NSWNSWSC

Webster v Strang; Steiner v Strang

[2018] NSWSC 495

Supreme Court of NSW|2017-05-26|Before: Kunc J, Young J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-05-26

Before

Kunc J, Young J

Catchwords

[2012] NSWCA 308 Bank of New South Wales v Brown (1983) 151 CLR 514
[1983] HCA 1 Bates v Cooke [2015] NSWCA 278
(2015) 14 ASTLR 221 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34 Burke v Burke [2015] NSWCA 195

Source

Original judgment source is linked above.

Catchwords

[2012] NSWCA 308 Bank of New South Wales v Brown (1983) 151 CLR 514[1983] HCA 1 Bates v Cooke [2015] NSWCA 278(2015) 14 ASTLR 221 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Burke v Burke [2015] NSWCA 195(2015) 13 ASTLR 313 Burmester v Hogarth (1843) 11 M & W 97[1986] HCA 14 Cooper v Dungan (1976) 9 ALR 9350 ALJR 539 Coshott v Sakic (1998) 44 NSWLR 667 Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1[2000] FCA 1084 Dare v Pulham (1982) 148 CLR 658[1982] HCA 70 Darveniza v Darveniza [2014] QSC 37 Diver v Neal [2009] NSWCA 54(2009) 2 ASTLR 89 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95[2002] HCA 8 Executor Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162[1919] HCA 51 Ex parte Morgan[1937] HCA 58 Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111[1930] HCA 26 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134

Judgment (104 paragraphs)

[1]

Introduction

Dorothy was the matriarch of an extended and once close-knit family which operated enormously successful bridal wear businesses headquartered in Australia and Utah. She was, on all accounts, an indomitable woman who, surrounded by her family, worked hard for her entire life.
The bitter divisions and ill-feeling within the family today, which have no doubt only deepened during extensive litigation in Australia and Utah since Dorothy's death, are particularly unfortunate in circumstances where it is beyond any doubt that Dorothy loved all three of her children (and her grandchildren and great-grandchildren) very much, cared for their wellbeing, and was extremely generous and supportive to all three and their descendants.
Dorothy left an estate of approximately $14 million. Pursuant to her Will, John and Robyn each receive a pecuniary legacy of $2 million and an equal share of the residue. The parties agree that there will be no residue. John has already received $788,872 of his $2 million legacy, by way of interim distribution, and Robyn has received $1,335,000 in interim distribution of her $2 million legacy.
Under the Will, Lesley (either directly, along with her husband Wayne, or through a trust established for her benefit) receives in excess of $8.5 million. Dorothy's grandchildren and great-grandchildren are also beneficiaries under the Will, with the pecuniary legacies to them collectively amounting to $3.8 million.
In the family provision proceedings, Robyn and John seek further provision for their maintenance and advancement in life. The size of the estate available in those proceedings is dependent upon the resolution of the defendants' cross-claim, for orders that John repay the amount of $881,000 to the estate.

[2]

Summary

The Court has concluded that the defendants have succeeded in their cross-claim, and that John is liable to the estate on the basis of debt on an account stated. The critical document, entitled "Acknowledgement of Loan" and executed by John and Dorothy in December 2007 (the "Acknowledgement"), constitutes an admission or acknowledgement by John of his indebtedness to Dorothy and now to her estate.
John failed to rebut, as a matter of fact, the inference of indebtedness arising from the Acknowledgement. The Court finds that both John and Dorothy's understanding of their arrangement was embodied in the Acknowledgement, and that the sums advanced by Dorothy to John in November and December 2007 (amounting in total to $881,000) were intended and understood by the parties as a loan rather than as a gift.
Were it necessary to decide, I would have held that the defendants' alternative claims on the cross-claim (a claim for moneys had and received and a claim based on an estoppel by convention said to arise from the Acknowledgement) both failed. It is fatal to the claim for moneys had and received that the defendants can provide no particularisation of the original arrangement between Dorothy and John. The claim that John is now estopped from denying the conventional basis of the parties' relationship, being the mutual assumption embodied in the terms of the Acknowledgement, suffers from insufficient evidence that Dorothy and John conducted their relationship on the basis of that mutual assumption - in effect, there was neither evidence that Dorothy would have acted any differently absent the mutual assumption, nor that departure from the mutual assumption now would occasion detriment to her (or to her estate).
However, the Court finds that John and Robyn have successfully established their claims in relation to family provision. As considered at the time of the hearing, Dorothy's Will does not make adequate provision for John and Robyn's proper maintenance and advancement in life, and further provision ought to be made. In this regard, the Court places weight on factors including the acute needs of both John and Robyn, their limited capacity to meet those needs, their relationship with Dorothy, their legitimate claims upon Dorothy's testamentary bounty, and the considerable resources available to the estate.

[3]

Factual background

Dorothy was born on 6 July 1923 and died in Salt Lake City, Utah on 12 October 2011, aged 88 years. On 9 December 1942, Dorothy married Raymond Leonard Steiner. Raymond was the only son of Cecil Steiner, and had a sister, Doreen Steiner.
Dorothy and Raymond had three children, the eldest being John Raymond Steiner born in 1945. The second child, Lesley Margaret Webster, was born in 1949. The youngest child, Robyn Gai Webster, was born in 1951.
Raymond predeceased his wife, being diagnosed with pancreatic cancer in April 1981 and dying in about September 1982. It appears that Raymond left his whole estate to Dorothy, including the couple's waterfront unit at Abbotsford, subject to a mortgage. Dorothy sold the Abbotsford unit and went to live with her daughter Lesley and Lesley's husband Wayne.

[4]

John's family

John married his first wife, Davina Kathleen Jones, in about February 1967. John and Davina had two children: Anthony John Steiner (whose name is now Anthony John Martin) (born in 1967) and Donna Gay Lovell (born in 1968). John and Davina were divorced in about 1972 in the United Kingdom.
In February 1982, John married his second wife, Lynne Janine Barlow. John and Lynne do not have any children together.
John's son Anthony is not married and does not have any children. John's daughter Donna married Alan Lovell, with whom she has four children: Brett Alan, Adam, Jacob, and Matt Lovell.

[5]

Lesley's family

Lesley married Peter Roderick Jackson in 1967, with whom she had one daughter, Kelly Lee Midgley, born in 1969. Lesley and Peter divorced in about late 1971.
In October 1978, Lesley married Wayne Porter Webster Junior, the brother of Robyn's then husband Larry Bruce Webster. Wayne had a daughter, Katrina Peterson, from a previous marriage.
Lesley's daughter Kelly married Michael Midgley, with whom she has five children: Steven, Ryan, Michael Joel, Sienna, and Jaidyn Midgley.

[6]

Robyn's family

Robyn married Jeff Watts on 6 February 1970. Robyn and Jeff were divorced in about August 1973.
In about March 1975, Robyn married her second husband, Larry Bruce Webster.
Robyn and Larry have three biological children, Wayne Bruce Webster, Scott Raymond Webster, and Lance Taylor Webster, and two adopted children, Elizabeth and Rhodora.
Robyn and Larry's eldest son, Wayne Bruce, married Elizabeth Anne Vincent, with whom he has a daughter, Madison Joey Webster.

[7]

The family bridal wear businesses

Dorothy was involved in a series of fashion businesses - specifically, in the wedding fashion or bridal wear industry. Other family members and their spouses were also involved, to varying degrees, in these businesses.
The two most significant business operations, for present purposes, were Steiner Wilson Webster Pty Ltd ("SWW"), trading as Abbey Bridal ("Abbey Bridal"), and Maggie Sottero Designs LLC ("Maggie Sottero").
Many of the Steiner/Webster family members, and their descendants - including Dorothy - have lived in both Australia and the United States (in Utah) at different times. Dorothy, for example, moved frequently between Australia and Utah, and for a considerable period spent approximately six months of each year in each place. Lesley and Robyn, and their respective spouses and children, also moved between Australia and Utah.
This pattern of residence is reflected in the geographic operation of the businesses, Abbey Bridal and Maggie Sottero. For the sake of simplicity, Abbey Bridal could be considered the Australian arm of the family bridal wear business, and Maggie Sottero the Utah arm.
There are also references in the evidence to another family business incorporated in Australia, Maggie Designs Pty Ltd (to which I will refer as "Maggie Designs").

[8]

The Will

Dorothy left the Will dated 7 June 2011.
By clause 3(a) of the Will, Robyn and John each receive pecuniary legacies of $2 million. In addition, by clause 9, they each receive one-half of the residue of the estate.
By clauses 3(b), (c), and (d), Dorothy's grandchildren and some of her great-grandchildren receive pecuniary legacies in varying amounts, amounting in total to $3.8 million.
Clause 5 relates to a Sydney property in Cunliffe Road, East Killara (the "East Killara Property") in which Dorothy had a one-third interest as tenant in common with Lesley and Wayne (the Will incorrectly refers to Dorothy having a "one half share" in the East Killara Property). By clause 5, Dorothy's interest in the East Killara Property is left to Lesley and Wayne. The valuation evidence obtained by the defendants estimates that the East Killara Property is worth approximately $1.3 million.
Pursuant to Clause 6, Dorothy bequeaths all of her interest and/or shares in SWW (trading as Abbey Bridal) and Maggie Designs absolutely to an irrevocable trust for the benefit of Lesley (the L.M. Webster Irrevocable Trust). Those shares have an estimated value of approximately $5.9 million (Abbey Bridal) and $1.09 million (Maggie Designs) respectively.
Clause 7 concerns, relevantly, two accounts referred to collectively as the "Sottero Accounts", with a balance of approximately $1.4 million - those moneys are left equally to Lesley (via the L.M. Webster Irrevocable Trust) and Lesley's daughter Kelly (via the K L Midgley Irrevocable Trust). The same division (equally between Lesley and Kelly) is made in clause 8 in relation to the "Zion Accounts" (Utah bank accounts jointly owned by Dorothy, Lesley and Kelly and with a balance of approximately $19,000 recorded as at 14 December 2011).
The Will includes: "1. I REVOKE all former Wills and other testamentary dispositions documents and acts made signed or done by me before this Will. 2. I APPOINT KENNETH ROSS STRANG and JASON TANG my Executors and Trustees (hereinafter called "my Trustees") 3. I GIVE DEVISE AND BEQUEATH: (a) to my daughter ROBYN ($2,000,000), and to my son JOHN ($2,000,000); (b) to my daughter ROBYN'S five (5) children, WAYNE BRUCE WEBSTER ($400,000), SCOTT WEBSTER ($400,000), LANCE WEBSTER ($400,000), ELIZABETH FUGGLE ($100,000), and RHADORA ROSE ($100,000), and to WAYNE BRUCE WEBSTER'S daughter, MADISON WEBSTER ($150,000); (c) to my daughter LESLEY'S daughters KATRINA PETERSON ($100,000), KELLY MIDGLEY ($400,000), and to KELLY MIDGLEY'S five children, STEVEN MIDGLEY ($250,000), RYAN MIDGLEY ($250,000), MICHAEL JOEL MIDGLEY ($250,000), SIENNA MIDGLEY ($150,000), AND JAIDYN MIDGLEY ($150,000); and (d) to my son JOHN'S two (2) children DONNA LOVELL ($400,000) and ANTHONY STEINER ($100,000), and to DONNA LOVELL'S four children, BRETT LOVELL ($50,000), ADAM LOVELL ($50,000), JACOB LOVELL ($50,000) and MATT LOVELL ($50,000). … 5. I GIVE DEVISE AND BEQUEATH my one half share in the house property known as XXX, East Killara NSW 2071 to my daughter LESLEY and her husband WAYNE P. WEBSTER, JR. 6. I GIVE DEVISE AND BEQUEATH all of my interest and/or shares in the following businesses and/or companies absolutely to an irrevocable trust for the benefit of my daughter LESLEY, known as Lesley M. Webster and Harlan P. Schmitt, as Trustees of the L.M. WEBSTER IRREVOCABLE TRUST dated July 25, 2008 United States Identification Number XXX: (a) Steiner Wilson Webster Pty Limited trading as Abbey Bridal; (b) Maggie Designs Pty Limited. 7. I GIVE DEVISE AND BEQUEATH all of my interest and/or shares, if any, in the business company Maggie Sottero Designs LLC and any moneys deposited as at the date of my death in the following Bank Accounts in my name with the Westpac Bank Corporation - XXX and XXX (the "Sottero Accounts") as follows: (a) as to one half to an irrevocable trust for the benefit of my daughter LESLEY known as Lesley M. Webster and Harlan P. Schmitt as trustees of the L M WEBSTER IRREVOCABLE TRUST dated 25 July 2008 United States Identification Number XXX; and (b) as to the remaining one half to an irrevocable trust for the benefit of my granddaughter KELLY known as Kelly L. Midgley and Harlan P. Schmitt as trustees of the K L MIDGLEY IRREVOCABLE TRUST dated 25 July 2008 United States Identification Number XXX. 8. I GIVE DEVISE AND BEQUEATH all of my interest in the following Bank Accounts in my name with Zions Bank Corporation - XXX and XXX (the "Zions Accounts") to LESLEY AND KELLY, one half each. 9. I GIVE DEVISE AND BEQUEATH the residue of my estate, after the payment of all of my final expenses, debts and taxes, of whatever nature and kind including moneys in bank accounts (other than the Sottero Accounts and the Zion Accounts) to my son JOHN and daughter ROBYN in equal shares as tenants in common. 10. I DRAW my Executors' attention to Acknowledgement between myself and my son JOHN dated 18 December 2007 and request that the provisions of that Acknowledgement be implemented and observed."

[9]

Value of the estate

The defendants have sworn an updating executors' affidavit estimating the size of the gross distributable estate (omitting the costs of the proceedings) to be approximately $14.8 million.
The executors concede that there is unlikely to be any residuary estate.

[10]

Dorothy's prior wills, transactions, and health

All of the parties to these proceedings have, to varying degrees, put in evidence conversations about Dorothy's multiple wills and about her state of health (particularly in the period from 2004 to 2011).
As to Dorothy's wills and conversations relating to them, insofar as this background is relevant to both John and Robyn's cases, it is addressed here. The more specific evidence relating to John's conversations with his mother about the loan or gift which is the subject of the cross-claim is addressed in the cross-claim section below (from [139]).
As to Dorothy's health, John and Robyn's evidence in this regard was quite extensive, and overall portrayed Dorothy as suffering from rapidly deteriorating health from about 2004 onwards. This evidence was the subject of detailed evidence in reply in Lesley and Wayne's multiple affidavits. I do not consider it necessary to delve into eight years of Dorothy's medical history here, because it has little, if any, relevance to John and Robyn's cases. No submissions were advanced which suggested that Dorothy was in anything other than good health up until about September 2011. On the contrary, all parties agreed (and in fact John and Robyn positively submitted) that Dorothy remained, up to her death, of good health, sound mind, astute, and more than capable of managing her affairs.
Dorothy made a will dated 30 November 1990, which (according to the wills in evidence) appears to have remained her operative will until 15 April 2003. In that will she appointed Robyn and Lesley as executors and trustees, and gave: 1. her shareholding in SWW to Lesley; 2. one-third of the residue to each of John and Lesley; and 3. the remaining third of the residue: by payment of $3,000 to each of Dorothy's grandchildren and the balance remaining to Kelly.
Between 2003 and 2011 Dorothy changed her will on at least eleven occasions: 1. 15 April 2003; 2. 27 May 2005; 3. 14 March 2006; 4. 2 June 2008; 5. 23 July 2009; 6. 21 September 2009 (addition of a codicil to the 23 July 2009 will); 7. 5 May 2010; 8. 25 August 2010; 9. 9 November 2010; 10. 28 April 2011; and 11. 7 June 2011 (the operative will at the date of Dorothy's death).
In her will executed 15 April 2003, Dorothy appointed Robyn and Lesley as executors and trustees, and gave: 1. to Robyn's five children, Lesley's daughter Katrina, and John's two children, each the sum of $10,000; 2. her 20% interest/shareholding in Maggie Sottero to Lesley (as to 11%) and to specific named grandchildren (as to the remaining 9%); 3. her interest/shareholding in Abbey Bridal to John, Lesley, Robyn, and Kelly in equal shares; and 4. the residue equally to John, Lesley, Robyn, and Kelly.

[11]

Procedural background

Since 2012, there have been a multitude of related interlocutory, trial, and appellate proceedings in relation to Dorothy's estate, which I set out in some detail below (given that, ultimately, the costs of many of these proceedings will need to be taken into account in the process of determining what in fact remains in the estate). This litigation, in its various guises (in Australia and Utah), has been enormously costly and time-consuming for all involved. It was in the interests of pursuing a final resolution of what may be fairly described as a long-running saga that I ultimately ordered in 2017 that all matters - John's family provision claim, Robyn's family provision claim, and the estate's cross-claim - be heard together, before me, and that evidence in one proceedings be evidence in the other.
Robyn commenced her proceedings (no. 2012/129833) by Summons filed on 24 April 2012, applying for an order under Chapter 3 of the Act that further provision be made for her maintenance and advancement in life out of Dorothy's estate.
John commenced his proceedings (no. 2012/185566) by Summons filed on 13 June 2012, likewise applying for a family provision order under Chapter 3 of the Act.
Then, by Summons filed on 11 July 2012, John and Robyn jointly commenced a new set of proceedings (no. 2012/215729), as first and second plaintiff respectively. That Summons sought urgent relief - principally, that John and Robyn be appointed Administrators of a part of the estate, being: "The inchoate right of action of action [sic] at law of the Estate of the Late Dorothy Margaret Steiner in respect of or arising out of two contracts entered into in Utah, USA on or about 24 July 2008 with Kelly Midgley and others each entitled 'Maggie Sottero Designs Limited LLC Membership Interest Purchase Agreement' ('the Sale Agreement')."
In effect, John and Robyn were seeking appointment so that they could act on behalf of the estate and commence legal proceedings in Utah in respect of the 2008 Agreements (the contracts by which Dorothy sold some of her business interests to her daughter Lesley and granddaughter Kelly referred to in paragraph [56] above). In substance, John and Robyn sought to allege in Utah that the same attorney, accountant and financial adviser had acted for both Dorothy and the purchasers (Lesley and Kelly) in the relevant transactions, in circumstances where the transactions were said to have been severely disadvantageous to Dorothy.

[12]

The 2012 Judgment (White J)

By judgment delivered on 14 August 2012 in Steiner v Strang [2012] NSWSC 919 (the "2012 Judgment"), White J (as his Honour then was) addressed notices of motion filed by each of Robyn and John (in 2012/129833 and 2012/185566) seeking distributions from the estate pursuant to s 84 of the Probate and Administration Act 1898 (NSW) (the "Probate Act") or, in the alternative, interim provision from the estate pursuant to s 62 of the Act.
His Honour made orders for the interim distribution to Robyn of $500,000 and to John of $300,000, pursuant to s 84 of the Probate Act (or r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) and in accordance with the principles set out in Romano v Romano [2004] NSWSC 775 (at [16], [18] per Barrett J, as his Honour then was) and Indyk v Wiernik [2006] NSWSC 868 (at [23] per Young CJ in Eq): see 2012 Judgment at [27], [31]. White J differentiated between Robyn and John on the basis that John was prima facie liable to repay to the estate an amount of $881,000 (at [28]).
In the 2012 Judgment, White J also dealt with - and dismissed - proceedings No. 2012/215729. Without the determining the merits of claims proposed to be advanced in Utah, his Honour held that the legal bases for John and Robyn's application to be appointed as administrators were misconceived (see 2012 Judgment at [10]).

[13]

The cross-claim

The procedural history of the cross-claim (filed 30 November 2012) is set out in detail below (from [81]). Suffice it to say here that it came before Sackar J for separate determination in 2014, where the defendants succeeded, and was then the subject of a successful appeal by John to the Court of Appeal in 2015. The cross-claim was consequently remitted to the Equity Division for retrial.

[14]

Procedural and other rulings in 2015 (Ball J)

In the intervening period between the filing of the notice of appeal from Sackar J's 2014 orders and the hearing of that appeal by the Court of Appeal, John brought an application in the Equity Division seeking that the defendants make further distributions of his pecuniary legacy (in such amount as the Court thought proper), pursuant to s 84 of the Probate Act. That application was heard by Ball J on 28 January 2015, and in a judgment delivered on 3 February 2015, his Honour dismissed the application with costs: Steiner v Strang [2015] NSWSC 14.
Ball J noted that, approaching the matter conservatively, it was possible that there would be no residuary estate and conceivable that there would be a shortfall which would reduce the pecuniary legacy to which John was entitled. In circumstances where the amount of that shortfall, if any, was not known, his Honour concluded that it would be prudent (as matters then stood) for the executors to retain the balance of the pecuniary legacy payable to John until the remaining court proceedings were resolved and the precise liabilities of the estate could be determined.

[15]

The 2016 Judgment (Slattery J)

With proceedings no. 2012/185566 continuing to take their course, Robyn's proceedings (2012/128933) effectively awaited the resolution of the cross-claim in John's proceedings. In the meantime, however, on 13 January 2014, John brought another, separate set of proceedings, no. 2014/10747, against seven defendants (the executors Mr Strang and Mr Tang, the company SWW, Wayne, Lesley, Kelly, and Robyn). Those proceedings were heard by Slattery J over seven days in late 2014 and early 2015, and were the subject of judgment delivered on 12 April 2016 in Steiner v Strang [2016] NSWSC 395 (the "2016 Judgment").
The 2016 Judgment resolved three discrete disputes related to Dorothy's estate. The first concerned a cheque Dorothy wrote two and a half years before her death, in the sum of $1,227,941, made out to Lesley's husband Wayne. Wayne and Lesley contended before Slattery J that this was a gift. John contended that it was a loan which should now be repaid to the estate. Slattery J concluded that John had failed to prove that this cheque was a loan and accordingly declared that the cheque was a gift from Dorothy to Wayne and Lesley.
The second issue concerned Dorothy's entitlements to long service leave for 25 years of employment with SWW, as to which Slattery J found that SWW did not owe any amounts to the estate arising out of long service leave entitlements.
The third issue concerned whether the estate should reimburse Wayne in the sum of $15,000 for his expenditure allegedly incurred at Dorothy's request; Slattery J found that the estate was liable to Wayne in that amount (together with interest).
In essence, therefore, these proceedings were unsuccessful from John's perspective. Slattery J ordered that John pay the costs of the proceedings incurred by the defendants who had contested the proceedings, being Wayne, Lesley, Kelly, and SWW (the "2016 Judgment Creditors").

[16]

Procedural and other rulings in 2017 (Kunc J)

Whilst continuing (by notices of motion heard by Lindsay J - see from [117] below) to contest the form of the defendants' statement of cross-claim, John filed further notices of motion on 10 March 2016 and 28 November 2016. In the first, John moved the Court for further distributions from the estate of his pecuniary legacy (or an order for interim provision). That motion came before me on 5 December 2016, and was dismissed by judgment delivered 24 February 2017 in Steiner v Strang [2017] NSWSC 132.
The hearing of John's case, Robyn's case, and the cross-claim before me took place in May 2017. After the conclusion of the hearing, by Notice of Motion filed on 21 June 2017, John applied to the Court seeking orders restraining the 2016 Judgment Creditors from taking any further steps or enforcement proceedings against John in relation to: "a. the bankruptcy notice dated 7 June 2017 addressed to him [John] and served on 14 June 2017 including filing any creditors petition or taking any other step to cause his estate to be sequestrated. b. The Judgment in the District Court of NSW made on 17 May 2017; c. The certificate of Determination of Costs No 2016/00232534 issued on 24 April 2017."
John also sought orders that the creditors withdraw the bankruptcy notice dated 7 June 2017.
By judgment delivered 3 July 2017 in Steiner v Strang (No 2) [2017] NSWSC 891, I dismissed the 21 June 2017 Notice of Motion, with costs.

[17]

Procedural history

On 30 November 2012, the defendants filed a cross-claim in John's Case, seeking certain orders and declarations as to whether John was indebted to the estate in the sum of $881,000 as at Dorothy's death on 12 October 2011.
An amended cross-claim was filed in Court on 6 March 2014, and was the subject of orders for separate determination (pursuant to UCPR r 28.2) and expedition by Rein J on 20 June 2014 and 5 July 2014. The cross-claim was brought forward for separate determination of the status of the purported loan, as that question would obviously impact both the size of the estate and John's assets and liabilities.
The defendants sought an order that John pay to the estate the loan amount (of $881,000) and interest, or a declaration that they were entitled to offset the loan amount and interest against any entitlement of John under the Will, including his entitlements as both a residuary beneficiary and specific legatee.

[18]

The 2014 Judgment (Sackar J)

The cross-claim came before Sackar J for hearing on 5 September 2014. As of that date, no defence to the cross-claim had been filed.
Sackar J delivered judgment on the cross-claim on 12 September 2014, in Steiner v Strang [2014] NSWSC 1250 (the "2014 Judgment"). It is necessary to set out his Honour's reasoning and conclusions in some detail, in order to understand the later decision of the Court of Appeal and, ultimately, in order to address the parties' submissions in respect of the cross-claim in these proceedings.
His Honour first noted that on 16 November 2007, Dorothy transferred $100,000 into John's bank account "for the purpose of placing a deposit on a unit in Townsville", and that on 17 November 2007, John was the successful bidder at auction for $881,500 and exchanged contracts.
Mr Leslie Ward (solicitor) gave evidence before Sackar J that on 20 November 2007, his firm was retained to act for John on his purchase of the Townsville unit (the "Strand Property"). Annexed to an affidavit of Mr Ward (which, I note, was in evidence before Sackar J but was not read in the proceedings before me) was a file note dated 22 November 2007 particularising a conversation between John and "Meagan" of Mr Ward's office. That note relevantly provided: "This is a cash contract … please note that the funds are coming from Sydney (his mother) and she is elderly, this may be hard to organise, so please do in enough time :)"
Also annexed to Mr Ward's affidavit was an unsigned, handwritten document, received from John on or about 6 December 2007 and dated that day (this document was in evidence before me (the "6 December document"). That document included: "RE LOAN TO PURCHASE 1/120 THE STRAND IT IS AGREED BETWEEN JOHN R STEINER AND DOROTHY M. STEINER THAT: 1. $881,500.00 IS GIVEN TO JOHN R STEINER BY WAY OF A LOAN TO PURCHASE 1/120 THE STRAND NTH WARD TOWNSVILLE. 2. THE FULL LOAN IS TO BE FORGIVEN UPON THE DEATH OF DOROTHY M. STEINER."
Sackar J noted that on 7 December 2007, Dorothy transferred $781,000 to John's bank account. His Honour held (at [13]) that "no weight" could be attached to John's evidence that, on 7 December 2007 (which was his birthday), he had a conversation with Dorothy in which she said words to the effect of: "I will wire you the remaining balance of the purchase price to your bank account. Consider it as a birthday present."

[19]

The Appeal Judgment

On 11 December 2014, John filed a notice of appeal from the 2014 Orders. John subsequently filed, with leave, an amended notice of appeal (on 26 June 2015), which raised additional questions of admissibility of evidence rejected by Sackar J.
The appeal came before the Court of Appeal on 24 June 2015 and, by judgment handed down on 16 July 2015 (Steiner v Strang [2015] NSWCA 203) (the "Appeal Judgment"), the Court of Appeal made these orders: "1 Appeal allowed. 2 Orders made on 19 September 2014 be set aside. 3 Remit the matters raised in the amended cross-summons dated 6 March 2014 to the Equity Division for retrial. 4 Respondents pay the appellant's costs of the appeal. 5 Costs of the first trial be determined by the judge hearing the retrial."
The leading judgment in the Court of Appeal was delivered by Emmett JA, with whom Leeming and Simpson JJA agreed.
The Court of Appeal summarised John's grounds of appeal into three grounds, relating to: the rejected evidence; whether the amount was a loan or a gift; and whether John's liability (if any) is limited to a residuary bequest.

[20]

Ground 1: rejected evidence

The Court of Appeal noted at the outset of its determination of this ground that on appeal the executors (i.e. the defendants in the current proceedings) did not dissent from Sackar J's conclusion that the Acknowledgement was no more than an admission or acknowledgement of a pre-existing obligation. That is, the defendants did not contend on appeal that the Acknowledgement itself gave rise to or created an obligation on the part of John, but merely submitted that it evidenced a pre-existing obligation.
At [48]-[50], the Court of Appeal held: "[48] For the Executors to succeed in obtaining an order that Mr Steiner pay the sum of $881,000 to the estate of Dorothy, it was incumbent upon them to demonstrate that there was a pre-existing obligation as at the time when the Acknowledgement was signed. However, they accepted that they could provide no particularisation of the circumstances in which any pre-existing obligation was created or came into existence. There was no evidence of any such obligation, save as may be inferred from the 6 December document and the Acknowledgement. [49] In circumstances where the Acknowledgement had no juridical effect in creating or giving rise to an obligation, it could only be admissible as evidence of an admission by Mr Steiner. Therefore, evidence as to the circumstances in which the Acknowledgement was brought into existence and signed was admissible in order to enable an assessment to be made as to the weight that should be attributed to it as an admission or as an acknowledgement [citing by way of example Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-4]. Indeed, even if there were a contract that pre-dated the Acknowledgement, then, on the assumption that such a contract was wholly oral (since there was no evidence of anything in writing), evidence of an admission would be admissible to assist in ascertaining the content of any such agreement [citing Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143]]. [50] The primary judge erred in rejecting those parts of Mr Steiner's affidavit that were rejected. They were admissible to explain what weight, if any, should be given to the Acknowledgement. It follows that the appeal should be allowed."

[21]

Ground 2: loan or gift?

The Court of Appeal held at [52] that the evidence given by John, Robyn (in her 14 September 2012 affidavit) and Mr Ward as to the circumstances in which the Acknowledgement was brought into existence, and the evidence as to the communications between John and Dorothy concerning the advances, together with the 6 December document, should have been weighed against the evidence consisting of the Acknowledgement "in order to determine whether an obligation on the part of Mr Steiner had come into existence prior to the Acknowledgement and what the terms of any such obligation were".
As to the concession made by counsel for John (see [93] above) and the weight accorded to it by Sackar J, the Court of Appeal noted that the terms of the Acknowledgement are inconsistent with those of the 6 December document (which John sent to Mr Ward) and that there was no evidence of any communication between John and Mr Ward concerning the preparation of the Acknowledgement document, other than the evidence of John (which Sackar J refused to admit) that, when he queried the absence of anything about loan forgiveness in the Acknowledgement, Mr Ward said that, if Dorothy did not ask for the money back in her lifetime, the loan would be forgiven. The Court of Appeal concluded on this ground (at [55]-[56]): "[55] … Having regard to the other evidence of Mr Steiner, both admitted and rejected, to the effect that the payments from Dorothy were gifts, it is difficult to see why an inference should be drawn that the Acknowledgement represented specific instructions given to Mr Ward by Mr Steiner. [56] There was minimal cross-examination of Mr Steiner and no cross-examination was directed to the conversations with Dorothy to which he deposed, irrespective of whether or not they were admitted or rejected. It would be unfortunate for the cross-summons to be remitted for a further trial. Nevertheless, that course appears to be unavoidable. It would not be appropriate for this Court to make findings of fact that appear to be inconsistent with the implied findings made by the primary judge. A finding by this Court that Mr Steiner should be believed, in the absence of an opportunity for the Executors to cross-examine him on the rejected evidence, could involve a miscarriage of justice [citing UCPR, r 51.53(1)]. Equally, a finding that Mr Steiner's evidence should be rejected in favour of the Acknowledgement could also involve a miscarriage of justice. In the circumstances, unfortunate though it will be, there will need to be a new trial of the matters raised by the cross-summons."

[22]

Ground 3: whether John's liability is limited to a residuary bequest

In the Court of Appeal, John contended that, if he does owe a debt to the estate, he is only obliged to repay it to the extent of the residuary gift to him under the Will and that, if that residuary gift is insufficient to repay the sum of $881,000, he will be discharged from any liability to pay the shortfall, relying upon the terms of the Acknowledgement for that contention. In effect, John relied on the Acknowledgement as constituting an acceptance by Dorothy that, if any part of the "loan" had not been repaid prior to her death, John's liability to repay the loan was to be limited to his entitlement as a residuary beneficiary under the Will.
The defendants contended that they are entitled to set off the sum of $881,000 (if it is owed to the estate) against John's entitlement as a beneficiary under the Will, whether that entitlement is as a residuary beneficiary or as a legatee.
Again it is necessary to set out the Court of Appeal's reasoning at some length. At [58]-[62], Emmett JA said: "[58] … in the light of the conclusion that the Acknowledgement is no more than an admission and does not create or give rise to any obligation, it is difficult to see any basis upon which Mr Steiner could rely upon it as discharging any part of a pre-existing obligation that he might have had. In any event, the Acknowledgement does not, on its proper construction, say what Mr Steiner contends that it says. In its terms, it does no more than defer the obligation of Mr Steiner to repay the "loan". [59] To repeat the relevant words of the Acknowledgement, with the addition of parentheses for readability, the "agreement" was that: in the event [that] I have not made demand for repayment of the loan prior to my death and the borrower is named in my last Will as a residual beneficiary of my estate, it shall be sufficient that (providing the debts owed by me at my death (including testamentary expenses) are paid and discharged without the necessity of my personal representatives having to make demand for the repayment of the loan), the loan can be repaid by the borrower by offsetting the amount of the loan as part of the borrower's entitlement as a residual beneficiary of my estate. [60] That is to say, its effect is that the Executors will not be entitled to require Mr Steiner to repay the sum of $881,000 unless there are insufficient funds in the estate to enable the Executors to pay the debts owing by Dorothy (including testamentary expenses) at her death. If there are sufficient funds, without making demand for repayment, then the "loan" "can" be repaid by Mr Steiner by setting it off against his entitlement under the Last Will to a share of the residuary estate. Mr Steiner "can" also, of course, repay the "loan" from any other funds to which he is entitled. Further, there is nothing in the language of the Acknowledgement that constitutes a discharge of any part of the "loan", assuming that it is ultimately held that there was an obligation to Dorothy on the part of Mr Steiner at the date of her death to repay the advances. That is to say, the language of the Acknowledgement limits neither Mr Steiner's liability to repay the "loan" nor the range of possible funds from which he might repay it. [61] The primary judge made no error in concluding that, as a matter of construction, the Acknowledgement did not have the effect of discharging Mr Steiner from any obligation that he had. On the other hand, it may be that the Executors were not entitled to judgment against Mr Steiner until such time as the administration of the estate had reached the stage of distribution of the residuary estate and it had become apparent that Mr Steiner's share in the residuary estate was less than $881,000. [62] That would leave the question of whether or not Mr Steiner was entitled to be paid the legacy of $2,000,000 before he paid to the Executors the amount of the "loan". An estate has the right to deduct from an amount owing to a residuary legatee or a pecuniary legatee the amount of a debt owing by that legatee to the estate [citing Re Taylor [1894] 1 Ch 671; Re Ackerman [1891] 3 Ch 212]. Where a person who is entitled to participate in a fund is also bound to make a contribution in aid of that fund, that person cannot be allowed to participate in the fund unless and until the duty to contribute has been fulfilled [citing Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 at 150]. Accordingly, the Executors will be entitled to retain from the legacy due to Mr Steiner the amount of any "loan" owing by him to the estate, if it ultimately be held that there is such a liability to the estate."

[23]

Procedural and other rulings in 2016 (Lindsay J)

Lindsay J made two significant procedural rulings during 2016 which it is necessary to consider in some detail as they relate to the current form of the cross-claim before the Court.
In the first decision, delivered 1 February 2016, his Honour ordered that the cross-claim be struck out and granted leave for the filing of an amended cross-claim: Steiner v Strang [2016] NSWSC 9. By way of background to that decision, it should be noted that when the proceedings returned to the Equity Division following the Appeal Judgment, the parties consented to an order that proceedings on the cross-claim proceed by way of pleadings. Pursuant to that order, the defendants filed a statement of cross-claim, to which John responded by notice of motion filed 20 October 2015 (and amended 18 December 2015), moving the Court for: 1. an order (pursuant to UCPR r 13.4) for summary disposal of the proceedings; or 2. an order (pursuant to UCPR r 14.28) for key paragraphs of the statement of cross-claim to be struck out.
Lindsay J found that the statement of cross-claim, as pleaded, was defective: "[23] … Notwithstanding that they conceded in the Court of Appeal that they could provide no particularisation of the circumstances in which any obligation pre-existing the "Acknowledgement" was created or came into existence ([2015] NSWCA 203 at [48]), the cross claimants purport to plead two separate "contracts", one referable to each payment made by Dorothy to the cross defendant, reciting a promise, consideration and ambiguous terms operating as a gloss on the "Acknowledgement". [24] In their present form, paragraphs 5 and 6 of the statement of cross claim (key provisions of the pleading) are embarrassing, with the consequence that the whole of the pleading ought to be struck out. Without those paragraphs, the pleading merely recites undisputed facts that stop short of identifying a cause of action…"
As to whether the cross-claim should be summarily dismissed, Lindsay J had to consider whether the defendants had an reasonable cause of action, not limited to the claim in contract they had sought, unsuccessfully, to plead. His Honour refused to dismiss the cross-claim summarily, noting first: "[29] True it is, the cross claimants bear the onus of proving that Dorothy's advance of money to the cross defendant should be characterised as a loan rather than as a gift: Coshott v Sakic (1998) 44 NSWLR 667 at 671 E, citing Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 at 113. [30] That said, the "acknowledgement" document, at a bare minimum, is an admission against interest by the cross defendant that does cast upon him a forensic (as distinct from a legal) onus to explain it away. [31] Upon an assumption that the cross claimants can identify a cause of action upon which to sue the cross defendant, there are three potential impediments of a forensic character standing in the way of the cross defendant's attempts to explain away the "acknowledgement". [32] First, the formalities attending the creation and content of the "acknowledgement" operate against any suggestion that the document was not intended to have legal consequences or to mean what it says. It takes the form of a formal, legal document ostensibly prepared for a bona fide legal purpose … It was prepared by, and executed under the supervision of, solicitors acting on either side of what purports to be a commercial transaction, even if one or the other or both of the solicitors were less than ordinarily vigilant because the transaction was perceived as a family arrangement. [33] Secondly, Dorothy incorporated the "acknowledgement" by reference in not one, but several, of the wills she subsequently made ([2015] NSWCA 203 at [32]-[36]), thereby arguably relying upon it as an operative legal document and arguably adopting it as a foundation for management of her estate vis-à-vis her children, only one of whom was the cross defendant. She evidently made provision for the cross defendant, in her last will, upon an assumption (if not a condition) that he accepted that he was indebted to her estate. [34] Thirdly, if the "acknowledgement" was never intended to mean what it says, it could potentially have been used as an instrument of fraud. Execution of commercial documents is not to be explained away as a whim in a society that attributes significance to such documentation: eg., Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 178 [38] - 183 [48]. The creation of a formal, commercial document ostensibly evidencing a loan calls for explanation if the transaction evidenced by the document is to be characterised, at the option of the debtor, as a gift. … "

[24]

The facts

Much of the factual matrix which follows has already been summarised in the 2014 Judgment, the Appeal Judgment, and the two judgments of Lindsay J delivered in 2016. Although it is somewhat repetitive of those judgments, it is necessary to set out my factual findings relevant to the cross-claim here, both for abundance of clarity, and, more importantly, for avoidance of doubt as to the state of the pleadings and the evidence now before the Court, so as to justify my factual findings on this retrial.

[25]

Factual findings - matters not in dispute or based on contemporaneous documents

It is not disputed between the parties that on 16 November 2007, Dorothy transferred $100,000.00 to John.
On 17 November 2007, John entered into a contract to purchase the Strand Property for $881,500.
On 6 December 2007, John sent a facsimile transmission to the offices of his solicitor, Leslie Ward. This was the 6 December document, which is handwritten (with the exception of the transmission date and time, which are recorded as 06-DEC-2007 11:07. That document says: "[Page 1] ATTENTION PENNY Please show to MR WARD. Thank You John R Steiner [Page 2] AGREEMENT 6/12/07 RE LOAN TO PURCHASE 1/120 THE STRAND IT IS AGREED BETWEEN JOHN R STEINER AND DOROTHY M. STEINER THAT : - 1. $881,500-00 IS GIVEN TO JOHN R STEINER BY WAY OF A LOAN TO PURCHASE 1/120 THE STRAND, NTH WARD TOWNSVILLE 2. THE FULL LOAN IS TO BE FORGIVEN UPON THE DEATH OF DOROTHY M. STEINER SIGNED WITNESS - - - - - - - - - - - - - - - - - - DOROTHY M. STEINER - - - - - - - - - - - - - - - - - - JOHN R STEINER"
The 6 December document is unsigned.
On 7 December 2007, Dorothy transferred a further $781,000.00 to John.
On 13 December 2007, the purchase of the Strand Property was completed.
Dorothy and John both executed the Acknowledgement, which was dated 18 December 2007. Their signatures were witnessed by their respective solicitors, Mr Ward (John) and Mr Strang (Dorothy). The only sensible inference (which I find) is that the Acknowledgement was prepared on John's instructions to Mr Ward. (Although the court book prepared for the hearing included an affidavit by Mr Ward, it was ultimately not read and Mr Ward did not give evidence before me.) The Acknowledgement is typed, with the exception of the amount of the loan ("$881,000-00"), the date in December (the "18th"), and the signatures, which are handwritten. It provides as follows: "I, JOHN RAYMOND STEINER, the person named below as the borrower ACKNOWLEDGE- 1. DOROTHY M. STEINER ("my mother") has loaned to me the sum of money particularised below ("the loan"), 2. I will repay the loan to my mother - 2.1 upon demand in writing by her or her lawful attorney, or 2.2 if my mother has not made demand for payment prior to her death, then to her estate upon her death. I, DOROTHY M. STEINER, agree in the event I have not made demand for repayment of the loan prior to my death and the borrower is named in my last Will as a residual beneficiary of my estate, it shall be sufficient that providing the debts owed by me at my death (including testamentary expenses) are paid and discharged without the necessity of my personal representatives having to make demand for the repayment of the loan, the loan can be repaid by the borrower by offsetting the amount of the loan as part of the borrower's entitlement as a residual beneficiary of my estate. 'The borrower' - JOHN RAYMOND STEINER address of the borrower - 64 Kings Road, Hyde Park, Townsville, Queensland amount of the loan - $881,000.00 EXECUTED this 18th day of December, 2007."

[26]

John's evidence

In about 1994, John's daughter Donna married Alan Lovell and they moved to Townsville, subsequently purchasing a property at Kings Road, Hyde Park, Townsville. Later that year, John's son Anthony moved to Townsville. Donna and Alan had their first child (Brett) in 1994, and their second child (Adam) in May 1996.
John says that in 1996, 1998 and 1999, he and Dorothy, as well as John's wife Lynne, travelled from Sydney to Townsville to visit Anthony, Donna, and Donna's children. John deposes that on these visits, he and Dorothy, with other family members, would walk along The Strand. He explains in his evidence that The Strand is a seaside foreshore area in Townsville, lined with residences and apartments facing the beach, with views out to the port of Townsville and Magnetic Island. John says that "on a number of occasions" Dorothy had commented to him on apartments she liked along The Strand, saying words to the effect, "I am thinking of buying a winter unit for myself to use for a month or two a year or to retire".
In 1999, John purchased the house next door to Donna's house on Kings Road, Hyde Park, Townsville ("John's Kings Road Property").
In approximately July 2000, John and his wife Lynne moved up to Townsville to live at that property.
John says that in 2002 and 2004, Dorothy came to visit John and Lynne (and Donna and her family) in Townsville. In 2004, she was accompanied by Lesley and Wayne, and stayed at John's Kings Road Property.
John deposes that one feature of The Strand area is a man-made pool commonly referred to as the "rock pool". He says that in 2004, when Dorothy, Lesley and Wayne were in Townsville visiting, they all saw apartments being built at 120 The Strand, and commented on how nice the building appeared to be, and how close the block of apartments was to the rock pool (in which he and his wife swim for exercise).
John deposes that in about April 2005, he had a telephone conversation with Dorothy, who requested that he act as trustee to an updated will that she was drawing up. He reiterated this evidence in cross-examination (T 190.1-4) In his affidavit sworn 7 June 2012, John deposes to this conversation as follows: "[DOROTHY] I know you will be fair and equal and that's the way dad and I have always wanted it. [JOHN] I couldn't think of anything more depressing at such a sad time. I don't think I can handle it."

[27]

John's credit

Central to my findings on the disputed factual matters is my assessment of John's credibility as a witness. Accordingly, the following sections set out the defendants' submissions as to credit; the relevant principles which I have applied in my assessment of John's credit; and my overall conclusions in this regard.

[28]

Defendants' submissions on John's credit

The defendants submit that John's evidence with regard to his conversations with Dorothy is not to be believed. They say that John denied straightforward propositions put to him, which undermined his credibility as a reliable witness, and that his evidence as to conversations with Dorothy, which cannot be challenged by any other witness, should not be accepted given his complete lack of credibility around the Acknowledgement.
The defendants point to two exchanges in cross-examination by way of example of what is said to be John's contradictory and self-serving evidence. First (at T 257.12): "Q. Is it the fact that it's more likely than not that Mr Ward told you that you wouldn't have to physically find the money, that you wouldn't have to repay it when your mother died because it would just mean that you would be getting less out of her estate? A. Providing there was a residual estate. Q. That's the argument? A. Yes. Q. Whether it comes out of residue, not whether it's taken into account -- A. Yes. Q. -- that's the argument, is it? A. Yes."
The defendants say that John then retreated from this position when he realised that it meant that he was aware all along that the amount had to be paid back, but adopted a legal interpretation that if there was no residue, he did not have to repay. They say that at T 258, he then changed his answers to the same questions, to state that he had no legal expertise in wills and so would not know. The defendants say that "John's change of position when he realised he was admitting he understood the meaning of the second part, proved he clearly understood at all times what the words of the document meant in that it was a loan which required repayment and not forgiveness on death".
Secondly, the defendants point to John's evidence of a conversation with Dorothy where, he alleges, she told him that she had said to Mr Strang that "the debt was to be forgiven when I die, I told him I wanted that strictly adhered to" (T 265.47). The defendants submit that there was no reason for Mr Strang to be anything other than completely truthful in his evidence, which was that he said to Dorothy, "are you comfortable with what was in it?" (T 284.47). The defendants contend that it is simply not credible to accept that the Acknowledgement said one thing and Dorothy gave instructions to Mr Strang that she wanted something completely different, and Mr Strang then permitted that state of affairs to remain without comment. They submit that Dorothy never said these words to John, and argue that her many later wills demonstrate her continuing thinking, which was consistent with the terms of the Acknowledgement.

[29]

Legal principles relevant to credit

This is a case where the resolution of many of the legal issues between the parties on the cross-claim turns almost entirely on the reconciliation of vastly different views of events in the last decade, and particularly in the crucial period at the end of 2007. Most of the critical evidence of that period was in the form of uncorroborated oral testimony, with the exception of the undisputed matters I have set out above. It is therefore necessary to set out some of the key principles governing the Court's approach to fact finding and the assessment of John's credit in this case.
First, the standard of proof is on the balance of probabilities, and where proof of any fact is required, the Court must feel an "actual persuasion of the occurrence or existence of that fact before it can be found": per Emmett J (as his Honour then was) in Warner v Hung (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]; his Honour there referring to Evidence Act 1995 (Cth) s 140(2) and Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] HCA 34 see also Watson v Foxman (1995) 49 NSWLR 315 at 318-19 per McClelland CJ in Eq.
Second, in assessing John's oral testimony, I bear in mind the familiar caution urged by McClelland CJ in Eq in Watson v Foxman at 318-19: "… ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said." For a recent endorsement of these oft-quoted remarks see, for example, Optus Administration Pty Ltd v Wright bht Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [191].
Third, simply because a witness is found to have lied about one thing does not mean that their evidence is to be disbelieved in its entirety - caution should be exercised in making 'global' credibility findings. In Sangha v Baxter [2009] NSWCA 78; (2009) 52 MVR 492, Basten JA (with whom Handley AJA agreed) cautioned against such findings: "[155] There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. [156] Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]." See also, Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084 at [118], [121] per O'Loughlin J.

[30]

Findings as to John's credit

My impression was that John was a most unreliable witness. That is not to say that his evidence in its entirety should be disregarded (see Sangha v Baxter). However, with that qualification, on the whole I accept the defendants' submissions as to John's credit. The Court approaches his evidence of conversations with Dorothy with the utmost caution given the contradictions, admissions, and at times wholly improbable accounts which characterised John's evidence under cross-examination.
At several points John refused to agree to straightforward propositions to the effect that particular statements appeared in his affidavit evidence, insisting that they were being taken out of context (see, for example, T 194, 227), or that there were "corrected" versions of his statements that his barrister had now provided (T 227.26-42 and T 228.30-35). No such corrected versions existed - beyond two corrections (solely to dates) made orally by John himself during examination in chief. He was also reluctant to agree that the 6 December document was his attempt to put in writing what he thought was the deal or arrangement between himself and Dorothy, despite ultimately admitting that he did want a document, signed by himself and Dorothy, covering the $881,500 (see T 243-244).
He sought to "object" to questions, said he did not understand them when they were put in simple terms, and repeatedly interrupted Mr Ellison SC or responded sarcastically (see, for example, T 254.36-38).
John's own evidence as to whether he viewed the $881,000 amount as a gift or a loan was extremely inconsistent. He accepted (at T 244.10-21) that he had put the words "Agreement" and "loan" in his handwritten 6 December document, and that his document provided that the "loan" was to be forgiven upon the death of Dorothy but did not say anything about what was to happen or what could happen whilst Dorothy remained alive (that is, it did not say anything about whether the loan was repayable upon demand during Dorothy's lifetime).
John also said, however, that Dorothy had told him that the amount was a "birthday gift" and that he told Mr Ward that the amount was a "gift" (T 250.8), and, in the following exchange, he reiterated that the amount was a "gift" (at T 251.38-44): "Q. As far as you were concerned, there were two basic things that your mother had said to you. Number 1, it was a gift? A. Yeah. Q. Number 2, it didn't have to be repaid? A. If it's a gift, it doesn't have to be repaid. I think that that is obvious in the statement that I want you to have this as a gift."

[31]

Factual findings - matters in dispute and/or unsupported by documentary evidence

[32]

Defendants' submissions

The defendants submit that, on the facts, John was not operating under any mistake (of fact or law) when he signed the Acknowledgement: he read, understood and signed the document, and had the advice of a solicitor acting on instructions. The defendants refer in this regard to an admission made by Counsel before Sackar J in 2014 that it was open to his Honour to draw the inference that the Acknowledgement was drawn up on John's instructions.
The defendants submit that John was unable to provide a satisfactory explanation as to how, in the face of the clear terms of the Acknowledgement, the sum of $881,000 should be treated as a gift rather than a loan.
In summary, the defendants submit the following matters by reference to the evidence: 1. John is an intelligent businessperson who had read and understood many legal documents over his career, having: studied law at the University of Sydney for two years including contract law (T 179.40); studied the trading of shares and derivatives and opened trading accounts (T 180.30-45, 226.10); and bought and sold property over the years (T 180.24 and T 225.50). 2. John understood the word "acknowledgement" to mean "recognition" (T 224.49) and in the context of the Acknowledgement, to mean "recognition of loan" (T 225.25). 3. John failed to answer satisfactorily the question as to why he would have a solicitor write up a loan when the amount was expressed orally to be a birthday gift. 4. John conceded that he had no doubt as to the meaning of the Acknowledgement, down to and including clause 2.2 (T 254.32). Even if John did not understand the second half of the document, he was clearly aware that the loan was still repayable after his mother's death.

[33]

John's submissions

John's submission remains that Dorothy made a gift to John of $881,000 in order to purchase the Strand Property. He points out that, as the 2016 Judgment indicates, such a gesture would not be unique: Dorothy was undeniably wealthy and regularly made large gifts to family members.
Although recognising that there is now no scope for presumptions in this area, John submits that the fact that the parties here were parent and child and in a loving relationship is a factor which weighs against the Court finding that the transaction was a loan, citing Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [225]. John says that the "experience of life and human nature" in circumstances such as those present in this case is that the intention is usually to rely on family ties of mutual trust and affection, referring to Jones v Padavatton [1969] 1 WLR 328; 2 All ER 616, cited with approval by Ward J (as her Honour then was) in Chidiac v Maatouk [2010] NSWSC 386 at [177].
John emphasises that the defendants bear the onus of proving that the transactions constituted a loan rather than a gift, referring to Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111; [1930] HCA 26; Coshott v Sakic (1998) 44 NSWLR 667 at 671-2.
He submits that the Acknowledgement needs to be considered in the context of the parties' later conduct, which included regular payments by way of gift from Dorothy to John. John argues that it is unlikely that Dorothy would have made gifts of large sums to John if (as the defendants contend) he owed her a substantial amount, pointing out that, had a debt existed, Dorothy could simply have forgiven it in whole or partially (rather than advancing further sums by way of gift). John also points to the "telling" evidence of Robyn of statements by Dorothy to the effect of "it's John's unit" (referring to Robyn's affidavit sworn 14 September 2012 at [19]-[22]).
John relies in particular on his affidavit evidence to the effect that when he posted the Acknowledgement to Dorothy, he had a conversation with her where he explained, "if you ask for the money back while you are alive, the loan would be considered a loan, and if not and you die it would be forgiven" (John's affidavit sworn 9 October 2012, [31]-[32]). He submits that this reflects the parties' shared understanding of the import of the Acknowledgement.

[34]

Determination

On the factual disputes which relate to the cross-claim, I find as follows.
First, I do not consider it necessary to determine whether or not the various conversations prior to 2007 between John and Dorothy, to which John deposes, in fact occurred. I note that Wayne's evidence contradicts John's evidence on some points in relation to the events pre-dating the Acknowledgement in November 2007 (see Wayne's affidavit sworn 15 March 2013, [117], [124]-[125]). However, in my view, even if I accept in large part John's evidence as to the background events prior to November 2007, that does not advance, in any significant way, John's defence to the cross-claim. John's evidence provides context, but that context is not one which makes it inherently any more likely that the sums advanced were advanced by way of gift rather than by way of loan.
That being said, I am sufficiently persuaded of the following matters in relation to events prior to 2007.
It is clear that by about 1996 both of John's children - Donna and Anthony - were living in Townsville, and that Donna had by then given birth to two children of her own, being Dorothy's great-grandchildren. There is no reason to doubt John's evidence of multiple visits, with Dorothy, to Townsville in 1996, 1998 and 1999, particularly given the overall picture which emerges of Dorothy as a family-focused, interested, and attentive mother, grandmother, and great-grandmother. Moreover, Robyn provides corroborating evidence of a visit to Donna and Anthony in Townsville with Dorothy, John, and Lynne in 1999.
I also find that Dorothy probably did visit John in Townsville in 2002 and 2004. Kelly (Lesley's daughter) refers to a family visit to Townsville in 2004 which included Dorothy, and by way of further corroboration, Robyn says that in late 2004, Dorothy said to her words to the effect of: "During my visit to John (in Townsville) I saw some really nice units being built on the corner at The Strand. I'm having John keep an eye on them."
I note that Robyn's evidence (in different affidavits) was that she was not speaking with Dorothy between about mid-2004 and December 2004. However, I consider it likely that the above conversation between Robyn and Dorothy took place either in the first part of 2004 (and Robyn has misdated it) or that it occurred in December 2004 or early 2005.

[35]

Pleadings

The operative pleading of the cross-claim in these proceedings is the amended statement of cross-claim filed 19 February 2016 (to which I will refer as "the cross-claim"). The cross-claimants (the executors Mr Strang and Mr Tang - to whom I will continue to refer simply as the "defendants"), seek primary relief against the cross-defendant (John) in the form of an order ("Order 1") that John pay to the estate the sum of $881,000 ("the Sums Advanced") and interest upon the Sums Advanced from 12 October 2011 to the date of judgment.
The defendants then seek relief (in "Order 2"), expressed to be "further and in the alternative", in the form of a declaration that: "… on the true construction of the document entitled " Acknowledgement" dated 18 December 2007 and clause 10 of the will of Dorothy and to the extent the cross-defendant does not pay it to the estate of Dorothy, the cross-claimants are entitled to offset: (a) the Sums Advanced; and (b) interest upon the Sums Advanced from 12 October 2011 to the date of judgment, against any entitlement of the cross-defendant under the will of Dorothy including his entitlement as a residuary beneficiary (clause 9) and as a specific legatee (clause 3(a))."
In "Order 3", the defendants also seek interest (it is not clear whether this is intended as an alternative to the interest sought in Orders 1 and 2), as for a judgment under the Civil Procedure Act 2005 (NSW) s 101, to be paid on "so much of the Sums Advanced as exceeds the entitlement of the cross-defendant under the will of Dorothy, to be calculated from the date on which that excess (if any) is ascertained".
The cross-claim pleads three alternative claims: a claim in debt on an account stated; a claim for moneys had and received; and a claim based on an estoppel by convention, to the effect that John is estopped from denying that he is indebted to the estate for the Sums Advanced on the terms set out in the Acknowledgement.
For completeness, it should be added that the defendants also plead, in relation to their ability to offset amounts owing against John's entitlements under the Will, that John is estopped from asserting any construction of the Acknowledgement which is inconsistent with the Appeal Judgment.
In the defence to the cross-claim (filed 6 May 2016), John pleads generally that the Sums Advanced were the subject of an oral gift from Dorothy to him.

[36]

Defendants' submissions

The defendants submitted that the decision of Sperling J in Lewis v Wilson is an accurate statement of the law in this area. In Lewis v Wilson, Sperling J held that a bare admission of a sum certain may be sufficient to found a cause of action; the ultimate question, however, is whether the debt is truly owing.
The defendants refer to Sperling J's statement at 229-230 that there are two distinct forms of an action for money found to be due on an account stated. As to those two forms, at 230, his Honour quotes the remarks of Jordan CJ in Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe at 401 that: "An action for money found to be due on accounts stated may take one of two forms. It is always essential in such an action that there should have been before action brought an admission by the defendant or his agent to the plaintiff or his agent that the sum claimed is due by the defendant to the plaintiff. … But this admission may be so framed as to be merely an acknowledgement of indebtedness, in which case although it supplies evidence of the debt the evidence may be rebutted by proof that no debt in fact existed. Or it may take the form of an account stated and agreed to between two parties, by which it is in effect agreed that the items on both sides shall be set-off and the balance paid. In the latter type of case, the agreement for set-off supplies good consideration for the promise to pay the amount of the balance; and the account stated is itself an agreement for valuable consideration constituting a cause of action, and not merely evidence of liability."
The defendants rely upon the first form, where the admission is so framed as to be merely an acknowledgement of indebtedness, thus supplying evidence of the debt which may be rebutted by proof that no debt in fact existed.

[37]

John's submissions

John also referred to Lewis v Wilson as an accurate statement of the law in this area, and directed the Court's attention in particular to Sperling J's observation at 232 that: "It is also to be noted that the admission may be rebutted by other evidence. If other evidence is led, the ultimate issue is, on authority, whether the defendant is truly indebted to the plaintiff as alleged. The ultimate issue cannot be different in the absence of other evidence. Thus, it will always be a question for the court as to whether the court is persuaded that the indebtedness truly exists. … The court must decide in every case whether the admission, in terms and context, is sufficient to support the ultimate finding of indebtedness."
John submits, in effect, that the Court has received John's evidence about his conversations with Dorothy, and that the Court's task is to determine in light of that evidence (if it is accepted) whether there was an underlying debt. John relied upon his evidence that he and Dorothy proceeded upon the basis either that the "loan" was something that could be forgiven, or that the Acknowledgement was simply there as a backstop to placate John's guilt towards his mother, and not to be called upon, arguing that this precluded an action in debt on an account stated.

[38]

Determination

An action in debt on an account stated may be categorised as a "common money count", as may an action for moneys had and received. As the defendants raised both of these counts (in the alternative) it is appropriate to make some preliminary comments about the legal foundations of such claims.
The common money counts have their background in the era when the forms of action ruled what we now refer to as the law of obligations; when the writs of debt, covenant, account and assumpsit were relied upon as quasi-contractual claims: Mason, Carter and Tolhurst, Mason and Carter's Restitution Law in Australia, 3rd ed, 2016, [112]-[114]. Claims in debt on an account stated and for moneys had and received were pleading devices which, along with the other assumpsit counts, permitted the pleading of claims in general terms, with the specific details of the debt sought to be recovered left to the evidence: Mason, Carter and Tolhurst, [115], [2923]-[2924].
As Lindsay J noted in Steiner v Strang [2016] NSWSC 9, the continuing availability of these claims, and of "account stated" in particular, has been the subject of some criticism (see at [40]). In Lewis v Wilson, Sperling J considered that there were "strong reasons" for abolishing the cause of action in account stated altogether (at 233); and see also, Katelis v Adalia Pty Ltd [2002] VSC 497 at [39]; Julian Bailey, "Lewis v Wilson: Account stated rears its ugly head" (1997) 12 JCL 160.
Lindsay J was of the view, however, that the present proceedings demonstrated the "continuing utility" of the common money counts which, according to his Honour, facilitate "a practical, but principled" application of the law: at [41]. His Honour noted that the availability of debt on an account stated had been confirmed at an appellate level (in Commonwealth Dairy Produce Equalisation Committee v McCabe) and that it remained part of the stock-in-trade of modern litigation: see, eg, Lewis v Lamb [2011] NSWSC 873 at [17]; Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952 at [70].
There is no reason to doubt that the common money counts remain part of the common law of Australia, and the weight of authority confirms this. Recent confirmation that indebtedness on an account stated remains a basis for liability in Australian law (in addition to those authorities cited by Lindsay J) may be found in Gove Sport Fishing and Diving Charter Pty Ltd v Yeend [2017] QSC 148 at [14]-[18]; Perpetual Ltd v Myer Pty Ltd [2018] VSC 2 at [148]-[156]. In any case, in New South Wales at least, UCPR r 14.12 expressly permits the old common money counts to be used as such.

[39]

Moneys had and received

The defendants only faintly advanced their claim for moneys had and received. They noted that there was no doubt that the money was received, but accepted that they could not particularise in any way a contract of loan and that there was no evidence or documentation of any such contract. John's submissions did not address this claim.
The count in quasi-contract for money had and received "averred a debt arising from receipt of payment by the defendant for the use of the plaintiff and the failure to pay the debt on the plaintiff's demand for payment": Mason, Carter and Tolhurst, [117] and see Moses v Macferlan (1760) 2 Burr 1005 at 1012; 97 ER 676 at 681, and Gummow J's analysis thereof in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [76]-[89].
To make good their claim for moneys had and received, the defendants would have at least needed to establish some evidence of the original arrangement between John and Dorothy. In circumstances where they adduced no such evidence, the defendants have not established any failure of consideration, nor any other ground upon which an action in moneys had and received might lie. This claim fails.

[40]

Defendants' submissions

The defendants refer to the succinct definition of estoppel by convention by Lindsay J in Labracon Pty Ltd v Cuturich, at [106]: "The essential idea of estoppel by convention is that parties who have conducted their relations with each other on an agreed or assumed state of affairs (adopted as the conventional basis of their relationship) will, in proceedings against one another, [be] estopped from denying that agreed or assumed state of affairs."
The defendants refer also to the High Court's statement in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244; [1986] HCA 14 that: "Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. The existence of an estoppel based on a convention between the parties has often been recognized: Thompson v. Palmer (1933) 49 CLR 507, at p. 547; Grundt v. Great Boulder Pty. Gold Mines Ltd. (1937) 59 CLR 641, at pp. 657, 675-677; Legione v. Hateley (1983) 152 CLR 406, at pp 430-431; Amalgamated Investment & Property Co Ltd (in liq) v. Texas Commerce International Bank Ltd. (1982) QB 84, at pp. 121, 126, 130-131; Spencer, Bower and Turner, Estoppel by Representation 3rd ed (1977), pp. 157-177."
By way of summary of the general requirements of estoppel by convention, the defendants set out the five principles adopted by Briggs J in Revenue and Customs Commissioners v Benchdollar Ltd [2010] 1 All ER 174 at [52] (noting that those statements have been adopted by the English Court of Appeal and other courts in the authorities listed in Spencer Bower: Reliance Based Estoppel (5th ed, 2017) [8.7]): 1. It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. 2. The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party and understanding that he expected the other party to rely upon it. 3. The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. 4. That reliance must have occurred in connection with some subsequent mutual dealing between the parties. 5. Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.

[41]

John's submissions

John emphasised that any estoppel by convention arising from the Acknowledgement would only apply for the purposes of the transaction or relationship in which the convention was adopted: Handley at [8-018], citing Carpenter v Buller (1841) 8 M & W 209 at 212; 151 ER 1013; Ex parte Morgan; In re Simpson (1876) 2 Ch D 72; McCathie v McCathie [1971] NZLR 58. John submits that the Court must ask whether, to the extent that the Acknowledgement provides for a representation capable of founding estoppel, that representation applies for any other transaction - that is, while it may apply if there was an underlying debt between John and Dorothy, nothing in the defendants' submissions addressed whether or not the Acknowledgement could apply "to a different transaction altogether", being Dorothy's will-making.
John referred to the decision of the Court of Appeal in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65, in which Tobias JA (with whom Mason P and Campbell JA agreed) set out with approval (at [200]) a series of propositions derived from Brereton J's judgment in Moratic, as follows: "(a) the plaintiff had adopted an assumption as to the terms of its legal relationship with the defendant; (b) the defendant has adopted the same assumption; (c) both parties have conducted their relationship on the basis of that mutual assumption; (d) each party knew or intended that the other act on that basis; and (e) departure from the assumption will occasion detriment to the plaintiff."
John argues that there are multiple obstacles to the defendants satisfying these requirements.
First, he says that there is no express evidence that Dorothy adopted an assumption as to the terms of her legal relationship with John.
Secondly, he says that his evidence does not indicate that he had adopted the same assumption.
Thirdly, John says that there is little evidence of the parties conducting their relationship on the basis of any mutual assumption - the relevant question being, according to John, whether Dorothy in making her will relied upon the assumption and whether John did something as part of that transaction (that is, did both parties conduct their relationship on the basis of the mutual assumption). As to Dorothy's reliance upon the assumption, John says that the appropriate question is whether there is any evidence to prove that - absent the mutual assumption - Dorothy would have made her wills in some other way.

[42]

Determination

I accept, as both parties have submitted, that Brereton J's statement of principles in Moratic articulates what have been described as the 'elements' of conventional estoppel. Given my factual findings, I consider that the defendants have established the first and second of those elements, being that both parties have adopted a mutual assumption as to the terms of their legal relationship - here, the mutual assumption adopted by John and Dorothy is reflected in the terms of the Acknowledgement which, I have found, reflected their shared understanding of their arrangement.
However, I am unable to conclude that the parties' relationship was conducted upon the basis of the mutual assumption. Both John and the defendants submitted that some element of mutuality was necessary with respect to this element. John says that to establish this element, the defendants must show that Dorothy in her will-making relied upon the mutual assumption, and that John did something as part of that transaction - that is, that both parties conducted their relationship upon the assumption. The defendants say that it is only Dorothy who must have in fact relied upon the common assumption "to a sufficient extent", rather than merely upon her own independent view of the matter. They do however accept that Dorothy's reliance must have occurred "in connection with some subsequent mutual dealing between the parties". On either of these slightly different understandings of this third element, the defendants would fail.
First, the defendants have not established that Dorothy relied upon the common assumption. Both parties submitted that such reliance should be demonstrated by proving that Dorothy would have acted differently but for the agreed assumption. There was insufficient evidence before the Court to support that finding. The only evidence of reliance put forward by the defendants was clause 10 of the Will (and its predecessors in earlier wills). That clause, in my view, falls far short of establishing that Dorothy would have acted differently but for the mutual assumption embodied in the Acknowledgement.
Second, even if Dorothy's reliance were established, there is no evidence that John did something as part of that transaction (on John's test) or that Dorothy's reliance occurred in connection with a mutual dealing between the parties (on the defendants' test). The relevant mutuality is therefore lacking.

[43]

Limitation

Despite pleading a limitation point in the defence to cross-claim, John did not advance any submissions in relation to it. In those circumstances, I consider it briefly, and only in relation to the claim in debt on an account stated, that being the basis upon which I have held that the cross-claim succeeds.
The defendants submit that the amended pleading of the cross-claim "picks up" the date of the original pleading (30 November 2012) and that the obligation to repay (assuming such an obligation) arose upon the death of Dorothy (12 October 2011), and hence that the limitation period began to run only on 12 October 2011.
The more accurate position, in relation to the claim in debt on an account stated, would appear to be that the relevant date from which the limitation period began to run is 18 December 2007, being the date of the Acknowledgement, which is the document that constitutes the statement of account: see Executor Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162 at 169 per Isaacs J; [1919] HCA 51; Lewis v Wilson at 229; see also Lewis v Lamb at [18]; Mason, Carter and Tolhurst, [2926]. However, this point is moot given that the cross-claim was in any event filed within six years from either of these relevant dates (see Limitation Act ss 14, 15).

[44]

Set-off and interest

As to the questions of set-off and interest, the defendants submit that a fair reading of the Appeal Judgment indicates that no error was found with the 2014 Judgment or 2014 Orders insofar as they relate to the executors' ability to offset any amount owing by John against his entitlement under the Will (including his entitlement as a specific legatee), and to the estate's entitlement to interest in respect of the net amount (if any) payable by John to the estate. Accepting that it was, in some respects, an arbitrary figure, the defendants submitted that 5% was an appropriate rate of interest (referring to the Court's discretion with respect to pre-judgment interest, as opposed to post-judgment interest).
It became apparent during closing submissions that it was in fact common ground between the parties that the executors could offset any amount owing by John against all of his entitlements under the Will, including his entitlement as a specific legatee.
In relation to interest, this becomes an academic question given my conclusion in relation to the family provision aspects of John's case (that the debt, along with any interest which may have been owing, should now be forgiven). In any case, it is far from clear that the defendants would be entitled to interest in circumstances where I have found that they succeed on the cross-claim on the basis of debt on an account stated, and the "account stated" makes no provision for interest. Insofar as the question of interest invites the exercise of the Court's discretion, I would not have been inclined to order interest, because I have no doubt that Dorothy's intention was for the loan to be interest free.

[45]

Remaining issues

John did not press any of what I have called the positive defences set at out at [231] above and pleaded in the defence to cross-claim. In any event, given my findings both as to credibility and as to the factual circumstances surrounding the transactions, any defences of mistake, for example, would necessarily fail.
One issue remains on the cross-claim which I will briefly address. The defendants argued as an alternative that one possible construction of clause 10 of the Will is that it does not matter whether or not the $881,000 is a debt due, because the $881,000 amount should nonetheless be taken into account by the executors as an amount already paid on account of entitlement. That is, whether or not in law the money was owing, and whether or not there was any antecedent legal obligation to repay the money, now as a matter of the testator's intention and disposition, the true construction of clause 10 of the Will is that $881,000 must be taken into account by the executors as an amount already paid. It was said that this submission was manifest in the pleaded cross-claim at Order 2 (by treating Order 2 as a true alternative rather than a "further" order).
I do not accept this submission. Clause 10 of the Will does no more than direct attention to the Acknowledgement, meaning that it is necessary to construe that document in order to draw any conclusions about the effects of clause 10. Assuming the various preconditions in the Acknowledgement are satisfied, its language is merely facultative in favour of the borrower: "the loan can be repaid by the borrower by...". As a matter of construction, that does not mean treating the $881,000 as an "amount already paid" for the purposes of distribution of the estate.

[46]

The family provision applications

Before turning to the evidence before the Court in relation to the family provision proceedings in John and Robyn's cases, it is necessary to say something about the nature of that evidence and my approach to it.
Between them, the parties have put into evidence extensive details of life in the Steiner/Webster extended family, across nearly fifty affidavits and spanning at least six decades of conversations, family events, and business transactions. Almost none of the evidence was corroborated by objective, contemporaneous documentation, even in areas (such as the conduct of the family businesses) where documentation, one would infer, should have been available. In essence, the bulk of the evidence consisted of the word of one witness against the word of one or more other witnesses. In these circumstances, I do not consider it either necessary or desirable to attempt to resolve all of the factual disputes over the minutiae of family life, which are ventilated in the evidence and which are at best of peripheral relevance to the ultimate issues (and see in this regard [179] above).
Below, I set out the evidence in John and Robyn's cases, indicating wherever possible areas of dispute and areas where objective corroboration is available. Where I have made factual findings which are material to the outcome, I indicate accordingly.
To the extent that my findings depend upon an assessment of the various witnesses' credit, I make the following general comments. It is apparent that the Steiner/Webster family is deeply divided. It may be inferred that at least six years of litigation, with all its attendant tensions, in Australia and Utah, has only exacerbated the bitterness and ill-will which, it is clear, are felt on all sides. This division was particularly manifest in the attempts of Lesley and Wayne (and, one might add, Kelly), on the one hand, and Robyn and Larry, on the other hand, to diminish or even deny outright any contribution which the other parties had made to the start-up, development, and success of the family bridal businesses. These attempts may not be surprising given the familial tensions, but they do not reflect well on the credit of these witnesses. Similar ill-feeling was evident in the testimony of Lesley, Wayne, and Donna, on the one hand, and John, on the other hand, in relation to the events material to John's case - and particularly with respect to accusations going to John's character and conduct. I deal with these issues more specifically below, but suffice it to say here that, while I did not consider John to be a reliable witness (see from [180] above, which assessment applies equally in relation to the family provision claim), nor did I consider that reliance could confidently be placed on many aspects of Lesley, Wayne and Donna's evidence, and I have approached all of their evidence with caution.

[47]

John's case - the facts

John was born on 7 December 1945, the eldest son of Dorothy and Raymond. He grew up in Croydon Park and says that he had a happy and loving relationship with his mother. He recalls helping his parents in the milk bar and fruit shop business which they operated. He attended Trinity Grammar School in Strathfield and Summer Hill and finished high school in 1962, obtaining the Leaving Certificate with Honours in Economics.
From approximately 1963 to 1966, John studied a part-time law degree at the University of Sydney. In about 1966, John left his law studies and took up a full-time position as a sales manager and shareholder in a brick siding company.
In late 1966 or early 1967, John moved out of his parents' home. On or about 4 February 1967 he married his first wife, Davina Kathleen Jones, and purchased a property at Newport Beach. John and Davina's first child, Anthony John Steiner, was born on 11 March 1967, and their second child, Donna Gay Lovell, was born on 30 October 1968. During this period, John says that he would visit his parents each weekend and speak to them via telephone during the week.
In about 1969, John, Davina and their children moved to the United Kingdom, at which point John says he commenced employment as "Field Team Leader" with IPC International Publishing.
John's evidence is that in about 1972, he and Davina were divorced in the United Kingdom; that Davina was awarded custody of the children, Anthony and Donna, and remained in the United Kingdom with a new husband (William Albert Martin, referred to in the evidence as "Bill"). It appears from copies of custody orders annexed to one of Donna's affidavits that John and Davina were initially awarded joint custody of their children, on 17 November 1972, and that subsequently, on 18 June 1973, Davina gained full custody of the children. Donna says that as a child her last contact with John was in about 1973, and John says that in that year he returned to Australia.
In about 1974, John purchased a glazing and locksmith business, in which he worked until about July 2000.
In about February 1982, John married his second wife, Lynne Janine Barlow. John says that they were married at Lesley's house by Robyn's husband, Larry (who was apparently a Mormon minister). John's evidence is that Lynne has suffered from schizophrenia since the age of twenty.

[48]

John's conduct

Lesley, Wayne, and John's daughter Donna - who appears to be allied with Lesley and Wayne's side of the family - give evidence (without specific dates) of various incidents concerning John, and of a pattern of conduct by John over the years, which (if established) would not reflect well on his character.
In her affidavit evidence, Lesley deposes to various telephone calls between Dorothy and John in which John would "harass" Dorothy about her wills and say "derogatory things to her". However, Lesley conceded under cross-examination that she in fact did not recall any telephone calls between Dorothy and John relating to Dorothy's wills (T 318.32ff). Although Lesley had deposed that Dorothy used to say to her, "John has been calling me again and again about my will. I know he doesn't like my will, but I am not changing it for him", again, under cross-examination, Lesley accepted that she had no such recollection (T 318.36-45). I disregard Lesley's evidence of these telephone calls.
Donna says that on some occasions John would ring her after he had been drinking, and that she was not meant to tell Dorothy about these calls because Dorothy "did not like John drinking and this would cause issues within the family". Donna's evidence is that from about 2001 John became "spiteful and abusive both verbally and physically" and started drinking heavily. Donna was only briefly cross-examined. I approach her evidence with caution, not only for the reasons set out above (at [285]) concerning the animosity and divisiveness which characterise the familial relations, but also because this is a broad, unparticularised accusation of a very serious nature. Donna accepted under cross-examination that the one specific instance of abusive behaviour by John contained in her evidence, being a threat to hang Donna's sons "to the clothesline by their ears" until she returned, was said as a joke (T 221.46-222.4). Moreover, Donna does say that Dorothy always encouraged her to "make peace" with John and that at some point after she and Alan sold their Kings Road property (which appears to have been in about 2003 or 2004), she re-established a relationship with John. In those circumstances, I do not place weight on Donna's evidence in relation to John's character or conduct.
However, I am satisfied that it is probable that John has engaged in what might be described as undesirable or discourteous conduct at times. His own evidence is that after the reading of the Will he stood up and said to Lesley words to the effect of, "you are a thief … how could you steal from your mother like this".

[49]

John's circumstances

John is now 72 years old. The most up-to-date evidence of his circumstances is contained in his affidavit sworn 27 April 2017, which was not modified by his oral evidence at hearing.
There are, through no fault of the parties, unavoidable gaps (and probably inaccuracies) in this evidence given the time which has passed since the hearing. In particular, the Court notes two matters.
First, as of 27 April 2017, John, Lynne, and John's son Anthony resided in the Strand Property. However, in his affidavit of that date, John gives evidence of a negotiated resolution of the foreclosure proceedings being conducted against him by BoQ in the Supreme Court of Queensland, on the following terms: 1. John's current liability in excess of $950,000 will be capped at $900,000 inclusive of legal fees and default and other bank charges on the condition that: 2. John's Kings Road Property is sold at $415,000 (with agent's commission, conveyancing costs and outstanding council rates to be deducted from the proceeds of sale) with a 30-day settlement, and the balance of the proceeds of sale are paid to BoQ in full (after the aforementioned deductions); and 3. the balance of the debt of $900,000 (less the funds received by BoQ from the sale of John's Kings Road Property) is paid no later than 31 July 2017. 4. If John is unable to discharge the balance of the loan of about $507,346 to BoQ by 31 July 2017, then BoQ will execute on a consent judgment against him and take possession of the Strand Property.
John deposes that he has agreed to those terms and entered into a consent judgment with BoQ, to be held by its solicitors in escrow pending John's compliance with the agreement. A copy of the Consent Judgment was in evidence before me. As I noted in my earlier judgment in Steiner v Strang (No 2) [2017] NSWSC 891 (at [23]), inquiries made at my request at the end of the hearing of the present proceedings, as to whether BoQ would refrain from executing on the consent judgment after 31 July 2017, pending delivery of the present judgment, yielded the following response (which was forwarded to my chambers with the consent of the parties to the present proceedings): "… given the indulgences already granted, the delays BOQ has been subjected to in its enforcement of its rights and the terms of the deed, BOQ anticipates that it will be unwilling to provide an extension past 31 July if the judgment remains reserved. Notwithstanding and without prejudice to BOQ's rights, any update provided and extension requested by Mr Steiner closer to 31 July will be considered at that more appropriate time."

[50]

Residence / accommodation

John lives with his wife Lynne, who is now approximately 67 years old, and his son Anthony, aged 51 years.
As of 27 April 2017, John, Lynne and Anthony resided in the Strand Property.
John deposes that he and Lynne would like to live in Townsville in the winter and in Sydney during the summer, and he annexes various copies of advertisements for units in Bondi (Annexure P), and also provides estimates of the cost of living solely in Townsville with a three to four month annual overseas holiday to escape the heat.

[51]

Health

John suffers from poor health. A letter dated 5 June 2012 from his general practitioner confirms that John suffers from osteoarthritis in his left hip, which would benefit from replacement according to the opinion of an orthopaedic surgeon; from spinal osteoarthritis, which is under the review of a neurosurgeon; and from left ankle deformity following a fracture, currently under the treatment of an orthopaedic surgeon.
In a later affidavit (sworn 29 November 2016), John adds that he has now had the left hip replacement and as a result is "quite unsteady" on his feet. His back continues to cause "constant pain and discomfort", and he says that he has emphysema and finds it hard to breathe. He also gives evidence of stress and nightmares. A copy of a medical report confirms that John continues to suffer widespread osteoarthritis, chronic obstructive pulmonary disease, and osteoporosis.

[52]

Dependants

John's wife, Lynne, suffers from schizophrenia and has not worked for the last forty years. She receives treatment from a mental health case-worker and a psychiatrist at the community mental health service. She takes daily medication and John takes her to the general practitioner for fortnightly injections. She has no assets, superannuation or savings of her own and as such is entirely dependent on John. A medical report on Lynne appears at Annexure O to John's affidavit sworn 27 April 2017. That report states that Lynne's main active conditions are schizophrenia, chronic obstructive pulmonary disease, insomnia, and arthritis.
John's son, Anthony, resides with John and Lynne. In his affidavit sworn 7 June 2012, John said that Anthony had employment at a local food store but could not afford to pay rent or board. By the time of John's affidavit sworn 29 November 2016, John's evidence was that Anthony was unable to work due to his own health problems, which include seizures, diabetes, high blood pressure and an irregular heart condition which causes him to faint. John says that he has frequently had to call an ambulance for Anthony due to Anthony's seizures. Anthony's own evidence as to his health is to similar effect, and he also deposes that he suffers from scoliosis of the spine. It appears from Anthony's evidence that he lost his job with an IGA supermarket in about October 2014, and has remained unemployed since then. Anthony receives a Newstart Allowance from Centrelink (which John says amounts to about $415 per fortnight). John says that Anthony has nowhere else to go and no funds to afford to live independently.

[53]

Employment

John's evidence is that he does not, and cannot, work. I am satisfied that is the case.

[54]

Assets and liabilities

The most recent evidence estimates John's assets as totalling $556,067.83 in value, and his liabilities as totalling $2,375,640.95 in value. In summary, John at this date owned the Strand Property (albeit heavily encumbered); the only vehicle available to him was Lynne's 1995 Ford Falcon station wagon; he had no savings or superannuation, and no other assets of value.

[55]

Income and expenses

John says that his and Lynne's Centrelink aged pensions continue to be his family's only source of income. John says that he receives a pension of $877.60 per fortnight, of which $75.00 is withheld to meet part of his electricity costs, and that Lynne receives about $485.30 per fortnight to bring their pensions up to the combined couple rate. Their combined pension is about $1,362.40 per fortnight (or $2,724.80 per month).
John's evidence is that that income is insufficient to meet his family's combined expenses. John's evidence as to his expenditure varies wildly across his affidavits. In his affidavit sworn 7 June 2012, John estimates his monthly expenditure as $9,160.
In his affidavit sworn 29 November 2016, John refers to monthly expenditure of $16,565.26 per month ("except for the credit card interest cost"), and then says that with his "revised credit card payments" his monthly expenses are reduced to $11,615.26. However, he says that those figures do not include the cost of food, living expenses, phones, internet, special diets, clothing, or vitamins for himself and his wife.
In his affidavit sworn 27 April 2017, John provides alternative estimates of monthly living expenses: $3,081 per month - current actual expenses, $21,540 per month, $18,085 per month, and $15,470. He provides various detailed estimates of additional expenses including holidays, medical surgeries, car maintenance and/or upgrades, and ultimately wheelchairs and nursing home accommodation in this affidavit.

[56]

Robyn's case - the facts

Robyn was born on 3 August 1951, the youngest of the three children of Dorothy and Raymond. She attended Croydon Park Primary School, followed by Canterbury Girls High School. Robyn's evidence was that she had a very happy childhood, and that Dorothy and Raymond were great parents who loved their children very much. Robyn left secondary school in third form (ninth grade) at age fifteen, and commenced working as an office clerk.
In February 1970, at age eighteen, she married Jeff Watts. It appears that Robyn and Jeff jointly acquired a unit at Marrickville which they sold at some point prior to 1973, using the proceeds to construct a separate two-storey dwelling on the property which then belonged to Dorothy and Raymond, in Croydon. Robyn says that when Dorothy and Raymond sold their Croydon property, Robyn and Jeff received a portion of the proceeds based on what they had spent on constructing the additional dwelling.
In about June 1973, Robyn met Larry Bruce Webster, who would subsequently become her second husband.
At that time, Larry had an American sporting goods business, "Cypress", which he says he sold in July 1973, using the proceeds to start two employment agencies in Australia, "Search Personnel" and "Ritestaff Employment Agency" ("Ritestaff"). It appears that Robyn was involved to some extent in starting these businesses, or at least in starting Ritestaff. (Lesley says that she was also a partner, together with Robyn and Larry, in Ritestaff, and that she sold her shares in Ritestaff in around 1992 or 1993).
In August 1973, Robyn and Jeff Watts divorced.

[57]

1974 to 1986: The Sugar House venture

In approximately November 1974, Robyn and Larry started a new venture in women's fashion, opening a business called "The Sugar House", which concentrated on wedding and evening fashion. There appears to be no dispute that it was Robyn and Larry who started this business.
Robyn's evidence of the division of responsibilities within The Sugar House business is that she: "… created all styles and ran the factory as well as all merchandising, retail sales, training staff, hiring firing staff and finding retail locations. Larry handled every aspect of the business side of the business." (Robyn's affidavit sworn 23 April 2012 at [20])
Robyn also deposes that The Sugar House ran a design centre, which she established. Larry's evidence accords with Robyn's evidence on these points.
Larry's evidence is that in January 1975, he liquidated the company assets in Search Personnel and Ritestaff and reinvested those funds into The Sugar House. This is corroborated by Robyn's statement that she and Larry sold their employment agency business in January 1975, and by Lesley's evidence that when The Sugar House first started Larry and Robyn were still running their employment agency but sold it "very soon" and thereafter worked fulltime at The Sugar House.
The Sugar House opened its first retail store at Centrepoint, Sydney in about February 1975.
It is not in dispute that Lesley (who was at this point 25 years old and had one daughter, Kelly, then five years old), also worked for The Sugar House from the time it started. Robyn's evidence is that Lesley had no previous experience in the retail fashion industry (and Robyn readily concedes that this was also the case for her and Larry); Lesley refers to some experience in women's fashion from her teenage years (at a ladies' retail store and a fashion agency). In a later affidavit, Robyn says, in effect, that Lesley's experience in her adolescence was "very limited" and amounted to no more than a few Saturdays as a junior in a store managed by Dorothy.
Lesley's evidence is that her role and Robyn's role were interchangeable and that she (Lesley) "quickly came to focus in design and manufacturing". Lesley agrees with Robyn that at this point, Larry ran the financial side of the company. In response, Robyn says that Lesley was hired as a salesperson, and that Robyn was her immediate manager. Robyn's evidence is that she and Larry trained Lesley, and that she (Robyn) was "solely responsible" for design and manufacturing, which included "sourcing trips" to Paris, London, and Los Angeles for design inspiration and sourcing of samples for manufacture - trips on which Lesley never accompanied Robyn.

[58]

1986 to 1997: Abbey Bridal - the first period

Robyn and Larry's evidence is that during 1985 they decided, along with a friend of Larry's, Robert Scott Wilson ("Scott"), to return to the bridal fashion industry.
Again, Robyn, Larry, Lesley, and Wayne give differing accounts of the start-up of Abbey Bridal. At least in the case of Abbey Bridal there is one relevant, objective document in evidence, the ASIC Current and Historical Extract for Steiner Wilson & Webster Pty Ltd. This document indicates that on 16 September 1986, Dorothy, Larry, Robyn, Scott, and Scott's wife Kristine Wilson, all became directors of an already-registered company, "Valimel Pty Ltd". On 27 November 1986, Valimel was renamed "Steiner Wilson & Webster Pty Ltd" ("SWW").
The ASIC Extract shows as current shareholders Lesley, with 67 shares; Wayne, with 66 shares; and Dorothy, with 92 shares. As former shareholders, it shows Larry, with 91 shares; Robyn, with 92 shares; Dorothy, with 44 shares; Scott, with 51 shares; and Kristine, with 51 shares.
Lesley and Wayne's account of the history of the SWW shareholdings is for the most part borne out by the ASIC Extract (with the exception of the "informal arrangement" to which they depose, where they financed 50% of Dorothy's initial shareholding). Accordingly, I find as follows with respect to SWW shareholdings: 1. Valimel or SWW (it is unclear which) originally issued 300 shares, of which Dorothy owned one-third (100 shares), and Robyn and Larry owned one-sixth each (50 shares each), as did Scott and Kristine Wilson. 2. On 24 January 1991, an additional 108 shares were issued in SWW, with the result that the shareholding was as follows: Shareholder Shares Proportion of total share capital Dorothy 136 33.33% Larry 68 16.67% Robyn 68 16.67% Scott 51 12.5% Kristine 51 12.5% Wayne 17 4.17% Lesley 17 4.17%

[59]

In July 1992, Scott and Kristine Wilson sold their shares to the other SWW shareholders and ceased to act as directors of the company. The resultant shareholding was as follows: Shareholder Shares Proportion of total share capital Dorothy 136 33.33% Larry 91 22.30% Robyn 92 22.55% Wayne 44 10.78% Lesley 45 11.03%

[60]

In June 1997, Dorothy transferred 44 shares in SWW to Wayne and Lesley (22 shares each), with the resultant shareholding as follows: Shareholder Shares Proportion of total share capital Dorothy 92 22.55% Larry 91 22.30% Robyn 92 22.55% Wayne 66 16.18% Lesley 67 16.42%

[61]

In July 1998, Robyn sold her shares in SWW to the existing shareholders (with the result that the total shares in SWW were reduced to 316 shares held by Dorothy (92 shares), Larry (91 shares), Wayne (66 shares), and Lesley (67 shares)). 2. In March 2005, the existing shareholders bought back Larry's shares in SWW (with the result that the total shares in SWW were reduced to 225 shares held by Dorothy (92 shares), Wayne (66 shares), and Lesley (67 shares)).
It can be seen from this history that by about July 1992, Dorothy, Lesley and Wayne had, in combination, a majority shareholding in SWW. That is the extent of the relevant information which is evidenced by the ASIC Extract, either expressly or by inference in combination with Wayne and Lesley's explanatory background. The remainder of the history of Abbey Bridal is, like the evidence of The Sugar House, only available from the contradictory evidence of Robyn, Larry, Lesley, and Wayne, unsupported by documentation.
The timeline of events in the 1980s is unclear, but it appears that at some point (Robyn places this as having occurred mid-November 1985, Wayne suggests that it was in 1987), Dorothy (having moved to the United States), returned to Australia and moved into Larry and Robyn's home in Wahroonga with the intention of joining in the new Abbey Bridal venture. Meanwhile, Lesley and Wayne remained in the United States. Robyn's evidence is that she was very happy to be living with her mother again, because she had "really missed her" while Dorothy had been in the United States. Robyn says that Dorothy lived with her and Larry, in both Australia and the United States, from 1985 to mid-1991.
It is not disputed that Abbey Bridal opened its first shop, on the second floor of the Dymocks Building in Sydney, in about January 1987. Even on Wayne's evidence, it is accepted that this opening was managed by Larry, Robyn, Dorothy, and Scott.
Robyn's evidence is that she and Larry decided to locate overseas manufacturers who could make up Abbey Bridal's exclusive designs. At some point, Robyn and Dorothy travelled together to Taiwan where, according to Robyn, she identified and arranged meetings with local manufacturers, starting off with about sixteen factories (Wayne says there were eight factories when Abbey Bridal started, rather than sixteen). Robyn says that four of those original factories are still producing dresses for Maggie Sottero (in a later affidavit sworn 13 April 2017, Robyn identifies three of these factories as "Majestic" (in Zhongshan, China), "TPY" (in Macau), and "Bonny" (in Zhongshan, China)). Larry's evidence supports this account of Robyn's role in Abbey Bridal, indicating that Robyn carried out overseas sourcing trips, ensured quality of samples made by the factories, put in quantity orders for each style, and supervised delivery of gowns. Larry deposes that Abbey Bridal still uses the factories "originally brought on line by Robyn". Lesley and Wayne accept that two of the original factories identified by Robyn are still producing for Maggie Sottero (and significantly, both Lesley and Wayne appear to accept that it was Robyn who "identified" factories for Abbey Bridal).

[62]

1997 to 2004: Abbey Bridal and Maggie Sottero - the second period

At some stage in the early 1990s (Lesley and Wayne date it to around 1993 or 1994), Abbey Bridal had started a label called "Maggie Sottero" in Sydney as an in-house "made to measure" couture. Lesley and Wayne say that Lesley was responsible for creating those dresses.
In about 1997, Robyn, Larry, Lesley, Wayne, and Dorothy formed a new American company, "Maggie Sottero Designs LLC". Robyn, Larry, Lesley, and Wayne all say that the shareholdings in the new entity were evenly distributed, with each of the five family members owning a one-fifth (20%) shareholding. Annexure B to Wayne's affidavit sworn 15 March 2013 is a copy of a facsimile transmission from Mills/Duncan CPA firms entitled "Maggie Sottero, US Analysis of Member Earnings to Date 31-Dec-02", apparently dated 22 May 2003. Wayne identifies Dean Duncan as the accountant for Maggie Sottero at that time. That document identifies the initial paid-up capital of Maggie Sottero as follows: Robyn $21,000 Dorothy $22,217 Wayne $22,217 Lesley $22,217 Larry $27,671

[63]

Robyn says that starting Maggie Sottero was an idea of hers and Larry's, brought into execution in 1997 after discussions with Dorothy and Lesley. Lesley says that expanding Abbey Bridal into wholesaling dresses in the United States through Maggie Sottero was her idea, not Robyn and Larry's.
Robyn's evidence is that the intention was that she would handle the "USA side of wholesaling" in the new Maggie Sottero venture, but that during the six months it took to get ready for the first trade show in the United States, she decided to move back to Australia. Wayne agrees that Robyn had offered to handle the USA side of wholesaling initially, but never took on that role because she returned to Australia. Robyn deposes that, as a result of her return to Australia, it was Larry who "completed the start-up" of Maggie Sottero in the United States, with styles which were already being sold in Abbey Bridal shops in Australia. This accords with Larry's evidence on this point (and with Wayne Bruce's evidence, who was at the time 19 years old and living with Larry in Utah).
In the meantime, it will be recalled (see [381] above) that in June 1997, Lesley and Wayne increased their shareholdings in SWW (by the transfer of 44 shares from Dorothy).
Lesley and Wayne say that in about June 1997, they (along with Dorothy) decided to start closing Abbey Bridal shops which were reaching the end of leases (except for the Sydney store), and instead focus on supplying wholesale Maggie Sottero dresses to other bridal retail shops in each Australian state. Apparently in implementation of that decision, Lesley and Wayne say that the Abbey Bridal Adelaide shop closed in 1998, the Abbey Bridal Perth shop in 2000, and the Abbey Bridal Brisbane shop in 2001.
Robyn says that upon moving back to Australia in 1997 she phoned Dorothy to talk about what she could do in Abbey Bridal, and suggested that she could design a bridesmaid line for Maggie Sottero or could move to Sydney to work at Abbey Bridal. Robyn deposes that although Dorothy replied that this was a "good idea", she phoned Robyn again on the following day and said, in essence, that Lesley did not want Robyn to have anything to do with Abbey Bridal or Maggie Sottero. Larry's evidence is that Dorothy said to him that she did not agree with Robyn working at Maggie Sottero, because Robyn had had success with The Sugar House and Abbey Bridal and it was "Lesley's turn" for success at Maggie Sottero.

[64]

Lesley agrees with the $60,000 figure for 2001 but says that Robyn's dividends in 2002 to 2004 were significantly higher than this, being $428,726 in 2002; $951,045 in 2003; and $1,052,319 in 2004.
The document described at [400] above, entitled "Analysis of Member Earnings", contains the following information in respect of wages, "design fees", and shareholder distributions from Maggie Sottero in the period 1998 to 2003: Wages Design fees Shareholder distributions Total 1998 Larry $27,814 - - $27,814 1999 Larry $88,490 - - $88,490 Larry $97,231 $126,470 $18,703 $242,404 Dorothy - $126,745 $136,528 $263,273 2000 Wayne - $94,745 $85,287 $180,032 Lesley - $94,745 $85,287 $180,032 Robyn - - $143,526 $143,526 Larry $122,278 $117,480 $243,713 $483,471 Dorothy - $117,480 $288,953 $406,433 2001 Lesley - $85,071 $169,363 $254,434 Robyn $122,190 $85,071 $169,363 $254,434 - - $373,753 $373,753 Larry $286,195 $336,891 $746,489 $1,369,575 Dorothy $130,000 $336,891 $527,620 $994,511 2002 Wayne $82,800 $243,956 $687,748 $1,014,504 Lesley $286,200 $243,956 $687,748 $1,217,904 Robyn - - $429,000 $429,000 Larry $302,779 Dorothy $354,273 2003 Wayne Not recorded as of date of document (22 May 2003) Not recorded as of date of document (22 May 2003) $364,985 Lesley $364,985 Robyn $359,878

[65]

There is a further document annexed to Wayne's affidavit at Annexure L which purports to record total distributions to shareholders (Wayne identifies this document as having been prepared by Harlan Schmitt). Taking this document into account, there are up to four different figures for distributions received by Robyn in any one year in evidence: Year Figure 1 Figure 2 Figure 3 Figure 4 2001 $60,000 (according to both Robyn and Lesley) $373,753 (Annexure B to Wayne's affidavit) 2002 $70,000 $429,000 $428,726 (Robyn's evidence) (Annexure B to Wayne's affidavit) (Lesley's evidence; Annexure L to Wayne's affidavit) 2003 $219,970 $951,045 $359,878 $953,326 (Robyn's evidence) (Lesley's evidence) (Annexure B to Wayne's affidavit) (Annexure L to Wayne's affidavit) 2004 $541,045 $1,052,319 (Robyn's evidence) (Lesley's evidence; Annexure L to Wayne's affidavit)

[66]

It is noted on that document that the amounts specified include distributions to cover federal and state income taxes. This might explain some of the differences in this table, but cannot reconcile all of these figures. In these circumstances, it is impossible to conclude with any degree of satisfaction what was in fact paid out to Robyn (and to others involved in the Maggie Sottero enterprise).

Wayne says that Robyn's eldest son, Wayne Bruce, worked for Maggie Sottero as a sales representative from May 2001. Lesley says that in May 2006, Wayne Bruce's employment with Maggie Sottero was terminated "as he was now promoting Raylia gowns in competition with Maggies [sic] Sottero and he was not performing". Wayne dates the termination of Wayne Bruce's employment to October 2004, but gives an identically worded reason for it. Robyn and Larry both give evidence of Wayne Bruce being named as the highest-achieving sales representative in his region in about 2004.
According to Lesley and Wayne, Robyn's younger son, Scott Webster, also worked as an agent for Maggie Sottero, in the period from October 2003 to February or March 2006.
Robyn's evidence is that in 2004, there was a salary increase for the working partners in Maggie Sottero (namely, Wayne, Lesley, Dorothy, and Larry), from an annual salary of $500,000 to $750,000. Robyn says that while Dorothy, Lesley, and Wayne worked part-time, Larry worked full-time for the same salary. Wayne says that they all worked full-time. Robyn and Larry's evidence is that the salary increases in 2004 occurred after they were outvoted by the combined votes of Dorothy, Lesley and Wayne. Lesley asserts, in response, that salaries were not increased to $750,000 in 2004 (as does Wayne).
Wayne's evidence included a document which he identified as a spread sheet provided to him by Harlan Schmitt (the Maggie Sottero accountant) outlining the wages and "guaranteed payments" (the latter appearing to correspond to what were referred to as "design fees" in Annexure B to Wayne's affidavit) received by the working partners at Maggie Sottero (although it provides no record of Larry's wages or guaranteed payments). This indicates that: 1. In 2003, Wayne received wages of $85,748 and guaranteed payments of $46,839. In 2004, his wages increased to $309,974 with no guaranteed payments received. 2. In 2003, Lesley received wages of $545,224 and guaranteed payments of $46,389. In 2004, her wages increased to $802,543, with no guaranteed payments received. (This increase would appear to be in the order of the kind of increase which Robyn alleges, and Lesley and Wayne deny). 3. In 2003, Dorothy's wages were $286,375 (with guaranteed payments of $64,061), and increased to $525,325 in 2004 (with no guaranteed payments in 2004).

[67]

LESLEY Year Wages Guaranteed payments Total 2005 786,713 - 786,713 2006 786,713 - 786,713 2007 166,500 654,972 821,472 2008 - 861,863 861,863 2009 - 861,236 861,236 2010 - 859,321 859,321 2011 - 859,756 859,756

[68]

Across the period 2005 to 2011, Dorothy (according to Annexure K) did not receive any guaranteed payments and received annual wages as follows: Year Wages 2005 309,375 2006 360,750 2007 83,250 2008 240,000 2009 523,385 2010 480,000 2011 374,769

[69]

Robyn and Larry both say that with their majority, Lesley, Wayne and Dorothy effectively controlled Maggie Sottero. Wayne accepts that if he, Lesley and Dorothy voted the same way on a matter, they would have a majority.
From about 2004, Lesley's daughter Kelly was employed at Maggie Sottero, on a starting salary of $250,000 (for what Robyn says was a four-day work week; Lesley and Wayne say that Kelly worked for five days a week). Robyn says that Kelly had no design experience or qualifications; Lesley and Wayne point to Kelly's previous design experience in the jewellery industry. It does appear that Kelly had started her own bridal jewellery business, which, it seems, was bought out by Maggie Sottero in about 2004.
Robyn's evidence is that throughout this period she was "not permitted" to work in Abbey Bridal or Maggie Sottero.
Robyn refers to a telephone call from Larry in about mid-2004, in which he said, "Lesley and Wayne are doing everything they can to not pay out what should be dividends to all 5 of us and Dorothy is going along with them". She says that Larry referred to USD $2 million from the United Kingdom which had "just come across" to the United States that "should have been paid out in dividends" but was to be paid out as bonuses to the four working partners (that is, Dorothy, Larry, Lesley, and Wayne).
Lesley accepts that $1 million was paid out as bonuses in equal shares (that is, $250,000 each) to the four working partners in 2004, however she and Wayne both say that this was Larry's idea and that the remaining $1 million was "put into general funds", again at Larry's suggestion.
In about August 2004, Robyn says that she commenced legal action against Maggie Sottero (that is, effectively against Dorothy, Lesley, and Wayne) in the United States, which was resolved at a mediation. Lesley and Wayne accept that there was a "dispute" at this point, raised by way of letter, but point out that no court documents were ever filed or served.
Robyn and Larry both refer to a mediation occurring as part of this legal action (or perhaps, an informal mediation as a result of the contemplated legal action), and say that as a result of that mediation, they were bought out of Maggie Sottero for USD $5.5 million each. Robyn says that after taxes she believes that she received approximately $4 million (Australian dollars). Larry appears to have resigned from Maggie Sottero in 2004, at about the same time as the buy-out. Lesley agrees that the dispute was resolved by her, Wayne, and Dorothy buying out Robyn and Larry, and that Larry's buy-out price was $5.5 million, but says that Robyn was bought out for $5.6 million.

[70]

Robyn's other business ventures (1998 to 2011)

Wayne's evidence included an ASIC Current and Historical Extract for "Abbey Brides Queensland Pty Ltd".
This document confirms that in April 1998 (at the same time as Robyn sold her SWW shares to the existing shareholders), Robyn registered a company called Sportimer Pty Ltd ("Sportimer"). Lesley and Wayne say that in about 1999, Robyn started investing in racehorses through Sportimer. Robyn accepts that she bought several two-year-old racehorses, and says that the "total price money" (presumably, prize money) over the three-year period they were racing was $572,454. She refers to this as a very successful hobby.
Lesley says that after the closure of the Abbey Bridal store in Brisbane in 2001, Robyn opened a business called "Abbey Brides of Queensland" through Sportimer. Lesley says that SWW/Abbey Bridal sold Robyn Maggie Sottero gowns at "very discounted prices". Wayne gives evidence that he travelled to Brisbane between about 23 and 27 May 2001, to close the Abbey Bridal Brisbane store and to assist Robyn and her then partner Warwick Vincent to open Abbey Brides Queensland Pty Ltd.
Wayne deposes that "Raylia Designs" started in bridesmaid fashions but in 2001 started to move towards formal wedding and bridal fashion, which was in direct competition with Abbey Bridal and "accordingly, the majority of shareholders decided that Robyn could not work in Abbey Bridal". Raylia Designs was later used (from December 2003) as the company name for Sportimer; it is unclear whether Wayne, here, is referring to a business being run through Sportimer, or to some other endeavour.
Wayne says that in 2002, Robyn registered a company Raylia USA in Utah, USA, with her son Wayne Bruce as the sole owner.
The ASIC Extract for "Abbey Brides Queensland Pty Ltd" indicates that in December 2003, Sportimer changed its name to "Raylia Designs Pty Ltd" ("Raylia Designs"). Then, in September 2007, Raylia Designs changed its name again, now to Abbey Brides Queensland Pty Ltd. That company was appears to have entered external administration in September 2008 and to have been deregistered in February 2010.
The ASIC Extract lists Robyn as a director of this entity from April 1998 to April 2007, and Robyn's former partner Warwick Vincent as a director from March 2004 until the company's deregistration in February 2010.

[71]

Robyn's circumstances, property and relationships (1997 to 2012)

Robyn returned to Australia in 1997, following her divorce from Larry. She says that she brought with her about USD $3 million, which amounted to half of what she and Larry had at that particular time of their life. At that point, Robyn's evidence is that she had a "short stay" with Dorothy, Lesley, and Wayne in their house at East Killara, which was unsuccessful because Robyn and Lesley did not get along. Subsequently, Robyn bought a house in Saltwater Avenue, Noosa Waters and her three sons started school there. It appears that in about late September 1997, Robyn formed a personal relationship with Warwick Vincent.
In about 2001 or 2002, Robyn sold her property in Saltwater Avenue, Noosa Waters and acquired a property of approximately 81 acres in size at Noosa North Shore, for a price of $800,000 (with a borrowing of about $500,000 to finance the purchase). I will refer to it as "Lot 276 Noosa". Robyn deposes that, as acquired, Lot 276 Noosa had no water, sewerage, or power supply, and had only a small one-bedroom cottage.
It emerged in cross-examination that at some point in about 2002 or 2003 Robyn also owned property at Richards Court, Bellmere, which she sold after about a year, and made a profit on the sale. No further evidence is available with respect to this property.
It appears that at some point (Lesley and Wayne suggest that this occurred in 2005), Robyn also acquired a strata unit in Mooloolaba ("Unit 1601 Mooloolaba"). In her affidavit sworn 13 April 2017, Robyn states that Unit 1601 Mooloolaba sold at public auction in January 2016 for $2,490,000. She says that at settlement on 17 March 2016, after discharge of the mortgage to Westpac ($2,258,334.89) and legal costs/council rates ($6,827.08), she received net sale proceeds of $126,948.11, along with an amount back from the agent of $16,477.36 (being the deposit she had paid to the agent, less agent's commission and marketing costs). Robyn states that prior to the auction she carried out extensive renovations to the unit, costing about $280,000, and that she borrowed $300,000 from her son, Wayne Bruce, to enable her to carry out those renovations. It appears that she is still repaying this loan, with interest.
In about 2006, Robyn's relationship with Warwick Vincent ended, in what Robyn says were "financially disastrous" circumstances. Warwick sued Robyn for a property settlement under de facto laws. Robyn's affidavit evidence was that her relationship with Warwick cost her "over $3.7 million". The basis for that amount is unclear. When asked about it in cross-examination, Robyn said: 1. There was a $1.1 million loan to Westpac which Warwick had taken out against either "the house" or the "Abbey Bride shop" (it was not clear which). It appears that Robyn and Warwick were operating a shop together (as part of their "Abbey Brides" business - see [430] above), and had in 2005 acquired a property in McConnell Street, Bulimba, Queensland, for $2.5 million. Robyn says that in 2008 when Warwick went bankrupt, she "had to start paying on the loan". 2. Although Warwick owed her $250,000 on an outstanding loan, she only ever received one repayment of about $4,000 (because of his bankruptcy in 2008). 3. She had $1.3 million as "capital" or "retained earnings" in the Abbey Brides shop, and she lost that because the shop went to Warwick in the property settlement. 4. She had loaned Warwick $80,000 to secure a home for his mother around the time when they first "got together", and another amount of $100,000 in about 2000. 5. Robyn and Warwick were together for nearly ten years, she supported him when he was a bankrupt, and during their relationship she paid for everything. 6. Court costs for fighting the de facto case were about $250,000.

[72]

Robyn's relationship with Dorothy

Robyn's evidence is that, until 2004, she had a close, loving relationship with Dorothy without any "fights or bad words". However, she describes the Maggie Sottero issues as "extremely difficult", because Dorothy was involved in the conflict and was voting with Wayne and Lesley against Larry and Robyn. Robyn says that from about August 2004 to December 2004, she did not speak with Dorothy. However, after the settlement (that is, after the buy-out), Robyn says that Dorothy initiated contact with her just before Christmas 2004, and that thereafter they spoke at least two or three times a week even when Dorothy was in the United States.
Robyn concedes, in both her affidavit and oral evidence, that around 2004 she developed a drinking problem "because of all the stress caused by the conflict with Lesley and Wayne with my mother being in the middle of it". She accepts (in her affidavit evidence and under cross-examination) that she called Dorothy several times, while "depressed, stressed and while drinking", and "said many things to Mum which I should not have said". Under cross-examination, Robyn said that these conversations concerned "not being allowed to work", her son being fired, and generally "being very, very upset with what I felt was being done to me". Robyn placed these calls as having occurred in around 2005, in a period at which, according to her evidence under cross-examination, she had a "severe" drinking problem.
In these proceedings, the defendants read several affidavits sworn or affirmed by Abbey Bridal employees. Dorita Maria Quintal Coelho Trostel, who worked as the accounting manager at Abbey Bridal from July 2000 up to about July 2015, gave evidence that "over the years" Dorothy received numerous phone calls from Robyn which "often became abusive". Ms Trostel accepted under cross-examination that during the period at which Dorothy worked alongside her at Abbey Bridal (2000 to 2011), Dorothy was, like Lesley and Wayne, living for six months of the year in Utah and six months of the year in Australia, and that she could, in effect, only give evidence of the periods of time in which Dorothy was in Australia.
In her evidence, Kym Bournes, who has been the general manager of the Abbey Bridal Sydney store since March 1994, describes Dorothy's relationship with Robyn as "strained" and refers to phone calls which were "often heated", in which Robyn "often sounded drunk", and which became "increasingly aggressive" during 2010 and 2011 in the last eighteen months before Dorothy's death. In response, Robyn accepted that she had heated phone calls with Dorothy after her son Wayne Bruce was fired from Maggie Sottero, and again when her son Scott was forced to resign from Maggie Sottero, as she believed that Dorothy "should have stood up to Wayne and Lesley".

[73]

Robyn's conduct since Dorothy's death

Lesley says that she and Wayne started receiving hostile calls from Robyn in about November 2011; that there have been hundreds of calls; and that they continue as of the date of her affidavit (15 March 2013). Lesley gives examples of verbal abuse and says that the calls (from Robyn and John) have "included threats to us personally, threats to destroy our company, personal slurs, screaming, swearing" and have included calls to Abbey Bridal, Sydney with threats made through Abbey Bridal employees on several occasions. Wayne's evidence is to similar effect.
Ms Trostel gives evidence of a phone call which she received at Abbey Bridal in 2011 from Robyn after Dorothy's death, in which Robyn blamed Wayne and Lesley for Dorothy's death and said that she would have them "put up for murder". In her affidavit sworn 13 April 2017, Robyn denies that this conversation occurred.
Amanie Bazzi, the floor manager at Abbey Bridal's Sydney store since July 2011, gave evidence of a phone call from Robyn on 13 December 2011 in which Robyn accused Lesley and Wayne of killing Dorothy, said that Ms Bazzi had "no right" to work at Abbey Bridal, and made various comments about the origins of the business. In her affidavit sworn 13 April 2017, Robyn says that she did phone Abbey Bridal several times to speak with Lesley and Wayne in the period after Dorothy passed away, but has no recollection of the conversation which Ms Bazzi alleges.
Under cross-examination, Robyn reiterated that she does not recall ever being argumentative towards staff members, although she accepted that there were times when she had phoned to speak with Lesley and other employees had answered the calls. She said that she "phoned and asked to speak to Lesley" and "certainly could have got upset" when she was not allowed to speak to her. The relevant portion of Robyn's evidence is as follows: "Q. Do you ever recall ringing the Sydney office, and to use the expression I have previously used, giving staff members an earful about your complaints? A. Not while mum was alive, I haven't, didn't ever spoke to anybody else. Q. After your mother's death, certainly that's happened hasn't it? A. I phoned to speak to Lesley and other people have answered. Q. Please answer the question. After your mother's death you've rung up the Sydney office and given staff members an earful, correct? A. I'm not quite sure what you mean by an earful. Q. You've abused them or complained about other family members, Lesley, Wayne, you've done that haven't you? A. I phoned and asked to speak to Lesley. I certainly could have got upset when I wasn't allowed to speak to Lesley. Q. You took a long time to think about the answer to that question before you answered it, and the act is on a number of occasions since your mother has died you have rung up and regardless of who has answered at the Sydney office, you've complained using strong language about other family members and their conduct, isn't that correct. A. There might be two occasions that - that I've spoke to somebody in the Sydney office. Q. Only two? Is that right? A. Yes. Q. No more? A. Not that I can recall. Q. Presumably, your conduct on those what you call two occasions was unaffected by any alcohol consumption? A. Yes. Q. You gave them an earful because that's what you wanted to do; correct? A. I'm not - still not sure what you mean by an "earful". Q. You know at least these two occasions where you've rung up and abused staff, commenting about other family members. That's what we're talking about, isn't it? A. Commenting? Yes. Q. Whatever the conduct of these conversations, I presume you don't say you were affected by alcohol when you had them. That's right, isn't it? A. Not that I recall. Q. I beg your pardon? A. Not that I recall. Q. Do you have trouble recalling any of these conversations with the Sydney staff members? A. I know that I phoned for Lesley a few times. I have spoke to people in Sydney. I can't necessarily recall a particular conversation."

[74]

Robyn's current circumstances

Robyn is now 66 years old. The most recent evidence of her circumstances is contained in her affidavit sworn 13 April 2017, as supplemented by her evidence at hearing.

[75]

Residence / accommodation

After living in a succession of rental properties between 2012 and 2016, Robyn commenced permanently occupying Lot 276 Noosa in about May 2016. She confirmed in oral evidence that this remains her current address. It appears that she lives there alone.
Lot 276 Noosa still has no electricity and no access to town water or sewerage. Robyn says that she currently uses a generator for power, has water "tanked in", and uses bottled gas and a septic system. She deposes to needing further funds for water and electricity works.

[76]

Health

Robyn deposes that in 2004 she was "very run down from stress, overwork, and sheer exhaustion". She was diagnosed with a blood disorder, MGUS, underwent a bone marrow biopsy and was found to have 15% myeloma cancer cells (myeloma being a blood cancer).
She also says that around this time, she developed a drinking problem "because of all the stress caused by the conflict with Lesley and Wayne with my mother being in the middle of it". In cross-examination, she described this drinking problem as "severe" at one stage.
Robyn says that since 2004 she has been subject to occasional severe panic attacks and has suffered from three minor mental breakdowns. She has difficulty sleeping.
Robyn's evidence is that in August 2011, she developed shingles on the left side of her face which resulted in complications including a damaged left optic nerve and left her with a slight, but permanent, nerve neuralgia. She also says that she suffered a severe epileptic seizure during 2011.
As of 2012, Robyn deposes that she feels weak and extremely tired every day; has lower back, shoulder, and rib ache and acute right shoulder pain; is very dehydrated; and suffers from mental confusion. She says that she is often nauseated, has an ulcerated stomach, and requires regular blood and iron transfusions. In later affidavit evidence Robyn described these symptoms as continuing, and adds that she had also developed kidney impairment. Robyn says that she has degenerative disc disease, which causes chronic pain and lethargy. I accept Robyn's evidence about her health.

[77]

Employment

As at the date of hearing, Robyn was continuing to work for her son Wayne Bruce, in his business Luv Bridal, as a purchasing and style consultant. She has a home office at Lot 276 Noosa, and works from there several days a week, as well as travelling for work each week and staying (for those days) at Wayne Bruce's house in Runaway Bay, where she has a bedroom.
However, in her evidence under cross-examination, Robyn said that she had not made the three-hour drive from Lot 276 Noosa to Runaway Bay (in order to work at the Luv Bridal Harbour Town store) since about November 2016. She said that she is now unable to make that drive, and works from home, doing "marketing, looking over designs, shop layouts, looking over figures, styles, Excel…". However, she also noted that a new location had opened up in Maroochydore "in the last three weeks" and that this was "much closer" to Lot 276 Noosa, where she is living.
Robyn's evidence is that she has not worked on the retail floor or "put in a full week's work" since about November 2016 due to her ill health, but is still involved in opening new retail locations, hiring staff, shop design, and general layout. She says that her wage is guaranteed regardless of the hours she works.

[78]

Assets and liabilities

The most recent evidence estimates Robyn's assets as totalling $1,426,360.09 in value, and her liabilities as totalling $3,371,476.62 in value. In summary, Robyn at this date owned Lot 276 Noosa (valued at about $1.4 million and subject to a mortgage to Westpac in the amount of $880,963.86), and has negligible savings and superannuation. Her main liabilities are the Westpac mortgage on Lot 276 Noosa, credit card debt (in the amount of $67,512.76), and what could be described as the contingent debt to Larry in the amount of $2 million.
It should be noted that Robyn's asset/liability position is considerably improved if the loan from Larry (which I accept, on the evidence, will only fall due for repayment if Lot 276 Noosa is sold) is removed from the calculations. In that case, Robyn's assets remain at $1,426,360.09 in value and her liabilities are reduced to $1,371,476.62, leaving her - at least notionally - in a net positive position.

[79]

Income and expenses

In her affidavit sworn 13 April 2017, Robyn says that she has expended in total $1,333,382 since October 2012 (excluding regular expenses on food, entertainment, maintenance and general living expenses). The most significant of these expenses are: Item Cost Interest payments on Westpac Loan 257505 $418,297 Interest payments on Westpac Loan 95223 $162,427 Interest payments on three credit cards $55,445 Rent $80,000 Strata Levies / Body Corp on Unit 1601, Mooloolaba $162,608 Council rates (Sunshine Coast Council) $32,639 Legal expenses of these proceedings $86,804 Richard Matterson lawyer $58,000 Travel $34,409 Noosa ("getting house back to livable [sic] after 15 years") $49,000

[80]

Robyn deposes that her weekly wage after tax for her work at Luv Bridal is $791.54. She says that her regular weekly expenses amount to $2,504, the most significant expenses being food, mortgage payments to Westpac, credit card repayments, and interest payments on a debt to Wayne Bruce.

[81]

The circumstances of the other beneficiaries under the Will

It is relevant to both John and Robyn's claims to summarise briefly the situation of those other beneficiaries under the Will who put their circumstances in evidence.
Turning first to John's children, the defendants read affidavits from both Donna and Anthony. Under the Will, Donna receives a pecuniary legacy of $400,000 (clause 3(d)) (and, it should be noted, her four children receive collectively $200,000). Her evidence as of 2013 was that her and her husband's combined income sustained their family, without living an "affluent lifestyle". However, she said that in about November 2012 she was made redundant and (as of March 2013) needed a new job, otherwise she and her husband may need to sell their house and rent property. Donna deposed to assets amounting to $654,779.64 and liabilities totalling $249,192.50. She refers to her monthly expenditure, her desire to study graphic design, the need to pay school fees for her sons, the need to upgrade her and Alan's vehicles, her need for some dental surgery, and a desire to be able to afford private health insurance. Donna's evidence with respect to her circumstances was not updated and she was not cross-examined on these matters; it is therefore unclear, for example, whether she has now obtained employment.
Also pursuant to clause 3(d) of the Will, Anthony receives a pecuniary legacy of $100,000. Anthony deposes to poor health and limited, if any, earning capacity. However, he is dependent upon John and I have taken his needs into account in my assessment of John's need for further provision.
The defendants read affidavits from four of Robyn's five children. Her eldest son, Wayne Bruce, receives a pecuniary legacy of $400,000 and his daughter, Madison Joey Webster, receives $150,000 (clause 3(b)). Wayne deposes (in an updating affidavit sworn 19 May 2017) that he provides financial assistance to his former wife, Elizabeth Vincent, and that his daughter Madison is dependent upon him. He owns his own home and, apart from high blood pressure, he is in good health (as is his daughter). His total assets are well in excess of his liabilities, and his income exceeds his expenditure. He says that he intends to use his legacy to pay off debts and pay for a family medical insurance plan; and that his daughter intends to pay for a university education with her legacy.

[82]

Legal principles

Part 3.2 of the Act provides for family provision orders. An "eligible person" may apply to the Court for a family provision order in respect of the estate of a deceased person: s 57(1). An eligible person includes a child of the deceased person: s 57(1)(c). An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person (unless the Court otherwise orders on sufficient cause being shown): s 58(2).
Sections 59 and 60 of the Act relevantly provide as follows: "59 When family provision order may be made (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: (a) the person in whose favour the order is to be made is an eligible person, and … (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… (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … 60 Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person - the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, … (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."

[83]

The evaluation of, and interaction between, the s 60(2) factors

In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ observed, at 19, that the words "adequate" and "proper" in the then legislation were "always … relative", having regard to a claimant's age and general situation. His Honour explained that: "What is 'adequate' must be relative not only to [the claimant's] needs but to [the claimant's] own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions."
Echoing these observations, the majority in Singer v Berghouse observed (at 211) that the words "adequate" and "proper" in the legislation were "relative" and required the Court to "form opinions upon the basis of its own general knowledge and experience of current social conditions and standards" (quoting Goodman v Windeyer (1980) 144 CLR 490 per Gibbs J at 502; [1980] HCA 31; see also Vigolo v Bostin per Gummow and Hayne JJ; Salmon v Osmond at [51]). Similarly, in Vigolo v Bostin at [122], Callinan and Heydon JJ emphasised that the consideration of "need" was "not to be decided in a vacuum or by looking simply to the question whether the applicant has enough upon which to survive".
John directed the Court's attention to Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, where Barrett JA (at [62]-[63]) recognised the central role played by "community standards" or "community expectations" in any decision whether to take "the significant step of overriding the expressed wishes of a testator". His Honour continued (at [64]): "What Allsop P [in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308] called "the feeling and judgment of fair and reasonable members of the community" falls to be ascertained according to the circumstances of the particular case. Matters to be taken into account in making the relevant assessment are the applicant's financial position, the size and nature of the deceased estate, the relationships between the applicant and the deceased and other persons who have legitimate claims on his or her bounty and the circumstances and needs of those other persons … As Meagher JA pointed out in Verzar v Verzar at [39], such an assessment is necessary because of the interrelation between "adequate provision" and "proper maintenance"."

[84]

The relevance of moral standards

In Vigolo v Bostin, the High Court articulated differing views on the usefulness or otherwise of the language of "moral duty" or "moral claim" in this context. Gleeson CJ considered the issue at some length (see at [6]-[24]) and concluded at [25] that: "In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description of "moral"."
Gummow and Hayne JJ, on the other hand, found the language of "moral duty" and "moral claim" unhelpful, and described it as a gloss on the statutory language which was apt to obscure rather than to elucidate.
The position adopted by Callinan and Heydon JJ was more similar to that of Gleeson CJ, their Honours observing at [113]: "We would not be reluctant, at least in some cases, to use the expressions "moral duty" and "moral obligation", and to apply the concepts underlying them, which include the idea of "moral claims". It seems to us that there are several material indications in the Act that moral considerations may be relevant. But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant."
John referred to their Honours' remarks at [114] that: "The first of the indications is the use of the word "proper". It implies something beyond mere dollars and cents. Its use, it seems to use, invites consideration of all of the relevant surrounding circumstances … 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 used 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."" (See also at [115]-[121].)

[85]

The relationship between needs and adequate provision in the context of 'large estates'

It is important not to reduce the question of what is "adequate provision" to a simple question of financial need, particularly because of the interrelation between "adequate provision" and "proper maintenance" in the legislation. In her submissions, Robyn points to Basten JA's remarks in Chan v Chan (at [22]) that need is merely one indicator of adequate (or inadequate) provision, and that the background to any consideration of an applicant's needs requires determination of the size of the estate and the claims of others upon the estate.
Robyn and John have referred to various observations from the case law to similar effect, including Sackville AJA's remarks in Foley v Ellis [2008] NSWCA 288 (at [88]) that the Court "cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty"; and Tobias JA's comment in Collins v McGain [2003] NSWCA 190 (at [42]) that "the question of needs must be too narrowly focussed" and must "take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies."
Robyn and John also relied upon Bryson JA's observation in Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 303 at [29] that: "In almost all applications under the Family Provision Act questions of needs are prominent because of the scale of the resources available. The present case is one of the few which are free of that limitation. The focus of attention on needs is not an underlying legal limit on provision which can be ordered, but a subject which usually arises for consideration when the court addresses the circumstances of each case, as it is required to do. Decisions in the past show that judges formerly took a very limited view of the provision appropriate to be made, for example, for able-bodied adult sons and a limited view of the appropriate provision for married daughters. These decisions belong to past times and do not express the values of the present age. See Hunter v Hunter (1987) 8 NSWLR 573."
Some of Robyn and John's submissions suggested that there are different principles to take into account or different considerations which become relevant in the case of a "large estate". Robyn referred to Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep) at 20-21, where Young J (as his Honour then was) commented that in the case of a large estate the Court "has a slightly different approach". His Honour noted that the "basic principles are the same", but observed that: "… where there is a large estate competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially p412."

[86]

The significance of testamentary intention and disposition

As noted above, in Chapple v Wilcox, Barrett JA emphasised that it was a "significant step" to override the expressed wishes of the testator (at [63]). The legislation only permits the Court to interfere with the dispositions in a will to the extent necessary to make such provision as "ought to be made" for the maintenance, education or advancement in life of the applicant (see Alexander v Jansson at [20]), and the purpose of a family provision order is not to achieve a fair distribution of the deceased's assets: Gorton v Parks (1989) 17 NSWLR 1 at 6 per Bryson J; Cooper v Dungan (1976) 9 ALR 93; 50 ALJR 539 at 542 per Stephen J. See also (to similar effect), Friend v Brien [2014] NSWSC 613 at [61]-[63]; Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] (to which the defendants referred).
In Pontifical Society for the Propagation of the Faith v Scales, Dixon CJ commented that "all authorities" agreed that it was "never meant that the Court should re-write the will of a testator", nor was it ever intended that "the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court." In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146; [1979] HCA 2 ("Hughes"), Gibbs J (as his Honour then was) reiterated that it is not the court's function "to re-write the will of a testator in accordance with its own ideas of fairness or justice".
In Salmon v Osmond, in a passage to which the defendants referred, Beazley P quoted these observations from Dixon CJ (in Pontifical Society for the Propagation of the Faith v Scales) and Gibbs J (in Hughes), and observed that the weight that is given (both to testamentary dispositions and to a testator's explanation of why he or she made those decisions) will depend, inter alia, upon: "whether it is apparent from the evidence that the testator's wishes and testamentary intentions are soundly based and not, for example, attributable to irascibility, mere dislike, or based upon lack of information, or wrong information." On the evidence, the Court in Salmon v Osmond concluded that the testator's reasons for preferring one of his children in his will were "well based" and accordingly, that the Court should "pay appropriate regard to them" (at [71]-[72]). Whilst agreeing with the trial judge that the testator's wishes were not determinative, the Court found that the trial judge had altered the disposition of the estate to such an extent that the testator's wish, that one particular child should be the principal beneficiary, was not given appropriate weight.

[87]

Family provision claims by adult children

There are no special rules that apply to adult children in the context of family provision claims: McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Kleinig v Neal (No 2) [1981] 2 NSWLR 532; and see Goldsmith v Goldsmith [2012] NSWSC 1486 at [96] per Hallen J; Oldereid v Chan [2013] NSWSC 434; Peters v Salmon [2013] NSWSC 953 at [81] per Ball J.
I consider, with respect, that the position was aptly stated by the Court of Appeal in Alexander v Jansson, in a passage to which John directed the Court's attention. In that case, Brereton J (with whom Basten JA and Handley AJA agreed) noted, at [19], that "while characterisation of claims under the Act, such as an "adult child's claim" or a "widow's claim" sometimes assist to identify considerations typically relevant to such claims, ultimately it is the particular position of the claimant and the particular relationship that must be considered, and not the category into which it falls".
Nonetheless, the general principles stated by Hallen J in Camernik v Reholc [2012] NSWSC 1537 as applicable to a family provision claim by an adult child are useful to remember. As John noted, these principles were cited with approval by the Court of Appeal in Smith v Johnson (at [62] per Sackville AJA). The relevant passage from Hallen J's reasons (at [159]) is as follows: "In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. (d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant … (e) There is no need for an applicant adult child to show some special need or some special claim. (f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of Dorothy. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim. [Citations omitted.]"

[88]

The position of grandchildren

John made reference to a series of principles relating to family provision for grandchildren, apparently to support a submission that there is no obligation upon a testator to provide for grandchildren. For example, in Chapple v Wilcox, Basten JA observed at [14]-[15] that: "There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. … it is not possible to identify any social, domestic or moral obligation on the part of the testator to provide for the claimant. In other words, there were no sufficient factors to warrant the making of the application for the purposes of s 59(1)(b) and the application should have been dismissed."
In Chapple v Wilcox at [17]-[21], Basten JA quoted and approved the matters identified by Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 as relevant to family provision claims by grandchildren (at [113]); Barrett JA also applied those principles (see Chapple v Wilcox at [96]-[98]).
It is to be inferred that John's submission was, in effect, that on the basis of these authorities the Court should conclude that the claims of the grandchildren on Dorothy's estate are of lesser significance than John's claim.
However, the principles cited were developed to address the situation where a grandchild is seeking a family provision order in the absence of adequate provision by the testator for his or her proper maintenance, education or advancement in life. This is not such a case. The grandchildren are named as beneficiaries in the Will, and are not seeking further provision. The question here is not whether, absent adequate provision in a will, a testator has a positive obligation to provide for his or her grandchildren. Rather, the question is whether, in a situation where a testator has chosen to make some provision for her grandchildren in her will, the absence of a community view that she was obliged to do so should in some way lessen the significance or legitimacy of those bequests. The authorities cited do not go so far. They can, in a general sense, inform the Court's consideration of other claims upon Dorothy's estate in what is a very fact specific exercise, but are otherwise of limited relevance in this case.

[89]

John's submissions

John submits that a family provision order should be made which discharges his debts, including his debts to the estate; and provides: an amount to fund his future accommodation, a sum which supplements his and Lynne's social security payments so as to make ends meet, and an amount by way of contingency against future vicissitudes.
In essence, John submits that his needs are dire, and that based on their current circumstances he and Lynne have inadequate support. He maintains that they are likely to be destitute and entirely dependent upon social security to meet all their needs, including accommodation. Moreover, he submits that losing the Strand Property is likely to affect Anthony and Lynne's wellbeing, and to exacerbate Lynne's schizophrenia, as well as his own ill-health. John draws the Court's attention to what he says is a proper evidentiary basis for a three-bedroom residence for himself, Lynne, and Anthony. John says that his evidence was that Dorothy encouraged him to buy the Strand Property and then enjoy it; and that without a family provision order her wishes in this regard will be frustrated. Further, John stresses that the Court looks at the question of adequate and proper provision at the time of the hearing, regardless of what Dorothy would have known.
John submits that the estate is a very large one and that the bulk of the estate (over $8.5 million) passes to Lesley, who has not deposed to her financial needs. John emphasises that Lesley's legacy includes Dorothy's interest in the East Killara property, which property is unoccupied for about six months each year, whilst Lesley works overseas; and that Lesley will receive Dorothy's interests in Abbey Bridal and Maggie Designs Pty Ltd, both of which are profitable businesses. As such, he says that Lesley's prospects of future income have been augmented by the legacy.
In relation to other beneficiaries (apart from Lesley, John, and Robyn), John notes that while some of them have deposed to their needs, many of their affidavits not have been updated - with the result that the Court does not know anything about their present financial position. He also says that all of them are significantly younger than John, and that only two (John's son Anthony and Robyn's son Scott) refer to health issues, which issues are (on John's submission) in any event not sufficient to impact upon their capacity to earn income. Overall, John submits that it cannot be said that any of the other beneficiaries lack the capacity to earn income in the future, and that it can be inferred from their silence as to any financial need that each of those beneficiaries "has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased" (as explained by Hallen J in Sammut v Kleemann [2012] NSWSC 1030 at [137]-[140]).

[90]

Robyn's submissions

In opening submissions, Robyn sought further provision from the estate in the order of $1 million, which she said fell within the limits of what the estate might reasonably be expected to bear. She noted that this amount is comparable to the financial provision which Dorothy made for John within the last three years of her life, and submits that this would enable her to erase her debts and meet future contingencies, including major expenses in anticipation of retirement, and thus achieve a modest comfort and security for herself in the future and avoid facing destitution in her old age.
She submitted that where, as here, there are sufficient assets in the estate to assist a plaintiff to achieve security in retirement, and where otherwise they would face the prospect of destitution, the courts have affirmed the community expectation for parents to assist even their adult children, citing Taylor v Farrugia [2009] NSWSC 801 at [58] per Brereton J. While accepting that an order for provision in the vicinity of $1 million is large, Robyn said that it was not without precedent, referring to Darveniza v Darveniza [2014] QSC 37, in which the Supreme Court of Queensland gave consideration to an adult child's debts in awarding significant provision from the estate. There, the estate was in the order of $27 million, and the plaintiff's net assets were in excess of $2.5 million. Nonetheless, Martin J made provision for the plaintiff son of $3 million, in part to allow him to bring his debts within a manageable level (see at [75]).
By the end of the hearing, however, Robyn's position had undergone some refinement based upon further evidence which emerged, to the effect that the sum received by John by way of additional provision in the last three years of Dorothy's life was closer to $1.21 million. She therefore adapted her submissions to seek $1.2 million in further provision, noting also that as a matter of coincidence this corresponded with Dorothy's gift to Lesley and Wayne in 2009 of $1.22 million. That sum was based upon the assumption that Robyn would receive the full balance of her pecuniary legacy; to the extent that Robyn's full pecuniary legacy is not realisable (which would have been the case, for example, if the defendants were unsuccessful in their cross-claim against John), Robyn submitted that she would require additional further provision.

[91]

(a) The relationship between the applicant and the deceased, including its nature and duration

Robyn submits that the evidence demonstrates a close and loving relationship with her mother which, for many years, was also a close working relationship. She says that Dorothy cared deeply for all of her children, pointing to the uncontroverted evidence of Elizabeth Vincent and Wayne Bruce in that regard.
In particular, she says that she and her husband Larry introduced Dorothy to their successful wedding fashion business, The Sugar House, with their vision, business acumen and generosity providing Dorothy with the opportunity of venturing into the bridal fashion business and becoming an integral, valued, and well-paid member of this successful small business. With respect to The Sugar House, Robyn submits that the Court should place confidence in the testimony not only of Robyn but of Robyn's former husband Larry, who was a disinterested party (in the sense that he is not a named beneficiary in the Will) as well as the progenitor and co-owner of The Sugar House (along with Robyn).
Robyn submits that under cross-examination, Lesley accepted that but for Robyn and Larry, Dorothy would not have been employed in the business, and would not have had the opportunity of working for, and with, her family, in a job which she loved. She points out that Lesley conceded early in her cross-examination that she and Wayne did not control and determine the management of the business, but were employees permitted to work, under the direction of the owners. In closing submissions, Robyn argues that Lesley's refusal in cross-examination to recognise Robyn as integral to the creation, development and management of The Sugar House was "wholly lacking in credibility", and "smacked of sisterly spite and an unwillingness to give legitimate credit to her sister" - which, Robyn adds, was a hallmark of Lesley's evidence generally.
Robyn points to the evidence that, when she and Larry sold The Sugar House business in 1983, they negotiated with the incoming owners to ensure that Dorothy (along with Lesley and Wayne) did not lose her job but remained employed in the business. Robyn notes that, although this was denied by Lesley under cross-examination, The Sugar House was not her business to sell and she did not in fact take any part in the negotiations.
To similar effect, Robyn submits that she and Larry were directly responsible for bringing Dorothy into their subsequent wedding fashion venture, Abbey Bridal, which they also made successful, exhibiting thereby considerable commercial courage. Robyn says that this venture (and the opportunities it created for Dorothy, including the opportunity of becoming a shareholder in that business and hence partaking of its commercial success) only came into existence because of the foresight, acumen and astute financial management of Robyn and Larry. Robyn notes that under cross-examination Lesley conceded that Abbey Bridal was the "brainchild" of Robyn and Larry. Robyn emphasises that upon Dorothy's return to Australia, she lived with Robyn and Larry, who supported her and gave her security in respect of both accommodation and work. Robyn also points out that, upon leaving The Sugar House in 1986, Lesley and Wayne's careers in fashion came to an end, with both pursuing other careers until they were later invited into Abbey Bridal by Robyn and Larry.

[92]

(b) The nature and extent of any obligations or responsibilities owed by the deceased to the applicant, to any other applicant for a family provision order, or to any beneficiary of the estate

Robyn submits that an obligation to make further provision for her proper maintenance or advancement in life is appropriate in this case bearing in mind Dorothy's close and abiding relationship with her daughter; the opportunities afforded by Robyn to Dorothy to develop an enriching and profitable career; the large size of the estate (which Robyn played a material part in helping to create); Robyn's poor health and diminishing ability to earn an income sufficient to alleviate her debts and support herself in retirement; Robyn's straitened financial circumstances and the prospect that she could face destitution in her old age; and Dorothy's consistent intention to ensure that Robyn would be left with sufficient funds to live comfortably and free from any pecuniary anxiety.
Robyn submits that in the circumstances (including her financial hardship and the fact that there is now no residuary estate), Dorothy had a moral duty to make further provision for Robyn and that Dorothy would indeed have recognised such a duty (had she been aware that her residuary estate would amount to nothing), with the result that she would readily have made further and proper provision for Robyn to discharge that moral obligation.
Robyn's argument is that Dorothy's moral obligation to make "significant provision" for Robyn was enlarged by the fact that Dorothy collaborated with Lesley and Wayne (or at least, agreed or acquiesced in their decisions) to actively seek to prevent Robyn from working in any capacity for Abbey Bridal and, later, Maggie Sottero - the very businesses which, she says, she had played an integral role in creating. She argues that the 'control group' of Lesley, Wayne, and Dorothy left Robyn with a diminished capacity to earn a living (whilst at the same time voting themselves significant salary increases in Maggie Sottero, hiring Lesley's daughter Kelly on a starting salary of $250,000, and reducing the size of dividends paid out to shareholders), such that while Dorothy's fortunes improved with the success of Maggie Sottero, Robyn's livelihood and security deteriorated.
Robyn notes that in cross-examination, Wayne readily acknowledged that Dorothy's support was necessary in order to enable the so-called 'control group' of Wayne, Lesley, and Dorothy to act in concert to outvote Robyn and Larry and, in effect, take control of Abbey Bridal and Maggie Sottero. She submits that Wayne, Lesley, and Dorothy acting together made it impossible for Robyn to work in either Abbey Bridal or Maggie Sottero, and that Wayne and Lesley accepted as much under cross-examination. Robyn accepted in her submissions that she could have worked elsewhere, and said that she did indeed work elsewhere, but submitted that in doing so, in the last eight years she earned somewhere in the vicinity of $39,000 per year plus superannuation, this being a "completely different realm of wealth creation" from the level of salary paid to employees of Maggie Sottero and Abbey Bridal.

[93]

(c) The nature and extent of the deceased's estate and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

Robyn submits that the estate is "of some considerable size" and points to principles applicable in the context of a "large estate" (see above from [507]).

[94]

(d) The financial resources (including earning capacity) and financial needs (both present and future) of the applicant, of any other applicant for a family provision order, or of any beneficiary of the estate

Robyn submits that her only asset of any materiality (excluding the value of the balance of her legacy under the Will) is Lot 276 Noosa, worth approximately $1.4 million, but still bearing the burden of a mortgage to Westpac in the order of $880,000. She says that her liabilities far exceed her available net assets, even with the full benefit of her pecuniary legacy, and that she faces a very real prospect of destitution in the foreseeable future.
Robyn submits that her largest liability is a contingent debt of $2 million payable to former husband Larry, pursuant to a loan agreement which will be enforced in the event that Robyn sells (voluntarily or otherwise) Lot 276 Noosa. That is, the repayment obligation only crystallises upon sale of the Noosa property. She also refers to a debt to her son, Wayne Bruce, of about $300,000.
Robyn submits that her present and future anticipated needs including her need to secure and improve Lot 276 Noosa; to pay off her significant debts in preparation for retirement; and to have a lump sum as a buffer against future contingencies. She estimates that, taking into account the application of the remaining $665,000 of her pecuniary legacy under the Will to her existing debts (assuming, that is, that she receives the full pecuniary legacy), she would still require about $715,000 to clear her debts and put her in a position to retain Lot 276 Noosa. The remaining $485,000 of the $1.2 million sought by way of further provision is, Robyn submits, essentially a buffer so that she has something to live on and retire upon, including some expenditure on upgrading access to town water, sewerage and the like at Lot 276 Noosa.

[95]

(f) Any physical, intellectual or mental disability of the applicant, any other applicant for a family provision order, or any beneficiary of the estate, which is in existence when the application is being considered or that may reasonably be anticipated

Robyn points to the evidence of her extremely poor health, noting that she suffers from medical conditions including a blood disorder (MGUS), extreme tiredness and nausea, permanent nerve neuralgia, panic attacks, stomach bleeds, degenerative disc disease and acute weakness and pain in the right shoulder. She says that the medications necessary to alleviate these disorders are expected to continue and increase over time, and that as she ages these disorders can be expected to increasingly impact upon her ability to sustain paid work (she is currently 66 years old).

[96]

(h) Any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or her family, for which adequate consideration was not received

Robyn submits that she afforded Dorothy opportunities to work in The Sugar House, Abbey Bridal, and Maggie Sottero, and thereby made a significant contribution to Dorothy's estate.

[97]

(i) Any provision made for the applicant by the deceased, either during the deceased's lifetime or made from the deceased's estate

Robyn submits that in 2008 she received significant financial support from Dorothy, in the order of $250,000. She says that that amount was subsequently repaid by her, in 2010, along with "interest" of $10,000.
Robyn refers to two cheques of $50,000 each provided to her by Dorothy during 2011 to alleviate her financial hardship. She submits that these amounts demonstrate the extent to which Dorothy was prepared to assist Robyn to alleviate her liabilities, in recognition of her ongoing needs.
She notes that she will receive a pecuniary legacy of $2 million under the Will (and an equal share of the residue with her brother, John). Robyn notes that to date, by reason of various interim distributions that have been made to her, she has received $1,335,000 of the possible $2 million legacy. She also notes that there is currently no residuary estate, nor is it anticipated that there will be.

[98]

(j) Any evidence of the testamentary intentions of the deceased

Robyn submits that in all of the wills prior to the last Will, she is named as a significant beneficiary of the estate and that, in addition to other gifts bequeathed to her, all of the last eight wills made by Dorothy (between 2006 and 2011) make Robyn a one-half beneficiary of the residuary estate. She submits that Dorothy's ultimate wish was to see all of her children in comfortable circumstances.
Robyn submits that Dorothy expected her residuary estate to be of some material value (as opposed to being worth nothing), because she did not make her last Will in anticipation of an immediately foreseeable death and would have expected to still receive the balance of the monies payable to her pursuant to the sale of her Maggie Sottero shares (approximately $2.94 million) as well as to continue to receive her considerable salary, being in excess of $1 million per year.

[99]

(k) Whether the applicant was being maintained, either wholly or partly, by the deceased before the deceased's death and, if relevant, the extent to which and the basis on which the deceased did so

Robyn submits that she was partially dependent upon Dorothy for maintenance and support, only in the sense that she received two gifts of $50,000 from Dorothy in the last year of Dorothy's life.

[100]

(m) The character and conduct of the applicant before and after the date of the death of the deceased

Robyn accepts that she fell out with Lesley and Wayne many years ago, but rejects evidence implying that she did not have a good relationship with her mother, and denies the accusations of harassment in the period after Dorothy's death, made by Lesley and Lesley's daughter Kelly.

[101]

Defendants' submissions

The defendants submit that there should be no orders for family provision in John or Robyn's favour. They accept that it is a large estate, but submit that it is evident from Dorothy's multiple prior wills that she regularly turned her mind to her testamentary affairs, on many occasions. The defendants maintain that there was a form of template in Dorothy's multiple wills in that the wedding businesses stay with a particular branch of the family, and the residue beyond that is dealt with by way of specific legacies to children, grandchildren, and great-grandchildren, and then by way of residuary gift.
Starting with the 1990 will, the defendants say that even at that stage Lesley was to receive 100% of the shares in Abbey Bridal, and that in all of the wills subsequent to 1990, the bridal businesses remain with Lesley and then with Lesley and Kelly.
The defendants argue that this is a case where "very significant" provision has already been made for John and Robyn in the Will. They say that only in an "exceptional case" could applicants, who are already entitled to pecuniary legacies of $2 million pursuant to a will, succeed in obtaining further provision - and that this is not such a case.
In the case of Robyn, they say that her contribution to the bridal businesses - historically recognised when she was bought out - has been further properly recognised by Dorothy, in the exercise of her testamentary freedom, in making the provision that she did. The defendants submit, in essence, that Robyn was properly bought out of the bridal businesses, that she "got her money [and] did with it what she wished", that she could have started businesses or invested, and that Dorothy should not be held responsible now for Robyn's "bad lifestyle choices". The defendants argue that it goes beyond what is relevant to say that Dorothy's actions were to Robyn's disadvantage, and emphasise that the Court's function is not to rewrite the Will to achieve fairness or equality.
Whilst accepting that Dorothy loved all of her children, including John and Robyn, as demonstrated in her gifts to them while alive and in her provision for them in the Will, the defendants nonetheless submit that both John and Robyn were, at times, discourteous and irreverent towards Dorothy and to staff members of the bridal businesses, and that this conduct should be taken into account in accordance with s 60(2)(m) of the Act.

[102]

Determination

It is convenient to consider and resolve John and Robyn's claims together, not least because the existence and quantum of their respective claims are matters which need to be considered as part of the totality of the Court's task in determining whether the Will fails to make adequate provision for their proper maintenance, education or advancement in life (sometimes called the jurisdictional question) and, if so, what additional provision (if any) ought to be made.
There are certain overarching conclusions which have informed the Court's approach to both the jurisdictional question and the related determination of what (if any) further provision ought to be made.
The Court does not accept the defendants' approach of "enough and no more", as if Dorothy's generosity both in life and death were to be viewed in isolation and by reference to a subjective reaction to the large amount of money John (especially) and Robyn received. This does not reflect the statutory task under the Act and ignores the necessity to look at all the circumstances that might be relevant at the time of the hearing.
Both Dorothy's generosity in life (especially to John) and in death clearly indicate (and the Court finds) that Dorothy wanted to make proper provision for John and Robyn. I accept that she would not have wanted to see either of them destitute and would have wished for them to have a home of their own. I have found that the totality of the relationship between Dorothy and each of John and Robyn was close, loving and abiding. It is clear from the evidence that Dorothy cared deeply for all of her children and was concerned for their wellbeing - a concern manifest not only in the distribution of her largesse amongst them, but also in the regular contact she maintained with them.
Moreover, Dorothy's generosity in life is not a factor which militates against John and Robyn's claims. Rather, it demonstrates that Dorothy was well-disposed towards the recipients of her beneficence. She was generous because she wanted to be and could be. In John's case, particularly by the time of the "dependency" payments in 2010 and 2011, the evidence indicates that Dorothy understood that he could not get by without her support.
In addition, the Court is satisfied that Dorothy expected there to be a material sum left in her residuary estate, which would go to John and Robyn, notwithstanding the possibility of prorating downwards referred to in clause 13 of the Will. There are two reasons for this conclusion, both based on the recognition that Dorothy was an astute businesswoman and someone who gave careful and frequent attention to her testamentary arrangements: 1. First, there is no suggestion that in the last years of Dorothy's life there were any particular health issues that would have made her feel in imminent danger of death. I accept John and Robyn's submissions that Dorothy would have assumed at the time of making the Will that she would receive the remaining payments still due under the so-called "self cancelling instalment contracts" (amounting in total to some $2.9 million). 2. Secondly, the terms of the Acknowledgement contemplated that John's liability for the loan could be satisfied from his interest in the residuary estate. I am satisfied that Dorothy would have been aware, not least because of the additional funds she gave John at the end of her life, that both for some time before and at the time she made the Will, John could not pay back the Loan out of his own resources. The Court infers that Dorothy had an expectation that the repayment obligation could have been satisfied out of John's residuary entitlement - that is, that she expected there to be sufficient residue that John would receive at least $881,000 by way of residuary bequest. That inference is based on Dorothy's advertence in each of her later wills to the Acknowledgement. In my view, her reminder "that the provisions of that Acknowledgement be implemented and observed" was an expression of her expectation that John's obligation to repay the Loan would be met out of his share of the residuary estate. The inference is also based on the allocation between the family groups referred to at [581] below.

[103]

Conclusion and orders

The Court will give the parties an opportunity to consider, mindful of the need to be just, quick and cheap, what the next steps should be to finalise orders to give effect to these reasons and to resolve all questions of costs.

[104]

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: 23 April 2018

Webster v Strang; Steiner v Strang

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