White v Kohacek

Medium Neutral Citation: White v Kohacek [2025] NSWSC 1042

Hearing dates: 11-15 November 2024

Date of orders: 12 September 2025

Decision date: 12 September 2025

Jurisdiction: Equity - Real Property List

Before: Williams J

Decision: See orders at [316]-[317]

Catchwords: CONTRACTS – intention to create legal relations – where first plaintiff, defendant and defendant’s now deceased life partner signed a Heads of Agreement for sale of a one-third interest in defendant’s property to be “converted to an agreement for the sale of land” containing numerous “additions”, including the grant of an “irrevocable right of survivorship” to the plaintiffs – where no contract for the sale of land incorporating the “additions” in the Heads of Agreement subsequently executed – whether parties intended to create legal relations by signing Heads of Agreement – Held: the parties did not intend to create legal relations
EQUITY – unconscionability – undue influence – where defendant and life partner suffering special disadvantage at the time of signing Heads of Agreement – where plaintiffs had actual or constructive knowledge of that special disadvantage – where defendant and life partner not deprived of free choice by pressure exerted by plaintiffs at time of signing Heads of Agreement, but their signatures were procured by plaintiffs unconscionably taking advantage of their special disadvantage – where terms of Heads of Agreement highly disadvantageous to defendant and life partner and correspondingly advantageous to plaintiffs – Held: if parties had intended to create legal relations by signing Heads of Agreement, it would have been set aside on grounds of unconscionability, but not on the grounds of undue influence
CONTRACTS – Contracts Review Act 1980 (NSW) – Held: if parties had intended to create legal relations by signing Heads of Agreement, the Court would have declined to enforce it on the grounds that it was unjust in the circumstances relating to it at the time it was made
EQUITY – proprietary estoppel by encouragement – where representations made by defendant and life partner that plaintiffs would receive interests in their property – where those representations were made in, and arose out of, Heads of Agreement – where Heads of Agreement not intended to create legal relations and where plaintiffs procured defendant and life partner to sign Heads of Agreement by unconscionable conduct – Held: Equity will not grant relief to avoid detriment that plaintiffs will otherwise suffer as a result of a relying on representations contained in and arising out of Heads of Agreement which plaintiffs procured defendant and life partner to sign by unconscionable conduct
EQUITY – joint endeavour constructive trust – where plaintiffs rely on joint endeavour founded in Heads of Agreement – Held: Equity will not grant relief to plaintiffs on the basis of a joint endeavour constructive trust where the joint endeavour is the product of plaintiffs’ unconscionable conduct
EQUITY – common intention constructive trust – where plaintiffs rely on common intention founded in Heads of Agreement – Held: Equity will not grant relief to plaintiffs on the basis of a common intention constructive trust where the common intention is the product of plaintiffs’ unconscionable conduct
RESTITUTION – money had and received – no question of principle

Legislation Cited: Contracts Review Act 1980 (NSW), ss 7(1), 9
Conveyancing Act 1919 (NSW), s 66G

Cases Cited: Bassett v Cameron [2021] NSWSC 207
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (formerly Hawker Pacific Pty Ltd) [2025] FCAFC 85
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Foundas v Arambatzis [2020] NSWCA 47
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Galati v Deans [2023] NSWCA 13
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Grant v Grant [2020] NSWSC 760
Hellenic Property Holdings Pty Ltd v Makaritis [2025] NSWCA 13
Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168
Hogan v Baseden (1997) 8 BPR 15,723
J & P Marlow (No 2) Pty Ltd v Hayes & McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117
Kramer v Stone [2024] HCA 48; (2024) 421 ALJR 106
McKinlay v Woods [2024] NSWCA 122
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162
Pascoe v Dyason [2011] NSWSC 1217
Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36
Shepherd v Doolan [2005] NSWSC 42
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102
Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vacation Club Ltd v A GG Properties Pty Ltd [2019] NSWSC 1357; (2019) 19 BPR 39,799
Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102
Watson v Foxman (1995) 49 NSWLR 315
Williams v Legg (1993) 29 NSWLR 687
Woodson (Sales) Pty Ltd v Woodson (Australia)Pty Ltd (1996) 7 BPR 14,685
Zhang v Metcalf [2020] NSWCA 228

Texts Cited: N/A

Category: Principal judgment

Parties: Gary John White (First Plaintiff/Cross-Defendant)
Terryll Sylvia Cassidy (Second Plaintiff/Cross-Defendant)
Arno Mario Carlo Kohacek (Defendant/Cross-Claimant)

Representation: Counsel:
Mr B Koch (First and Second Plaintiffs/Cross-Defendants)
Mr R Wilson SC (Defendant/Cross-Claimant)
Solicitors:
Bridges Lawyers (First and Second Plaintiffs/Cross-Defendants)
Herbert Weller (Defendant/Cross-Claimant)

File Number(s): 2023/142094

Publication restriction: Nil

Judgment

Introduction

1. Mr Arno Kohacek is the owner of a 25-acre property at 119 Argents Road, Wilberforce, in the Hawkesbury local government area in New South Wales, being the land in folio identifier XX/XXXX (the Property).

2. Mr Kohacek lived at the Property for many years together with his life partner, Mr Raymond Colley. I use the term “life partners” to describe a relationship in which they owned property together and lived together for substantially the whole of their adult lives and, at the time of the events giving rise to these proceedings, shared a strong attachment to the Property and a desire to continue living there for the rest of their lives. It is neither relevant nor necessary to make any finding about whether Mr Kohacek and Mr Colley were a couple, or whether they were friends who shared their lives together in the manner I have described, as Mr Colley suggested in cross-examination.

3. Mr Kohacek and Mr Colley owned the Property as joint tenants. Mr Colley’s interest in the Property passed to Mr Kohacek by right of survivorship when Mr Colley passed away on 18 March 2022 at the age of 91 years. Mr Kohacek was 81 years of age at the time of Mr Colley’s death.

4. These proceedings arise out of a document prepared by the first plaintiff, Mr Gary White, and signed by him and by Messrs Kohacek and Colley on or about 10 September 2019. The second plaintiff, Ms Terryll Cassidy, is also named as a party to the document, although she did not sign it. Mr White and Ms Cassidy have been in a de facto relationship for many years. They are both former real estate agents.

5. The document, which is entitled “Heads of Agreement”, states that it is an agreement for Mr White and Ms Cassidy to purchase a one-third share in the Property for $500,000, and states that it “is to be converted to an agreement for the sale of land between the parties (the contract) by the vendors [sic] solicitor”. The document sets out various “additions” that will be included in the contract for sale of land, including that the one-third share “is to be purchased as tenants in common between the purchasers and the vendors”, and that Mr Kohacek and Mr Colley grant to Mr White and Ms Cassidy “an irrevocable right of survivorship to the property, effective at the time of exchange of contracts, that has the same effect as if the parties were joint tenants”.

6. The “additions” to be included in the contract for sale of land also included a term providing for the $500,000 purchase price to be paid by Mr White and Ms Cassidy extinguishing certain debts owed by Messrs Kohacek and Colley to various solicitors (through payment or through negotiation), and a term providing that Mr White and Ms Cassidy would be responsible for making the monthly payments for the Commonwealth Bank loan secured by mortgage against the title to the Property, until such time as Mr White and Ms Cassidy were able repay the whole of the amount owing in respect of that loan out of the proceeds of sale of a property owned by Mr White at Condobolin and a property owned by Ms Cassidy at Orange.

Salient facts

Introductory observations in relation to witnesses

16. The plaintiffs’ evidence in chief comprised:

17. an affidavit of Mr White sworn on 3 May 2023 and filed together with the summons by which the proceedings were commenced;

18. a more detailed affidavit of Mr White sworn on 15 December 2023;

19. an affidavit of Ms Cassidy sworn on 22 December 2023; and

20. an affidavit of Mr White sworn on 1 February 2024 correcting and clarifying certain aspects of his affidavit sworn on 15 December 2023.

21. In response to the plaintiffs’ evidence and in support of his cross-claim, Mr Kohacek swore an affidavit on 15 March 2024.

22. Mr White and Ms Cassidy each swore an affidavit on 18 April 2024 responding to Mr Kohacek’s affidavit.

23. Mr Kohacek then swore three further affidavits on 5 August 2024, 28 August 2024 and 12 September 2024. Mr Howard Crawford swore an affidavit on 19 August 2024 on which Mr Kohacek also relied.

24. Mr White swore a further affidavit on 21 October 2024 responding to Mr Kohacek’s further affidavits and to Mr Crawford’s affidavit.

25. Mr Kohacek then swore a further affidavit on 31 October 2024 responding to Mr White’s most recent affidavit.

26. Each of Mr White and Mr Kohacek gave evidence of conversations with one another said to have occurred in 2019 – four years before the commencement of the proceedings and five years before the hearing. Their detailed accounts of such conversations emerged only in the later rounds of their affidavit evidence. For the most part, Ms Cassidy did not participate in or witness those conversations. However, Ms Cassidy gave evidence of conversations that she says she had with Mr White in 2019 about his dealings with Mr Kohacek, and that evidence was broadly consistent with Mr White’s account of conversations that he says he had with Mr Kohacek.

27. It is necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman: [1]

“… human memory of what was said in a conversation is fallible for a variety of reasons, and 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 or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

24. The factors referred to by McLelland CJ in Eq in Watson v Foxman require witness testimony to be assessed having regard to, and placing primary emphasis on, any objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities. [2] However, witness testimony may still be of value and importance, including by providing evidence of the context in which relevant documents and events must be understood. [3]

25. A state of actual persuasion is required before finding any fact. As Kiefel CJ, Gageler and Jagot JJ explained in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (citations omitted): [4]

“‘To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence … It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.’ The evidence must ‘give rise to a reasonable and definite inference’ to enable a factual finding to be made; mere conjecture based on ‘conflicting inferences of equal degrees of probability’ is insufficient. As Dixon CJ said in Jones v Dunkel, the law:

‘does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.’”

26. Quite apart from the inherent fallibility of their evidence of disputed conversations many years ago, each of Mr White, Ms Cassidy and Mr Kohacek was a most unsatisfactory witness.

27. Mr White plainly regarded himself as an advocate for the plaintiffs’ cause first, and a witness second. He swore affidavits in which he purported to give accounts of events and transactions in which Mr Kohacek was involved before Mr White even met him, based on Mr White’s review of Mr Kohacek’s documents. Even when addressing matters about which he had direct knowledge, Mr White frequently added his own argumentative commentary about those matters. Contrary to the submissions made by counsel for the plaintiffs, and despite Mr White’s heavy reliance on documents, Mr White’s affidavit evidence was not wholly consistent with the contemporaneous documentary evidence. As referred to later in these reasons, aspects of Mr White’s evidence are contradicted by the contemporaneous documents, including the terms of the Heads of Agreement. [5] Mr White did make some appropriate concessions in cross-examination, as counsel for the plaintiffs submitted, but he did so reluctantly. [6] At other times, Mr White had a tendency to make speeches supportive of the plaintiffs’ cause or to argue with the cross-examiner rather than directing himself to the substance of the question he had been asked.

28. Ms Cassidy was most unwell at the time of her cross-examination, which was punctuated with breaks at intervals of her choosing in order to accommodate her ill health. Under cross-examination, Ms Cassidy conducted herself as an advocate for the plaintiffs’ cause. She made assertions that she perceived as helpful to the plaintiffs’ case concerning matters about which she had no knowledge. [7] She frequently gave speeches in support of the plaintiffs’ case, which were not called for by the question she had been asked. When asked about objective matters that do not sit comfortably with the plaintiffs’ case, Ms Cassidy often sought to avoid answering the question. [8]

29. Counsel for the plaintiffs submitted that Mr White and Ms Cassidy “ought to be considered witnesses of truth doing their best (despite obviously being partial in their own case)”. For the reasons explained at [27]-[28] above, I do not accept the general proposition that they were witnesses of truth doing their best, and I do not accept evidence given by either of them unless it is contrary to their own interests, consistent with objective facts, corroborated by contemporaneous documents or some other reliable source, or consistent with the inherent probabilities. I do not regard either Mr White or Ms Cassidy as a reliable source for the purpose of corroborating the evidence of the other.

30. Mr Kohacek’s evidence suffered from many internal inconsistencies. [9] It became apparent during cross-examination that Mr Kohacek had difficulty recalling the timing of the events giving rise to these proceedings and the order in which some of those events occurred. [10] In addition, as his counsel candidly accepted in closing submissions, Mr Kohacek was often argumentative with the cross-examiner and, on occasion, made speeches rather than answering the question he had been asked. As counsel for the plaintiffs submitted, Mr Kohacek described himself as a strong-willed man. He was emotionally volatile at times during his cross-examination. Many of Mr Kohacek’s text messages to Mr White and Ms Cassidy that were tendered in these proceedings provide contemporaneous evidence of his strong feelings and emotional volatility at the time of the events giving rise to these proceedings. [11] Mr Kohacek damaged his credibility by alleging that some text messages sent from his mobile phone had been written and sent by Ms Cassidy without his knowledge or consent. That serious allegation was revealed in cross-examination to be nothing more than baseless speculation, when Mr Kohacek said that he was not making any accusation that this had occurred and it was merely something that he thought “” because he could not remember sending the particular messages and Ms Cassidy had access to his phone.

Relevant events prior to the first contact between Mr Kohacek and Mr White in April 2019

32. Mr Kohacek and Mr Colley were life partners who lived together for over 60 years. They acquired the 25 acre Property as joint tenants in 1979. Mr Kohacek gave evidence that they enjoyed the rural setting which enveloped and surrounded the Property. At the time of the principal events giving rise to these proceedings in 2019, Mr Kohacek was aged 78 years and Mr Colley was aged 88 years. They lived there together until Mr Colley passed away on 18 March 2022, aged 91 years. Mr Kohacek continues to live at the Property.

33. In about March 2011, the Commonwealth Bank registered a mortgage against the title to the Property securing a loan made to Messrs Kohacek and Colley. By this time, both gentlemen had been retired for many years and had no source of income other than their pensions. The mortgage has been described by Mr Kohacek as a reverse mortgage. It appears that he and Mr Colley drew on the loan over the years to fund various expenses, including costs incurred in connection with several legal proceedings.

34. Between about December 2013 and July 2016, Mr Kohacek and Mr Colley retained and instructed Mr Herbert Weller, solicitor, to commence proceedings in the District Court of New South Wales against various defendants including Tuscany Foods, and to act for them in those proceedings (the Tuscany Foods proceedings). Mr Weller retained Mr Trevor Boyd, as counsel. The Tuscany Foods proceedings were dismissed on 24 June 2016, and Mr Kohacek and Mr Colley were ordered to pay the defendants’ costs.

35. In July 2016, Mr Weller issued an invoice to Mr Kohacek and Mr Colley for legal fees in relation to the Tuscany Foods proceedings in the sum of $451,390.75 (including GST). A dispute developed in relation to those legal fees between Mr Kohacek and Mr Colley on the one hand and Mr Weller on the other hand.

36. During the period between about August 2016 and November 2017, Mr Kohacek and Mr Colley retained Mr Michael Corbett, solicitor, to file a motion in the Tuscany Foods proceedings seeking an order that Mr Weller and Mr Boyd indemnify them in respect of their costs liability to the defendants in those proceedings, and to make a complaint against Mr Weller to the Office of the NSW Legal Services Commissioner (the OLSC).

37. In November 2017, Mr Kohacek’s and Mr Colley’s motion in the Tuscany Foods proceedings was resolved on terms that included Mr Weller and Mr Boyd paying $240,000 to Mr Kohacek and Mr Colley.

38. A further dispute developed between Mr Corbett and Messrs Kohacek and Colley about the fees charged by Mr Corbett in relation to the motion in the Tuscany Foods proceedings and the complaint against Mr Weller.

39. Messrs Kohacek and Colley subsequently retained Mr Peter Jackson, solicitor, of Jackson & Associates, to act for them in proceedings commenced by Mr Weller to recover his outstanding legal fees. By about March 2018, Mr Jackson had ceased acting for them and rendered an invoice for fees in the amount of $47,000. A dispute then developed between Messrs Kohacek and Colley and Mr Jackson in relation to those legal fees.

“I can’t afford $3,500,000 but I would like to pay $500,000 for a third. I will pay off your bank which is $380,000, give you another $120,000, and pay off your legal debts. I will pay the bank $500 per week. I will buy a third and you can live here until you die. When that happens the property will pass to me.”

47. Mr Kohacek deposed that he and Mr Colley agreed to those terms proposed by Ms Qiu. However, Mr Kohacek also deposed that their agreement to leave the Property to Ms Qiu in their wills was in consideration for Ms Qiu performing legal work for them without charge.

48. Under cross-examination, Mr Kohacek initially adhered to his version of events in which Ms Qiu asked to be made a beneficiary under Mr Colley and Mr Kohacek’s wills. However, Mr Kohacek ultimately accepted that it was he who had proposed that he and Mr Colley should provide for Ms Qiu in their wills.

49. On 16 April 2018, Mr Kohacek held the first of several consultations with Mr Hahn, a solicitor at Shaddicks Lawyers, with a view to making a new will under which the principal beneficiary would be Mr Colley, or Ms Qiu in the event that Mr Colley predeceased Mr Kohacek. According to Mr Hahn’s file note of Mr Kohacek’s instructions given at that first conference, the Property was the only significant asset that he and Mr Colley owned and the Commonwealth Bank mortgage was their only liability. They had no superannuation. The aged pension was their only source of income. They had no contact with any living member of their families.

50. Mr Kohacek instructed Mr Hahn that the mortgage had been taken out in order to fund the cost of litigation arising out of a dispute with the Hawkesbury City Council concerning the smoke and smell emanating from the Tuscany Foods factory near the Property. Mr Weller had been acting for Mr Kohacek and Mr Colley in those proceedings, but they had become unhappy with him and terminated his services some years ago. They had then engaged Mr Jackson, but they had also become unhappy with his services. Mr Kohacek instructed Mr Hahn that he and Mr Colley had become friendly with a solicitor Ms Xiaolin Qiu who would continue the case for them at no charge. They had first met Ms Qiu as a potential purchaser of the Property when it was listed for sale, but they had subsequently taken the Property off the market.

51. Mr Hahn’s file note records Mr Kohacek’s instructions about the terms of his current will and his wish to prepare a new will. The file note states:

“He has spoken to XQ about doing a new will and including her as a beneficiary – she said she wants to help AK + Ray for no charge

Didn’t want money

It is completely AK + Ray’s idea to make XQ a beneficiary – she has not asked them to – trusts her

Discussion on if she is taking advantage of them – why not beneficiaries – charities.

New will instructions

Executor – Xiaolin (Kathy) Qiu

Sub her adult daughters

1 Raena Luxan Clifford aged 24

2 Samantha Luyou Clifford aged 20

All to Ray

Sub Xiaolin (Kathy) Qiu sub

1 Raena

2 Samantha

Exclude – Nerea

Formed view AK had testamentary capacity – clear instructions.”

52. Mr Hahn’s file note then records Mr Kohacek’s instructions that Mr Colley also wanted to do a new will on mirror terms – that is, leaving everything to Mr Kohacek, or to Ms Qiu (or her daughters) in the event that Mr Kohacek predeceased Mr Colley.

53. Mr Hahn noted that Mr Colley’s instructions were to be confirmed. The file note records that he advised Mr Kohacek to be “very mindful of who they want as the substitute beneficiaries” and “reaffirmed my scepticism of XQ’s motives”.

54. On 17 April 2018, Mr Hahn had a further conference with Mr Kohacek by telephone. Mr Hahn’s file note of that conference records that Mr Kohacek confirmed that he and Mr Colley wanted to proceed with new wills, and that Mr Colley was to speak with Mr Hahn first. The file also records that Mr Kohacek and Mr Colley had agreed between themselves that they should not sell an interest in the Property to Ms Qiu as it will affect their pension, and that they had spoken with Ms Qiu about this and “she agrees with my advice”. Ms Qiu had proposed that she make a loan to Mr Kohacek and Mr Colley to pay out the Commonwealth Bank mortgage, and that Ms Qiu’s loan would be secured by a charge against the Property which would be the subject of a caveat. Mr Kohacek wanted to meet with Mr Hahn to discuss this, together with Mr Colley and Ms Qiu.

55. Mr Hahn had a further conference with Mr Kohacek on 24 April 2018. According to Mr Hahn’s file note of that conference, Mr Kohacek provided a detailed history of the proceedings to which I have referred at [34]-[40] above, the various solicitors that Mr Kohacek and Mr Colley had engaged to represent them in connection with those proceedings, their dissatisfaction with those solicitors, and the disputes concerning their fees. Mr Hahn’s file note then reads:

“House on market for sale October 2017

Agent 6 month exclusive agreement

Agent brought Kathy out 5 weeks ago

…

Selling it to fight case

Borrowed $350,000 because of the court cases/legal fees

Talking to Kathy about reason selling – court cases

She decided not to buy property

She said why you selling beautiful property

Arno – ‘We are bachelors, no children, no relatives. Property can be subdivided’

K ‘This is too much $ for me but I’m a solicitor and if can help you with your legal problems happy to do so pro bono’

Arno spoke to Ray

Ray ‘We are nearly broke. A god bless she can help us’

Arno – if she is going to help us I want to do the right thing by her. She shouldn’t do work for nothing.

When we sell property – pay her the money due to her

…

Offered to help with LS complaint

Came over – showed her documents

…

Has brought over meals.

Seen them 8 times

Said here’s my number – give you advice if you need it.

Jackson sent $34,000 invoices in 2 months.

Said only $40K left in bank.

Kathy and Jackson taking you for a ride.

When selling plan to buy to buy a Kurrajong Heights property which had 2 residences on it …

Arno asked her

Said don’t have $ to pay for another solicitor

She said she’ll buy ½ property + pay you.

Arno didn’t want that as they would lose the pension

Then said I’ll do work for nothing.

Arno – I’ll sell place then pay you

She said not worried about the money

Arno thought the only way to pay her is to make beneficiary of will. Ray agreed

Told Kathy intended to make her beneficiary

She said – that’s not what I want, I do not want people claiming you out of the property.

…

She said I have a reputation to keep. I don’t want people to think I am swindling you.”

56. Mr Hahn’s file note of the conference concludes:

“I will not prepare a will with Kathy as beneficiary. I’ll prepare letter of advice.”

57. In cross-examination, Mr Kohacek disputed the accuracy of certain aspects of Mr Hahn’s file notes. I reject that evidence. It is inherently probable that Mr Hahn took care to take a detailed note of Mr Kohacek’s instructions at the time of the conferences, particularly in circumstances where he was so troubled by those instructions that he refused to follow them at the conclusion of the third conference. I therefore regard those file notes as reliable evidence of Mr Kohacek’s instructions to Mr Hahn. It is inherently probable that those instructions reflected Mr Kohacek’s recollection and understanding of his conversations with Ms Qiu which took place a short time before his conferences with Mr Hahn. Mr Kohacek’s evidence in cross-examination is inherently unreliable due to the passage of six years since the relevant conversations with Ms Qiu, and the likelihood that his memory of those conversations has been consciously or subconsciously overlaid by his adverse perception of Ms Qiu resulting from the dispute that developed in September 2019 concerning McQiu Lawyers’ legal fees, as referred to later in these reasons.

58. Mr Kohacek disregarded Mr Hahn’s concerns and engaged Mr John Mann, solicitor, of Turner Freeman, to prepare wills for himself and Mr Colley in substantially the same terms that Mr Hahn had declined to prepare. Those new wills were executed on 8 May 2018 and witnessed by Mr Mann. Each of Messrs Kohacek and Colley gave the whole of his estate to the other or, in the event that the other did not survive him, to Ms Qiu.

59. On 18 May 2018, Messrs Kohacek and Colley entered into two costs agreements with McQiu Lawyers in relation to their retainer of that firm to act for them: (1) in proceedings that Mr Weller had filed against them in the District Court suing for his fees; and (2) in relation to professional fees charged by Mr Corbett. Mr Corbett had served a bill of costs on Mr Kohacek and Mr Colley on 11 May 2018 in the amount of approximately $56,500. Each of the costs agreements that Messrs Kohacek and Colley signed with McQiu Lawyers on 18 May 2018 provided that the firm would charge for its services at the hourly rates before GST of $395 for Ms Qiu as the principal solicitor, and $350 per hour for the solicitor Ms Gayle Li. Each costs agreement required payment of funds into trust prior to the commencement of work. There is no suggestion in the terms of the costs agreements that the work was to be carried out free of charge.

60. On or about 25 June 2018, North Shore Chambers Pty Ltd trading as McQiu Lawyers lodged a caveat against the title to the Property, claiming an equitable interest in the Property “being equal to the amount of legal fees accrued and owing” by virtue of the costs agreements dated 18 May 2018. Those agreements contain no provision conferring a charge or any other interest in the Property on McQiu Lawyers.

61. On 22 July 2018, Messrs Kohacek and Colley entered into a further costs agreement in relation to the retainer of McQiu Lawyers to act for them in Supreme Court proceeding 2018/201065, which was an application by Mr Corbett for assessment of his solicitor/client costs in acting for Messrs Kohacek and Colley in the proceedings brought against them by Mr Weller. [12] That costs agreement contained the following clause:

“CAVEAT

It is acknowledged and agreed by the client that if our costs and disbursements, including counsel’s fees, are not paid, the firm hereby charges all his/her Right. Title and interest (if any) in the land in Certificate(s) of Title reference XX/XXXXXX and also any property or properties that the client owns concurrently or may acquire in the future, solely or jointly, or have or become to have a beneficial interest in, in favour of ‘McQiu Lawyers’, with the due and punctual observance and performance of the obligations of the client.

The client acknowledges that ‘McQiu Lawyers’ has a registered Caveat on such property or properties in respect of the interests conferred on it in the mater [sic] of Weller v Kohacek & Ors (Proceeding 2017/00383572) and that this Caveat extends to the recovery of costs, including the event of non payment of our, or counsel’s, fees and disbursements for this matter. Such registration of this Caveat by McQiu Lawyers over the client’s property(ies) shall not be challenged by the client in any way whatsoever, and the client agrees not to take any steps in filing a ‘Lapsing Notice’ through the Land Titles Office to have the Caveat(s) removed, until such time of the client has paid all of the firms [sic] fees and disbursements owing by him/her to McQiu Lawyers.”

62. In October 2018, Messrs Kohacek and Colley each amended their wills to specifically exclude certain relatives from receiving any benefit, notwithstanding Mr Mann’s advice that it was not necessary to do so. Those amended wills were also prepared by Mr Mann’s firm, Turner Freeman.

63. The proposal for Ms Qiu to purchase an interest in the Property appears to have been revived at some time after April 2018. [13] Mr Kohacek gave evidence that, after offering to purchase a one-third share of the Property for one third of the market price, Ms Qiu asked him to obtain a valuation which she told him she needed to be “as low as possible for stamp duty purposes”.

64. On 8 January 2019, Ms Lynette Savage, a certified practising valuer, issued a document entitled “Valuation Certificate – Stamp Duty Purposes”. The document stated:

“VALUATION

In Accordance with the Stamp Duties Act 1997. (NSW).

This is to certify the Market Value of the fee simple interest and property described as,

119 Argents Road

Wilberforce, NSW, 2756

Lot XX DPXXXXXX

Valuation Date: 8th January 2018

Valuation: One Million Five Hundred Thousand Dollars ($1,500,000)”

65. The “Limiting Conditions and Liabilities” set out in the valuation certificate included the following:

“This report and recommendation has been prepared under instructions from my client for stamp duty purposes.”

66. It is common ground that the date “8**th January 2018” is an error, and that the certificate was in fact issued on 8 January 2019.

67. The valuation certificate records a brief description of the Property, its zoning, its bushfire and flood affectation, and the impact of noise from the factory on the land adjoining the rear boundary of the Property.

68. Under the heading “Sales Evidence”, the valuation certificate contains a list of three property sales in January, February and August 2018. None of those three properties is located in Wilberforce. The certificate contains no statement about whether, or to what extent, Ms Savage considered those three properties to be comparable to the Property, and, if so, why. Nor does the certificate explain whether any such comparisons informed Ms Savage’s valuation of the Property and, if so, how and why. The certificate contains no indication that Ms Savage inspected the Property for the purpose of the valuation. For those reasons, I do not accept the valuation certificate as evidence of the actual market value of the Property as at January 2019, or at any other time relevant to these proceedings.

69. In his affidavit sworn on 5 August 2024, Mr Kohacek deposed that Ms Qiu told him when the valuation certificate was received that, for a one-third interest in the Property, she would pay $500,000 and a further sum of $666,000 in cash. Under cross-examination, Mr Kohacek gave evidence that it had been agreed that, in addition to paying a sum of $500,000 to be stipulated as the purchase price in a contract for the sale of the one-third interest, Ms Qiu would discharge the mortgage in favour of the Commonwealth Bank, discharge the debts owed by Messrs Kohacek and Coley to the various solicitors who had been acting for them, and pay something else which Mr Kohacek could not recall, in addition to acting for Mr Kohacek and Mr Colley for free. Mr Kohacek said that “it came to 1 million and something”.

70. Mr Kohacek’s evidence is inconsistent with a handwritten note that he sent to Mr Mann on 17 January 2019, together with a copy of the valuation certificate. The note stated (errors in original):

“FROM ARNO KOHACEK/RAY COLLEY AND

KATHY QIU

CONTACT: ARNO AND RAY ON 02 XXXXXX

KATHY QIU ON XXXX XXX XXX

FOR SAMPLE OF CONTRACT

JOHN PLEASE NOTE

RECEIVED VALUATION FROM LYNETTE SAVAGE

ON 16/1/19 COPIES ATTACHED

WILL BRING ORIGINALS ON OUR NEXT

MEETING.

PROPERTY VALUED AT $1,500.000) FOR

STAMP DUTY.

THE PROPERTY WILL BE DIVIDED BY

THREE OF US: RAY / ARNO / KATHY.

KATHY WILL PAY OUR BANK THE

AMOUNT OF $350,000.00 OWING.

TO START KATHY WILL DEPOSIT $2,000.00

PER MONTH WHICH WILL COVER INTEREST

ONLY AND WILL PAY BALANCE AT HER

OWN DISCRETION UNTIL BALANCE IS

CLEARED.

KATHY WILL PAY OUR SOLICITORS FEE

FOR $150,000.00 IN DUE COURSE

THE CONTRACT MUST STIPULATE THAT

BOTH RAY AND ARNO HAVE PERMANENT

RESIDENCY UNTIL BOTH OF WE BOTH

PASS-AWAY, AFTER THAT KATHY WILL

INHERIT OUR 2 SHARES AS PER

OUR WILLS.

ANY ADDITIONAL INFORMATION

TO BE ADDED JOHN MANN TO

KINDLY CONTACT KATHY ON

XXXX XXX XXX OR

VICE VERSA.

JOHN MANN CAN CONTACT ARNO

AND RAY ON 02 XXXXXXXX

OR XXXX XXX XXX

WHEN CONTRACT READY WOULD

JOHN MANN KINDLY LIASE WITH

KATHY TO PERUSE CONTRACT AND

SAME FOR ARNO AND RAY

WHEN EVERYBODY SATISFIED THE

THREE OF US

(KATHY RAY ARNO) WILL

MAKE APPOINTMENT WITH JOHN

MANN FOR SIGNATURES”

71. It appears that Turner Freeman understood the $350,000 to be paid to the Commonwealth Bank and the $150,000 to be paid to the former solicitors for Messrs Kohacek and Colley referred to in the note as comprising the whole of the consideration payable by Ms Qiu for a one third interest in the Property. Turner Freeman prepared a draft contract for the sale of that interest to Ms Qiu providing for a purchase price of $500,000 to be paid by equal monthly instalments of $2,000*.*

72. Ms Julie Gosden, a paralegal assisting Mr Mann at Turner Freeman, emailed the draft contract to Ms Qiu on 20 March 2019. Ms Qiu replied by email on 25 March 2019, declining to sign the contract “as i strongly believe it is SUCH a unfair contract and will be placed me into a high risk”. As best I can understand Ms Qiu’s email, which is written in poor English, she considered the contract to be unfair because she had understood that the $500,000 purchase price was to be paid by Ms Qiu discharging the debts that Messrs Kohacek and Colley then owed to various solicitors, and paying $2,000 monthly to the Commonwealth Bank to be credited against the amount owing under the mortgage secured against the Property. Ms Qiu objected to the contract providing for the payment of a $500,000 purchase price directly to the vendors in the amount of $2,000 per month.

73. It is not necessary for the determination of the issues in dispute in these proceedings to make findings about the purchase price and payment mechanisms that Mr Kohacek and Ms Qiu had discussed before Turner Freeman prepared the draft contract. According to Mr Kohacek’s evidence, the proposal for Ms Qiu to purchase an interest in the Property was abandoned in March 2019 when Ms Qiu objected to the terms of that draft contract. I accept that evidence, which is consistent with the absence of any contemporaneous documentary evidence suggesting that negotiations continued after Ms Qiu objected to the terms of the draft contract, and which is also consistent with correspondence between Mr White and each of Mr Mann and McQiu Lawyers. Mr White initiated that correspondence in the course of gathering information for the purpose of the complaint that he later lodged against McQiu Lawyers with the OLSC on behalf of Messrs Kohacek and Colley. Mr White relied on that correspondence in his various affidavits sworn in these proceedings.

74. After March 2019, McQiu Lawyers continued to provide legal services to Messrs Kohacek and Colley in relation to the matters described in their costs agreements until Mr Kohacek fell into dispute with them in early September 2019, as referred to later in these reasons.

Dealings between Messrs Kohacek and Colley and Mr White: April – September 2019

75. Mr Kohacek and Mr White have given very different accounts of their first contact with one another in April 2019, and of their discussions in the period leading up to the execution of the Heads of Agreement on 10 September 2019.

76. In his first affidavit sworn on 3 May 2023, Mr White gave evidence that Mr Kohacek had contacted him in April 2019 after hearing that Mr White had made a complaint about Mr Weller, with whom Messrs Kohacek and Colley (represented by McQiu Lawyers) were then engaged in an ongoing legal costs dispute. Mr White deposed that he offered to help Messrs Kohacek and Colley, as he lived very close to them, and a friendship was formed.

77. In his 3 May 2023 affidavit, Mr White did not give any account of his interactions with Messrs Kohacek and Colley in the period after April 2019 through which he formed what he described as a friendship with them. That account emerged for the first time in Mr White’s second affidavit sworn on 15 December 2023, together with a slightly different account of his initial conversation with Mr Kohacek in April 2019. In his second affidavit, Mr White deposed that he declined to provide any details of his dispute with Mr Weller to Mr Kohacek during their initial conversation in April 2019, but agreed to speak to Mr Kohacek’s solicitor. Mr White then received a telephone call from Ms Li of McQiu Lawyers and answered her questions about his dealings with Mr Weller.

78. Mr White deposed that, after his first telephone call with Mr Kohacek in April 2019, Mr Kohacek called him once or twice a week to discuss his dispute with Mr Weller and update Mr White about the progress of that dispute. Mr White deposed that they developed a friendship through these telephone conversations, especially once they realised that they lived quite close to one another. As that relationship developed, they began to speak with one another almost every day, and their conversations shifted from Mr Kohacek’s dispute with Mr Weller to his other disputes, including his dispute with the Hawkesbury City Council and Tuscany Foods, and his dispute with Mr Corbett concerning his fees.

79. According to Mr White’s 15 December 2023 affidavit, he visited the Property in about late June or early July 2019, at Mr Kohacek’s invitation, to inspect water pollution that Mr Kohacek considered to be emanating from Tuscany Foods’ factory and to hear the noise emanating from the factory. This was Mr White’s first contact with Mr Colley. They discussed the disputes with the Council and with Mr Corbett.

80. Mr White deposed in his 15 December 2023 affidavit that, as his relationship with Mr Kohacek and Mr Colley developed, they began to talk to Mr White about their arrangements with McQiu Lawyers. According to Mr White, Mr Kohacek told him in about August 2019 that he and Mr Colley had entered into an agreement with Ms Qiu for her to purchase the Property on terms that she would pay their legal debts in return for the immediate transfer of a one-third interest in the Property, and that the whole of the Property would pass to her under their wills. Mr White deposed that Mr Kohacek told him that he and Mr Colley just wanted to live at the Property for the remainder of their lives without having to worry about their outstanding legal debts. In subsequent conversations, Mr Kohacek told him that McQiu Lawyers were suing Mr Weller, Mr Corbett and Mr Jackson on behalf of himself and Mr Colley. In another conversation in about early August 2019, Mr Kohacek described Ms Qiu as a “” because she had agreed to pay their legal debts and the Commonwealth Bank mortgage in return for a one-third interest in the Property now and the remainder after their death, which meant that they could live “” in the Property for the rest of their lives.

“(a) Mr Kohacek reminded me that Xiaolin Qiu was not able to get finance to buy the Wilberforce Property without CBA’s assistance (which CBA wouldn’t give);

(b) Mr Colley said that he had even offered Xiaolin Qiu 45% of the Wilberforce Property, and that Xiaolin Qiu still would not accept the deal;

(c) Mr Kohacek said, irrespective of those matters, they didn’t want to proceed with Xiaolin Qiu; Mr Colley nodded his head in agreement;

(d) Mr Kohacek said that he thought I would have enough capital to pay out their legal debts and attend to the CBA Mortgage payments without needing to get finance or further encumber the Wilberforce Property;

(e) Mr Kohacek then asked me to buy the Wilberforce Property (instead of Xiaolin Qiu) and gave me detailed summary of their proposed terms, namely:

(i) I was to pay Mr Kohacek and Mr Colley’s legal debts at that time, being:

1. a debt owed to Mr Weller of approximately $14,500;

2. a debt owed to Mr Corbett of approximately $50,000; and

3. a debt owed to McQiu Lawyers of approximately $120,000;

(ii) I was responsible for paying the CBA mortgage on the Wilberforce Property which was approximately $381,000, and the monthly CBA interest payments of $2,000;

(iii) I would need to remove the McQiu Lawyers’ caveat from the Wilberforce Property title;

(iv) we would each pay half of the Wilberforce Property’s rates and insurances;

(v) Mr Kohacek and Mr Colley would be allowed to live in the Wilberforce Property until they pass away;

(vi) I would assist with the upkeep of the Wilberforce Property and Mr Kohcaek [sic] and Mr Colley’s general-well being [sic] from time to time; and

(vii) in return, I would receive a one-third interest in the Wilberforce Property now, and later, when Mr Kohacek and Mr Colley passed away, I was to receive the whole of the Wilberforce Property.

(f) Mr Kohacek then requested that I prepare the written version of the agreement. Mr Kohacek gave me a copy of:

(ii) the Mr Mann Contract for Sale that Mr Kohacek said had been sent to Xiaolin Qiu in March 2019; and

(iii) a copy of the Valuation.

(g) Mr Kohacek then said that:

(i) he and Mr Colley had previously consulted his lawyer, Mr Mann, on the proposed terms (when they had contemplated entering into the agreement with Xiaolin Qiu and considered that it was a great deal for all parties concerned;

(ii) I could use the Mr Mann Contract for Sale as a ‘rough guide’; and

(iii) Mr Kohacek had already obtained the Valuation of the Wilberforce Property on 16 January 2019 recording the value as $1,500,000; I should use the Valuation as the basis of the Wilberforce Property value under our agreement.

(h) I expressed my concerns about not being able to generate income from the potential investment in the short term, and that I would need to sell property in order to attend to the above. Mr Kohacek and Mr Colley said I could use as much of the land as needed, just not the house. I said OK, and that I would pay additional rates if I could generate income;

(i) Mr Kohacek and impassioned and charismatic, and he spoke to me like were family. Mr Kohacek and Mr Colley told me that the Wilberforce Property would be a great legacy to pass onto my family. Further, Mr Kohacek and Mr Colley told me they didn’t have any family, and so, for them, it didn’t matter so long as they could stay in the house for the remainder of their lives; and

(j) I said to Mr Kohacek and Mr Colley that I would buy the Wilberforce Property as offered; but there would need to be a cooling off period so that:

(i) I could discuss the offer with Ms Cassidy;

(ii) Mr Kohacek and Mr Colley could get advice on their offer; and

(iii) my family could come and meet Mr Kohacek and Mr Colley, just in case we all didn’t get along.

(k) Mr Kohacek and Mr Colley agreed.”

84. This account is far more detailed than Mr White’s evidence in his first affidavit sworn on 8 May 2023, in which Mr White deposed only that Mr Kohacek and Mr Colley had “offered me a similar agreement as had been offered to Ms Qiu” in or about early September 2019. In his first affidavit, Mr White described the agreement as being that he would purchase a one-third interest in the Property “with a right to survivorship” for approximately $500,000, in exchange for which he was to pay out Mr Colley and Mr Kohacek’s legal debts and the Commonwealth Bank mortgage.

85. In his 15 December 2023 affidavit, Mr White deposed that it was clear to him from his conversations with Messrs Kohacek and Colley, and from the documents that they had provided to him, that they wanted a life estate in the Property with the security of having Mr White attend to their outstanding legal debts and the Commonwealth Bank mortgage, pay part of the rates and insurances, and assist with the upkeep of the Property, and, in return, they wanted Mr White to receive a third of the Property immediately and the whole of the Property when they passed away. Mr White referred to this in his 15 December 2023 affidavit as “the Common Intention”.

86. Mr White deposed that he prepared the Heads of Agreement in the days following his meeting with Messrs Kohacek and Colley on 4 September 2019, and that he had daily telephone conversations with them about the terms of the agreement. Mr White deposed that, during those conversations, Mr Kohacek requested a further term for a cash payment of $5,000 as a non-refundable deposit.

87. In her affidavit sworn on 22 December 2023, Ms Cassidy gave evidence of conversations that she had with Mr White during the period between April and September 2019 in which Mr White relayed to her an account of his conversations with Mr Kohacek in terms broadly consistent with Mr White’s affidavit evidence referred to at [76]-[87] above.

88. In particular, Ms Cassidy deposed that she had a conversation with Mr White in about August 2019 in which he informed her that Mr Kohacek had told him that he and Mr Colley had entered into an agreement with Ms Qiu under which she was to take care of their debts in return for a one-third share of the Property now, with the whole of the Property passing to Ms Qiu after Messrs Kohacek and Colley died. According to Ms Cassidy, Mr White told her that Mr Kohacek was angry because Ms Qiu could not get finance to proceed with that agreement.

89. Ms Cassidy also deposed that she had a conversation with Mr White in early September 2019 in which he informed her that Messrs Kohacek and Colley had asked him to buy the Property instead of Ms Qiu because their relationship with her had “gone sour” and they did not want to proceed with Ms Qiu anymore. According to Ms Cassidy’s evidence, Mr White told her that Messrs Kohacek and Colley wanted a life estate in the Property without having to worry about their outstanding debts, and it was proposed that he and Ms Cassidy would pay those debts, help with the upkeep of the Property, and look after Messrs Kohacek and Colley. In return, they would receive one third of the Property now and the remainder after Messrs Kohacek and Colley passed away. Mr White said that they had told him that they just wanted to be able to live at the Property until they pass away. Ms Cassidy asked Mr White how much the Property was worth, and he told her that Mr Kohacek had given him a recent valuation of $1.5 million. Ms Cassidy told Mr White that she thought “ ”. Mr White told her that Mr Kohacek had asked him to put something in writing, and that he had agreed to do so.

Execution of the Heads of Agreement on 10 September 2019

120. The document that Mr White drafted and presented to Mr Kohacek and Mr Colley on 10 September 2019 was in the following terms (errors and emphasis in original):

“HEADS OF AGREEMENT

This agreement is between Arno MC Kohacek and Ray PM Colley of 119 Argents Road Wilberforce NSW ( the vendors ) and Gary J White and Terryll S Cassidy of 50 Officers Parade Condobolin NSW ( the purchasers).

This agreement is for the purchase of a one third share of the property known as 119 Argents Rd Wilberforce ( the property ), to extinguish the liability of the vendors to various solicitors, the result of ongoing legal matters.

This agreement is commenced with the one of transfer of a non refundable $5000 cash advance from Gary White to the vendors and the signing and dating of this agreement by the vendors and Gary White.

This agreement is to be converted to an agreement for the sale of land between parties ( the contract), by the vendors solicitor. The purchasers will pay for the cost of the preparation of the contract.

The purchase price on the contract will be $500,000.00, being one third of the value determined as fair and reasonable by the recently and referred to valuation for the property obtained by the vendors or McQui lawyers..

The contract for the sale of land will also include the following additions

The one third share property is to be purchased as tenants in common between the purchasers and the vendors

The vendors grant to the purchasers an irrevocable right of survivorship to the property, effective at the time of exchange of contracts, that has the same effect as if the parties were joint tenants.

The deposit for the exchange of the contract for the agreement for the sale of the land and the exchange of the contract is contingent upon the signing of the contract and the purchaser extinguishing the vendors liability to Michael J Corbert Solicitor by negotiation or payment in full of the amounts of $42761.20 and $7577.65.

The contract for the sale of the land is settled when any liability the vendors may have for the following is extinguished, a loan from the C****ommonwealth Bank with a balance of $381,000.00 plus continuing interest, an amount to Herbert Weller solicitors presently $14500.00 and a caveatable interest lodged on the property by McQui lawyers, presently estimated to be a $120,000.00. Time is not of the essence in this contract.

The purchaser will be responsible to the Commonwealth Bank for monthly repayment of the interest on the loan , until the loan can be extinguished by the purchaser from the sale of other assets of the purchasers, being 50 Officers Parade, Condobolin, Da Approved for subdivision and vacant land 11 Sterling Ave, Orange.

The vendors consent to Gary White having the authority to renegotiate the amount of the liability and the interest if applicable , in all of the matters mentioned in c) and d) of the above before they are to be extinguished.

The vendor and the purchaser will jointly undertake and do all that is necessary to remove any caveatable interest McQui Lawyers may have over the property 119 Argents Rd, Wilberforce, including the lodging of a costs assessment application to the Legal Services Commissioner , if that is required.

If the caveatable interest lodged by McQui Lawyers over the property cannot be extinguished or any liability of the vendors to McQui lawyers cannot be extinguished, then the purchaser has the right to rescind the contract and is entitled to have any monies paid as a result of this agreement refunded from the future sale proceeds of the property.

Upon settlement of the contract, the property is to remain free of any mortgages, caveats , encumbrances and or other restrictions.

The property is to have paid up building and public risk insurance in place at all times and if for any reason this insurance is not current and in place due to the omissions of the vendors ,then the purchasers are indemnified from any liability or loss that may result by the vendors actions and in the event the property is sold the purchasers will be entitled to seek compensation for their loss, from the sale proceeds of the property.

From the date of the exchange of the contracts, in the event of the property being sold for any reason, the purchasers are entitled to receive by the way of a tax free gift from the vendors, the difference in the net sale price ( reduced for any commission and legal fees) of the whole of the property and the agreed whole value of the property, as determined by the recent valuation of $1,500,000.00 allowing for the increase in value due to future capital gain and the value of any repairs and improvements undertaken by the purchasers.****.

Payment for rates and insurance will be shared equally by the purchasers and the vendors, while ever the vendors reside at the property unless the purchaser receives any additional income from the property by agreement with the vendors, a part from that as stated in this agreement for a nominal rent and then the rates and insurances will be paid by the purchasers.

The vendors will have exclusive occupancy and quiet enjoyment of the three bedroom residence and surrounding garden area for a nominal rental of $10.00 per month for the term of there natural lives or until they decide to vacate the premises . The vendors agree to allow the purchasers to improve and develop the property for agricultural purposes only , including the construction of a Hawkesbury City Council approved machinery shed, but only if it will not effect the vendors quiet enjoyment of the residence, the surrounding garden area and an area for the existing stock for grazing purposes. The vendor allows the purchaser to claim entirely any taxation relief that may be applicable.****.

The interior of the three bedroom residence is to be maintained to its present and good habitable condition, at all times by the vendors.

Repairs and maintenance to the exterior of the three bedroom residence will be by agreement with the parties on a as needed basis.

The purchaser will be responsible for the general upkeep of the property and repairs.

The purchasers agree to be responsible for the general well being of the vendors at all times and will assist with any future medical appointments that may be required and ongoing health issues**.** as they would if the vendors were a member of their own family, including the future placement in retirement village accommodation if necessary.

The vendors acknowledge and irrevocably agree to the purchasers having the right to act in the best interests of the vendors at all times in the negotiation, resolving or settlement of any matter or dispute that may become necessary during the term of this agreement and for the duration the vendors lives.

In the event the vendors seek retirement village accommodation and care and suitable placement cannot be provided by the purchasers , taking into consideration the vendors benefits attributed by receiving the pension, then if all parties are agreeable the property may be sold with the vendors share of the proceeds to be used for the purpose of retirement village accommodation and care, with the conditions of clause (j) and other applicable conditions of this agreement having affect.

In the event of the death or mental incapacity of the purchasers the ownership, rights and obligations of the purchasers expressed in the contract will be transferred to Greer Louise Cassidy of 7 Orth St Penrith**,** , Terryll Cassidys only daughter and beneficiary and a registered nurse and retirement village facilitator.

The vendors acknowledge that they do not have any immediate family or beneficiaries at the time of exchange of contract for this property , and parties are entering into this agreement in good faith for the ongoing care and wellbeing of the vendors by the purchasers.

There is a cooling off period of five working days, expiring at 5 pm on the fifth day and either party can cancel this agreement during that time and should seek their own independent legal advice.”

121. It is common ground that Mr White brought the Heads of Agreement to Messrs Kohacek and Colley at the Property on 10 September 2019. Rather than leaving the document with them to read through in their own time, Mr White stayed with Messrs Kohacek and Colley while they read through it together. Ms Cassidy was not present on this occasion.

122. Mr White gave evidence that, after reading the Heads of Agreement, Mr Kohacek said that he was “pleased with everything and had no questions”. Mr White also gave evidence that he discussed the cooling off period with Messrs Kohacek and Colley on 10 September 2019 after they had signed the Heads of Agreement, and told them to get legal advice.

123. Mr Kohacek denied this. He gave evidence that, before signing the Heads of Agreement, he asked Mr White if he could take it to a solicitor, to which Mr White replied: “No. They are a waste of time and money. Don’t worry about this, I have had this checked by my cousin the Judge, my barrister Brendon Searson, my solicitor Moore & Co at Condobolin and the Law Society.”

124. When this was put to Mr White in cross-examination, he said it was “ridiculous” to suggest that he had said any such thing because it was clear from the contents of the Heads of Agreement that it had not been prepared or checked by his cousin Judge Culver (whom he had only met on one occasion). Mr White said that he had never said such words, or anything similar, and suggested that this aspect of Mr Kohacek’s evidence was the product of Mr Crawford twisting Mr White’s words.

125. The words that Mr Kohacek attributed to Mr White have nothing to do with Mr Crawford, who was not present when Mr Kohacek read the Heads of Agreement in Mr White’s presence on 10 September 2019. Mr Kohacek did not meet Mr Crawford until December 2021. [44] It was not put to Mr Kohacek or to Mr Crawford in cross-examination that Mr Crawford had influenced this aspect of Mr Kohacek’s evidence in any way.

126. It is inherently probable that Mr White wanted to discourage Mr Kohacek from consulting a solicitor. The terms of the Heads of Agreement were highly disadvantageous to Messrs Kohacek and Colley for the reasons explained below and it was therefore likely that any solicitor would advise them not to sign the document in the terms drafted by Mr White. [45]

127. I accept that the Heads of Agreement were not in fact reviewed by her Honour Judge Culver. However, I do not accept Mr White’s evidence denying that he would ever say words such as those attributed to him by Mr Kohacek. Mr White made a similarly fanciful assertion in a letter to Ms Li of McQiu Lawyers dated 16 March 2020 in which he pressed McQiu Lawyers to accept a payment of $10,000 in full settlement of their claim for legal fees owing by Messrs Kohacek and Colley, failing which he would lodge a complaint against the firm with the OLSC. In that letter, Mr White wrote that he had “”. Mr Kohacek’s evidence that Mr White told him that the Heads of Agreement had been “” has the ring of truth about it.

“Legal matters aside for an instance [sic] Kathy Wiu [sic] was offered the benefit of a very substantial windfall from Kohacek and Colley, especially the terms of the contract prepared by John Mann

Why she would not just pay the legal fees, pay two thousand dollars a month look after the ongoing needs of Kohacek and Colley and end up with property I cannot comprehend.

If Kathy would have done this there wo uld have been no need for my involvement.”

131. When asked about that email in cross-examination, Mr White sought to distinguish the terms of the Heads of Agreement that he drafted from the terms of the draft contract prepared by Mr Mann under which Ms Qiu was the proposed purchaser. Mr White said that Ms Qiu merely had to pay $2,000 per month and she would have ended up with the Property, whereas he and Ms Cassidy had to pay the legal debts, agitate complaints and fight legal battles on behalf of Messrs Kohacek and Colley, and look after them. Mr White emphasised the effort that he said he had put into looking after Mr Kohacek’s complaints and legal battles. He described the Heads of Agreement as “very suitable to both parties” and denied that it delivered a windfall to him and to Ms Cassidy.

132. Ms Cassidy relied on the $1,500,000 valuation certificate in resisting the proposition put to her in cross-examination that the Heads of Agreement had the effect of delivering a windfall to herself and Mr Thorne, making the following assertions: “A property is only worth as much as it’s worth. And if you’ve got a written valuation, that’s how much it’s worth. So the valuation which was gained by Mr Colley – Mr Kohacek was $1.5 million. It can’t be worth any more than it’s valued at*.” Ms Cassidy then gave evidence that she did not recall that Mr White had showed her the valuation certificate, but said that “… he doesn’t have to show me, he just has to tell me*”. Ms Cassidy evaded answering the question whether she knew that Mr White had described the valuation certificate as “a reduced valuation obtained for stamp duty purposes only” in his letter to the OLSC dated 30 March 2020.

133. Mr White’s evidence seeking to distinguish the Heads of Agreement from the arrangement that Messrs Kohacek and Colley had been prepared to enter into with Ms Qiu fails to grapple with the objective fact that the purchase price of $500,000 stipulated in the draft contract of sale to Ms Qiu was the same as the purchase price stipulated in the Heads of Agreement. Ms Qiu’s draft contract provided for the whole of that purchase price to be paid in $2,000 monthly instalments, whereas the Heads of Agreement provided for part of the purchase price to be paid through Mr White and Ms Cassidy extinguishing the debts owed by Messrs Kohacek and Colley to solicitors, with the balance to be paid in due course when they sold other properties that they owned, time not being of the essence. Mr White and Ms Cassidy were therefore in a position to control the timing of the payment of the balance, and they were required to service the Commonwealth Bank mortgage in the meantime. The work that Mr White says he invested in agitating complaints and fighting legal battles for Mr Kohacek was directed against the solicitors to whom Messrs Kohacek and Colley were indebted. It is clear from clause 6(f) of the Heads of Agreement that Mr White and Ms Cassidy stood to benefit from that work as it would have effectively reduced the purchase price payable for the one-third interest in the Property if the contract for sale envisaged by the Heads of Agreement had been entered into. Contrary to Mr White’s evidence, neither the Heads of Agreement nor the terms to be included in the proposed contract for sale of land recorded in clause 6 of the Heads of Agreement required he or Ms Cassidy to fight all of Mr Kohacek’s legal battles for the rest of his life. On the contrary, clause 6(r) of the Heads of Agreement provided that the proposed contract for sale of land would include a clause whereby Messrs Kohacek and Colley irrevocably authorised Mr White and Ms Cassidy to act on their behalf in negotiating, resolving or settling any matter or dispute for the duration of the lives of Messrs Kohacek and Colley.

Cash payment of $5,000

154. It will be recalled that clause 3 of the Heads of Agreement provided for a “one of [sic] transfer of a non refundable $5000 cash advance from Gary White to the vendors”.

155. It is common ground that Mr White did make a cash payment of $5,000 to Messrs Kohacek and Colley at or about the time the Heads of Agreement was signed, and that Mr Kohacek deposited $4,300 of that sum in his bank account on 13 September 2019.

156. Mr Kohacek gave evidence that he sought to return the payment to Mr White because he and Mr Colley had “sufficient money of our own”, but that Mr White refused, and that Mr Kohacek therefore returned the money to Ms Cassidy who told him that she would use it to buy earrings and that she would not tell Mr White so that he would not be offended. In cross-examination, Mr Kohacek gave inconsistent evidence about the time at which he claims to have returned the money, or part of it, to Ms Cassidy. The statements for his bank account that were tendered in evidence do not record any withdrawal of the sum of $4,000 that he claims to have repaid to Ms Cassidy after the deposit of the $4,300 into his account on 13 September 2019. Ms Cassidy denied that Mr Kohacek returned the cash payment, or any part of it, to her.

157. As Mr Kohacek’s bank statements do not corroborate this aspect of his evidence, and for the reasons explained at [30]-[31] above, I reject his evidence that he returned part of the cash payment to Ms Cassidy.

Messrs Kohacek and Colley make new wills

158. On 12 and 13 September 2019, each of Mr Kohacek and Mr Colley prepared and signed a handwritten letter to Mr Mann instructing him that he no longer wished Ms Qiu to be a beneficiary under his will, and requesting him to prepare a new will. Mr Kohacek’s letter to Mr Mann states: “We have no more connection with Kathy Xialin [sic] Qiu*.*”

159. Mr Mann prepared a new will for each of Mr Kohacek and Mr Colley in accordance with those instructions. Those new wills were signed on 21 October 2019. Each of Mr Kohacek and Mr Colley bequeathed the whole of his estate to the other.

160. Mr White gave evidence that he had a conversation with Mr Kohacek in about October 2019 in which Mr Kohacek told him that he and Mr Colley had discussed the Heads of Agreement with Mr Mann, that Mr Mann had then told them to come in to remove Ms Qiu from their wills, and that they had each visited Mr Mann and signed new wills under which Ms Qiu was not a beneficiary. Mr Kohacek denied this, and denied ever discussing the Heads of Agreement with Mr Mann.

161. By January 2021, Mr Mann was aware of the existence of the Heads of Agreement because he referred to it in passing in a letter to Mr White responding to Mr White’s complaints about Mr Mann’s conduct of the costs assessment process that Mr White had initiated on behalf of Messrs Kohacek and Colley challenging the amount of the fees charged by McQiu Lawyers. However, contrary to the plaintiffs’ submissions, it does not follow that Messrs Kohacek and Colley had told Mr Mann about the Heads of Agreement, let alone sought his advice about it. As referred to later in these reasons, [54] solicitors acting for Mr White and Ms Cassidy sent the Heads of Agreement to Mr Mann’s firm on 11 March 2020 requesting that they prepare a contract for sale of the Property and submit it to them for their approval. It is inherently probable that Mr Mann became aware of the Heads of Agreement as a result of that communication.

162. Mr White’s evidence that Mr Kohacek told him that Mr Mann, upon being informed about the Heads of Agreement, told them to make new wills, is inherently improbable, as this would be an unusual thing for a solicitor to say to a client. Moreover, it is inconsistent with the contemporaneous documents which show that each of Mr Kohacek and Mr Colley issued formal written instructions to Mr Mann concerning his will, and that those instructions made no reference to the Heads of Agreement and contained no request for advice in relation to the Heads of Agreement. Given that they went to the trouble of recording their instructions in writing, it is inherently probable that they would have included a request for advice about the Heads of Agreement in those instructions if they had requested any such advice.

163. For those reasons, and for the further reasons at [27] and [29] above, I reject Mr White’s evidence that Mr Kohacek told him in October 2019 that he and Mr Colley had discussed the Heads of Agreement with Mr Mann. I have accepted Mr Kohacek’s evidence that Mr White discouraged him from seeking legal advice before signing the Heads of Agreement, and I accept his evidence that he did not do so after signing that document.

Messrs Kohacek and Colley meet Ms Cassidy and execute an authority for Mr White to act on their behalf

164. On 15 September 2019, Ms Cassidy visited the Property together with Mr White. This was Ms Cassidy’s first meeting with Messrs Kohacek and Colley. I do not find it necessary to resolve the contest between Ms Cassidy on the one hand and Mr Kohacek on the other hand about whether or not Ms Cassidy took with her the home-baked afternoon tea that Ms Cassidy describes in elaborate detail in her affidavit for them to enjoy together at this first meeting.

165. According to Mr White’s evidence, he asked Messrs Kohacek and Colley at the conclusion of this meeting whether they wanted to proceed with the Heads of Agreement, and Mr Kohacek replied that “they loved our family, and thought it was a perfect arrangement for everyone”. Mr Kohacek denies this.

166. For the reasons explained at [22]-[27] and [29] above, I am not persuaded that this conversation occurred in the self-serving terms described by Mr White. However, it is inherently probable that some conversation occurred on 15 or 16 September 2019 about proceeding with the Heads of Agreement, having regard to the document that Messrs Kohacek and Colley signed on 16 September 2019 addressed “TO WHOM IT MAY CONCERN” certifying that Mr White was their “business consultant acting on all matters of business on our behalf”.

167. According to Mr White’s evidence, that document was drafted by Mr Kohacek and Mr White merely typed it up and took it to the Property for Messrs Kohacek and Colley to sign in order to enable Mr White “to deal with the relevant persons and entities to facilitate the payment under the Heads of Agreement”, and “lodge the complaint to the OLSC”.

168. Mr Kohacek denied drafting the document. According to his evidence, Mr White arrived simply at the Property on 16 September 2019 and said “I need this document so I can act for you and to be able to get rid of Kathy McQiu [sic] and follow up on her fraudulent scheme with OLSC”, and “I can’t solve your problems unless you sign this document”.

169. Given the passage of time, I do not consider either Mr White’s evidence or Mr Kohacek’s evidence to be a reliable account of their conversation at the time the document was signed. Irrespective of who drafted the terms of the document, it was signed in circumstances where Mr White had discouraged Mr Kohacek from seeking legal advice before signing the Heads of Agreement, [55] which Mr Kohacek viewed as the means of removing the caveat that McQiu Lawyers had lodged against the title to the Property and alleviating his concern that McQiu Lawyers might claim to be entitled to force a sale of the Property to recover their legal fees. [56]

Payments made and work undertaken by Mr White and Ms Cassidy

170. On 16 September 2019, Mr White wrote to Mr Weller advising that he was authorised to act on behalf of Messrs Kohacek and Colley, and asserting that Mr Weller was indebted or obliged to account to Messrs Kohacek and Colley for amounts totalling $22,372.96.

171. On 17 September 2019, Mr White wrote to McQiu Lawyers demanding that the caveat lodged against the title to the Property be removed, disputing their claim to fees, and demanding that Mr Kohacek’s documents be returned to him.

172. It is common ground that Mr White paid the sum of $45,000 to Mr Corbett on 20 September 2019 for the costs of Supreme Court proceeding 2018/201077, which was an application by Mr Corbett for assessment of his solicitor/client costs incurred in acting for Messrs Kohacek and Colley. The receipt noted that Supreme Court proceeding 2018/201065 – the separate application by Mr Corbett for assessment of his solicitor/client costs in acting for Messrs Kohacek and Colley in relation to the proceedings brought against them by Mr Weller – was yet to be determined.

173. It is common ground that, between 9 October 2019 and 8 January 2020, Mr White made payments to Mr Weller totalling $1,504.13 which extinguished the debt owing by Messrs Kohacek and Colley to Mr Weller. The debt of $14,500 referred to in clause 6(d) of the Heads of Agreement had been reduced by offsetting an amount that Mr White asserted on behalf of Messrs Kohacek and Colley was owing by Mr Weller to them.

174. It is common ground that, from 1 November 2019, Mr White began making monthly payments against the Commonwealth Bank mortgage secured against the Property. Those payments were continuing at the time of the hearing. The amount of the monthly payments varied over time between $1,500 and $2,400 per month. The total amount of the payments in the period up to 21 October 2024 was $106,600.

175. It is common ground that, from 9 December 2019, Mr White made payments towards the rates and insurances for the Property. The total amount of those payments in the period up to 21 October 2024 was $12,353.43.

176. It is common ground that, on 26 February 2020 Mr White made a further payment of $6,401.45 to Mr Corbett, which extinguished the remaining debt owed by Messrs Kohacek and Colley to Mr Corbett that had been recorded in the Heads of Agreement. Mr White made a further payment of $7,335.90 to Mr Corbett on 12 October 2020, almost all of which was reimbursed by Mr Kohacek on 30 October 2020.

177. As I have already mentioned, Mr White wrote to McQiu Lawyers on behalf of Messrs Kohacek and Colley on 17 September 2019 demanding that the caveat lodged against the title to the Property be removed, disputing their claim to fees, and demanding that Mr Kohacek’s documents be returned to him. McQiu Lawyers responded on 18 October 2019 with a long letter outlining the history of the firm’s dealings with Messrs Kohacek and Colley, including the circumstances in which it had been proposed that Ms Qiu would acquire an interest in the Property and the reasons why Ms Qiu decided in March 2019 not to proceed with that acquisition.

The Heads of Agreement is not “converted to” a contract for sale of land

183. On 11 March 2020, shortly after Mr White had extinguished the debts owing by Messrs Kohacek and Colley to Mr Weller and Mr Corbett, [59] solicitors acting for Mr White and Ms Cassidy wrote to Turner Freeman enclosing a copy of the Heads of Agreement and requesting that they submit a contract for the sale of land in the terms provided for in the Heads of Agreement. The letter stated that Mr White and Ms Cassidy were anxious to proceed to formal exchange of contracts given that they had paid the cash sum of $5,000 to Messrs Kohacek and Colley and had also paid the legal fees owing to Mr Corbett which, together, comprised the deposit for their purchase under the Heads of Agreement. The letter also stated that, by way of further performance, Mr White and Ms Cassidy had been making interest payments of $2,000 per month to the Commonwealth Bank on behalf of Messrs Kohacek and Colley and had been paying half of the rates and insurance for the Property.

184. There is no evidence of any response to that letter. Mr White and Ms Cassidy gave evidence that they were not concerned about this because Messrs Kohacek and Mr Colley regularly told them that they owned one third of the Property. Once Messrs Kohacek and Colley made new wills in June 2020 benefitting Ms Cassidy, and her daughter and Mr White, as referred to below, Mr White and Ms Cassidy were content that they would inherit the Property in due course. Mr White gave evidence that he considered that a contract for the sale of a one-third interest in the Property “would be superfluous when we received the entire Wilberforce Property”.

185. Mr Kohacek gave evidence denying that that he or Mr Colley intended to be bound by the Heads of Agreement in the absence of contracts for sale being exchanged between the parties.

Messrs Kohacek and Colley make new wills

186. At 6:30am on 28 April 2020, Mr White received an email which appeared to be from Mr Kohacek which read (errors in original):

“I am very distressed cannot get anybody to understand that I want to leave my assets

To Tyrrel my darling daughter

Let it be known as as my message as this is want expect to happen

How can anybody except anything else

Please use this message as my wish

Apart from proceeding to legal advice

Arno Kohacek”

187. Mr Kohacek denied writing or sending this message. It was sent from an email address that he does not recognise. There is no evidence linking this email address with Mr Kohacek. Nor is there any evidence casting light on how the email could have been sent if it was not written and sent by Mr Kohacek.

188. The inherent probabilities and improbabilities of Mr Kohacek having sent the email are equivocal. On the one hand, it is improbable that Mr Kohacek would have felt distressed by some inability to convey and give effect to an intention to leave his assets to Ms Cassidy. Mr Kohacek had recent experience in instructing solicitors concerning his will, and in changing his will. [60] On the other hand, the tone and grammatical syntax of the email is consistent with many messages that Mr Kohacek accepts he did send later in 2020 and throughout 2021. In particular, Mr Kohacek’s reference to Ms Cassidy as his “darling daughter” is consistent with some messages that he sent in late 2021. [61]

189. I do not consider that the evidence before the Court provides an appropriate basis for making any finding about whether or not Mr Kohacek sent the email. [62]

190. There is no dispute that Mr Kohacek and Mr Colley did make new wills on 9 June 2020 under which each appointed the other as his executor and trustee, and each left the whole of his estate to the other. If the other pre-deceased him, each appointed Ms Cassidy and her daughter as his executor and trustee, and left his estate to Ms Cassidy or, if Ms Cassidy also pre-deceased him, to her daughter and Mr White in equal shares. These wills were prepared by Turner Freeman and witnessed by Mr Mann. Each will contained a clause recording the testator’s wish that the trustee retain Turner Freeman to carry out all legal work in relation to the administration of his estate and the trusts in his will.

191. Mr Kohacek gave inconsistent evidence about the reason why he and Mr Colley made those new wills.

192. In his affidavit sworn on 15 March 2024, Mr Kohacek deposed that “not long after” he and Mr Colley signed the Heads of Agreement, Ms Cassidy and Mr White said “you need to make new wills and give us Powers of Attorney and Guardianship … We need these documents so we can bury you … Don’t worry my friend Anita Munns will draw those up for you”. In the same affidavit, Mr Kohacek deposed that Mr White took him to a solicitor in Windsor shortly after that conversation in May 2020 and told him: “I can’t come inside but this is what you have to say. You are making us beneficiaries with Tyrrell’s daughter. You have to make us Powers of Attorney and Guardians so that I can bury you. It can be cancelled within 48 hours if you are not happy with it.”

193. In his affidavit sworn on 5 August 2024, Mr Kohacek deposed that Mr White had asked to be a beneficiary under their wills in a conversation to the following effect:

“Mr White: I am doing all the work, and I am paying all the bills. Tyrrell pays nothing and her bludging daughter pays nothing … I have had enough, and I should be added to the will.

Mr Kohacek: I will have to speak to Ray. It is his decision to change his will. I will change my will until you get your money back.”

194. In cross-examination, Mr Kohacek gave evidence that he chose to change his will in June 2020, and he did so happily, because he liked Ms Cassidy “very*, very* much*. And – and – she – and I thought she was doing the right thing. And – and she asked me to make the will. Mr White asked me that he wants the same deal as … Ms Qiu had. He wanted the same deal. He called it a deal. To me, it wasn’t a deal. It was meant more than a deal. And so, I obliged, because I thought that was correct. But – but I was asked to change that will after that again.*”

195. Mr White and Ms Cassidy both gave evidence denying that they ever requested Mr Kohacek or Mr Colley to change their wills. Mr White gave evidence denying taking Mr Kohacek to see a solicitor in May 2020 and having a conversation along the lines to which Mr Kohacek deposed. In his affidavit sworn on 15 December 2023, Mr White deposed that Mr Kohacek and Mr Colley informed him of the amended wills after the fact, and said that the change had been Mr Kohacek and Mr Colley “living up to our end of the bargain”.

196. I reject Mr Kohacek’s evidence referred to at [192] above, which seems to me to be a confused compilation of recollections arising out of events that occurred in July 2021 when Messrs Kohacek and Colley executed enduring powers of attorney and enduring guardian appointments that were prepared by Ms Anita Munns, solicitor of John Hall Lawyers, and in April 2022 when Mr Kohacek engaged Paine Ross & Co, solicitors, at Windsor to act on his behalf in revoking the enduring power of attorney and enduring guardian appointment and making a further new will under which Mr White and Ms Cassidy received no benefit. [63] The offices of Turner Freeman, who prepared the wills executed by Messrs Kohacek and Colley on 9 June 2020, are located at Penrith.

197. However, I accept as inherently probable Mr Kohacek’s evidence given in cross-examination that Ms Cassidy asked him to change his will and that Mr White had told him that he wanted the same “deal” as Ms Qiu, which had included Ms Qiu being a beneficiary of the estate of the survivor of Messrs Kohacek and Colley. It is inherently probable, in my opinion, because Turner Freeman had apparently declined or failed to prepare a contract for sale of land containing the terms set out in the Heads of Agreement and, on Mr White’s and Ms Cassidy’s own evidence, they viewed wills under which the Property would pass to them following the death of both Mr Kohacek and Mr Colley as another route to ultimately owning the whole of the Property. [64]

198. It is clear from Mr Kohacek’s own evidence in cross-examination and from his contemporaneous communications with Mr White and Ms Cassidy that he understood the substance and effect of the will that he made on 9 June 2020. [65]

The sale of the Orange property and the withdrawal of the sale of the Condobolin property

199. It will be recalled that clause 6(e) of the Heads of Agreement provided that Mr White and Ms Cassidy were responsible for monthly interest payments on the Commonwealth Bank loan secured against the Property, until they were in a position to extinguish the loan from the proceeds of sale of properties they owned at Condobolin and Orange.

200. On 10 December 2020, Ms Cassidy completed the sale of the property at Orange referred to in clause 6(e). The net proceeds of sale were $215,988.68. After the mortgage was discharged, a net profit of $70,000 to $80,000 remained. Mr White and Ms Cassidy gave evidence that they would not have sold the Orange property if it was not for the Heads of Agreement.

201. In cross-examination, however, Ms Cassidy gave evidence that the net proceeds were deposited into Mr White’s Westpac account and put towards “a few things”, and that the Orange property was sold in order to provide for those various things. Ms Cassidy was evasive about what those “things” were. She initially denied that the Orange property had been sold to fund renovations of Fitzgerald House – a property at Windsor that she and Mr White owned through a company. Moments later, Ms Cassidy said that some of the money went towards “doing things” at their Phegans Bay property, some of the money was “used at Fitzgerald House” and some of it “was just spread over a lot of things”. In a non-responsive, evasive answer to the next question, Ms Cassidy added: “But some of it went to the Wilberforce property”.

202. It was within the power of Mr White and Ms Cassidy to adduce evidence of the amount of the net sale proceeds (if any) that was spent on the Property. They did not do so. I am not persuaded by Ms Cassidy’s evasive and inconsistent evidence in cross-examination that any of the net sale proceeds were spent on the Property. Nor am I persuaded that the sale of the Orange property had connection with the Heads of Agreement that Mr White had signed with Messrs Kohacek and Colley more than a year earlier, in the absence of any cogent evidence that the net sale proceeds were applied to reducing the Commonwealth Bank loan secured by mortgage against the Property or were applied to the Property in some other way.

203. On 17 December 2020, Mr Kohacek sent a text message to Mr White and Ms Cassidy stating (errors in original):

“Tyrrel and Gary

It is up to you

Pls take Condo house of the market, however it is up to you two, as Ray and I have decided

As we do not want any unnecessary money held in the bank, after all whatever will be will be , as if any-thing happens to Ray and myself , you know that our assets are yours, as such you would be stuck with CBA balance mortgage.

We have nothing more to say on this subject,

It is entirely your business.

Love

Ray

And

Arno”

204. In his 5 August 2024 affidavit, Mr Kohacek denied sending this message. However, in re-examination, he accepted that he had sent the text and did so because:

“Tyrrell rang me at least four times, very distressed, saying, ‘I have to sell the property to meet your requirements to buy a third of your – of the property.’ And I said, ‘Well, that is – it*’**s – that’s what we were talking about.*’ And she said, ‘Well, I’m very upset. I don’t want to sell.’ And I said, ‘Well, that’s up to you. You don’t have to sell. Take it off the – take it off the market. That’s your decision. Not mine.’”

205. As the plaintiffs submitted, Mr Kohacek had not referred to any such conversations with Ms Cassidy in any of his affidavits sworn in these proceedings. For that reason, and for the further reasons explained at [30]-[31] above, I am not persuaded that those conversations occurred.

206. In any event, Mr White subsequently withdrew the Condobolin Property from the market.

Messrs Kohacek and Colley execute powers of attorney and new wills

207. On the morning of 7 July 2021, Ms Anita Munns, solicitor, conferred with Messrs Kohacek and Colley in a zoom conference arranged by Ms Cassidy and took instructions from them for the preparation of enduring powers of attorney and the appointment of enduring guardians. Ms Munns then prepared the relevant documents and met with Messrs Kohacek and Colley at the Property that same afternoon, where she witnessed their execution of those documents.

208. The documents executed by Mr Kohacek appointed Mr White and Ms Cassidy as his attorneys with immediate effect upon their acceptance of the appointment, and as his legal guardians in the event that he lacked the capacity to make health and lifestyle decisions for himself due to disability or illness. Ms Munns witnessed Mr Kohacek’s execution of both documents and signed the certificate under s 19 of the Powers of Attorney Act 1993 (NSW) in respect of the enduring power of attorney. Each of Mr White and Ms Cassidy signed the enduring power of attorney accepting the appointment.

209. Ms Munns witnessed Mr Colley’s execution of an appointment of enduring guardian which appointed Mr Kohacek as Mr Colley’s legal guardian, and Mr White and Ms Cassidy as his substitute guardians, in the event that he lacked the capacity to make health and lifestyle decisions for himself due to disability or illness. According to Ms Munns’ file notes of her attendances on Messrs Kohacek and Colley on 7 July 2021, Mr Colley also executed an enduring power of attorney appointing Mr Kohacek, and appointing Mr White and Ms Cassidy in the event that Mr Kohacek was unwilling or unable to accept the appointment. That document was not tendered in evidence.

210. Ms Munns’ file note of her attendance on Messrs Kohacek and Colley at the Property record that Mr White and Ms Cassidy were also present while Ms Munns explained the documents that Messrs Kohacek and Colley were to execute and witnessed their signatures, although Ms Munns notes that neither of them “took any involvement in the discussions”. The file note records scant details of those discussions or any explanation of the documents that Messrs Kohacek and Colley were executing. The file note records that they gave instructions for Ms Munns to retain the original documents, and email copies of them to Ms Cassidy. Ms Munns was also authorised to collect their original signed wills from Mr Mann and Turner Freeman and to retain them in her custody.

211. A subsequent file note of Ms Munns records that, upon receiving the original wills from Turner Freeman on or about 2 August 2021, she identified that Mr Colley’s most recent will had been mistakenly dated June 2019 rather than June 2020. This meant that, on the face of it, his most recent will was the one made in October 2019. [66] Ms Munns then prepared new wills for both Messrs Kohacek and Colley on the same terms that they had executed in June 2020, but recording the testator’s wish that the trustee retain Ms Mann’s firm (not Turner Freeman) to carry out all legal work in relation to the administration of his estate and the trusts in his will. [67] Ms Munns attended on Messrs Kohacek and Colley on 3 August 2021, witnessed their execution of those new wills, and received their instructions to hold those new wills in her safe.

“As Powers of Attorney we request that all attempts to do this are stopped until Arno can be assessed by a medical expert specializing in the field of mental health in the elderly and ask you to then advise on the best way to look after Arno’s wellbeing for the future.”

215. Ms Munns informed Mr White by email on 26 April 2022 that:

“I confirm that I am unable to act for you given the conflict that may arise as having formerly acted for both you and Arno and Ray. I understand that you have retained other solicitors to act for you and to protect Arno’s position.”

216. The evidence does not shed any light on whether Ms Munns considered herself to have been acting for both Mr White and/or Ms Cassidy and for Messrs Kohacek and Colley in relation to the enduring powers of attorney, guardianship appointments, and wills in July and August 2021, or whether she considered that she had acted for each of them in separate matters. However, Ms Munns’ email corroborates Mr Kohacek’s evidence that Ms Munns was known to Mr White and Ms Cassidy before she attended on him and Mr Colley in July and August 2021. That lends credibility to Mr Kohacek’s evidence that Mr White and Ms Cassidy insisted that Mr Kohacek engage Ms Munns rather than Mr Mann*.* It is inherently probable that they did so insist, in circumstances where they had come to view the wills of Messrs Kohacek and Colley as the means by which they would acquire the Property, [69] where their subsequent conduct to which I have referred above indicates that they viewed the enduring power of attorney and guardianship appointment in respect of Mr Kohacek as giving them an additional measure of control over his affairs and any potential changes to his will while he remained alive, and where it is likely that they considered it more convenient to have those documents prepared and the originals retained by Ms Munns, with whom they had some relationship, rather than by Mr Mann, against whom Mr White had recently made allegations of serious misconduct without any apparent basis. [70] For those reasons, I find that Messrs Kohacek and Colley engaged Ms Munns rather than Mr Mann in relation to their enduring powers of attorney and guardianship appointments at the insistence of Mr White and Ms Cassidy.

The relationship between Messrs Kohacek and Colley and Mr White and Ms Cassidy after signing the Heads of Agreement

217. According to Mr White’s evidence, he undertook various maintenance works on the Property including gardening, repairs and re-gravelling the driveway, he drove Messrs Kohacek and Colley to the shops and to medical appointments, and he organised home care for them. According to Ms Cassidy’s evidence, she assisted in organising home care for Messrs Kohacek and Colley, gardening and generally looking after them, including cooking meals and purchasing supplies.

218. In his affidavit sworn on 5 August 2024, Mr Kohacek denied this and deposed that Ms Cassidy and Mr White were “constantly invading our home, imposing themselves in our personal space”. However, in cross-examination, Mr Kohacek accepted that “he [Mr White] must have done something. I saw bits … I saw a lot of construction work left there”. Mr Kohacek also accepted that Mr White and Ms Cassidy bought the pair food and other items, but said that he had neither needed nor wanted this and that “*[i]*t was their choice”.

219. There is a dispute about the extent of the work that Mr White did at the Property and whether that work was necessary. Mr Kohacek gave evidence that Mr White did whatever he liked at the Property, irrespective of Mr Kohacek’s wishes. He and Mr Colley had wanted to live on the Property peacefully for the rest of their lives, but their lives “turned into hell” as a result of disturbances caused by Mr White working on the Property and renting out parts of the Property.

220. There is no dispute that Mr White did in fact rent out parts of the Property, and Mr Kohacek contends that Mr White used the rental income to pay for the work he was doing at the Property. By the end of the hearing, the plaintiffs pressed only two items of expenditure on the Property as part of their claim for money had and received: (1) the repair of leaks to the dam in March 2021 at a cost of $777.20; and (2) the purchase of a new ride own mower for the Property in April 2021 at a cost of $3,981.01. There is no dispute about item (1). There is a dispute about item (2), in that there is no evidence of the value of the existing ride on mower owned by Messrs Kohacek and Colley which Mr White and Ms Cassidy took possession of and have retained since purchasing and supplying the new mower.

221. Mr White and Ms Cassidy each gave evidence that they developed a wonderful relationship with Messrs Kohacek and Colley. Ms Cassidy gave evidence that they were “just like a big family” and “living as a happy family” and that she was “looking after them just like I was their daughter”. Mr White gave evidence that he and Ms Cassidy treated Messrs Kohacek and Colley “like family”, that they became “very close” and it turned into a “” that was “ ”, and that “”. As will be seen below, Mr Kohacek was introduced to Mr Howard Crawford in about January 2022 and developed a close relationship with him in the months after Mr Colley passed away in March 2022.

“Gary

We have a legal agreement, so let's stick to that and no more abuse or nonsense.

We all have to do our job, so you do yours and don't you dare ever again to compare me to Mike Museth, telling me that everybody is sick of hearing from me etc etc etc

No more personal dialogue”.

229. In his 5 August 2024 affidavit, Mr Kohacek denied sending these messages. However, in cross-examination, he accepted that he did so that “our agreement” was a reference to the Heads of Agreement.

230. By contrast, Mr Kohacek sent text messages to Mr White on 2 December and 11 December 2021 describing him as “FANTASTIC” and stating “[w]e are now and always together … trying to separate us and to make our lives hard Nobody will ever succeed”.

231. Mr Colley passed away on 18 March 2022. Mr Kohacek was naturally very distressed.

232. On 20 March 2022, Mr Kohacek sent a text message to Mr White and Ms Cassidy describing them as “exceptional people” and expressing his gratitude that “I have you both as my family”.

233. It is common ground that Mr White and Ms Cassidy paid a sum of $6,597.60 towards Mr Colley’s funeral expenses.

Mr Kohacek develops a friendship with Mr Crawford

234. In December 2021 and January 2022, Mr Kohacek was corresponding by text message with Mr Crawford about Mr Weller, the Hawkesbury City Council and certain Councillors. Mr Kohacek first met Mr Crawford in person at a meeting with a Councillor in January 2022, at which Mr Kohacek raised allegations of ongoing environmental pollution and corruption on the part of the Council, which he considered had failed to deal with the problem. Mr Crawford subsequently began looking through some of Mr Kohacek’s documents at his request. By mid-February 2022, Mr Kohacek was sending messages to Mr White telling him that he had found new evidence about the Council, Tuscany Foods and pollution that had not been disclosed to him at the time of his earlier legal proceedings, and that he had “hit the jackpot for conpensation [sic]”.

235. Mr Crawford gave evidence that, as he spent more time at the Property speaking with Mr Kohacek and reviewing his documents in the period before and after Mr Colley’s death, he became concerned by what he regarded as bullying and controlling behaviours of Mr White and Ms Cassidy towards Mr Kohacek, and he formed the view that Mr Kohacek was being abused and exploited by Mr White and Ms Cassidy. One example raising concern was Mr Kohacek’s comment to Mr Crawford that “they [Mr White and Ms Cassidy] are constantly monitoring me and I can get no privacy”.

236. Mr White gave evidence that, at this same time, he became concerned about the influence that he perceived Mr Crawford was having on Mr Kohacek. As I have mentioned above, Mr White blames Mr Crawford for the breakdown of his and Ms Cassidy’s relationship with Mr Kohacek in April 2022. [71]

Mr Kohacek’s relationship with Mr White and Ms Cassidy breaks down

237. There is much dispute between Mr Kohacek on the one hand and Mr White and Ms Cassidy on the other hand about the manner in which they behaved towards one another, and the terms of their conversations with one another, in the days leading up to what has proved to be a terminal breakdown in their relationship on the evening of 20 April 2022. It is not necessary to make findings about all of those disputed matters of detail, and I refer only to the salient matters below.

238. According to the evidence of both Mr White and Mr Crawford, Mr White overheard a conversation between Mr Kohacek and Mr Crawford, who was visiting Mr Kohacek at the Property, late on the evening of 17 April 2022. Mr Crawford had asked Mr Kohacek why he did not sell the Property and move back to the city. Mr White interrupted, informing Mr Crawford about the Heads of Agreement and stating that he and Ms Cassidy had an interest in the Property. According to Mr White, he said that he and Ms Cassidy had a financial interest in the Property. According to Mr Crawford, Mr White said that he owned the Property.

239. According to the evidence of Mr Kohacek and Mr Crawford, Mr White interrupted their conversations several times late the following evening and in the early hours of 19 April 2022, stating that everything he had done was in the Heads of Agreement, asserting that he owned the Property, and stating that he needed a caveat on the Property. Mr Crawford told Mr White that if he needed a caveat, he should get one. Both Mr Crawford and Mr Kohacek describe Mr White as behaving in an irate and aggressive manner during these exchanges, and slamming his fists into the table. Mr White gave evidence that he had only ever met Mr Crawford once, on the occasion of their encounter on 17 April 2022, and said that Mr Kohacek and Mr Crawford had made up stories about him slamming his fist on the table, saying that the Property was his, and demanding a caveat.

240. At about 8:00pm on the evening of 19 April 2022, Mr White sent a text message to Mr Crawford in the following terms (emphasis added):

“Dear Howard,

I apologise for the other evening and I enjoy having dinner with you but I cannot keep putting up with all the promises and statements that is being transmitted to Arno which gets him distressed when nothing happens and I have to deal with the consequences.

I cannot any longer try to combat all the conversations on the back verandah and the chain smoking of cigarettes and then be text many times from an old man who thinks there are people genuinely trying to help him.

There are a number of people trying to coerce Arno without my presence making statements which if I was present would not be said.

I have no secrets and do not need to explain myself to you or any one else but I will for your benefit and who ever else you wish to advise …

…

All solicitors have a copy of the agreement between Ray, Arno and Terryll and myself and the Law Society.

…

Arno has an exceptional memory and puts his faith in people but as soon as the words HCC or Herbert Weller are mentioned he is vulnerable. I have had enough and cannot keep defending Arno when he gets his hopes up from people or parties who mention compensation payouts.

If you and your not disclosed retired Judge cousin can get Arno the compensation stated from GIPA or HCC as you have led him to believe, which after he gets his costs paid back he is happy to see the rest go to a Jewish orphanage we as Arno’s legal representatives are agreeable as long as the****re a****re no encumbrances on the property 119 Argents Rd involved or legal cost agreements involved as you stated there would not be.

If this is not the case I will not be further tolerating what I have to date.

I would ask that you respect my genuine interest in caring for Arno but appreciate I cannot tolerate the past.

I do not wish to seek legal or police assistance but the statements made to Arno that he is to keep secret are not the way I operate.

Thank you for your understanding and kind regards and I would appreciate any offers made to Arno from here on are in writing.

…

I would appreciate if you do not comment to Arno on this text but you may to others.

Kind regards snd [sic] best wishes Howard

Gary White”

241. In my opinion, the tone and content of that text message renders it inherently improbable that Mr White had behaved aggressively towards Mr Kohacek and Mr Crawford in the manner they allege the previous evening. I am not persuaded that any exchange of the kind they describe occurred in the late hours of 18 April into the early hours of 19 April 2022. However, Mr Kohacek’s text messages to Mr White on 20 April 2022 which I mention below refer to Mr White having said that he wanted to lodge a caveat on the Property. On the basis of that contemporaneous documentary evidence, I find that Mr White did say to Mr Kohacek on more than one occasion in the days leading up to 20 April 2022 that he would lodge a caveat against the title to the Property. It is plain from the passage in Mr White’s text message to Mr Crawford that I have emphasised above, that he considered that he and Ms Cassidy would be able to exercise the enduring power of attorney to prevent Mr Kohacek from engaging in future litigation on terms that affected what they viewed as their financial interest in the Property.

242. There was an argument between Mr Kohacek and Mr White on the afternoon of 20 April 2022, following which Mr Kohacek told Mr White to leave the Property. Ms Cassidy remained at the Property, intending to stay there that evening.

243. At 4:16pm that afternoon, Mr White sent a message to Mr Kohacek apologising for the misunderstanding that had led to their argument. Mr Kohacek replied to Mr White in the following terms:

“I am

Not your yo yo.

I am sick and tired to be reminded by you that you will put a caviat [sic] on me.

You are welcomed to do so at your earliest opportunity.

We fell in this trap

Before, so I

Have gained some experience in such matters.

Do as you like.

Forthwith I do not want any further arrangements with you.

You are a nice man, but do not try and intimidate me.

You will not succeed.

My feelings for Tyrrel is a separate matter.

You have behaved adhorrindly [sic] this afternoon, for no reasons at all.

I am finished with you.

So do as you like.

Arno

Gary

Rest assured

That I will pay you every cent you spent.

Including Ray’s funeral.

If you decide to issue a caviat [sic]

You are welcomed

Arno.”

244. Mr White replied:

“…

You have stated you do not want another Caviat [sic] lodged on your property and l have acted in good faith not doing so.

…

I am tired, upset and feeling lonely and realise that I am not appreciated any more. It is very saddening.

…

You can only fight so many battles and I have done the best I was able and sorry to have disappointed you.

Best wishes

Gary

I am not replying to any more texts I am to [sic] upset.”

245. Mr Kohacek replied:

“Gary

Thank you for your message

This is my last text to you

Arno.”

246. Mr Kohacek attended Windsor police station at 8.30pm on 20 April 2022 alleging that Mr White and Ms Cassidy had coerced him to sign documents such as appointment of enduring guardian papers, and that a solicitor had also coerced him to sign those papers. The police advised Mr Kohacek that it was not a police issue, and that he should raise his concerns with a solicitor.

247. Ms Cassidy learned about this later that evening after Mr Kohacek returned to the Property, where she had been sleeping.

248. Ms Cassidy then contacted Mr White and they went together to Windsor police station at about 10:45pm that evening. According to the police record in the COPS database, Ms Cassidy was upset and told police that Mr Kohacek had informed her that she was wanted by police for elder abuse against him. The police informed Ms Cassidy that she was not wanted by police, and that they had advised Mr Kohacek to speak to his solicitor as it is a civil matter. The COPS database records that Ms Cassidy and Mr White informed the police that they believed other persons were attempting to have Mr Kohacek change the power of attorney.

249. Mr Kohacek changed the locks on the Property on 21 April 2022.

250. Under cross-examination, Mr Kohacek said that his relationship with Mr White and Ms Cassidy broke down after Mr Colley’s death because “I was treated like a child. I was treated as if I had no brain. I was told what to do, what not to do, when to do it, and I got sick of it because I’ve asked them to leave many times before this. I got sick of it. I said, ‘I will not be dominated by anybody.**’”

251. Mr Kohacek’s dislike of being told what to do was a recurring theme throughout his cross-examination. He described himself as a “strong-willed man” and said that “I don’t like people telling me what to do”. When asked about his willingness to seek advice from others, Mr Kohacek initially said that he liked advice and guidance from others, but then said: “I don’t seek advice. I think I’ve got enough in my brain to work out right from wrong. I don’t have to seek anybody’s advice. I’m not mental.”

252. As referred to earlier in these reasons, Mr White and Ms Cassidy wrote to Ms Munns on 20 or 21 April 2022 claiming that third parties were influencing Mr Kohacek in a way that was detrimental to his wellbeing and was causing him to “turn on” Mr White and Ms Cassidy, expressing a fear that Mr Kohacek would be influenced into revoking the power of attorney and changing his will “with complete disregard for the Heads of Agreement”, and stating (emphasis added):

“As Powers of Attorney we request that all attempts to do this are stopped until Arno can be assessed by a medical expert specializing in the field of mental health in the elderly and ask you to then advise on the best way to look after Arno’s wellbeing for the future.”

253. Mr White informed Mr Kohacek by email on 22 April 2022 that he and Ms Cassidy had “signed a written request as Power of Attorney, concerned for your well being*, to have you medically assessed and provided it to your solicitor.*” I infer from his earlier correspondence with Ms Munns that Mr White’s reference to “your solicitor” in his email to Mr Kohacek is a reference to Ms Munns. Mr Kohacek replied:

“No more bullshit from you.

She was your Solicitor and not mine

Check with your de facto

Arno.”

254. As referred to earlier in these reasons, Ms Munns sent an email to Mr White on 26 April 2022 stating:

“I confirm that I am unable to act for you given the conflict that may arise as having formerly acted for both you and Arno and Ray. I understand that you have retained other solicitors to act for you and to protect Arno’s position.”

255. On 28 April 2022, Mr White applied to the New South Wales Civil and Administrative Tribunal to appoint the New South Wales Trustee and Guardian as financial manager for Mr Kohacek. Mr White gave evidence in cross-examination that he was concerned at this time that Mr Kohacek was financially vulnerable by reason of Mr Crawford, who Mr White believed was influencing Mr Kohacek. In the application form, Mr White recorded the value of the Property as $3 million.

256. On 28 April 2022, Mr Kohacek consulted Mr Chris Paine of Paine Ross & Co, solicitors, at Windsor. Mr Kohacek executed a Deed of Revocation of Appointment of Enduring Power of Attorney and a Deed of Revocation of Appointment of Enduring Guardian. Mr Paine sent a copy of those documents to Ms Munns by email that afternoon.

257. On about 4 May 2022, Mr White applied to the New South Wales Civil and Administrative Tribunal to review Mr Kohacek’s decision to revoke the Enduring Power of Attorney. In the application form, Mr White recorded the value of the Property as $3 to $3.5 million.

258. On 6 May 2022, Mr Kohacek executed a new will prepared by Paine Ross & Co under which he appointed Mr Crawford as his executor and trustee, made a gift of $500,000 to Mr Kim Woollard, and left the residue of his estate to Mr Crawford. Mr Kohacek later executed a codicil to that will on 21 April 2023 which revoked the $500,000 gift to Mr Woollard, but otherwise did not alter the will. Mr Crawford gave evidence in cross-examination that he first became aware that he was a beneficiary under Mr Kohacek’s will in the course of preparing to appear as a witness in these proceedings in October 2024. He was not challenged on that evidence.

259. On 5 May 2022, Mr White wrote to Mr Paine at Paine Ross & Co referring to the Tribunal proceedings that he and Ms Cassidy had initiated to review Mr Kohacek’s revocation of the enduring power of attorney. Mr White’s letter stated (emphasis in original):

“…

There can only be a number of possible reasons for the events since 20-4-2022.

a) Mr Kohacek’s deteriorating health and mental capacity has significantly further deteriorated since the death of his long time partner Ray Colley and his obsession for obtaining justice against HCC for Ray Colley, has become paramount leading to his recently illogical behaviour and outbursts.

b) Mr Kohacek has always intended to gain Benefit by Deception from ourselves and was only waiting for the death of his partner to do so.

c) Mr Crawford by falsely representing himself as being a representative of the Shooters and Fishers Party and being able to get compensation for Mr Kohacek resulting in Mr Kohaceks actions, has intended to gain Benefit by Deception from Mr Kohacek.

d) Mr Crawford and Mr Kohacek are now in a gay relationship which has caused Mr Kohacek to decide to disregard the previous commitment made by himself and Colley to Cassidy and White for the right of survivorship by Cassidy and White to the property 119 Argents Rd, Wilberforce, to now benefit his partner Mr Crawford.

As you would understand, I believe it would be beneficial if you would make Mr Kohacek aware of

Obtaining Benefit by Deception is an offence under Section 192E(1) of the Crimes Act 1900 .The obtaining may be dishonest even if the person is willing to pay for the property s192E(2).

The defence of mental health impairment or cognitive health impairment is a complete defence to criminal Charges.

Mr Kohacek must be medically assessed for mental health impairment or cognitive health impairment as previously requested to ascertain whether he can take responsibility for his actions.

I am always willing to discontinue my applications and the possibility of Police involvement, if a legally enforceable and feasible solution is offered.”

260. Mr Kohacek consulted his doctor on 16 June 2022. The doctor issued a certificate stating that he had administered an MMSE with a normal result. The certificate stated that Mr Kohacek, who had been the doctor’s patient since October 2018, “has a good memory” and “does not suffer with any sort of Cognitive Impairment”, and that he had seen a psychologist who had confirmed that “he does not suffer with any mood disorder**s or psychiatric illness which will affect his ability to make a decision*.*”

261. On 30 August 2022, the Guardianship Division of the Tribunal decided to conduct a review of the revocation of the power or attorney, but decided not to make any finding regarding whether the revocation was validly made. The Tribunal’s reasons for decision state:

“Having decided to conduct a review, there is a further discretion whether or not to make orders. As noted above, depending on the Tribunal’s findings, the orders that could be made are either that the revocation was valid, or that the revocation was not valid and that the enduring power of attorney should be reinstated.

In Mr Kohacek’s case the Tribunal decided not to make any findings regarding whether the revocation was validly made and consequently made no orders. This was because neither of the orders open to the Tribunal would meet Mr Kohacek’s needs. A finding that Mr Kohacek did not have capacity to revoke the instrument would lead to a reinstatment of the enduring power of attorney, appointing Mr White and Ms Cassidy, which is very clearly not consistent with his wishes, nor would be in his best interests given the circumstances. It would also be contrary to Mr White and Ms Cassidy’s wishes as they do not feel able to continue in the role given the breakdown in their relationships. Alternatively, a finding that Mr Kohacek did have the capacity to revoke the instrument would be redundant because of the Tribunal’s decision to make a financial management order, which is explained in more detail below.”

262. In relation to the application for the appointment of a financial manager, the Tribunal determined to appoint the NSW Trustee and Guardian as financial manager of Mr Kohacek’s estate, excluding his pension, on an interim basis for a period of six months, following which the matter would be listed for final hearing. The Tribunal referred to shortcomings in the medical evidence submitted by Mr Kohacek in opposing the financial management order, stating:

“Despite the Tribunal’s concerns about Mr Kohacek’s vulnerability and judgement the Tribunal was not able to come to a concluded view about whether Mr Kohacek is incapable of managing his financial situation. The Tribunal noted Mr Kohacek’s his [sic] expressed intention to obtain further professional evidence in relation to this, and so decided to adjourn the hearing for a period of six months to allow him the opportunity to obtain and submit further assessments. The Tribunals consideration of Mr Kohacek’s capability could therefore not be resolved at this hearing.”

263. On 15 February 2023, the Tribunal determined not to continue the appointment of the financial manager. The Tribunal’s reasons for decision stated:

“The Tribunal gave careful consideration to all the written evidence, as well as the submissions at the hearings. The Tribunal’s concerns, as expressed in the 30 August 2022 Reasons for Decisions, have not been fully addressed, particularly in relation to Mr Kohacek’s vulnerability to influence by others. Mr Kohacek acknowledges that he entered into the agreement with Mr White under some pressure, but he now realises this is not to his advantage and has taken action to end the arrangement. No doubt Mr Kohacek will experience pressure and stress in his life at some time in the future, and is an open question whether he will again enter into an arrangement which he later realises is not to his benefit and regrets.

The correspondence from the Law Society suggests that Mr Kohacek (and Mr Colley) have a history of engaging in legal proceedings and financial arrangements, which they later claim not to fully understand, and then rely on others to resolve the problems. It is unclear whether this is an indication of a lack of capability or something more strategic, however this question cannot be resolved on the basis of the available evidence.

As noted above, the law presumes we are capable unless there is sufficient evidence to the contrary. In order to make a financial management order, the legal test the Tribunal must apply requires a positive finding that Mr Kohacek is not capable of managing his financial affairs. Based on the history of his involvement with Mr White, as well as the history recorded in the Law Society correspondence, the Tribunal does hold some concerns regarding Mr Kohacek’s vulnerability to influence by others and his willingness to enter into agreements he does not understand. However, the history also indicates that Mr Kohacek has managed in the past to extract himself (with other’s help) from these problematic arrangements, which is an indication of his resourcefulness and ability to take action to preserve his interests.

On balance, based on the available evidence, the Tribunal is not satisfied that Mr Kohacek is incapable of managing his financial affairs. The application for a financial management order is dismissed.”

264. Mr White and Ms Cassidy lodged two caveats against the title to the Property on 15 February 2023 – the Constructive Trust Caveat (dealing ASXXXXXX), and the Funds Advanced Caveat (dealing ASXXXXXX).

265. In April 2023, Mr Kohacek’s solicitors served Mr White’s solicitors lapsing notices for the Constructive Trust Caveat and the Funds Advanced Caveat.

266. Mr White and Ms Cassidy commenced these proceedings on 3 May 2023.

The Heads of Agreement

267. Mr White and Ms Cassidy contend that the Heads of Agreement was intended to create legal relations, and that it is a valid, binding and enforceable contract. By the conclusion of the hearing, Mr White and Ms Cassidy had abandoned their pleaded claims for declarations to the effect that certain terms of the Heads of Agreement were varied, or waived by Mr Kohacek, after it was entered into. As referred to earlier in these reasons, Mr White and Ms Cassidy seek a declaration that the Heads of Agreement is a valid and enforceable agreement, and orders for specific performance of that agreement in terms requiring Mr Kohacek to transfer to them a one-third interest in the Property, and requiring Mr White and Ms Cassidy to pay such amount to the Commonwealth Bank as is required to discharge the mortgage over the Property.

268. Mr Kohacek contends that the parties did not intend to create binding legal relations by entering into the Heads of Agreement.

269. The Court of Appeal explained the relevant principles in the following terms in Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd: [72]

“[64] Whether parties intend to create binding legal relations is ascertained objectively, that is, by determining whether a reasonable person in the position of the parties would have taken them to have intended to contract. The presence (or absence) of that intention is fact-based, to be found in all the circumstances, including by drawing inferences from their words and their conduct in making their agreement. In ascertaining their intention, whether from a series of communications or from a single document, regard can be had to the commercial circumstances in which the parties exchanged their communications and to the subject matter of the supposed contract: Sagacious Procurement Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [69] (Sagacious); Allen v Carbone (1975) 132 CLR 528 at 532; [1975] HCA 14; Hospital Products v United States Surgical Corp (1984) 156 CLR 41 at 61 (Gibbs CJ); [1984] HCA 64 (Hospital Products); Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-9 (ABC); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [369] (Allsop J); Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 at [25]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38], [40]; Mount Bruce Mining v Wright Prospecting Pty Ltd (2015) 25 CLR 104; [2015] HCA 37 at [110]-[113]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16].

[65] There is a type of case illustrative of the requirement for parties to intend to effect legal relations where, whether they are bound, turns on whether they intended to be bound immediately (by an oral agreement or an informal written one) or did not intend to make a concluded bargain unless and until they executed a formal instrument. This category of cases is often referred to as a Masters and Cameron after the leading decision in Masters v Cameron (1954) 91 CLR 353 at 360; [1954] HCA 72 in which the High Court identified the following three categories of such cases: first, where the parties reach finality in arranging all the terms of their bargain and intend immediately to be bound but propose to have the terms restated in a form which would be fuller or more precise but not different in effect; second, where the parties have agreed upon all the terms of their bargain and intend no departure from or addition to their agreed terms but have made performance of one or more of the terms conditional upon the execution of a formal contract; and third, where they do not intend to make a concluded bargain at all unless or until they execute a formal contract.

[66] Subsequent cases have spoken of a fourth category, namely, where parties enter into an immediately binding agreement on certain specified terms and on such other terms as are either subsequently agreed by the parties or able to be determined by the Court: Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 627; Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 at [25]; Sagacious at [67]; Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 at [69].

[67] The existence of matters of importance on which the parties have not reached consensus in their informal agreement will render it less likely that they intended immediately to be bound before the execution of a formal document. That the terms have not been fully or well stated is material to whether a contract has been made. The more important the term, the less likely it is that the parties will have left it over for future decision, but there is no legal obstacle which prevents the parties agreeing to be bound now while deferring important matters: Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 14,551 at 14,579; ABC at 548; Sagacious at [73]; Feldman v GNM Australia [2017] NSWCA 107 at [60]-[61].

[68] Regard may be had to the parties’ subsequent communications and other conduct to assess whether it was in their contemplation that they were not to be bound until all the essential preliminaries had been agreed to or until the formal contract had been drawn up embodying all the matters incidental to the transaction: ABC at 547-8 and the authorities cited there; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25]; Howard Smith and Co Ltd v Varawa (1907) 5 CLR 68 at 78; [1907] HCA 38; B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9,147 at 9,155; Sagacious at [99].”

270. It was submitted on behalf of Mr White and Ms Cassidy that the Heads of Agreement falls within the first category or the fourth category referred to above. That submission relies on: (1) the words “[t]his agreement” in clauses 1 to 4 of the Heads of Agreement; (2) clause 3 of the Heads of Agreement, which provides that “[t]his agreement is commenced” with the $5,000 payment by Mr White and the signing and dating of “this agreement” by Mr White and Messrs Kohacek and Colley; (3) the statement in clause 4 that “[t]his agreement is to be converted into an agreement for the sale of land” as indicating an intention to be immediately bound albeit that the terms will be restated more fully in a contract for the sale of land, which will also contain the additional terms referred to in clause 6; and (4) the cooling off period.

271. It was submitted on behalf of Mr Kohacek that the Heads of Agreement falls within the third category referred to above, namely that the parties did not intend to make a concluded bargain at all unless and until they entered into a formal contract.

272. In my opinion, a reasonable person in the position of the parties would not have taken them to have intended by signing the Heads of Agreement to enter into a binding contract for the sale of a one-third interest in the Property to Mr White and Ms Cassidy and for an “irrevocable right of survivorship” in favour of Mr White and Ms Cassidy in respect of the remaining two-thirds interest in the Property.

273. As counsel for Mr Kohacek submitted, the usual method of selling interests in real property in New South Wales is by the execution and exchange of formal contracts in the form approved by the Real Estate Institute and the Law Society of New South Wales. Clause 4 of the Heads of Agreement expressly provided that the parties would enter into a formal contract prepared by the solicitors for Messrs Kohacek and Colley, and clause 6(c) expressly provided that exchange of contracts was conditional on: (1) execution of the formal contracts (which were yet to be prepared); and (2) Mr White and Ms Cassidy extinguishing the liability of Messrs Kohacek and Colley to Mr Corbett.

274. Contrary to the plaintiffs’ submissions, Mr White’s use of the words “[t]his agreement” in the drafting of the Heads of Agreement, and his description of it as an “agreement that is to be converted to” a contract for the sale of land, does not overcome those features of the substance of the terms referred to above which, in my opinion, clearly indicate that the parties did not intend by signing the Heads of Agreement to conclude an agreement for the sale of a one-third interest in the Property to Mr White and Ms Cassidy and for an “irrevocable right of survivorship” in their favour in respect of the remaining two-thirds interest in the Property.

Unconscionability

281. If I had concluded that the Heads of Agreement was a binding contract for the sale of a one-third interest in the Property and the grant of an “irrevocable right of survivorship” in favour of Mr White and Ms Cassidy, contrary to my determination above, I would have upheld Mr Kohacek’s claim of unconscionability and set aside the Heads of Agreement on that basis, on terms requiring Mr Kohacek to do equity by paying to Mr White and Ms Cassidy a sum equivalent to the total of the amounts referred to at [310].

282. As Kiefel CJ, Bell, Gageler, Keane and Edelman JJ said in Thorne v Kennedy: [80]

“A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage ‘which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests’. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring ‘victimisation’, ‘unconscientious conduct’, or ‘exploitation’. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”

283. These considerations are not to be applied as if they were separate elements of a cause of action. Each case calls for a precise examination of its particular facts, including the relationship between the parties, and the circumstances of the party who is said to have been vulnerable by reason of a special disadvantage. [81] There are no fixed or closed categories of circumstances that might constitute a special disadvantage but, in this context, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. [82]

284. In determining whether one party has unconscientiously taken advantage of a special disadvantage of the other, it is necessary to consider whether the first party had actual knowledge of, or was wilfully ignorant of, the special disadvantage, or had constructive knowledge of that special disadvantage in the sense that they had knowledge of facts from which they ought to have known that the other party was suffering under the particular special disadvantage. Constructive notice – where the first party is on notice of facts that might lead on inquiry to discovery that the other party has a special disadvantage – will not suffice. [83]

285. Where a special disadvantage is established and shown to have been exploited, making it prima facie unconscientious for the stronger party to have procured or accepted the weaker party’s assent to the impugned transaction, an evidentiary onus falls on the stronger party to show that the transaction was fair, just and reasonable. [84]

286. At the time they signed the Heads of Agreement, Mr Kohacek was aged 78 years and Mr Colley was aged 88 years. Mr Colley’s health had been declining since at least 2015. Although Mr Colley was not wholly dependent on Mr Kohacek for his personal care, Mr Kohacek was providing a significant and increasing level of care for Mr Colley, without any support from family members. They had become indebted for legal fees in pursuing litigation in which their claims had failed. As Mr White assessed their circumstances at the time, Mr Kohacek had an “intensity to commence legal proceedings” and enter into costs agreements which he and Mr Colley could not afford, rendering them financially vulnerable to the solicitors to whom they then owed those legal fees. In September 2019, they had no means of paying the debts that they had accrued out of their aged pension, which was their only source of income. They were at risk of having to sell their only asset, which had been their home since 1979 and to which they were emotionally attached. I have accepted Mr Kohacek’s evidence that he was struggling under the weight of the pressures generated by their debts and his increasing care responsibilities for Mr Colley, that he was sleep-deprived and very tired, that he felt that he was not coping well, and that he found it difficult to make decisions. I have found that Messrs Kohacek and Colley were suffering under financial and emotional pressure, which they felt to be immense, as a result of all of those circumstances taken together. As their dealings with Ms Qiu demonstrated, they were vulnerable to promising to bequeath their home to strangers who appeared to extend a hand of friendship (bringing meals and offering advice in the case of Ms Qiu, and conversation about a shared complaint in the case of Mr White) and to offer to absolve them of the pressure of their debts in a way that would not require them to sell their home during their lifetime. [85] In my opinion, all of those matters considered as a whole constituted a special disadvantage which seriously affected their ability to make a judgment as to whether or not it was in their best interests to enter into the Heads of Agreement recording their intention to enter into a contract to sell to Mr White and Ms Cassidy a one-third interest in the Property, for a price struck without a current market valuation of the Property, on terms that were heavily weighted in favour of Mr White and Ms Cassidy for all of the reasons I have already explained, and that included Messrs Kohacek and Colley embracing the prospect of Mr White (a near-stranger to them) and Ms Cassidy (a total stranger to them) caring for their wellbeing and assisting with their ongoing health issues as if they were family members . [86] I accept Mr Kohacek’s submissions to that effect. In my opinion, Mr Kohacek’s view of himself as a strong-willed man who knows his own mind and is capable of making decisions compounded his vulnerability at the time by giving him an unfounded sense of confidence in decisions that he made while suffering from the special disadvantage. [87]

Undue influence

293. Counsel for Mr Kohacek correctly acknowledged that his claim to set aside the Heads of Agreement on the grounds of undue influence invokes principles that are distinct from the principles applicable to unconscionability. Counsel nevertheless made no submissions addressing the central question raised by Mr Kohacek’s claim of undue influence: Were the acts of Messrs Kohacek and Colley in signing the Heads of Agreement “free”, or were they deprived of free choice by pressure exerted on them by Mr White causing them substantially to subordinate their will to the will of Mr White and Ms Cassidy? [91]

294. In light of my conclusions that the Heads of Agreement is not legally binding, and that it would be set aside on the grounds of unconscionability even if it had been held to be binding, it is not necessary to determine whether the Heads of Agreement would also be void or voidable on the grounds of undue influence. Had it been necessary to do so, I would have held that, although Mr White’s conduct in procuring Mr Kohacek and Mr Colley’s signatures to the Heads of Agreement exploited the special disadvantage under which he knew that Messrs Kohacek and Colley were suffering, it did not exert such pressure on them as to deprive them of free choice. Mr White’s conduct caused them to make a choice, in circumstances where their ability to judge whether that choice was in their own best interests was seriously impaired by their special disadvantage.

Contracts Review Act

295. Section 7(1) of the Contracts Review Act 1980 (NSW) provides:

7 Principal relief

(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following—

(a) it may decide to refuse to enforce any or all of the provisions of the contract,

(b) it may make an order declaring the contract void, in whole or in part,

(c) it may make an order varying, in whole or in part, any provision of the contract,

(d) it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that—

(i) varies, or has the effect of varying, the provisions of the land instrument, or

(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.

296. Section 9 of the Act sets out various matters to be considered by the Court in determining whether the contract, or a provision of the contract, is unjust in the circumstances relating to the contract at the time it was made.

297. The evaluative process required was explained in the following terms by Allsop P in Provident Capital Ltd v Papa: [92]

“The broad evaluation of unjustness under the Contracts Review Act 1980, s 4, s 7 and s 9 involves the normative evaluation of the totality of relevant circumstances. Inevitably minds may differ as to conclusions about such questions. Also, it is often not fruitful to compare other cases with the particular circumstances at hand, lest one be deflected from an appropriate overall assessment by focus on particular aspects relevant to any such comparison. Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances.”

298. It is not necessary to determine Mr Kohacek’s cross-claim relying on the Contracts Review Act in my view of my conclusions above. If I had determined that the Heads of Agreement was legally binding, then I would have held that, in addition to being liable to be set aside on the grounds of unconscionability, the Heads of Agreement was unjust in the circumstances relating to it at the time it was made for all of the reasons explained at [286]-[291] above. In particular, I would have held that: the circumstances constituting the special disadvantage of Messrs Kohacek and Colley gave rise to a material inequality of bargaining power between them and Mr White (s 9(2)(a)); that although Mr White read through the provisions of the Heads of Agreement with Messrs Kohacek and Colley before they signed it, those provisions were not the subject of negotiation (s 9(2)(b)); that those provisions were not properly explained to Messrs Kohacek and Colley by Mr White who discouraged them from seeking legal advice (s 9(2)(h) and (i)); that it was an unfair tactic of Mr White to present to them the Heads of Agreement which he had drafted and encourage them to sign it without explaining it to them, without the benefit of legal advice, and without even an opportunity to discuss it between themselves in Mr White’s absence (s 9(2)(j)); and that at least clause 6(k) of the Heads of Agreement was not reasonably necessary for the protection of the legitimate interests of Mr White and Ms Cassidy (s 9(2)(d)). I would have refused to enforce the provisions of the Heads of Agreement, conditional upon Mr Kohacek paying to Mr White and Ms Cassidy a sum equivalent to the total of the amounts referred to at [310].

Proprietary estoppel

299. Mr White and Ms Cassidy rely on the doctrine of proprietary estoppel by encouragement.

300. In order to succeed in that claim, Mr White and Ms Cassidy must establish: [93]

301. a clear and unequivocal representation or promise made to them by Messrs Kohacek and Colley that they would transfer a one-third interest in the Property to Mr White and Ms Cassidy, and that the remaining two-thirds interest would pass to them following the death of both Mr Kohacek and Mr Colley, on the terms of the Heads of Agreement;

302. that Messrs Kohacek and Colley intended, or that a reasonable person in their position would have intended, that they would rely upon that promise or representation by some action, omission or course of conduct;

303. that they did rely on that promise by acting, or omitting to act, in the general manner that would have been expected by Messrs Kohacek and Colley; and

304. that they will suffer detriment if the promise is not fulfilled, in the sense that they will be left in a worse position as a consequence of their reliance on the promise than if the promise had not been made.

305. The representations on which Mr White and Ms Cassidy claim to have relied are contained in the Heads of Agreement, or were made in the context of and clearly with reference to the Heads of Agreement. [94]

306. Mr White and Ms Cassidy did pay the debts that Messrs Kohacek and Colley owed to solicitors, made monthly payments to the Commonwealth Bank, paid some of the costs associated with maintaining and insuring the Property, and undertook certain work on the Property. Mr White and Ms Cassidy also provided company for Messrs Kohacek and Colley. Ms Cassidy provided food for them from time to time. Mr White was a listening ear for Mr Kohacek’s complaints against the local council and others who he considered had done wrong by him. [95] Those actions of Mr White and Ms Cassidy were referable to the Heads of Agreement.

307. As counsel for Mr Kohacek submitted, equity will not grant relief to avoid detriment that Mr White and Ms Cassidy will otherwise suffer as a result of relying on the Heads of Agreement, and statements by Messrs Kohacek and Colley referable to the Heads of Agreement, in circumstances where Mr White and Ms Cassidy unconscionably procured their signature to that document for the reasons I have explained above. The plaintiffs’ proprietary estoppel claim must therefore be dismissed. To the extent that Mr White and Ms Cassidy conferred benefits on Messrs Kohacek and Colley that are quantifiable in monetary terms, they are entitled to restitution, as counsel for Mr Kohacek accepted.

Joint endeavour constructive trust

304. Mr White and Ms Cassidy’s alternative claim for relief based on a “joint endeavour constructive trust” required them to demonstrate: [96]

305. the formation of a joint endeavour;

306. the acquisition of property pursuant to that joint endeavour; and

307. premature termination of the joint endeavour, without fault of any party, leaving one party with a legal interest which that party was not intended to enjoy beneficially in the circumstances. Equity will not permit that party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for them to do so.

308. It is necessary to identify the nature, scope and purpose of the alleged understanding between the parties that is said to constitute the joint endeavour, although the scope of that understanding may change from time to time. [97]

309. The Heads of Agreement sets out the foundation and scope of the joint endeavour on which Mr White and Ms Cassidy rely. Unconscionability being the ultimate basis for the imposition of a joint endeavour constructive trust, equity will not grant the relief sought by Mr White and Ms Cassidy on the basis of a joint endeavour constructive trust in circumstances where the joint endeavour is the product of their unconscionable conduct for the reasons I have explained above.

310. I do not find it necessary to address the further difficulty that the relief sought by Mr White and Ms Cassidy on the basis of a joint endeavour constructive trust would have delivered to them a greater interest in the Property during Mr Kohacek’s lifetime than had been contemplated by the Heads of Agreement.

Common intention constructive trust

308. The plaintiffs’ common intention constructive trust claim must fail for the same reason – the intention that Mr White and Ms Cassidy would have some proprietary interest in the Property is founded in the Heads of Agreement, which is tainted by the unconscionable conduct of Mr White and Ms Cassidy and which would have been set aside on that basis if it had been legally binding. [98]

309. In light of that conclusion, it is not necessary for me to address the further difficulty that the relief sought by Mr White and Ms Cassidy on the basis of a common intention constructive trust would have delivered to them a greater interest in the Property during Mr Kohacek’s lifetime than had been contemplated by the Heads of Agreement. Nor is it necessary for me to express any view about whether a common intention constructive trust is even available under Australian law in circumstances where proprietary estoppel has been rejected. [99]

Money had and received

310. Mr Kohacek accepts that Mr White and Ms Cassidy are entitled to be reimbursed for the following payments made in connection with the Property and the Heads of Agreement:

311. the sum of $5,000 paid to Messrs Kohacek and Colley on or about the date of signing the Heads of Agreement; [100]

312. the total sum of $51,946.40 paid to Mr Corbett during the period from 20 September 2019 to 30 October 2020 to discharge debts owing to him by Messrs Kohacek and Colley; [101]

313. the total sum of $1,504.13 paid to Mr Weller during the period from 9 October 2019 to 8 January 2020 to discharge debts owing to him by Messrs Kohacek and Colley; [102]

314. the total sum of $92,643.94 paid to McQiu Lawyers during the period from 11 November 2020 to 12 July 2021 to discharge debts owing to that firm by Messrs Kohacek and Colley; [103]

315. the total sum of $106,600 paid to the Commonwealth Bank of Australia during the period from 1 November 2019 to 21 October 2024, and any further payments made by the plaintiffs to the Commonwealth Bank of Australia in the period from 21 October 2024 to the date of these reasons for judgment, to reduce the liability of Messrs Kohacek and Colley (and, after the death of Mr Colley, the liability of Mr Kohacek) under the loan secured by mortgage registered against the title to the Property; [104]

316. the total sum of $12,353.43 paid for rates and insurance in respect of the Property in the period from 9 December 2019 to 2 September 2024, and any such payments made in the period from 2 September 2024 to the date of these reasons for judgment; [105]

317. the sum of $777.20 paid on 15 March 2021 to repair leaks to the dam on the Property; [106] and

318. the sum of $6,597.60 paid during the period from 26 April 2022 to 3 October 2022 in respect of Mr Colley’s funeral costs. [107]

319. The evidence does not provide a sufficient basis for me to find that Mr White and Ms Cassidy are entitled to be reimbursed for any part of the cost of the new ride-on mower purchased in April 2021. [108]

320. For the reasons I have already explained, Mr White and Ms Cassidy are not entitled to be reimbursed or compensated for their costs incurred in selling the Orange property, or the loss of profit that they claim to have suffered as a result of selling that property in December 2020 rather than continuing to hold it to the present day. [109]

321. The appropriate basis of those amounts for reimbursement is restitution as money had and received, as counsel for Mr Kohacek acknowledged. Counsel correctly accepted that there is no reason to deny the plaintiffs’ claim for pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on judgment in their favour for moneys had and received.

Cross-claim for damages

315. As I have mentioned earlier in these reasons, Mr Kohacek’s cross-claim for damages in the amount of $1,000,000 was abandoned on the first day of the hearing.

Conclusion and orders

316. For all of the foregoing reasons, the Court will make orders to the following effect:

317. Judgment for the plaintiffs against the defendant in a sum to be calculated as:

(a) $277,422.70, being the total of the known amounts referred to in paragraph [310] of the reasons for judgment published on 12 September 2025; plus (b) the total amount of any payments made by the plaintiffs to the Commonwealth Bank of Australia in the period from 21 October 2024 to 12 September 2025 which have been applied to reduce the liability of the defendant under the loan secured by mortgage registered against the Property; plus (c) the total amount of any payments made by the plaintiffs during the period from 2 September 2024 to 12 September 2025 in for council rates and insurance in respect of the Property.

2. Order the defendant to pay interest to the plaintiffs on that judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) in an amount to be quantified, calculated separately in respect of each amount comprising part of that judgment sum, from the date on which the plaintiffs paid that amount.

3. Order that the plaintiffs’ claims for relief are otherwise dismissed.

4. Order that the cross-claim is dismissed.

5. The parties will need to bring in short minutes of order to that effect after agreeing the calculation of the judgment sum in accordance with (1) above and the calculation of the amount of interest in accordance with (2) above. Those short minutes of order should also set out any order that is agreed between the parties as to the costs of the proceedings or, failing agreement, the competing orders sought by the parties as to costs. If the parties propose competing orders in relation to costs, the short minutes of order should be accompanied by each party’s written submissions of no more than three pages in length in support of the costs order for which they contend.

**********

Endnotes

(1995) 49 NSWLR 315 at 319.

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing); GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 at [59]-[60] (Kiefel CJ, Gageler and Jagot JJ) (GLJ).

ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, as the Chief Justice then was, Bathurst CJ agreeing).

GLJ at [60].

See [73], [80], [100] and [130]-[133] below.

See, for example, [118] below.

See [115] below.

See, for example, [118], [132] and [201] below

See, for example, [103], [156] and [191]-[194] below.

For example, T214-218.

See, for example, [228]-[230] below.

See [36]-[38] above.

See [54] above.

See [78] above.

See [79] above.

See [81] above.

See [82]-[83] above.

See [83] above.

See [30] above.

See [73] above.

See [76]-[77], [96] and [99] above.

See [91] and [102] above.

See [42] and [49]-[57] above.

See [47]-[57] and [74] above.

See [73] above.

See [95] and [98] above and [109] below.

See [94] above.

See [78]-[80] and [92]-[93] above.

See [79]-[80] above.

See [80]-[81], [93], [96] and [100] above.

See [80] above.

See [81] above.

See [87]-[88] above.

See [104] above and [158]-[159] below.

See [82]-[85] and [97] above.

See [89] above.

See [94]-[95], [98] and [105] above.

See [86], [90], [95], [101] and [105] above.

See [94] above.

See, for example, clauses 6(k) and 6(s) of the Heads of Agreement set out at [120] below.

See [79] above.

See [164] below.

See [28] above.

See [234] below.

See [141]-[147] and [152]-[153] below.

See [64]-[68] above.

See [113] above.

See [42] and [63]-[68] above.

See [64]-[68] above.

Williams v Legg (1993) 29 NSWLR 687 at 691-693 (Handley, Sheller and Cripps JJA); Hogan v Baseden (1997) 8 BPR 15,723 at 15,723 (Mason P) and 15,726 (Beazley JA, as Her Excellency then was, Stein JA agreeing); Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36]-[43] (Tobias AJA, Bergin CJ in Eq agreeing) and [71] (Emmett AJA) (Ferella); Foundas v Arambatzis [2020] NSWCA 47 at [62]-[63] (White JA, with the concurrence of Bell P, as the Chief Justice then was, and Basten JA).

Woodson (Sales) Pty Ltd v Woodson (Australia)Pty Ltd (1996) 7 BPR 14,685 at 14,701 (Santow J, as his Honour then was); Vacation Club Ltd v A GG Properties Pty Ltd [2019] NSWSC 1357 at [33] (Darke J); (2019) 19 BPR 39,799; see also Pascoe v Dyason [2011] NSWSC 1217 at [7] (Black J), which was cited with approval in Ferella at [36] (Tobias AJA, Bergin CJ in Eq agreeing).

See [69]-[72] above.

See [118] above.

See [183] below.

See [135]-[138] above.

See [140] above.

See [130]-[131] above.

See [118] above.

See [172]-[173] and [176] above.

See [49]-[58], [62] and [158]-[162] above.

See [223]-[224] below.

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14]-[15] (Hodgson JA, Beazley JA, as Her Excellency then was, agreeing); GLJ at [58] (Kiefel CJ, Gageler and Jagot JJ).

See [207]-[208], [256] and [258] below.

See [183]-[184] above.

See, for example, [203] below.

See [159] above.

See [190] above.

See [252]-[254] below.

See [197] above.

See [181] above.

See [221] above.

[2023] NSWCA 102 at [64]-[68] (Bell CJ, Hammerschlag CJ in Eq and Adamson JA). See also Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (formerly Hawker Pacific Pty Ltd) [2025] FCAFC 85 at [150]-[158] (Derrington J), [258]-[261] (Cheeseman J), and [262]-[275] (Jackman J).

Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] (French CJ, Hayne, Crennan and Kiefel JJ); Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [78] (Gageler, Nettle and Gordon JJ); J & P Marlow (No 2) Pty Ltd v Hayes & McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117 at [89]-[90] (Meagher and Kirk JJA).

See [176] and [183] above.

See [199]-[202] above.

See [203]-[206] above.

See [184] and [197] above.

See [228]-[229] above.

See [178] above.

(2017) 263 CLR 85; [2017] HCA 49 at [38] (citations omitted) (Thorne v Kennedy).

Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 at [39] (Kiefel CJ, Keane and Gleeson JJ).

Ibid at [40] (Kiefel CJ, Keane and Gleeson JJ), referring to Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 (Amadio) at 462 (Mason J); [1983] HCA 14.

Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 at [4]-[10] (Bell CJ) and [197]-[199] (White JA) (Nitopi). Whilst it may be arguable that constructive notice is sufficient, it would not be open to me as a trial judge to accept such arguments as I am bound by the Court of Appeal’s judgment in Nitopi: Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102.

Amadio at 474 (Deane J); Nitopi at [35]-[41] (Bell CJ) and [140]-[147] (Ward P).

See [32]-[119] and [137] above.

See [141]-[147] and [152]-[153] above.

See [250]-[251] above.

See [119] and [150] above.

See [120]-[153] and [178] above.

See [149] above.

Amadio at 461 (Mason J) and 474 (Deane J); Thorne v Kennedy at [30]-[34] and [39]-[40] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).

(2013) 84 NSWLR 231; [2013] NSWCA 36 at [7] (Allsop P, Sackville AJA agreeing).

Kramer v Stone [2024] HCA 48; (2024) 421 ALJR 106 at [36]-[41] (Gageler CJ, Gordon, Edelman and Beech-Jones JJ).

See, for example, [203] and [228]-[229] above.

See [170]-[181] and [217]-[233] above.

Muschinski v Dodds (1985) 160 CLR 583 at 620 (Deane J); [1985] HCA 78; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148 (Mason CJ, Wilson and Deane JJ); [1987] HCA 59; McKinlay v Woods [2024] NSWCA 122 at [80]-[85] (Leeming JA, White JA and Griffiths AJA agreeing) (McKinlay v Woods).

Zhang v Metcalf [2020] NSWCA 228 at [57] (Gleeson JA, Payne and White JJA agreeing); McKinlay v Woods at [89] (Leeming JA, White JA and Griffiths AJA agreeing); Hellenic Property Holdings Pty Ltd v Makaritis [2025] NSWCA 13 at [81] (Mitchelmore JA, Basten and Griffiths AJJA agreeing).

Shepherd v Doolan [2005] NSWSC 42 at [30]-[47] (White J, as his Honour then was); Bassett v Cameron [2021] NSWSC 207 at [564]-[565] (Ward CJ in Eq, as her Honour then was), referred to with approval in Galati v Deans [2023] NSWCA 13 at [148]-[149] (Basten AJA, Macfarlan JA agreeing) (Galati v Deans).

Galati v Deans at [57]-[61] (White JA) and [148]-[149] (Basten AJA, Macfarlan JA agreeing), and the authorities there referred to.

As referred to at [154]-[157] above.

As referred to at [172] and [176] above and itemised in Part B3 of Schedule B to the plaintiffs’ written closing submissions.

As referred to at [173] and itemised in Part B4 of Schedule B to the plaintiffs’ written closing submissions.

As referred to at [181] above and itemised in Part B2 of Schedule B to the plaintiffs’ written closing submissions.

As referred to at [174] above and itemised in Part B7 of Schedule B to the plaintiffs’ written closing submissions.

As referred to at [175] above and itemised in Part B8 of Schedule B to the plaintiffs’ written closing submissions

As referred to at [220] above and itemised in Part B5 of Schedule B to the plaintiffs’ written closing submissions.

As referred to at [233] above and itemised in Part B6 of Schedule B to the plaintiffs’ written closing submissions.

See [220] above.

See [199]-[202] above.

See Grant v Grant [2020] NSWSC 760 at [42]-[44] (Rein J) and the authorities there referred to.

Amendments

12 September 2025

12 September 2025 - Paragraph numbering error

26 September 2025

Amendment to coversheet details - representation