, consistent with her father's testamentary intentions, Sharon transferred her half share of the Crowdy Head property to her brother in August 2004. The transfer to Roderick is stamped with a receipt of stamp duty of $11,240. The consideration for the transfer was a nominal $1. And Sharon received no valuable consideration from her brother. The deceased paid the $11,240 in stamp duty levied on the transfer to Roderick.
Sharon has a stark memory of these conversations partly because the inequity of the situation was striking to her. She resented her brother receiving the Crowdy Head property without making any financial contribution to it, including stamp duty. The Crowdy Head property was worth almost twice as much as the Busaco Road property she was required to pay for and which, at that stage, she says was worth about $400,000. Moreover, Sharon then had a three-year-old child to support. At the time of the transfer of Sharon's interest in the Crowdy Head property, the Court accepts that its market value was about $750,000 (her share being half of that) and that the market value of her apartment was approximately $400,000.
Roderick says that, after his father's death, he learnt that the deceased "had encouraged Sharon to transfer her share of Crowdy Head" to Roderick. Roderick says that he understood the transfer of Sharon's share in the Crowdy Head property to him was in lieu of Sharon repaying the loan from her father for the Busaco Road property. He supports this by saying that repayment of the loan was never discussed after Sharon transferred her share of the Crowdy Head property to him.
Roderick's recollection is improbable. Sharon's share in the Crowdy Head property was far more valuable than any amount outstanding for the loan for the Busaco Road property, so if it was supposed to be a trade (of half the Crowdy Head property for the outstanding loan), it was a very unfair one for her. Sharon's more recent history of paying rent to her mother indicates that she is likely to have been faithful in repayments to her parents. Moreover, when she gave evidence almost 20 years later, it was quite clear to the Court that Sharon was still rankled by the injustice of this transfer, which is more consistent with her being forced to make a gift to Roderick. But overall, the Court simply prefers Sharon's evidence on this subject.
In 2014, Roderick sold the Crowdy Head property for $620,000. Roderick says the deceased gave him $20,000 (on account of the vendor's real estate agent's commission) at the time of sale "to cover selling costs" as "[t]he bank took all the proceeds. There was nothing left". The Court accepts that the deceased did make this gift.
The mortgagee took all the proceeds of sale of the Crowdy Head property. Roderick says this was because he had invested in properties in Victoria with his wife which were heavily geared. He explains that he and his then wife were forced to sell at a substantial loss due to a rise in interest rates.
The deceased is said to have paid stamp duty in the amount of roughly $11,000 as Roderick could not afford to pay it himself. About this, Sharon deposed: "[t]o be told that my brother was not even paying the stamp duty and that Mum was going to pay it sickened me".
But Sharon contends Roderick had to sell the Crowdy Head property at such a substantial loss not just because of heavily geared properties in Victoria, but because he had a drug habit, and was attracted to highly speculative share investments.
While Roderick admits that he "lost a considerable amount of money borrowed against the Crowdy Head property", he denies having a drug habit. Aside from the heavily geared properties in Victoria, Roderick says he had to sell the Crowdy Head property at a loss because he was "attempting to make a living out of share trading" at the time.
Mr Blank cross-examined Roderick about his career as a share-trader. Roderick confirmed that, during a period of about three years, whilst residing at the Crowdy Head property, he worked as a day trader, investing in various companies and watching the stock market. Roderick conceded that he had lost roughly $600,000 during this time. When asked whether he had formal training in share-trading, Roderick confirmed that he had taken an at-home course named "Hometrader".
When asked whether he could have negotiated harder and received more money for the Crowdy Head property, Roderick stated: "I tried". He told the Court that the property had been on the market for approximately two years and that the offer of $620,000 was "the best offer I could get". Roderick did not have a choice about timing: he could not sustain the debt and had to sell.
The Court does not have to decide whether Roderick had a drug habit. But his own admissions establish that he had to sell the Crowdy Head property due to a combination of unwisely geared property investments and trading shares to make an income but at unacceptable levels of risk. The Court does not have to determine the wisdom of this conduct, other than to observe that he took substantial share trading risks with predictable consequences.

Relief for Unconscionable Dealings and Undue Influence

Roderick contends that Sharon holds the legal and beneficial interest in the Macquarie Park property upon constructive trust, or alternatively, a resulting trust, for the deceased's estate. He also seeks a declaration that Sharon holds the balance of the proceeds of sale of the Marsfield property upon constructive trust for the deceased's estate.
Sharon contends the deceased transferred the proceeds of sale together to her as an inter vivos gift. Counsel for Sharon submitted at trial that it had been "quite clear on the facts that [the deceased] was gifting all the money from the sale of the [Macquarie Park] property to her daughter, and that was clearly her intention".
Mr Pickering further deposed that, upon meeting the deceased in person in December 2018, he formed a view that she had "capacity and understanding of what she was doing". He wrote: "I was also satisfied that what she was proposing in funding the purchase of the property for Sharon was motivated by her love and affection for her daughter and her determination that her daughter would have a property to live in when she was gone. There was, in my assessment, nothing to suggest that her decision had been made because of undue influence being applied by her daughter or anyone else."
Notwithstanding Sharon's characterisation of the transaction as an inter vivos gift, Roderick says that the conveyance should be impugned by the Court based on a number of vitiating factors that he alleges. These include: the nature and quality of the relationship between Sharon and the deceased; the dependency and vulnerability of the deceased; the trust and confidence reposed in Sharon by the deceased; the position of ascendancy occupied by Sharon vis-à-vis the deceased; and the unfair and unconscientious advantage taken by Sharon as the stronger party of the opportunity which the deceased's dependency afforded.
Roderick's claim was essentially one based in undue influence, resulting trust and unconscionable conduct. Counsel for Roderick also mentioned Sharon owed her mother fiduciary duties by virtue of the power of attorney, but these are not pleaded in the Amended Statement of Claim as founding an independent claim of relief, were not developed in argument and are not further considered.
The claim of undue influence is not made out. There is no automatic presumption that a parent is subject to the undue influence of their child: Whereat v Duff (1972) 2 NSWLR 147. Roderick needs to make out a relationship of actual undue influence. He needs to make out a relationship involving ascendancy or influence on the part of Sharon over her mother or dependence, reliance trust or confidence on the part of the deceased: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) at [5.440].
The Court's clear impression in this case is not that Sharon had ascendancy over her mother but that she and her mother had a warm affectionate parent-child relationship which nourished both their lives. The deceased was grateful to Sharon for the many kindnesses that Sharon had shown her throughout her life and particularly in her final years. She was willing to sell theMarsfield property and give the proceeds to Sharon because of the sacrifices Sharon had made for her. This was not a relationship in which the deceased's reliance, trust or confidence in Sharon, although clearly in existence, was the dominant motive force for the gift to her daughter.
Rather, the gift resulting in the January 2019 transactions was essentially founded in mutual gratitude between parent and child and was a recognition by the deceased of Sharon's need for her own accommodation after she had given up the Busaco Road property to come and live with her. Now that the deceased was in a nursing home, she did not need the house in her name and could allow its proceeds to be deployed for Sharon's benefit. It was convenient.
There was no obvious pressure by Sharon. Roderick is not able to show here that a 'stronger party', Sharon, actually exerted pressure to procure the consent of the 'weaker party', being the deceased, to effect the transaction: Bank of Credit and Commerce International SA v Aboody and another [1990] 1 QB 923 at 964; [1989] Fam Law 435; Allcard v Skinner (1887) 36 Ch D 145; (1886-90) All ER Rep 90. Though there was a strong sense of obligation on the deceased's part, the Court is not persuaded this was a relationship of actual undue influence.
A resulting trust is not made out either. Here, a mother advanced funds to a daughter in which she clearly intended to make a gift to the daughter. That was the deceased's intent. The presumption of a resulting trust will not apply in such circumstances: Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; (2006) 224 ALR 280; [2006] HCA 6, at 297 - 298, [55].
The elements of an unconscionable transaction were conveniently summarised by Ward J (as her Honour then was) in Hewitt v Gardner [2009] NSWSC 1107 at [106] as follows: "(a) the weaker party must, at the time of entering into the transaction, suffer from a special disadvantage vis-a-vis the strong party; (b) the special disadvantage must seriously affect the weaker party's capacity to judge or protect his or her own interests; (c) 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); (d) that party must take advantage of the opportunity presented by the disadvantage; and (e) the taking of advantage must have been unconscientious."
Her Honour went further to note that "once ingredients (a), (b) and (c) are established, and the improvidence of the transaction is shown, the plaintiff's task is 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". These principles were recently reaffirmed by Ward CJ in Eq in Torok v Becker [2020] NSWSC 1570 at [308] - [311].
Roderick submitted that the deceased was at a special disadvantage because at the time of the transfer of the monies in January 2019, she was: "very elderly", being 86 years of age; frail and physically infirm as her movement was greatly impaired, in part due to her amputation; taking a host of medication to manage pain and other health conditions; cognitively impaired by dementia; a permanent resident at DHL, where she received care and assistance; strongly emotionally dependent upon Sharon; vulnerable to commercial exploitation; and unable to conserve her interests, demonstrated by the deceased giving away all the capital in her only asset of substance at the risk of her own financial security and future health needs.
Roderick relied on the fact that the deceased had resided with Sharon since 2012 as evidence of their relationship of dependence. Indeed, he submitted that because Sharon was the deceased's attorney (and later, her guardian), and because she made day-to-day decisions in relation to her medical issues and finances, a relationship of interdependency existed. This therefore put the deceased in a special disadvantage vis-à-vis her daughter. He submitted that such an obvious disadvantage affected the deceased's overall capacity to judge and satisfactorily protect her own interests.
Sharon rejected that analysis, contending that her relationship with the deceased was one of mutual affection, demonstrated by the fact that they would purchase expensive things for one another. She gave the example of trips overseas that she took with her mother and son. She pointed to the trips on several occasions after 2012, where the deceased accompanied her to Japan and New Zealand. Sharon also relies upon the evidence of Mr Pickering.
But there was an important aspect of the January 2019 transactions which was disadvantageous to the deceased, which was never discussed between Sharon and her mother, which was never made the subject of advice by Mr Pickering, and which never matured into any legal arrangement that would have better secured the deceased's overall needs in the DHL nursing home.
The sale of the Marsfield property was not of itself improvident. Had it not been sold within two years of her going into the nursing home, it would have attracted capital gains tax upon a future sale. But the gift of the whole of the proceeds of the sale of the Marsfield property to Sharon to acquire the Macquarie Park property was improvident from the deceased's perspective, unless some clear understanding was reached between the pair that if the deceased had some strong medical or related need which required considerable expenditure in the short-term that Sharon would provide it. The application of the proceeds of sale of the Marsfield property divested the deceased of her sole substantial asset.
Had the deceased been advised by a solicitor other than Mr Pickering, who was acting for both the deceased and Sharon, such a solicitor is likely to have adverted to this issue. But because of the apparent harmony between mother and daughter, and the fact that one solicitor was acting in the matter, the issue never arose. The transfer without this issue being addressed was improvident from the deceased's perspective. She had several debilitating medical conditions that may have needed more intensive medical care and as result of the transaction she was not left with substantial funds to meet the cost of such care. Even though it was unlikely that she would come out of the nursing home, she could well have lived for several years. Although she seemed to be content to rely upon her daughter's continuing goodwill, and perhaps not unreasonably, she was nevertheless left vulnerable and unable to deploy her own funds for her own significant medical care in the future, if it was required, without asking her daughter for money.
This deficiency could have been cured by a clearly discussed, agreed and, if necessary, clearly documented arrangement between mother and daughter to support the mother's foreseen or unforeseen future medical care, even of a substantial kind. If a clear, legally enforceable instrument was required to make the arrangement enforceable, the Macquarie Park property could have been charged with an obligation of this kind to the deceased.
The Court does not accept that the deceased was in a position of special disadvantage by reason of dementia. But all her other physical ailments, her age, her presence in the nursing home and the other matters adverted to in Roderick's case, did place her in a position of special disadvantage in relation to her daughter in the application of the proceeds of sale of the Marsfield property towards the acquisition of the Macquarie Park property. And it was ultimately unconscientious of Sharon to take these proceeds without this issue being discussed and dealt with. It was not brought to the fore by Mr Pickering, who, in the Court's view, was somewhat blinded to it by the apparent consensus between mother and daughter. But this superficial, yet misleading, consensus was the very reason that the deceased needed to be independently advised. Sharon was aware that the issue of her mother's future, potentially expensive, medical care was not the subject of a clear arrangement for the benefit of her mother and ultimately took the benefit of the transaction with that knowledge. That is enough to bind her conscience.
The Court will accordingly set aside this aspect of the January 2019 transactions, namely the application of the proceeds of sale from the Marsfield property to the Macquarie Park property. The circumstances of this case do not require consideration of more consequential relief.

Sharon's Cross-Claim for Liquidated Funds

Before addressing Sharon's Cross-Claim under Succession Act, Chapter 3, brief consideration should be given to the balance of Sharon's Cross-Claim for liquidated funds alleged to be due from Roderick to the deceased's estate.
Sharon's Cross-Claim seeks orders that Roderick pay the estate $11,240 plus interest, being the stamp duty money paid by the deceased upon the transfer of Sharon's half share of the Crowdy Head property to Roderick. It also seeks the return of $20,000 plus interest, being the money the deceased paid Roderick to enable him to meet the real estate agent's commission on the sale of the Crowdy Head property. Neither of these claims was actively pursued in oral or written submissions on Sharon's behalf. But even if they had been, they would have failed. Sharon has not established on behalf of the estate that the money so advanced was a loan rather than a gift, as it is characterised by Roderick.
Executors not uncommonly find themselves in the position of alleging that money paid by a deceased person to another was a loan, only to encounter a defence that the money paid was a gift. The High Court considered just such a situation in Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111; [1931] ALR 65; (1930) 4 ALJR 202b, a case often cited as authority for the proposition that a plaintiff bears the onus of proof of the loan in such circumstances.
Sharon has not discharged this onus. The circumstances in which the deceased, or indeed William, transferred these monies to Roderick strongly speak to the inference of a gift rather than loan. They were parents assisting a child in dire financial circumstances in which clearly they did not expect ever to be repaid.
This part of the Cross-Claim can be dismissed.

The Family Provision Claims

Each of the Wardle siblings brings competing family provision claims. But Roderick conceded that in the event of success in the Claim on behalf of the deceased's estate for equitable relief that he would not pursue a family provision claim. This was an appropriate concession as, had such a claim been pursued, it was unlikely to be successful.
But the estate's equitable claim has been successful, so Sharon's family provision claim must be considered. As a daughter of the deceased, Sharon is an "eligible person" under the Succession Act, so the only question is whether order for further provision out of a deceased estate should be made in her favour. The success of the estate's claim for equitable relief against Sharon means that no question of notional estate now arises. It is necessary to consider now the other evidence relevant to Sharon's family provision claim, including the relative financial and personal circumstances of each of Roderick and Sharon.

Roderick's Personal Situation & Financial Needs

Roderick was born on 3 July 1964. He was almost 57 years old at the time of the hearing. Roderick has three sons, aged 14, 25 and 27, respectively. Each of these son lives with his mother. Roderick has been divorced twice. He partially supports his youngest child by paying "a few thousand dollars a year" to the child's mother "when finances permit". But the financial evidence in Roderick's case indicates that he would not frequently have the capacity to pay that child support.
Roderick has resided in a rental property in Sans Souci since 2015. He pays $600 per week in rent. The property has two bedrooms. Roderick says that a second bedroom is needed for when his sons visit.
Roderick has qualifications in electrical engineering. He worked successfully in the mining industry as an electrical engineer in the 28 years between 1986 and 2014 with a reasonable salary. His work was challenging and complex, in high voltage control design. Roderick agreed that during the course of that work he was required to engage in the modern business practices of using a computer, sending emails, manipulating spreadsheets and the like.
But Roderick chose to take a different career course. In 2016, Roderick started a landscaping business called 'Whispering Gardens'. Whispering Gardens has been financially unsuccessful. In his affidavit of 22 June 2020, Roderick deposed in relation to Whispering Gardens' finances, that: "91. I deposit most of the cash from my business (except about $2,000 p/a) into the bank. 92. I have never filed a tax return in relation to my garden maintenance business as my income has always been well below the tax threshold. The last time I filed a tax return was of the financial year ended June 16 or June 17. I am not required to be registered for GST as I am below the $75,000 turnover threshold."
The net income from Whispering Gardens over the last 3 years has totalled about $20,000. For the financial year ending 30 June 2018 ("FY18"), his profit before tax was $11,160, for the financial year ending 30 June 2019 ("FY19") it was $4,135, and for the financial year ending 30 June 2020 ("FY20") (minus two weeks) it was $5,522. According to Roderick, it averages out at about $478 per month, or $119.50 per week. His expenses in this business represent between approximately 50% and 70% of sales.
Roderick says he has regularly monthly personal expenses, including rent, water usage, food, electricity, medical, dental and optical expenses, and pet expenses of a total of $3,159. Thus, although he is well below the tax threshold and can earn income effectively on a tax-free basis, he suffers a net shortfall in personal monthly expenditure before taking Centrelink payments into account of over $2,000. In the long term, this is unsustainable. Mr Blank, on behalf of Sharon, addressed the issue of whether or not Roderick had made a lifestyle choice to become a landscaper, rather than deploy his talents as an electrical engineer.
Mr Blank cross-examined Roderick on the profitability of his former employment as an electrical engineer versus his work as a landscaper and his decision to become a landscaper: Mr Blank: "You decided in 2016 to start up the landscaping business." Roderick: "Yes." Mr Blank: "Do you think you were sufficiently qualified to be a landscaper?" Roderick: "Yes." Mr Blank: "What made you think you were sufficiently qualified?" Roderick: "I had a community garden close to my home for many, many years." Mr Blank: "That was the extent of your experience?" Roderick: "And I've played with plants most my life."
Roderick's decision to become a landscaper involved a deliberate choice to reduce his income. He explained that he set up a self-managed super fund ("SMSF") "about ten years ago when I was still earning good money". He highest balance that he has ever had in that fund was about $75,000, in March 2019. He explained that as his regular living expenses exceeded his income, he had no alternative but to withdraw money from the SMSF bank account over the last 27 months. Over that period, he has withdrawn his superannuation, leaving a balance of only $540.
Roderick told the Court that he wished to relocate his landscaping business to Tasmania, and that he felt the "cooler climate" would better suit his health. He wishes to purchase a 2-bedroom house in Launceston for approximately $350,000 if the Court were to grant him further provision out of the deceased's estate. He believes that a two-bedroom house in reasonable condition, with a small backyard, would suit him well so that he could continue plant propagation and sales at markets to supplement his income. A yard would also accommodate his companion pet dog. He also seeks monies up to approximately $36,750 to update his vehicle and other appliances like his refrigerator and television. He also seeks a lump sum for contingencies.
Roderick values his total assets at $13,366. The bulk of these assets comprise two motor vehicles, a computer, a trailer, gardening tools, equipment, a piano and some money in the bank. In April 2020, Roderick commenced receiving JobSeeker payments due to the impact of the COVID-19 pandemic on his landscaping business. These payments were reduced on 31 March 2021. But he continues to receive a Centrelink payment of $750 per fortnight. The Centrelink payment would reduce his net monthly losses to a little over $500 per month.
Roderick has a relaxed attitude to his financial compliance obligations. He freely admitted in his affidavit evidence that he withdrew money from his superannuation fund over the last 27 months. He has not submitted his SMSF accounts for the preparation of tax returns for several years as he is "aware that my withdrawing of monies from my super fund before I reach my preservation age is not permitted".
Roderick claims that he suffers from relatively poor health; both mental and physical. He says he suffers from feelings of anxiety and depression and that the thought of going back to "any high-pressure work involving deadlines…creates feelings of anxiety and nausea". He says that his mental state was made worse after his mother's death, and that he continues to experience difficulties in carrying out any sort of work that is similar to, or at least reminds him, of his work in previous professional roles. He says that he finds it very difficult to apply himself sitting at a computer, preparing documents and that he felt "nervous, stressed, anxious and nauseous" when preparing evidence for this case.
When cross-examined about his mental health, Roderick told the Court that his mental wellbeing had improved "since I got out of engineering". He continued to answer questions on this subject: Mr Blank: "On that topic, you say that you felt that the roles you were doing on the mines were high pressure?" Roderick: "Yes." Mr Blank: "The thought of performing similar roles makes you feel anxious or nauseous?" Roderick: "Correct." Mr Blank: "You say you can't work in similar roles because that reminds you of your previous roles in the mine?" Roderick: "Yes." Mr Blank: "Have you thought of seeking any treatment to overcome that anxiety?" Roderick: "No." Mr Blank: "You haven't thought to yourself, "Well, maybe I need to see if I can get to a position where I can go back to work?" Roderick: "No, I decided to change careers." Mr Blank: "As a landscaper?" Roderick: "Yes."
Roderick claimed that he has developed "tennis elbow type injuries" to his left forearm and elbow, and that this injury "prevents [him] from accepting heavier gardening jobs such as grass laying and digging holes".
He also told the Court that he suffered from asthma. When cross-examined about this condition, and why it could be that Sharon did not remember Roderick having asthma as a child, Roderick explained that he "didn't know it was asthma at the time". He also conceded that he did not have any independent medical evidence of his asthma condition.
Sharon deposed that her brother had lost his job "due to his personality disorder which was exacerbated by his abuse of drugs including marijuana". But the Court does not have to decide whether he has abused drugs. This case can be determined satisfactorily on less contentious evidence.
Roderick contends that he is in straitened financial circumstances and that he has various health concerns preventing him from working at the level he previously used to. But Sharon submits that Roderick has created a situation of need; he has no responsibilities other than to himself; and he has made a lifestyle choice to not work and earn (or at least, he has the capacity to earn at a far greater level than he currently alleges).
The Court does not accept that Roderick is incapable of undertaking remunerative work that would earn him more than the little over $100 per week he derives from his landscaping business. At his age, difficulty in undertaking hard physical labour is to be expected. But even without returning to a responsible position as an electrical engineer, it is expected that someone with his skills would be able to undertake relatively undemanding office work that did not place him under high pressure.
He has not sought medical or psychological treatment for the mental conditions about which he complains. Nor has he attempted to obtain less pressured office work that would pay far more than his landscaping business. It would not be too difficult to structure a life in which he undertook some office work and still derived satisfaction from a part-time gardening business.
But the high point of his past capacity to save was when he was an electrical engineer which allowed him to accumulate superannuation of $75,000, which is now almost fulling depleted.

Sharon Wardle's Personal Situation, Financial Needs & Contribution

Sharon presently faces many personal and financial challenges. She was diagnosed with breast cancer in 2008 and had a mastectomy. The ensuing 10 years of chemotherapy and ongoing medications have left her with debilitating side effects. She is registered with a Max Disability Employment Service, requiring her to undertake thirty hours per fortnight of self-employment during 2019.
Sharon works as a chiropractor but can only manage a maximum of 15 hours per week. She has accumulated no superannuation; she was undoubtedly looking to her house as a form of superannuation. Sharon lives with her son James at present at the Macquarie Park property. He is studying law full-time at university. He is 19 years of age.
The Court accepts that Sharon's estimate of her living expenses at $4,317 per month. Aside from the Macquarie Park property, she owns a 2011 Ford Mondeo car and some household furniture. Sharon also has a HECS debt of $18,173.
Sharon made substantial personal and financial contributions helping the deceased throughout her lifetime. She moved in with her to help her. She assisted the deceased in selling her own property. She made medical and other enquiries for the deceased and ultimately helped her to obtain good medical care and living arrangements with which the deceased was happy and content.
The Court does not accept Roderick's case that the deceased paid "for everything" in the joint household that she conducted with Sharon and James. The Court accepts Sharon's evidence that she paid for household purchases and maintenance, dinners and outings, travel-related expenses, groceries, and miscellaneous items and gifts, totalling at least $39,667.97. In addition to this, the Court accepts that Sharon paid the gifts, including trips to Japan and a two week cruise to New Zealand, including the deceased's elderly sister as company for $94,345.12. In addition, Sharon bought some jewellery for her mother for $2,500 and $1,600.
This is in addition to paying rent to her mother. After the sale of the Busaco Road property, Sharon had about $250,000 left as net proceeds. From this, and from her earnings as a chiropractor, and other funds to which she had access, she was able to deposit a total of $326,800.24 into her mother's account between July 2012 and May 2019. The documentary evidence of this was not seriously challenged in Roderick's case. Moreover, no financial contributions were made by Roderick to his mother.

Sharon and Roderick's Relationship with the Deceased

Sharon submits that the relationship between Roderick and the deceased was "poor". Sharon's evidence was that, despite her brother's assertions that he "frequently" saw the deceased throughout the final years of her life, the deceased "saw very little" of Roderick from 2008 to 2019. The Court's findings on this subject are set out elsewhere in these reasons. But there is other evidence about the quality of Roderick's and Sharon's relationship with the deceased.
Each of Roderick and Sharon attested that the other did not have as good a relationship with the deceased as the other was representing to the Court. Roderick deposed that he had a conversation with the deceased to the effect: "I do not like to tell Sharon that you come to see me because she gets very upset and bullies me if I do tell her. Sometimes I think she is listening in on the phone when you ring".
The Court does not accept that the deceased said this to Roderick. It is inconsistent with the quality of the relationship that in fact existed between Sharon and the deceased.
The deceased's sister, Ms Gwen McGlinn, deposed that the deceased had a close relationship with Sharon, whom the deceased "always praised". Ms McGlinn was not cross-examined. She recalled a conversation she had with the deceased, who told her: "[Sharon] is a wonderful daughter. I don't know what I'd do without her". In relation to Roderick, Ms McGlinn said: "8. Whenever I asked Pat about Roddy (I still called her son Roderick by his childhood name when speaking to her), she would often tell me that she was upset or worried because she had not seen him for ages. 9. Roderick lived in Sydney so I believe that she could have seen him more often."
This sentiment was echoed by the deceased's other sister, Ms Dorothea Zuzza. She too was not cross-examined and deposed that whenever she asked the deceased about Roderick, she would reply with words to the effect of: "I don't see him much".
Roderick frankly conceded that Sharon had provided the necessary care and assistance the deceased required in the later years of her life: Mr Blank: "And do you accept that Sharon in fact did provide the assistance your mother needed?" Roderick: "Yes." Mr Blank: "And do you accept that your mother was very grateful to Sharon--" Roderick: "Yes."
Both Roderick's own concessions and the evidence of other witnesses confirms the close, grateful and affectionate quality of the relationship between Sharon and the deceased and that it was one of greater intimacy than the relationship that the deceased had with Roderick.

The Parties' Legal Costs

As these proceedings include claims for provision out of the estate under Succession Act, Chapter 3 the parties filed affidavits outlining their legal costs. The estimates of cost on both sides were based on a three-day hearing. The Court was able to finish the case within two days and expects the parties' legal representatives to effect costs savings as a result.
The plaintiff's total legal costs are recorded in an affidavit of Mr Gregory Hilliard Smith sworn 28 May 2021, the solicitor for the plaintiff. His estimate of the plaintiff's total legal costs, including solicitors' professional fees, counsel's fees and disbursements, up to the conclusion of a three-day hearing is $130,000 inclusive of GST.
Mr Garry Pickering, the solicitor for the plaintiff, in his affidavit of 31 May 2021 estimated the defendant's costs on the ordinary basis (and on the indemnity basis) at a total of $101,000 inclusive of GST, made up as follows: $44,000 for his professional fees, $25,000 for counsel's fees and $6,000 for disbursements, together with another $13,000 for disbursements which include the fees of previous counsel.

Adequate Provision

The final questions now relate to whether an order for provision should be made in Sharon's favour, and if so in what amount. Roderick's claim for provision has fallen away as he is entitled to half of the estate.
The test of whether provision should be made out of an estate in any case is set out in Succession Act, s 59(1)(c): "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example, in Singer v Berghouse (No. 2) (1994) 181 CLR 201; (1994) 123 ALR 481; [1994] HCA 40 at 209, the High Court of Australia said of the equivalent test under the previous materially indistinguishable legislation: "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
Other authorities have explained in more detail the meaning of the words "adequate", "proper", and "advancement in life" in the legislation. Some of these authorities have been conveniently collected in the decision of Hallen AsJ (as his Honour then was) in Drury v Smith [2012] NSWSC 1067 at [153], [154], [155], [158] and [160]: "[153] Master Macready (as his Honour then was) in Stiles v Joseph (NSWSC, 16 December 1996, unreported) said, at 14-16: "Apart from the High Court's statement that the words 'advancement in life' have a wide meaning and application ... there is little (if any) case law on the meaning of 'advancement' in the context of family provision applications. Zelling J in In The Estate of Wardle (1979) 22 SASR 139 at 144, had the same problem. However, commonly in decisions in which the Applicant's 'advancement in life' has been in issue, the Court has looked only at the material or financial situation of the Applicant, and there is nothing to suggest that provision for the Applicant's 'advancement in life' means anything more than material or financial advancement. For example, in Kleinig v Neal (No 2) [1981] 2 NSWLR 532, Holland J, discusses the financial assistance which an applicant may need for his or her maintenance and advancement in life in the following terms:- If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that ... [the deceased] has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need. (at 541) In Pilkington v Inland Revenue Commissioners [1964] AC 612, Viscount Radcliffe defined 'advancement', in the context of a trustee's powers, as 'any use of ... money which will improve the material situation of the beneficiary' (at 635), and this definition was cited with approval by Pennycuick J in Re Clore's Settlement Trust; Sainer v Clore [1966] 2 All ER 272 at 274... In Certoma, The Law of Succession In New South Wales (2nd Ed) at 208, it is said: 'Although 'maintenance' does not mean mere subsistence, in the context of the New South Wales Act, it probably does not extend to substantial capital investments such as the purchase of a business, an income-producing property or a home for the Applicant because these forms of provision are more likely to be within the power of the Court under 'advancement in life'. Maintenance is rather concerned with the discharge of the recurrent costs of daily living and not generally with substantial capital benefit.' The Queensland Law Reform Commission, in its Working Paper on Uniform Succession Laws: Family Provision (Working Paper 47, 1995) ... notes ... that: 'Whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.'" [154] In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J at [114] noted: "In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support." [155] In Bartlett v Coomber [2008] NSWCA 100, at [50], Mason P said: "The concept of advancement in life goes beyond the need for education and maintenance. In a proper case it will extend to a capital payment designed to set a person up in business or upon marriage (McCosker v McCosker (1957) 97 CLR 566 at 575; Stiles v Joseph, (NSW Supreme Court, Macready M, 16 December 1996); Mayfield v Lloyd-Williams [2004] NSWSC 419)." … [158] Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that: "It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent." … [160] In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said: "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.""
The single most pressing need for Sharon's advancement in life is her continued security and accommodation in the Macquarie Park property. As a result of the Court's conclusions on the estate's claim for equitable relief against Sharon, she holds the Macquarie Park property on trust for the estate. But the Court has not yet considered issues of consequential relief which would include attempting to establish just allowances for her own contributions to its acquisition and improvement and that she has a substantial equity in it apart from the equitable interest of the estate. Given the history of her contributions to the joint household she conducted with her mother at the Marsfield property between 2012 and 2017, she may well be able to establish a substantial equity, were relief consequent upon the declaration of a constructive trust over the Macquarie Park property to be considered in a subsequent hearing.
But it is not consistent with the Court attaining the overriding purpose of the Civil Procedure Act 2005, s 56 to facilitate the just, quick and cheap resolution of the real issues in the proceedings in the exercise of its powers, for the Court to await the determination of such consequential relief issues before embarking on the contest about family provision orders. Neither party submitted that the Court should do so. Rather, the Court will consider some of the matters that might have been relevant to Sharon establishing her own equity in the Macquarie Park property as part of the broader range of factors that are relevant when the Court determines whether an order for further provision should be made under Succession Act, Chapter 3.
Once the Macquarie Park property is returned to the estate, if it were to be sold for its undisputed market value of $875,000, after meeting sale expenses of approximately $25,000 it would realise for each of Sharon and Roderick about $425,000 less other estate administration expenses. Without any order for provision in Sharon's favour that would probably be enough for Roderick to acquire a property within the price range for a residence in Tasmania at which he is aiming. But it would not be enough for Sharon to acquire another apartment in Sydney without taking on substantial debt, which is neither prudent nor realistic at her age, when she is looking towards retirement from her profession as a chiropractor.
A small order for further provision in Sharon's favour is unlikely to alter this outcome very much; it would still require the sale of the Macquarie Park property and may reduce slightly the level of debt that she would need to take on to acquire another property in which to live. Without a substantial order for further provision she stands little chance of being able to retain the stability and security that the Macquarie Park property now provides to her. But even an intermediate order for further provision in Sharon's favour points to the real prospect of an outcome where neither Sharon nor Roderick would be able to afford to buy a residence.
Given the size of the estate and its equal division under the Will, any substantial order for provision made in Sharon's favour will inevitably be at Roderick's expense and will probably deny him the opportunity to acquire property in Tasmania, using his existing entitlement from the estate under the Will. A substantial order for provision in favour of Sharon would deny him the benefit of that part of the deceased's testamentary bounty to which the Will already entitles him. This is a prominent consideration against making a substantial order for provision in Sharon's favour. And given his current poor asset position, Roderick can point to a need for security and accommodation similar to Sharon's.
Mr Bilinsky stresses that Roderick is striving only to attain a reasonably modest lifestyle and that he is not suggesting he needs a property in Sydney. He says that Sharon will already receive a considerable portion of the estate under the Will and that the Court should be mindful of the words of Lord Cockburn CJ in Banks v Goodfellow (1870) LR 5QB 549; [1861-73] All ER Rep 47 at [53]: "The instincts and affections of mankind in the vast majority of instances will lead men to make provision for those who are the nearest to them in kindred, and who in life have been the objects of their affection. …. To disappoint the expectation thus created, and to disregard the claims of kindred to the inheritance, is to shock the common sentiment of mankind, and to violate what all men concur in deeming an obligation of the moral law."
But Mr Bilinsky's submissions do not give proper weight to several pressing considerations favouring the making of an order for provision for Sharon.
First, the deceased wanted Sharon to have the security and stability of the Macquarie Park property. Although the Court has found that the deceased did not have sufficiently independent legal advice to uphold the disposition of the proceeds of sale of the Marsfield property to Sharon, the Court nevertheless accepts Mr Pickering's evidence about the statements the deceased made to him. And those statements clearly reveal an intent, although not a fully informed intent, to substantially benefit Sharon at Roderick's expense.
The reason that the Court has vitiated the January 2019 transactions in favour of the estate is that they disadvantaged the deceased, not that they disadvantaged Roderick. Once the disadvantage to the deceased is eliminated by vitiating the transaction, and restoring the property in equity to the estate, it is not irrelevant for the Court to consider what the deceased said to Mr Pickering when considering the making of a family provision order.
Mr Bilinsky submitted that the January 2019 transactions undermined the terms of the existing Will. It may be that had the deceased received fully independent advice she might have remade the Will. Yet that is ultimately only speculation. But the deceased's clear expression of intent to her solicitor to pursue the January 2019 transactions is strong evidence of the special priority that Sharon's accommodation security held in the deceased's mind. It seems to have been right at the top of any hierarchy of moral obligations that she felt she owed to her family.
Second, Sharon has made a very substantial financial contribution to the value of the deceased's estate over many years. Sharon can demonstrate regular financial contributions that she made to the joint household she conducted with the deceased. As a result, the deceased avoided having to draw upon her own financial resources in a way that would otherwise have diminished her estate. In contrast, Roderick did not make any financial contribution of a similar character to the deceased during her lifetime.
Third, Sharon was the principal caregiver to her mother when her mother needed care near the end of her life. Sharon gave her mother care in the five years between 2012 and 2017, when her mother's needs were at their highest and she lived with her mother. And between 2010 and 2012 the deceased expressed her own clear choice to be close to Sharon and the care and companionship Sharon could provide her. The deceased purchased the Marsfield property so that she could be close to Sharon who already lived in the Busaco Road property. The deceased's decision to move physically towards her daughter, rather than her son, when she anticipated her care needs would increase, is objective evidence that she judged her daughter to be the person she could best rely upon to meet those needs. In contrast, Roderick's contact with and visitation to his mother was inconstant throughout this period, Sharon's version of his contact with the deceased being largely although not wholly accepted.
Fourth, Sharon's need for accommodation security is considerably greater than that of Roderick. Her son James has a medical condition and she must assist in his care and support. James may live with her and be dependent upon her for some years to come. Whereas Roderick's accommodation needs are simpler: he must look after himself. He has no full-time caring responsibilities for others.
Fifth, Roderick has a greater number of years than Sharon to deploy his remaining earning capacity in the workforce to try and build some capital before his retirement. The Court does not accept that the obstacles Roderick identifies to his use of his not inconsiderable educational qualifications really inhibit him obtaining some useful employment to build capital. It is difficult to understand why his presently unexercised earning capacity has remained unexercised for so long given his talents. Sharon's greater proximity to retirement gives her less flexibility to build capital to acquire somewhere to live securely in retirement.
Sixth, the deceased and William had already made very substantial provision for Roderick during their lifetimes and had done so at Sharon's expense. Leaving aside the circumstances in which Roderick was forced to sell the Crowdy Head property, and avoiding any judgment about whether he squandered the benefit of that property or not, it represented a potential gift of $650,000 to Roderick with the clear concurrence of the deceased. Sharon had originally been treated equally with Roderick by their father and mother and had received half of the Crowdy Head property. But the persuasion of Sharon to give up her half interest in favour of Roderick meant that the Crowdy Head property can be analysed either as a gift of $650,000 from William and the deceased to Roderick, or a gift of $325,000 from each of William and the deceased and from Sharon to Roderick. Either way, this represents a benefit in 2004 at least as great as a half share of the net proceeds of sale of the Macquarie Park property to which Roderick is now entitled under the Will.
Seventh, the unusual circumstances in which Roderick had received the Crowdy Head property create a preeminent call upon the deceased's testamentary bounty at death, over and above equality between brother and sister. The successful persuasion of Sharon in 2004 to surrender her share in the Crowdy Head property to Roderick with the deceased's concurrence meant that Sharon's financial needs were then subordinated to those of her brother and remained subordinated for the rest of William's and the deceased's lives and indeed has never been rectified. The reason for this subordination was so that Roderick could have more financial flexibility to deal with the Crowdy Head property on his own. A consideration in favour of making an order for further provision in this case is to recognise the sacrifices Sharon has made through that subordination, and to ensure that further continued subordination of her interests in favour of her brother does not now occur by failing to recognise what occurred in the past.
But what further provision from the deceased's estate should be made in Sharon's favour? Mr Blank urges upon the Court that further provision be made for her that would entirely exhaust any benefits that Roderick would otherwise obtain from the estate. Such further provision would entirely neutralise the effect of the estate's success in obtaining equitable relief over the Macquarie Park property.
That would be excessive. As Mr Bilinsky points out, when authorising the January 2019 transactions, the deceased did not also change the Will. Although she does not seem to have been advised to alter the Will in January 2019, the effect of the January 2019 transactions was that she continued to recognise Roderick as part of her testamentary bounty. The Court is cautious about neutralising that decision by giving Sharon in effect the whole of the deceased's estate.
In the Court's view, the combined weight of considerations favouring the making of a substantial order for provision in Sharon's favour should be balanced by leaving Roderick with a modest additional legacy as a condition of Sharon's further order for provision. The sum could be used to provide him with an economic cushion for a few years into the future, so he can have some financial headroom to begin to establish himself in a job or a small business and build some capital to provide for his retirement. He is still young enough to use such a sum for his own maintenance and advancement in life. It need not be a large sum: just something sufficient to give him another career or financial opportunity that he would not otherwise have had.
Mr Bilinsky submits that Roderick should have further provision to top up his superannuation fund equivalent to the sums that he has drawn down upon in recent years from his superannuation fund because he has fallen on hard times during the COVID-19 pandemic. Mr Bilinsky submits an appropriate figure to reflect this is a legacy in the sum of $64,500. The sum of $64,500 would restore his superannuation fund to where it was before the COVID-19 pandemic forced him to reduce it.
The Court will give him further provision in an amount a little more than this, namely a legacy of $75,000. Any more would jeopardise what is proper provision for Sharon. The orders are crafted below so that payment of this legacy is charged over the Macquarie Park property.

A Referral

There are aspects of the evidence in this case which raise questions as to the conduct of Mr Pickering. He has put on affidavit evidence in these proceedings which has been relied upon by the Court. But he has not been cross-examined and as a result has not had an opportunity to give a full account of his conduct in acting for both the deceased and Sharon in relation to the January 2019 transactions. The Court has found that the deceased's and Sharon's interests were in conflict when Mr Pickering was acting for both these parties. It may be that Mr Pickering is able to give a satisfactory explanation as to how he was able to resolve that conflict.
But the Court has found that the deceased did not give informed consent to Mr Pickering acting for her and for her daughter. The lack of informed consent is the reason the Court has vitiated the aspect of the January 2019 transactions involving the application of the proceeds of the Marsfield property towards the purchase of the Macquarie Park property. Of relevance in this situation is Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ("Solicitors' Conduct Rules"), rr 11.1 to 11.3 which are set out below: "11 Conflict of duties concerning current clients 11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. 11.2 If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients' interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3. 11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client: 11.3.1 is aware that the solicitor or law practice is also acting for another client, and 11.3.2 has given informed consent to the solicitor or law practice so acting."
The circumstances that have come to light in this judgment may warrant more detailed scrutiny of Mr Pickering's conduct than has been necessary to determine the outcome of these proceedings. For that reason, and as Mr Pickering is a practising solicitor, I will request the Registrar in Equity to forward a copy of these reasons to the President of the Law Society for the consideration of his conduct in acting for both the deceased and Sharon throughout the January 2019 transactions, without the informed consent of the deceased. A possible further question for investigation by those authorities is whether the deceased or Sharon has suffered any loss by reason of Mr Pickering's arguable failure to recognise that the deceased had not given informed consent to create an exception to the conflict of interest that existed between his two clients.
In making this referral, the Court is not making any adverse finding about Mr Pickering. All the Court is doing is identifying this issue as a matter worthy of further investigation by the authorities charged with scrutinising the conduct of solicitors. But the Court is mindful of the need to do that in this case because another solicitor, Susan Kirkby, took a position which was consistent with the application of the Solicitors' Conduct Rules, r 11, and the client decided to go elsewhere. It would undermine the honourable and ethical conduct of legal practice in this State if the identification of a conflict of duty by one solicitor, which is arguably ignored or overlooked by another solicitor, and arguably leads to loss by a client, were not to be referred to the proper authorities for further scrutiny.

Conclusions and Orders

The Court raised with the parties the possibility of it making costs capping orders. But the Court has decided not to consider cost capping orders in these reasons but will do so once the parties have an opportunity to consider these reasons. But the parties should recognise that the Court is unlikely to permit the current legal costs budgets to expand beyond their current estimates by reason of making submissions about cost capping orders. Argument about costs should be conducted with costs economy. The parties have already had the benefit of saving some legal costs in a two-day hearing when they had budgeted for a three-day hearing. They should retain that benefit. No further written submissions will be required but will be optional.
The Court has granted liberty to apply, which will encompass any application within 14 days by either party to amend the precise form of relief in the Court's orders.
For these reasons the Court makes the following declarations, orders and directions: 1. Order pursuant to Uniform Civil Procedure Rules 2005, r 7.10 that these proceedings continue in the absence of a representative of the estate of the late Patricia Frances Wardle ("the estate") who died on 18 April 2019; 2. Declare that the defendant holds the legal and beneficial interest in the Macquarie Park property, being the property situated at Macquarie Park, which is more precisely identified in the Amended Statement of Claim ("the Macquarie Park property") on constructive trust for the estate; 3. Order under Succession Act 2006, s 59 that an order for further provision be made for the defendant/cross-claimant out of the estate by giving to the defendant/cross-claimant the whole of the estate's interest in the Macquarie Park property, on condition that the Macquarie Park property be charged in favour of the plaintiff/cross-defendant with the payment of a legacy of $75,000 to the plaintiff/cross-defendant; 4. The Court requests the Registrar in Equity to send a copy of these reasons to the President of the Law Society of New South Wales directing her attention to the material in these reasons under the heading "A Referral"; 5. Reserve all issues of costs; 6. Otherwise dismiss the Amended Statement of Claim; 7. Otherwise dismiss the Cross-Claim; 8. The parties are directed to contact the Associate to Slattery J to arrange a suitable time to hear argument in relation to costs orders, including costs capping orders, of no more than half an hour of hearing time; 9. Grant liberty to the parties, if they choose, to provide a skeleton outline of submissions in relation to costs, including costs capping orders, of no more than two pages, clearly setting out that party's proposals for costs and costs capping orders and the reasons for these proceedings; and 10. Grant liberty to apply.

Amendments 07 December 2021 - Coversheet - correction to name of legal representatives. [8] line 2 - "in" inserted before "the". [8] line 7; [9] line 3; [106] - "half share" rather than "half-share". [22] line 3 - duplicate definition of "Crowdy Head property" removed; line 6 - "of" inserted before "55". [50] line 5; [130] line 6 - "DHL" instead of "the Lodge". [93] line 3 - quotation marks removed around "Crowdy Head property". [119] line 3 - opening quotation marks inserted before "quite". [121] line 3 - "alleges" instead of "alleged". [124] line 4 - "her" inserted after "shown"; line 5 - "the" instead of "her"; line 8 - "in existence" rather than "existed". [126] line 7 - "deceased's" rather than "deceased"; line 8 - "actual" inserted after "of". [134] line 1 - "of" inserted before "itself". [137] line 10 - "yet" instead of "but". [205] lines 1 and 4 - "Bilinsky" instead of "Blank". 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: 07 December 2021

At a glance

Court

Decision date

Before

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Judgment (24 paragraphs)

Parties

Cases Cited (16)

Cited By (1)